1828237 (Refugee)

1828237 (Refugee) [2021] AATA 5273 (15 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1828237
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Nora Lamont
DATE:15 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 15 November 2021 at 8:28am
CATCHWORDS
REFUGEE – protection visa – Afghanistan – identity concerns – race – Hazara – religion – Muslim Shia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 September 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Afghanistan, applied for the visa on 22 September 2017. The delegate refused to grant the visa on the basis that they were not satisfied with the applicant’s claims for protection.
Summary of Decision Record
In relation to the applicant’s claims for protection, the delegate accepted that:
·the applicant is an adherent of Shi’a Islam
·the applicant will hold the profile of a failed asylum seekers returning from a western country
However, the delegate did not accept the applicant’s claims that:
·the applicant comes from either [Town 1] or [Town 2]
·the applicant is ethnically Hazara
·the applicant was persecuted or oppressed by the Kuchis or the Taliban
·the applicant and his family were personally subjected to the conflict between the Hazaras and Kuchis in [District 1], Maidan Wardak Province
The delegate was satisfied that country information reflected that the Taliban has neither an overt nor covert policy of persecuting ethnic Hazaras for the reason of their actual or imputed Shi’a religion. The delegate was satisfied that the applicant does not face a real chance of serious harm from the Taliban for reasons of his being a Shi’a Muslim. The delegate accepted that the applicant had demonstrated his participation in religious events in Australia and was satisfied he will continue to attend such events if he was to return to Afghanistan. The delegate was satisfied for the purposes of s.5J(1)(b) that the applicant faces a real chance of serious harm for reasons of his adherence to Shi’a Islam should he return to Kabul, Afghanistan. However, the delegate was not satisfied the applicant faces a real chance of persecution in Mazar-e-Sharif, considering the area comparatively secure and finding that there is less than a remote chance that he would be harmed for reasons of his religion, or in generalised violence involving the Taliban, Islamic State Khorasan Province or any other active groups in Afghanistan. The delegate accepted that the applicant may face discrimination upon return, but that it would manifest in the form of nepotism in favour of a person or a group rather than negative discrimination against Shi’a Muslims or against the applicant personally. The delegate was not satisfied that such discrimination would amount to serious harm.
The delegate acknowledged that the applicant may be known to some to have spent time in the West, but was not satisfied that this gave the applicant a risk profile similar to that held by people actively and openly supporting the West, the Afghan government, the Afghan military or international NGOs. The delegate was satisfied that the applicant had no such actual or imputed profile or political opinion, nor considered he would have such a profile on return to the country. The delegate was also satisfied that the applicant could take reasonable steps to modify his conduct to avoid any future chance or risk of harm, including not openly discussing his time in Australia, dressing and acting in a way that is more consistent with other Afghans living in Afghanistan, and taking steps to protect any documentation or history that may link him to Australia. The delegate found that these steps would be reasonable and relatively minor inconveniences, and that there was no evidence that the applicant would be unable to take such steps. The delegate found that if the applicant were to return to Afghanistan, he would not face a real chance of persecution now or in the foreseeable future.
The delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act, or a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act. The delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequences of the applicant being removed to Afghanistan, there is a real risk they will suffer significant harm as defined in s.36(2A) of the Act, and therefore the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.
The Tribunal Application
On 8 November 2021, the applicant appeared before the current Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented at this hearing and in relation to the current review by his legal representative.
CRITERIA FOR A 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 (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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant claims to be an Hazara man born in the town of [Town 1], in the province of Maidan Wardak, Afghanistan. He claims that he transited through [Country 1], [Country 2], and [Country 3] before arriving in Australia. He identifies as being a Shia Muslim. He claims to speak, read, and write in the Hazaragi and English languages.
His family consists of mother, [number] sisters and [number] brothers who currently reside in Afghanistan, as well as [number] sisters who reside Iran. He lists his previous employment as working in farming and carpet making in Afghanistan but has been unemployed since arriving in Australia. He completed religious education in Afghanistan, and completed English classes once arriving in Australia.
