1828217 (Refugee)
[2024] ARTA 51
•13 November 2024
DECISION AND
REASONS FOR DECISION
1828217 (Refugee) [2024] ARTA 51 (13 November 2024)
Respondent: Minister for Home Affairs
Tribunal Number: 1828317
Tribunal:General Member J. Pennell
Date:13 November 2024
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets s 36(2)(a) of the Migration Act.
Statement made on 13 November 2024 at 12:48pm
CATCHWORDS
REFUGEE – protection visa – Afghanistan – race – Pashtun – religion – Sunni Muslim – family working for the Coalition – reporting a Taliban bomb threat – killing of the applicant’s father – returnee from a western country – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
C v MIMA (1999) 94 FCR 366
Chan v MIEA (1989) 169 CLR 379
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Devarajan v MIMA [1999] FCA 796
Guo v MIEA; Pan v MIEA (1996) 64 FLR 151
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Y [1998] FCA 515
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38
Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999)
Welivita v MIEA (Federal Court of Australia, Lindgren J, 18 November 1996)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Afghanistan, applied for a Temporary Protection visa (Subclass 785) (TPV) on 9 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The IAA affirmed the delegate’s decision to refuse to grant the protection visa to the applicant.
[In] October 2018, the Federal Circuit Court declared that the review applicant was not correctly notified of the delegate’s decision to refuse his TPV. As a result, on 15 February 2019, the Department renotified the applicant of the delegate’s refusal of his visa application and advised him that he had the right to apply to the Administrative Appeals Tribunal (AAT) (as the Tribunal was known at that time) for review of the delegate’s decision to refuse his application.
On 17 September 2020, the Department advised the applicant that he was declared not to be an unauthorised maritime arrival (UMA), due to the judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 and advised to make a further application for a protection visa. As a result, on 21 October 2020, the applicant made a further application for a protection visa.
On 21 June 2023, the Department advised the applicant that due to the Federal Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63 (CBW20) his protection visa application dated 21 October 2020 was invalid and his application for review of the delegate’s decision to refuse his application made on 9 November 2016 remains a valid application for review.
The applicant appeared before the Tribunal on 10 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANT’S BACKGROUND
Applicant’s identity
The applicant claims that he was born on [DOB 1] in [Village 1], [District 1], Paktia Province, Afghanistan.[1] The applicant’s evidence was that he is unsure of his birth date, but for the purposes of his visa application his birth date has been listed as [DOB 1]. The applicant claimed that it is common in Afghanistan for people in rural areas not to have their date of birth recorded. The applicant’s evidence was that in his Tazkera his birth date was recorded when he was [age] years old in 1389 according to the Shamsi calendar (2010 Gregorian calendar), implying he was born in [year].[2] The country information[3] reports that the Tazkera in Afghanistan gives only an approximate age at the time of issuing the document due to the fact that most Afghans have little awareness of their own date of birth or are unsure of their exact date of birth. The applicant also provided the Department with a copy of his national identity card (with English translation)[4] in support of his identity as claimed. All the documents recorded the applicant’s place and date of birth as claimed by the applicant.
[1] Application for Protection dated 10 November 2016 Dept File [number] Doc ID 13243806
[2] Applicant’s submission ART File No 1828317 Doc ID:13535467 [25]
[3] Landinfo Report: Afghanistan: Tazkera, Passports and other ID documents, 22 May 2019 Applicant’s Afghanistan ID Card Dept File No: Applicant’s Afghanistan ID Card Dept File [Number] Doc ID: 13243837
The country information reports[5] that it is not uncommon for Afghans to use different names for different circumstances. That is, they may be known by one name by their friends and family and another by his/her employer. Despite efforts to improve e‑governance in Afghanistan in recent years, the US Embassy report that ‘most, if not all, Afghan documents are ripe for fraud as they remain handwritten, usually unsealed and quite commonly do not contain true information.’[6] Nevertheless, the Tribunal notes that ongoing conflicts in Afghanistan have produced one of the largest forced displacements in the world.[7] Initially, it was believed that conflict in Afghanistan has forced five to six million people to take refuge in Pakistan and Iran. As a result, it’s reported[8] that second, third and even a fourth generation of Afghan refugees are currently living in Pakistan and that millions of refugees from Afghanistan have lived in Iran[9] and Pakistan[10] with or without documentation over the past 40 years.[11]
[5] Documentation Problems for Asylum Seekers and Refugees from Afghanistan, by Ali Reza Yunespour October 2021; Ibid; US Embassy Kabul. (2011). A guide to Afghan documents. p. 3
[7] Ibid; World Bank. (2017). Afghanistan’s forced displacement legal and policy framework assessment. Ibid; European Asylum Support Office. (2020). Pakistan: situation of Afghan refugees. n_of_Afghan_Refugees.pdf, p. 15
[9] UNHCR. (2011). UNHCR Global Appeal 2010-2011. Ibid; Margesson, R. (2007). ‘Afghan refugees: current status and future prospects, US Congressional Research Service. Ibid; European Asylum Support Office. (2020). pp. 32-36; >
Despite the country information that reports Afghan documents are ripe for fraud, in this case, there was no evidence to suggest the documents provided were bogus. As such, the Tribunal, based on the applicant’s evidence, the available country information and the documents provided by the applicant accepts the applicant’s identity as claimed.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Afghanistan and as such his protection claims will be assessed against Afghanistan as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant arrived in Australia by boat on illegal vessel [number] [in] April 2013.[12] On 9 November 2016, the applicant made an application for a Temporary Protection visa (Subclass 785) (‘the TPV application’). On 2 February 2018, the Department refused the applicant’s TPV application. The applicant has not departed Australia since the date of his arrival.