Identity concerns
The applicant provided the Department with a copy of a Taskera as well as a Taskera sourced on his behalf by his brother in Afghanistan. At the SHEV interview, the applicant claimed that he cannot speak for the legitimacy of the Taskera, and that he was only supplying it as evidence of his attempts to provide identity documentation to the Department. Due to the discrepancies between the Taskeras, it was agreed at interview that neither document would be provided as evidence of his identity, and therefore neither document was assessed as to whether they were bogus. The delegate was satisfied that the documents were evidence of the applicant’s attempts to obtain identity documents at the request of the Department, however, did not assess them as evidence of his identity, nationality or citizenship.
The applicant provided copies of Taskeras which he claimed belonged to his mother and his brother. He did not provide family photographs and a copy of his father’s Taskera as requested by the delegate. The delegate noted that these requested documents would have significantly helped to corroborate the veracity of his mother’s Taskera and his brother’s Taskera and in substantiating his claimed identity. The delegate noted that due to country information which suggested the proliferation of bogus identity documents from Afghanistan, as well as inconsistencies contained within the two family members’ Taskeras, and put no weight on those documents as evidence of the applicant’s identity.
The delegate was not satisfied that the applicant was from [Town 1] or [Town 2] as claimed. The delegate was not satisfied that the applicant had been able to substantiate his claims to come from [Town 2], or [Town 1] in [District 1], Maidan Wardak Province, Afghanistan. The delegate was also not satisfied that the applicant was ethnically Hazara as he did not appear to posses the Asiatic features commonly associated with Hazaras, he was unable to demonstrate an understanding of Hazara culture consistent with what would be expected of an adult Hazara, and the applicant did not appear to come from the area he claimed to come from. As a result, the delegate found that the applicant had fabricated his claim to be ethnically Hazara in order to enhance his claims for protection.
The delegate held significant concerns for the applicant’s country of origin. The applicant’s ability to speak Hazaragi/Dari/Farsi suggested to the delegate that he was from either Afghanistan, Iran or possibly Pakistan. The delegate noted that the applicant may in fact be from a non-Hazara ethnicity, including Qizilbash, Tajiks, Farswian, Bayat or Sayyeds. However, in the absence of evidence to the contrary, the delegate accepted that Afghanistan was the applicant’s country of origin.
Country of reference
In the absence of any evidence to the contrary, the Tribunal accepts that the applicant 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.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country and, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s.36(3).
Migration History
The applicant arrived in Australia as an irregular maritime arrival [in] August 2013. An arrival interview was conducted on 2 September 2013, and an age determination interview on 5 September 2013, the report being released on 6 September 2013. The applicant was transferred to a regional processing country under s198AD of the Migration Act on 9 January 2014 but was transferred back to Australia [in] February 2014 after he was determined to be a minor. He was granted a UJ-449 visa and a WE-050 visa on 11 February 2015 and released from detention.
On 6 December 2016 the s.46A(2) application bar was lifted by the Minister to allow an application for a Temporary Protection visa (subclass 785) or a Safe Haven Enterprise (SHEV) (subclass 790) visa application. The applicant made a valid SHEV application on 22 September 2017, which was ultimately refused by the delegate on 12 September 2018.
Claims
The applicant’s claims were provided for in his statement attached to his SHEV application. This statement is extracted below:[1]
1. I fear that if I was forced to return to Afghanistan, I would be seriously harmed because of my:
a.        Hazara ethnicity.
b.        Shia religion; and
c.        status as a returned asylum seeker from the West.
[1] Department File [number], Ref ID: [number].
2. I fear this harm from the Taliban in Afghanistan.
My background and history
3. I was born sometime in [year] or [year] but I am not sure of the exact date.
4. I am a Hazara.
5. I am a Shia Muslim.
6. I am not married, and I do not have any children.
7. My mother currently resides in [Town 3], Afghanistan.
8. Growing up, my father worked on the farm. My mother helped with the work on the farm, but most of the time she was doing domestic duties.