Applicant’s claims for protection
[12] Applicant’s Movement Record; ART 1828317 Doc ID:13475020
The applicant’s claims for protection are outlined in his application for a protection visa detailed in his statutory declaration dated 3 November 2016 that accompanied his protection visa application.[13] The delegate summarised the applicant’s claims as follows:[14]
[13] Applicant’s Protection visa application dated 10 November 2016; Dept File [Number] Doc ID: 13243806 & 5235727
[14] Protection Visa Decision Record dated 18 December 2019; ART file No 1935883 Doc ID 6728108
·The applicant is a Sunni Muslim Pashtun from [Village 2], [District 1], Paktia province, Afghanistan.
· His father worked as [an occupation 1] for the coalition [with specified duties].
· Because his father worked for the coalition forces he lived in fear of the Taliban and would only return to his village when it was safe to do so.
· The Taliban would sweep through their district, place checkpoints on the road, ambush coalition convoys, behead road workers and kidnap and beat villagers.
· The applicant was walking home from neighbouring [Village 3] one day when he notices wires under a small bridge. He reported it to the local border police who asked him to go to the bridge with them, but he refused because he didn’t want to be identified as the person who reported the finding.
· The applicant stated at interview that he did go with the border police to show them the wires.
· The border police identified the wires as belonging to an unexploded bomb set by the Taliban.
· The applicant did not know that it was a bomb when he reported it.
· The police reported the bomb to the coalition forces who came five hours later to defuse the bomb.
· The coalition forces rewarded him by paying him $[amount] for finding the device.
· People in his village asked him why the police had taken him to the coalition base and he told them he had been rewarded for discovering the bomb.
· In the village there were some people close to the Taliban and the applicant believes one of them must have told the Taliban about him provided information to the coalition forces.
· Two months later a letter was left on their doorstep saying the applicant should be handed over to the Taliban, and if he was not they would come and take him.
· The applicant reported the letter to the police and tribal leaders but they said letters like that were common and difficult to trace.
· Four weeks later the Taliban came to his house and attempted to break down the door. The applicant’s father fought with them. The applicant’s mother told them to run with her to their neighbour’s house and hide, which they did.
· The applicant heard many gun shots. He is not sure whether his father was armed. The neighbour who was hiding him went to their house, which was next door and told them his father had been killed.
· The neighbour said they should flee immediately as the Taliban were likely to return soon
· That evening the applicant, his mother and brother fled to Pakistan, stopping overnight in Peshawar and then going to Peshawar.
· Neither the applicant, his mother nor his brother have ever returned to the village, and they left all of their personal possessions there including his Taskera and identity documents.
· In Peshawar they stayed with his [Relative A] who is a Pakistani citizen.
· His [Relative A] arranged with people smugglers for the applicant to travel to Australia.
· The Taliban have access to, and sympathisers in every part of Afghanistan.
· The applicant does not have access to protection or ‘safe’ areas in Afghanistan.
· If he returned, the Taliban would eventually become aware that he was in the country and would hunt him down. They have killed his father and would have no hesitation in killing him.
· The Government cannot protect foreign personnel, nor its own citizens or law enforcement officers or members of its army, from harm from the Taliban.
· It is well known that the Taliban target people who collaborate with the coalition forces. Nowhere in Afghanistan is safe for the applicant. The applicant has no right to return to Pakistan.
The applicant’s evidence.
In addition to his oral evidence to the Tribunal the applicant provided the Department a statutory declaration dated 3 November 2016.[15] His evidence is that he was born in [Village 1], [District 1], Paktia Province, Afghanistan. As referred to above the applicant’s evidence was that he did not know his exact date of birth and as a result his visa application refers to his birth date as [DOB 1]. Based on the available country information referred to above the Tribunal has accepted that it is common in Afghanistan for people in rural areas not to have their date of birth recorded. The applicant’s evidence was that in his Tazkera his birth date was recorded that he was [age] years old in 1389 in the Shamsi calendar (2010 Gregorian calendar), implying he was born in [year].[16] The applicant claims that he is an Afghan national and a Sunni Muslim.
[15] Applicant’s statutory declaration dated 3 November 2016 Dept File [Number] Doc ID: 13243806
[16] Applicant’s submission ART File No 1828317 Doc ID:13535467 [25]
The applicant’s father was killed by the Taliban in or about 2012. The applicant’s mother currently lives in Peshawar, Pakistan. The applicant’s evidence was that his father worked for the coalition forces as [an occupation 1]. His mother was engaged in home duties. The applicant has one brother who continues to live in Peshawar, Pakistan.
The applicant’s evidence was that he did not attend school because there were no teachers due to the conflict between the Taliban and the coalition forces. The applicant’s evidence was that he spent the time he should have been school at home.
The applicant’s evidence was that because his father worked as [an occupation 1] for the coalition forces, he lived in fear of being targeted by the Taliban. He lived under constant threat and would return home only when he considered the security situation to be stable and safe to do so. The applicant’s evidence was that the Taliban would sweep through their district, placing checkpoints on the roads to control traffic movements. His evidence was that the Talban would from time to time ambush coalition convoys and kill the road workers repairing the roads for the coalition. His evidence was that while members of the Taliban would work within the community without being detected, they would kill and kidnap village members without warning.