Problems in Afghanistan
9. Growing up, I did not go to school. Going to school as a Hazara is difficult because the other people discriminate against Hazaras. Pashtuns, other ethnicities and Sunnis would harass us whenever they saw us in the street.
10. I would do whatever work I could find. I would help out on the farm, with carpet-weaving or whatever work was available.
11. The area where I lived, Maidan Wardak, is controlled by the Taliban. People in the community are often killed by the Taliban, including when they have attempted to travel outside of the community.
12. For as long as I can remember, there has been fighting between the Taliban and Hazaras. When I was younger, both my sister's husband and my cousin were killed by the Taliban.
13. My father passed away from illness when I was young. My brother told me that it was too far to take my father to the hospital and the roads were to dangerous. Life was very difficult after his death. My older brother [Brother A] had to support the family.
14. The Taliban would come to our village and threaten us. They would burn down villagers' houses and kill people.
15. In approximately 2011 or 2012 we fled our village because we knew the Taliban were coming. We went into hiding for three to four months with my Uncle in [Town 3].
16. After that time, some of our neighbours who had also fled returned to the village, and they told us that it was safe to return. We decided to also return. When we came back to our village, the farms and houses were burnt to the ground. Some of the contents of the houses had been stolen.
17. After the houses were robbed and burnt, we had to start again. We did not have anything, and it was really difficult to rebuild our life.
18. It was very dangerous for me and my family, because the Taliban would come every year and destroy our village and steal all of our belongings over and over again.
19. We could also hear bomb blasts whenever they were set off nearby our house.
20. When I was in Afghanistan, I heard that there were four or five Hazara villagers from a neighbouring village who went to Kabul to meet their families or to go to work. When coming back one time they were killed. It was very dangerous and there were dead bodies left on the road. No one had the courage to take the dead bodies and bury them.
21. My family asked me to leave the country because it was clear that the situation in Afghanistan was too dangerous for me to live there.
My fear if I am returned to Afghanistan
22. There is nowhere safe for me in Afghanistan, because I am Shia and Hazara. There is also no family protection for me in Afghanistan, where my mother lives with my two brothers. My mother and my brothers cannot protect me as nobody can protect me from the Taliban including the authorities or my family. It is too dangerous for my family to protect me from the Taliban.
23. If I am returned to Afghanistan, I am afraid that I will be subjected to serious harm because I am Shia and Hazara.
24. I am afraid that I would not be protected by anyone, including the authorities, because they have not protected anyone in the past.
25. I am also afraid of being returned to Afghanistan, because even Australian resident who have not returned to the country for over 10 years have also been targeted by the Taliban. I fear that I would be harmed because of the time I spent in Australia and because the Taliban and others would view me as a supporter of the West.
Identity Documents
26. I left Afghanistan on a passport which was organised for me by the smuggler. It had my name and my photo, but an incorrect date of birth which was older than I was. This was because I was not allowed to travel alone as a minor. That was the first passport that I had ever seen, and I was a minor at the time. I do not know if it was a genuine or fake passport, but I was able to pass through customs with it. The passport was taken from me in [Country 2] and then I was given an [Country 1] passport with an [Country 1] name and my photo. I gave this passport to the smugglers in [Country 3] because they told me that I didn’t need it any more and I believed that I should give them back the passport as everyone else was doing this and it wasn’t in my name anyway. As I was young at the time, I did not know what to do so I did what everyone else did.
27. In Australia I was asked for identity documents. I asked my family if they had any of my identity documents and they said no. My brother said that my original taskera had been lost. So, recently, my brother went to the office in Afghanistan to get me a new Taskera. He used an old photo of me and told the officers my age in order to get the Taskera. I am not prepared to provide this document to the Department of Immigration as evidence of my identity because I was not there to get the document myself and can not say for sure that it is genuine.
At the SHEV interview before the Department on 30 April 2018, the delegate noted that the applicant made the following additional claims:[2]
·The Kuchi target Hazaras when they come into the village area to graze their livestock.
·The Taliban and the Kuchi are the same.
·The applicant will be identified and targeted because he does not speak Pashto as his mother tongue.
·The applicant would also be targeted by Daesh/Islamic State of Khorasan Province (ISKP)
[2] SHEV Decision Record, p.8.

In post-interview submissions provided by the representative to the delegate on 15 May 2018, the applicant made the following additional claims, as set out by the delegate in their decision record:[3]
·The applicant would not be provided with adequate protection from the Afghan security forces.
·The violence and insecurity in Afghanistan makes internal relocation for returnees unsafe and therefore unreasonable.
·If returned, the applicant would face harm from the Afghan authorities as a failed asylum seeker.
·The applicant will be unable to travel on Afghan roads due to his Hazara ethnicity.
[3] SHEV Decision Record, p.8.
In pre-hearing submissions, the applicant’s representative put forward the following claims for protection, in light of the Taliban takeover in Afghanistan:
Protection claims amid the Taliban Takeover
20. Given the Taliban Takeover, the Applicant fears harm at the hands of the Taliban. In such circumstances, the Afghan government is incapable of providing adequate protection. The Applicant’s fears are founded on the following grounds:

a. The Applicant is a Hazara Shia (Hazara Shia Risk);
b. Alternatively, the Applicant is Shia (if the Applicant’s Hazara identity is not accepted) (Shia Risk);
c. The Applicant would be returning to Afghanistan as a failed asylum seeker who fled to, and has subsequently resided in, a Western country. By such conduct, persecuting agents (namely, the Taliban) are likely to negatively associate the Applicant with support for western culture and governments (Western-Association Risk); and
d. By reason of being a Hazara, imputation or suspicion of having worked for, supported or been associated with the former Afghan government or the international community, including foreign government forces (Government Work Risk).[4]
Findings
[4] Tribunal File 1828237, Doc ID: 9054509.
At the Tribunal hearing the applicant said he had a brother in Pakistan, and he forgot to mention him as he has been living in Pakistan for so long. I asked the applicant if he had lived in his village all his life and he said that he sometimes lived in Kabul. He said he would go back and forth to Kabul to live with his sister. He also has a brother who lives in Kabul. When he lived in the village he lived with his mother and sisters.
I asked the applicant why he came to Australia. He said it wasn’t safe in Afghanistan. He spoke of coming to Australia as he was a minor and his brothers heled him and that he had cousins and Uncles in Australia. When I asked where he got the money, he said his brothers sold some land and cattle to pay for him to come. He said his mother was worried he would become the victim of a bomb blast as you never knew when you would be attacked.
The applicant said his mother is now in Kabul as she is getting treatment. She doesn’t fell safe there as these are uncertain times. He said his brother is now back in Afghanistan.
He said he went to religious school in Afghanistan and was taught the basics. He said before his father passed away, he was a farmer who grew wheat and cattle. The family also did carpet making and his older brothers taught him how to make the carpets and his brother would sell the carpets in Pakistan.
I asked the applicant what he thought when he heard that the delegate did not think he was Hazara as he didn’t look like one and he didn’t know much about Hazara culture. The applicant stated he was Hazara as he is the child of a Hazara family. The applicant said that he was provided with a Pakistani interpreter and it was difficult to understand.
The applicant explained he was a Shia Muslim and that he was a Twelver and did not like people questioning his faith. He said he prays, and he goes to Mosque and during holy times they have festivities at a hall. He said his cousins live in Adelaide and he goes there for special events and he recites the holy Koran.
The applicant spoke of when the Taliban would come into the village and his family would have to flee to [Town 3] to his maternal Uncles house. The Kuchi/Taliban would come in the spring each year and disappear in the winter. They burnt his house down. The family would return when the Taliban had gone.
I asked if it was a Hazara village and he said there was a mix of people. I asked if he knew what had happened to his village since the Taliban took over the country. He said a lot of people had fled.