The applicant’s evidence was that in or about 2011 he was walking home in a neighbouring village, known as [Village 3], when he noticed some wires under a small bridge. The applicant reported the wires to the local border police at the next checkpoint on the road home. The applicant’s evidence was that police requested that he return to the bridge with them to help locate the wires. The applicant’s evidence was that the police identified the wires as belonging to an unexploded bomb set by the Taliban. As a result, they reported the bomb to the coalition security forces who attended and defused the bomb approximately five hours later. The applicant claims that the border police told the coalition security forces that he had discovered the bomb, and because of this he was awarded US$[amount] by the security forces.
The applicant’s evidence was that people in his village asked him why he had been taken by the police to the coalition security forces base. The applicant explained to them that he had discovered a bomb on the bridge and had informed the police. The applicant believes that some of the village members were close to the Taliban and informed them that he had discovered the bomb and helped the police locate the bomb to be defused.
The applicant’s evidence was that two months after he discovered the bomb the applicant received a letter demanding that he turn himself over to the Taliban. The applicant claims that he reported the letter to the police, but they dismissed it stating that such letters were common and difficult to trace.
The applicant’s evidence was that four weeks later the Taliban came to the applicant’s home. The applicant claims that his father confronted the Taliban members when they arrived upon which he was shot and killed. The applicant’s evidence was at the time he was inside the house and did not hear what was said between his father and the Taliban. Nevertheless, his evidence was that his mother instructed the applicant and his brother to run to their neighbour’s home. The applicant’s evidence was that in the village each of the houses had doors that enable access between each home without having to go outside. The applicant’s evidence was that he and his brother were sent to their neighbour’s home, [Neighbour A], to hide from the Taliban. The applicant's evidence was that [Neighbour A] hid them in a small room in his home until the Taliban left. As a result, the applicant’s evidence was that he did not witness what happened between his father and the Taliban. Nevertheless, he claims that he heard many gunshots while hiding. After the Taliban had left, [Neighbour A] came for him and his brother and told them that their father had been killed. The applicant provided the Department with a police report (untranslated)[17] in relation to his father death.
[17] Police Report of applicant’s father’s death Dept File [number] Doc ID: 13243845
The applicant’s evidence was that [Neighbour A] told them that the Taliban would return and that they needed to leave their home. As a result, that evening [Neighbour A] drove the applicant, his mother and brother to Parachinar in Pakistan. The applicant’s evidence was that the Pakistan border was very close to his village (approximately [distance]) and at that time it was very easy to cross the border into Pakistan. The applicant stated that it took approximately [time] to drive to Parachinar. The applicant’s evidence was that they arrived at Parachinar at approximately 3.00 am. As a result, they waited at the bus terminal in Parachinar in [Neighbour A’s] car until the morning before catching a bus to Peshawar, Pakistan, to stay with his [Relative A]. His evidence was that his [Relative A] had moved to Peshawar, Pakistan, during the time of the Russian invasion of Afghanistan. The applicant did not know if his [Relative A] was a Pakistan citizen. The applicant’s evidence was that the bus trip from Parachinar to Peshawar took approximately five hours. He claims that because they left home so quickly, they left all their personal possession behind, including the applicant’s Tazkera and identity documents.
The applicant’s evidence was that after about a month his [Relative A] told him that because he was older, he was at risk of being returned to Afghanistan. As a result, his [Relative A] arranged with people smugglers for him to travel to [Indonesia]. The applicant’s evidence was that when he left Pakistan, he was given a false Pakistan passport that had his photo and the false name of ‘[name].’ The applicant’s evidence was that when he arrived in [one location] the people smuggler forced him to hand over the false passport and make the journey to Indonesia [without documentation]. In Indonesia, the applicant registered with the UNHCR. Seven months later the applicant left for Australia from Indonesia by boat in March 2013. The applicant travelled for four days before being intercepted by the Australian Navy.
In Australia, the applicant was married in 2017. The applicant’s wife holds a [Qualification 1]. The applicant and his wife have [specified children] born [on specified dates] respectively. The applicant is currently employed as [an occupation 2] for a company known as ‘[Employer 1]’. The applicant’s evidence is that his children are not able to obtain Pakistan citizenship from their mother as citizenship is determined by the father.
The applicant claims that there is real chance and/or a real risk he will be seriously or significantly harmed by the Taliban if he is returned to Afghanistan. The applicant claims that the Taliban have access to, and sympathisers in, every part of Afghanistan, and as a result would eventually become aware that he was in the country and hunt him down. The applicant claims that having killed his father, the Taliban will have no hesitation killing him.
Evidence of [Witness A]
[Witness A] gave evidence to the Tribunal by telephone. His evidence to the Tribunal was that in Afghanistan, the Taliban monitor phone calls. As a result, he was at risk of being investigated and harmed as a result of giving evidence on behalf of the applicant.
[Witness A’s] evidence was that he knows the applicant because the applicant’s father and his father were cousins. [Witness A’s] evidence was that he was born in the same village as the applicant and continues to live in [Village 1], [District 1], Paktia Province, Afghanistan. His evidence was that he is aged [age] years, married, and has [number] children. He works in the construction industry but claimed that he had previously worked with foreign organisations while the coalition forces were in Afghanistan. He initially attended school in the village but was not able to continue because of a lack of security in the area.
[Witness A] confirmed to the Tribunal that the applicant is from [Village 1] as claimed. In addition, he confirmed the applicant’s evidence that the applicant’s father had been killed by the Taliban a result of which the applicant and his family moved to live with the applicant’s [Relative A] in Peshawar, Pakistan.