The applicant said that he was afraid to return to Afghanistan that he would be targeted as a Hazara and as a returned westerner. He said the Taliban would come after him. He said the Taliban has announced that Hazara’s should leave Afghanistan and they cannot have any part of the government. He said that the Taliban beat up Hazaras and break your bones you don’t have any choice but to leave.
The Tribunal has no concerns with the applicant’s claims to be Hazara or to be Muslim Shia. The applicant’s own dialect is Hazaragi and he has maintained he is Hazara throughout his entire time in Australia. He looks to be Hazara to the Tribunal.
The Tribunal accepts that the applicant was a minor when he arrived and that he had trouble with his identity documents and due to his age, the Tribunal finds he may not have had all the relevant information to provide to the Department.
The Tribunal accepts that the applicant is a Muslim Shia and that he continues to practice his faith in Australia.
Further, the Tribunal accepts that the applicant is from his village as noted and did spend time in and out of Kabul and [Town 3] when the Taliban arrived in his village. Given the below current country information the applicant cannot be returned to Afghanistan.
Country Information
Current country information from Country of Origin Information Services Section (COISS) indicates that the Hazara will continue to be targeted by the Taliban and that western returnees will be charged and taken to court. [5]
During the Taliban’s offensive Hazaras were targeted by the group’s fighters in Malistan district, Ghazni province. In the village of Mundarakht, between 4-6 July 2021 nine Hazara men were killed, six were shot, three were tortured to death, ‘including one man who was strangled with his own scarf and had his arm muscles sliced off.’ By 14 July, reports from Malistan noted that 29 civilians were killed, either in the crossfire between the Taliban and Afghan security forces or shot directly by the Taliban. Local residents stated that nine civilians were beheaded by Taliban fighters during or after the fighting. In Bamyan province the Taliban toppled and beheaded a statue of Abdul Ali Mazari, a warlord and champion of Hazara rights who they killed in 1995. On 30 August, 14 Hazaras were killed, 12 soldiers and two civilians, when they surrendered to the Taliban. One report noted that in regard to Hazaras surrender the Taliban had ‘no mercy’ while one report states that the execution was due to a local dispute. Two reports note how the Taliban is allegedly trying to reach out to the Hazara community and assure them of their security, however many Hazaras remain cautious.
There are credible allegations that the Taliban has conducted door to door searches and reprisal killings of former members of the Afghan security forces and government, and those who cooperated with the US. The Taliban has acquired the personal data of those who have served with the former government and Afghans who have worked with foreign governments or organisations. As Kabul city fell on 15 August, Taliban troops were reported to have seized the files of Afghan intelligence officers and their informers from the headquarters of the National Security Directorate and the Ministry of Communications. Also potentially the means of tracking the telephone numbers of Afghan citizens. With the fall of the former government, the Taliban has access to databases with Afghans biometric and other personal information. These include the e-Taskira and voting registration database, and the
personnel and payroll system used by the interior and defence ministries.50 Reporting also noted that the Taliban has US biometric devices with data of thousands of Afghans who worked with the Americans. The Taliban are reported to be using these to assist with their door to door searches ‘for government officials, former security forces members and those who worked for foreign non-profits.’52
On 19 August, a private report by the RHIPTO Norwegian Center for Global Analyses noted that, the Taliban were intensifying the search for ‘all individuals and collaborators with the former regime, and if unsuccessful, target and arrest the families and punish them according to their own interpretation of Sharia law…’ This included individuals who had worked for the former Afghan administration or with US forces. In early September reports of former police officials and soldiers, including women, being killed by the Taliban have emerged, while family members of those who fled were being harassed. Others who are being targeted by the Taliban have gone into hiding. The Taliban have issued a statement regarding returnees from Europe stating they would face court on their return. In a statement on 31 August, the Taliban would except rejected Afghan asylum seekers or those who had committed crimes from Austria and Germany. Taliban spokesman Zabihullah Mujahid stated ‘…They would be taken to court. The court would then have to decide how to proceed with them. ’ No further explanation was given as to what judgment they would face.Humanitarian Program Capabilities Branch effective from 17 September 2021.