Applicant’s documents
The material submitted by the applicant in support of his claim included:
(a)Statutory declaration dated 3 November 2016.[18]
(b)Identity document [the applicant’s name], [Number] (translated).[19]
(c)Police report of applicant’s father’s death (untranslated).[20]
(d)Facebook photos of applicant’s brother, [named].[21]
(e)Photo of [this brother].[22]
(f)Screenshots of [Person A].[23]
(g)Facebook photos of [Person B].[24]
(h)Applicant’s mother’s identity document (untranslated).
(i)World Bank Fertility Rates (births per women).[25]
(j)Applicant’s undated submission received 10 September 2024.[26]
[18] Statutory declaration dated 3 November 2016 Dept File [number] Doc ID:13243806
[19] Applicant’s Taskera; Dept File [number] Doc ID: 13243837
[20] Police Report of applicant’s father’s death Dept File [number] Doc ID: 13243845
[21] Facebook photos of [the applicant] Dept File [number] Doc ID: 13243885
[22] Photo of [the applicant] Dept File [number] Doc ID: 3243920
[23] Screenshots of [Person A]; Dept File [number] Doc ID: 13243885
[24] Facebook photos of [Person A] Dept File [number] Doc ID: 13243896
[25] Afghanistan Fertility Rate Dept File [number] Doc ID:13243897
[26] Applicant’s submission ART File No 1828317 Doc ID:13535467
COUNTRY INFORMATION
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has considered the current DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) dated 14 January 2022 (the DFAT Report). In particular, the Tribunal has considered those parts of the DFAT Report as detailed in Annexure ‘A’ of these Reasons.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which may affect how an applicant answers questions by the Tribunal. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[27] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[28]
[27] Section 5AAA of the Act.
[28] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.[29]
[29] Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194.
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[30] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.
Accepted facts.
[30] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at [196].
Based on the applicant’s evidence and the documentary evidence provided to the Department, the Tribunal accepts and finds that:
(a)The applicant was born in [Village 1], [District 1], Paktia Province, Afghanistan, in [year].
(b)He is an Afghan national.
(c)He is a Sunni Muslim.
(d)The applicant did not attend school.
(e)The applicant’s mother and brother continue to live in Pakistan with his [Relative A].
(f)The applicant was married in Australia in 2017 and has [specified children] born on [specified dates] respectively.
Applicant’s claim as a refugee
A past fear of persecution is not sufficient
A past fear may be a relevant consideration in determining if the applicant has a well‑founded fear of persecution. However, the approach as applicable to s 5H(1) of the Act is whether the applicant is outside his or her country owing to a present, well‑founded fear of persecution for a reason that falls within the scope of s 5J(1)(a) of the Act, and they are unable or unwilling, due to the present and well-founded fear, to avail themselves of the protection of that country.[31]
Applicant’s relevant grounds
[31] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act.
The applicant did not make any direct submission as to how his claim falls within s 5J(1)(a) of the Act.[32] Nevertheless, it was open to the applicant to submit that his claim does fall within s 5J(1)(a) of the Act because of his imputed political opinion. The applicant’s evidence was that he fears returning to Afghanistan because the Taliban killed his father since he worked for the coalition forces as [an occupation 1] and because the applicant reported a bomb on a local bridge to the police. As such, it was open for the applicant to claim he has a well-founded fear of persecution if he returns to Afghanistan because of his imputed political opinion as a person opposed to the Taliban regime.[33]
[32] Applicant’s submission ART File No 1828317 Doc ID:13535467
[33] Ibid
A political opinion need not be an opinion that is held by the refugee. It is sufficient that such an opinion be imputed to the applicant by the persecutor.[34] In Saliba v MIMA, when considering the Refugee Convention,[35] the Court held:
... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.[36]
[34] MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at [416], [433]
[35] 1951 Convention Relating to the Status of Refugees; v MIMA (1998) 89 FCR 38 at [49]
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (the UNHCR Handbook) provides[37] that holding political opinions different from those of the government is not in itself a ground for claiming refugee status. An applicant must show that he has a fear of persecution for holding such opinions. Nevertheless, it may be reasonable to assume that an applicant’s opinion will, sooner or later, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have a fear of persecution due to their political opinion.
[37] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80]–[86]; Chan v MIEA (1989) 169 CLR 379 at [392]
The UNHCR Handbook provides that in determining whether an applicant can be considered a refugee due to their political opinion, regard should also be had to the applicant’s personality, political opinion, the motive behind the act, the nature of the act committed, the nature of the persecution and its motives and the nature of the law on which the persecution is based. These elements may go to show that an applicant has a fear of persecution and not merely a fear of persecution and punishment for a particular act.[38]
[38] UNHCR Handbook at [80]–[86]; Welivita v MIEA (Federal Court of Australia, Lindgren J, 18 November 1996)
In MIMA v Y, Davies J noted that ‘[t]he words “political opinion” are ordinary words of the English language and have not been the subject of judicial exposition limiting their meaning in the context of the Refugees’ Convention’.[39] The Court held that ‘in the context of the Refugees’ Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder ... held views which were contrary to the interests of the State, including the authorities of the State’.[40]
[39] MIMA v Y [1998] FCA 515 at [4] and [5]
[40] Ibid
In C v MIMA,[41] Wilcox J found that the term ‘political opinion’ was broader than adherence to a political party or support for its policies.[42] The Court considered that the term ‘political opinion’ extends to any action which is perceived to be a challenge to government authority and included any action which constituted a challenge to a group opposed to the government.[43]
[41] C v MIMA (1999) 94 FCR 366
[42] Ibid at [375]
[43] Ibid at [373]. In support of this point the Court cited the Canadian Supreme Court decision of Attorney-General of Canada v Ward (1993) 103 DLR (4th) 1. See also Devarajan v MIMA [1999] FCA 796 at [26]
Having considered the applicant’s evidence and the relevant country information as referred to below, the Tribunal accepts that he may be imputed with the political opinion of being opposed to the Taliban regime because his father worked for the coalition forces and because he reported a bomb planted by the Taliban as claimed. As such, the Tribunal accepts that the applicant’s claim does fall within s 5J(1)(a) of the Act because of his political opinion.
The applicant’s well-founded fear
Section 5J of the Act states that for the purposes of an application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and if there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
In Chan v MIEA[44] the Court held that, when considering ‘well-founded fear’ for the purposes of the Refugee Convention, it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted ...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[45]
[44] (1989) 169 CLR 379 at [396].
[45] (1989) 169 CLR 379 at [396]. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.
However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[46] stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[46] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.
In MIEA v Guo, the Court stated that:[47]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well‑founded if it is merely assumed or if it is mere speculation.
[47] MIEA v Guo (1997) 191 CLR 559 at [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293].
For the reasons detailed below, the Tribunal accepts that the applicant has a well-founded fear of persecution, on a subjective and an objective basis, if he is returned to Afghanistan.
The applicant’s implied political opinion
The applicant claims that there is a real chance he will be seriously harmed if he is returned to Afghanistan because the Taliban killed his father because he had worked for the coalition forces as [an occupation 1]. In addition, the applicant claimed that because he reported a bomb on a local bridge to the police he would be harmed by the Taliban if he is returned to Afghanistan. During the hearing the applicant provided detailed evidence of [Village 1], including the number of houses in the village (50 or 60 houses), its location and proximity to the next closest village, [Village 3]. The applicant provided detailed evidence about [Village 1’s] proximity to the largest provincial town [named] and the proximity of the village to the Pakistan border. The applicant’s evidence was that [Village 1] is about [distance] to the Pakistan border. He stated that at that time the Pakistan border was poorly patrolled and that it was relatively easy to cross the border into Pakistan from Afghanistan without the necessary documentation.
The applicant’s evidence was that his father worked for the coalition forces as [an occupation 1]. The applicant did not provide any independent evidence of his father working for the coalition forces as claimed. Nevertheless, it was his evidence that his father worked for a depot operated by the collation forces some distance from his village. As a result, his father would often stay at the depot due to fighting in the area and it was dangerous for him to return home. Based on the applicant’s evidence to the Tribunal, it accepts and finds that the applicant’s father worked for the coalition forces as [an occupation 1] as claimed.
The applicant’s evidence in relation to him locating the bomb between his village and the neighbouring [Village 3] was detailed. His evidence was that he noticed the wires under a bridge and brought it to the attention of the local police and the next checkpoint. The applicant described the checkpoint to the Tribunal and provided detail as to the number and location of similar checkpoints in the area. The applicant’s evidence was that he assisted the local police to locate and identify the bomb, which was subsequently defused by the coalition forces. The applicant claims he was awarded US$[amount] by the security forces. The applicant claims that some of village members were close to the Taliban and informed them that the applicant was assisting the coalition forces to defuse the bomb. The country information reports that the Taliban fighters in or about 2012 were mostly local workers or farmers who were largely accepted by the Afghan population.[48] As a result, based on the applicant’s evidence, the Tribunal accepts and finds that he discovered the bomb as claimed. In addition, based on the available country information, the Tribunal accepts the applicant’s evidence that there was a real chance the Taliban became aware of his involvement in defusing the bomb.
[48] Who Are the Taliban? by Gilles Dorronsoro 22 October 2009: >
The applicant claims that members of the Taliban attended his home and killed his father because of his father working for the coalition forces and because of him helping the authorities locate and defuse the bomb. The applicant’s evidence in relation to the attack on his father was clear and detailed. The applicant gave specific evidence as he recalled the attack and of being hidden with his brother by their next-door neighbour during the attack. The evidence of [Witness A] confirmed the applicant’s evidence that his father had been killed by the Taliban. Therefore, based on the applicant’s evidence, and the evidence of [Witness A], the Tribunal accepts and finds that the applicant’s father was killed by the Taliban as claimed.
The applicant’s evidence was that because of the attack on his father, he and his family fled Afghanistan to Pakistan. The applicant gave clear and detailed evidence in relation to leaving his village and crossing the border in his neighbour’s car. His evidence was that [Neighbour A] drove the applicant with his mother and brother to Parachinar in Pakistan, a journey of about 1.5 hours. He explained in some detail how they arrived in Parachinar early in the morning and waited in the car with [Neighbour A] before taking the first bus to Peshawar, Pakistan, to stay with his [Relative A]. The applicant’s evidence was that the trip to Peshawar was about five hours. The applicant explained that his [Relative A] had been in Pakistan for some time having left Afghanistan at the time of the Russian invasion. As such, based on the applicant’s evidence, the Tribunal accepts and finds that the applicant fled Afghanistan with his mother and brother to live with his [Relative A] in Pakistan as claimed.
The country information[49] reports that the Taliban have targeted Afghans who have worked for or supported the government and/or the international community. The Tribunal notes that the DFAT Report in 2019 reported[50] that the Taliban have targeted those working for, supporting, or associated with the government or international community, including those who have worked in low-level roles such as those who worked for Afghan companies which provided services to coalition forces. Nevertheless, it’s reported[51] that people who have been subjected to intimidation, threats, abduction and targeted killings have included, but are not limited to, government employees, judges and prosecutors, judicial workers, police, Afghan and international security forces personnel, and interpreters.
[49] DFAT Report at p.17
[50] DFAT Report dated 27 June 2019
[51] Ibid
Despite the announcement of a ‘general amnesty’ by the Taliban on 17 August 2021 for those who had worked with the US-led coalition and the previous government, it’s reported that hundreds of former security force personnel and government officials have been subjected to extrajudicial killings, often after public humiliation and torture, with many more having disappeared.[52] In addition, some Taliban forces targeted members of the Afghan government security forces who they considered were not able to be recruited to the Taliban cause. These included Special Forces soldiers and members of the National Directorate of Security, members of the National Defence Security Force (NDS) and those who aided foreign forces.[53] In addition, former interpreters and locally engaged personnel who assisted the US and other allied forces have been subjected to Taliban violence.[54] As a result, DFAT assess that there is a high risk that former Afghan security forces, especially Special Forces and NDS personnel, will be subjected to violence in Afghanistan. Also, those who were critical of the Taliban or contrary to their interests (judges/police) are at risk of unwanted attention, harassment, and violence.
[52] Amnesty International, ‘Rule of Taliban’ 2022; Ibid
[54] Ibid
The DFAT Report notes that[55] due to the Taliban’s desire to restart the Afghan government, ordinary and/or technical government officials are assessed at a low risk of adverse Taliban attention. However, Amnesty International reports[56] that civilians continued to face attacks across the country. The United Nations Assistance Mission in Afghanistan (UNAMA)recorded 3,774 civilian casualties between August 2021 and May 2023 (1,095 killed; 2,679 wounded), the majority of which were attributed to the armed group Islamic State of Khorasan Province (IS-KP). It reports[57] that a pattern of mass extrajudicial executions of people associated with the former government and members of armed groups resisting the Taliban continued with impunity and constituted war crimes. UNAMA recorded at least 218 extrajudicial killings of members of the former government and security personnel between August 2021 and June 2023.
[55] DFAT Report at p.18
[56] Amnesty International – Afghanistan 2023; Ibid
Finally, it’s reported[58] that people in Afghanistan continue to be subjected to arbitrary arrest and detention and enforced disappearance. Those arrested or detained remained at risk of execution, death in custody and torture and other ill-treatment. UNAMA recorded 1,600 incidents of detention-related human rights violations between January 2022 and July 2023, half of them constituting torture and other cruel, inhuman, or degrading treatment.[59]
[58] Ibid
[59] Ibid
In this case, the Tribunal has accepted that the applicant’s father worked for the coalition forces as [an occupation 1] and was killed by the Taliban. Therefore, given the passage of time, the fact that his father was not a member of the coalition security forces (he only worked as [an occupation 1]) and the fact that the Taliban have already killed his father, the Tribunal does not accept that the applicant will be of interest to the Taliban if he is returned to Afghanistan. As such, it finds that there is no real chance the applicant will be harmed because of his father’s employment as [an occupation 1] with the coalition security forces.
The Tribunal has also accepted that the applicant identified and located a bomb for the coalition security forces as claimed. The Tribunal notes that at the time the applicant discovered the bomb, he was relatively young and not involved with the coalition security forces. As such, given the passage of time and the fact that the Taliban have not taken control of the country, the Tribunal does not accept the applicant will be harmed because he located the bomb as claimed. As such, the Tribunal finds that there is no real chance that the applicant will be seriously harmed if he is returned to Afghanistan because he located the bomb as claimed.
Applicant as a westernised person
The applicant claims that there is a real chance he will be seriously harmed if he is returned to Afghanistan because he will be perceived as being westernised. The applicant has been in Australia since April 2013 and has not left the country since his arrival. As such, he claims that he will be perceived as being influenced by foreign or western values if he is returned to Afghanistan.
The country information reports[60] that after their takeover of Afghanistan, the Taliban announced that they intended to act based on their principles, religion and culture, and emphasised the importance of Islam and that ‘nothing should be against Islamic values’. It’s reported that the Taliban’s views on persons leaving Afghanistan for western countries is ambiguous.[61] While the Taliban have said that people left the country due to economic reasons, they have also expressed a view that Afghans who have left the country are not seen as ‘Afghans’ but as corrupt ‘puppets’ of the ‘occupation’, who lacked ‘roots’ in Afghanistan.[62] Those wanting to leave are seen as being not ‘the right kind of person’ and not ‘good Muslims’.[63] Those leaving for westernised countries such as Europe or the US are viewed with suspicion.[64]
[60] EUAA, Country Guidance Afghanistan. May 2024 at 3.13; EASO Afghanistan Country Focus, Country of Origin Report January 2022; oi.euaa.europa.eu/administration/easo/PLib/2022_01_EASO_COI_Report_Afghanistan_Country_focus.pdf
[62] Ibid
[63] Ibid
[64] Ibid
The country information[65] reports that since the takeover of Afghanistan, the Taliban have reinstated harsh punishments, including whipping, chopping off hands and even hanging people from cranes. It’s claimed that the Taliban’s ‘vice and virtue’ squads operate out of sight of the media.[66] Afghan women have experienced widespread and serious human rights violations in which they have been prohibited from working, running businesses, or in some cases even from going outside without being accompanied by a male family member.[67]
[65] NPR, ‘A more moderate Taliban? An Afghan journalist says nothing has changed’ dated 7 October 2021 by Terry Gross;
[66] UNHCR ‘Afghanistan Emergency’; Human Rights Watch, ‘Afghanistan: Taliban buses Cause Widespread fear’, 23 September 2021; >
At the time of taking over Afghanistan, the Taliban communicated a more moderate image. In a press conference after the group took control of Kabul, chief spokesman Zabihullah Mujahid made a declaration of forgiveness.[68] However, it’s reported that despite the Taliban’s claims they would grant an amnesty to all, including those who worked for western military forces or the Afghan government or police, the reality is different to the rhetoric coming from Taliban leaders and spokesmen.[69] It’s reported[70] that Taliban fighters are searching for, and allegedly killing, people they pledged they would leave in peace. In or about August 2021, Taliban fighters executed two senior police officials – Haji Mullah Achakzai, the security director of Badghis Province, and Ghulam Sakhi Akbari, security director of Farah Province.
[68]BBC NEWS ‘AMID VIOLENT REPRISALS, AFGHANS FEAR THE TALIBAN’S ‘AMNESTY’ WAS EMPTY’ DATED 31 AUGUST 2021, YOGITA LIMAYE, EUAA, Country Guidance Afghanistan. May 2024 at 3.13; Ibid
The Taliban have restricted migration at overland crossings and created obstacles for people wanting to leave.[71] As a result, documents related to travelling abroad have become monetised, and bribes for passports have increased significantly.[72] A spokesperson for the Taliban is reported as stating that persons leaving Afghanistan had ‘no excuse’ and that the Taliban were preventing them from leaving.[73]
[71] Ibid
[72] Ibid
[73] Ibid
Those Afghans who have returned voluntarily to Afghanistan, to relocate there, for business, to visit family, or on holiday, have been treated ‘leniently’.[74] Generally, this is because the Taliban have minimal background information on returning individuals. Nevertheless, high-profile individuals are likely to face problems if they return, particularly if there was some connected reason for their initial departure from the country.[75]
[74] Ibid
[75] Ibid
It’s reported that prior to the takeover by the Taliban in 2021, people returning to Afghanistan were stigmatised as having committed a crime. Alternatively, they were perceived as having a lot of money[76] and/or being ‘contaminated’ by western ways of living. Those who departed after 2021 are often seen as traitors and sinners by the Taliban. The Taliban have the aim of ‘purifying’ Afghan society by ejecting foreign influence from Afghanistan. It has been noted that individuals seen as ‘westernised’ may be threatened by the Taliban, including by their relatives and neighbours.[77] In some cases, men have been harassed by Taliban fighters for having links to western countries, including due to wearing western style clothes or speaking English. They have been attacked in public as ‘traitors’ or ‘unbelievers’ because of their perceived western influence.[78]
[76] Ibid
[77] Ibid
[78] Ibid
In this case, the applicant arrived in Australia in April 2013 and has remained in the country since that time. He was married in Australia in 2017 and is employed as [an occupation 2] with a company known as ‘[Employer 1]’. The applicant’s wife is well educated having obtained a [Qualification 1]. The applicant has [specified children] born [on specified dates] respectively. In circumstances where the applicant has been in Australia for over 10 years, has established himself professionally, is married with a family and his wife is highly qualified, the Tribunal accepts that he will be identified as a person who has been westernised if he is returned to Afghanistan. As such, the Tribunal accepts that there is a real chance the applicant will be seriously harmed by the Taliban authorities if he is returned to Afghanistan due to him being perceived as westernised and as an ‘unbeliever’ or a ‘traitor’ to the State.
Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J(1)(a) and s 5J(1)(b) of the Act and finds that he is a refugee pursuant to s 5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a).
Applicant’s complementary protection claim
Having found that the applicant satisfies the criterion set out in s 36(2)(a), there is no need for the Tribunal to consider the applicant’s claim for complementary protection pursuant to s 36(2)(aa) of the Act. As such, the Tribunal does not make any formal order in relation to his claims for complementary protection.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s 36(2)(a) of the Act.
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets s 36(2)(a) of the Migration Act.
Date of hearing: 10 September 2024
Representative for the Applicant: Mr Rokhan Akbar (MARN: 1467818)
Annexure ‘A’
SECURITY SITUATION [79]
[79] DFAT report at p.9
2.16Whether the Taliban is sincere in its recent promises, such as offering an amnesty for former opponents, building an inclusive government and respecting women’s rights, or whether such promises are given with the sole aim of encouraging international recognition, is a key question for observers. Sources suggest the Taliban has a history of telling international audiences what they want to hear while adhering to its authoritarian roots. On 20 February 2020, shortly before the conclusion of the Doha Agreement, Sirajuddin Haqqani, leader of the HQN and deputy leader of the Taliban, in an op-ed article in the New York Times entitled “What We, the Taliban, Want,” described his desire that ‘the killing and the maiming must stop’ and wrote that the Taliban was ‘committed to working with other parties in a consultative manner of genuine respect to agree on a new, inclusive political system in which the voice of every Afghan is reflected and where no Afghan feels excluded.’
2.17Following the conclusion of the agreement and prior to taking power nationally on 15 August 2021, the Taliban launched what has been described as a ‘wave of targeted killings’ directed at ‘influential and prominent Afghans, including journalists, human rights activists, judicial workers, doctors and clerics’. According to UNAMA, 2020 recorded ‘a 22 per cent increase in the number of civilians killed and injured by Taliban targeted killings, which includes “assassinations” deliberately targeting civilians, and a 169 per cent increase in civilian casualties occurring during abductions of civilians by the Taliban’. After the 15 August takeover, violence generally decreased across the country, although specific groups continue to be targeted by the Taliban and others (see People associated with the government or international community, including security forces).
2.18Afghanistan is volatile but the country as a whole is (relatively) less dangerous than before August 2021 for many Afghans, due to the cessation of most armed conflict after the Taliban claimed victory. It nevertheless remains a dangerous country with ongoing threats of terrorism and kidnapping and other forms of violence. The Taliban asserted control over the entire country quickly and with relatively little opposition following the announcement of the US-led withdrawal of foreign forces.
2.19After coming to power in mid-August 2021, the Taliban offered an amnesty to all Afghans, including those who had worked for the previous government (see Recent History). Observers report that this amnesty has been unevenly respected, with much of the violence following the takeover being the result of local score-settling. However, there have also been some targeted killings (see People associated with the government or international community, including security forces). Notably, in November 2021, Human Rights Watch documented that Taliban forces had killed or forcibly disappeared more than 100 former security force members in four provinces in the three months since their takeover on 15 August 2021.
2.20There have been multiple mass-casualty terrorist attacks since the Taliban takeover, with most claimed by Islamic State in Khorasan Province (ISKP). ISKP carried out dozens of terrorist attacks in 2020 and 2021 against the erstwhile Afghan national government and also the Taliban. Terrorist attacks remain possible anywhere in the country, but major attacks are most likely in key cities given the increased profile ISKP gets from such attacks.
2.21Kabul remains insecure and has been subject to multiple attacks. On 2 November 2021, for example, at least 25 Afghans were killed and more than 50 injured when two large explosions hit Kabul’s largest hospital, immediately followed by an assault by a group of gunmen. The attack was claimed by ISKP.
2.22Local sources suggest parts of the country are returning to a ‘normality’ that has not been seen for many years; for example, bazaars that were closed due to war are reopening. This relative peace has meant travel by road across Afghanistan is generally safer than it has been for some time, albeit from a low base. It is likely to be less safe for women than for men.
2.23The security situation is still evolving. It is [Relative A]ar how long the current relative peace will continue, particularly if Afghanistan’s economy collapses and the Taliban faces greater internal challenge. Sources have suggested that the Taliban is enjoying a ‘honeymoon period’ which will not endure. It is likely the terrorist attacks will continue and potentially increase. In addition to ISKP, there are numerous other, smaller militant groups and local leaders, many of whom had pledged their support for the Taliban, perceiving it as the likely winner of a conflict with the Afghan government. According to the Australian Strategic Policy Institute (ASPI), such local groups may ‘hedge’ their support for different leaders in response to the uncertainty.
………………………………..
People associated with the government or international community, including security forces.[80]
[80] DFAT at p.17
3.25The Taliban have targeted Afghans of all ethnicities working for, supporting, or associated with the government and/or the international community. This includes, but is not limited to, government employees, judges and prosecutors, judicial workers, police, Afghan and international security force personnel, and interpreters. Such people were subject to intimidation, threats, abduction, and targeted killings, in a wave of violence that followed the Doha Agreement.
3.26At its first press conference since taking over in August 2021, the Taliban declared an amnesty, stating it had ‘pardoned anyone, all those who had fought against us. We don’t want to repeat any conflict anymore again. We want to do away with the factors for conflict. Therefore, the Islamic Emirate does not have any kind of hostility or animosity with anybody.’ Observers suggest that, as at late 2021, the Taliban was unevenly respecting this amnesty, with some subsequent violence being the result of local vendettas.
3.27Despite the amnesty, since August 2021 there are signs that some Taliban forces are actively targeting members of the Afghanistan Government’s security forces, particularly those adjudged to be impossible to recruit to the Taliban’s cause: namely former Special Forces soldiers and members of the National Directorate of Security (NDS), along with those who specifically aided foreign forces. Sources variously report four members of the NDS were hunted, tortured and killed in September 2021; a pregnant former policewoman was stabbed to death in front of her family; and nine Hazara members of the Afghan National Defence Security Forces (ANDSF) were killed in Daykundi Province (along with four civilians either fleeing or caught in cross-fire) after they surrendered. In November 2021, Human Rights Watch documented that Taliban forces had killed or forcibly disappeared more than 100 former security force members in four provinces since their takeover on 15 August 2021, as well as threatening their family members. The UN High Commissioner for Human Rights also said her office had received ‘credible allegations of reprisal killings of a number of former ANDSF personnel, and reports of civilians who worked for previous administrations and their family members being arbitrarily detained.’
3.28Former Afghan interpreters and other locally-engaged personnel who assisted US or other allied forces have also reportedly been subject to Taliban violence: in October 2021, a former Afghan soldier who worked as an interpreter for the Australian Defence Force was reportedly murdered by the Taliban, while in July, a former interpreter for US forces was stopped at a Taliban checkpoint in Khost as he tried to flee and was beheaded. DFAT cannot verify if they were killed due to their previous role assisting allied forces or for another reason.
3.29Sources report that the Taliban now possesses biometric data collected by the United States with respect to Afghan security forces. If true, this data, which reportedly includes iris scans, fingerprints and facial images, may assist the Taliban in tracking down and punishing former Afghan service members. DFAT is unable to verify whether this is occurring. (See also Identification.) DFAT notes, however, that lower and mid-level ordinary officials within the Afghanistan government have been ordered back to work in order to help run the country.
3.30DFAT assesses there is a high risk that former Afghan security forces, especially special forces and NDS personnel, may be subject to violence from the Taliban. DFAT assesses that other former government officials who were openly critical of the Taliban or harmful to Taliban interests (such as judges or police responsible for imprisoning Taliban soldiers) are also at moderate to high risk of unwanted attention, detention, harassment and violence. Due to the Taliban’s desire to restart Afghan governance and curry favour with the international community, ordinary and/or technical government officials are presently assessed to be at low risk of adverse Taliban attention.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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Protection visas – criteria provided for by this Act
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A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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