Conclusion
[5] Situational Update Afghanistan Country of Origin Information Services Section (COISS)
Humanitarian Program Capabilities Branch effective from 17 September 2021.
The Tribunal finds that the applicants race and ethnicity as a Hazara and his religion as Muslim Shia to be the driving force and motivation for persecution under the Refugees Convention.
The question then before the Tribunal is will the applicant face a real chance of serious harm based on his race as Hazara and his religion as Muslim Shia. Under s91R(1) of the Act persecution must involve serious harm to the applicant (s.91R(1)(b), and systemic and discriminatory conduct s.91R(1)(c). Examples of serious harm are set out in s.91R(2) of the Act. The Hight Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality in the sense that it is official or is officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about then or attributed to them by their persecutors.
The Tribunal finds that the applicant faces a well-founded fear of persecution from the Taliban in Afghanistan as a Hazara and Muslim Shia.
The Tribunal accepts that if the applicant was to return to Afghanistan, he faces persecution for his race and religion and therefore, the Tribunal finds he does have a well-founded fear of persecution. It is the finding of the Tribunal that the applicant will be persecuted for being Hazara and Muslim Shia in the reasonably foreseeable future if he was returned thus satisfying the criterion in s.36(2)(a).
With respect to state protection, the Tribunal notes that Afghanistan does not offer protection to Hazara’s or Muslim Shias. Therefore, the Tribunal finds that the applicant would not be afforded state protection. As of writing this decision the Afghanistan Taliban is not a recognised government.
The Tribunal is also not satisfied that the applicant can safely relocate to another part of Afghanistan to avoid the harm he fears in his home area.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugee’s Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
As the Tribunal has found the applicant to be a refugee under the criterion of s.36(2)(a) it has not engaged s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Nora Lamont
Member

Document List – 1828237 – [the applicant]
Tribunal File – 1828237
1. Notification of refusal of application for a Safe Haven Enterprise (subclass 790) visa – dated 12/9/2018
2. Email from Representative containing pre-hearing submissions – dated 8/11/2021
Department File – [number]
1. Copy of Taskera (untranslated)
2. Unauthorised Maritime Arrival & Induction Interview – dated 2/9/2013
3. DIAC Age Determination Assessment Report – dated 5/9/2013
4. Age Determination Assessment Report – dated 5/9/2013
5. Age Determination Assessment – dated 5/9/2013
6. Case Assessment & BioData Interview – dated 10/9/2013
7. Email from Rep to Department confirming representation – dated 5/12/2016
8. Invitation to apply for a Temporary Protection (subclass 785) visa (TPV) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV) – dated 6/12/2016
9. Deadline to apply for a Temporary Protection visa (Temporary Protection visa – TPV) or a Safe Haven Enterprise visa (Safe Haven Enterprise visa – SHEV) – dated 9/6/2017
10. Form 790B Application for a Safe Haven Enterprise visa – dated 17/2/2017
11. Form 790C Personal details for each person included in this application – dated 17/2/2017
12. Attachment to protection visa application
13. Statement of applicant – dated 18/9/2017
14. Form 956 Advice by a migration agent/exempt person of providing immigration assistance – dated 17/2/2017
15. Acknowledgement of a valid application received for a Safe Haven Enterprise (clas XE) Safe Haven Enterprise (subclass 790) visa – dated 30/9/2017
16. Visa Application Summary
17. Request to attend interview – dated 16/2/2018
18. Email from Department to Rep rescheduling interview – dated 28/3/2018
19. Request to attend interview – dated 28/3/2018
20. Copy of original taskera provided at interview
21. Copy of unattested-origin taskera
22. Email from Rep to Department seeking extension of time – dated 3/5/2018
23. Email from Department to Rep granting extension – dated 7/5/2018
24. Email from Department to Rep about Taskera – dated 16/5/2018
25. Email from Rep to Department about Taskera – dated 16/5/2018
26. Email from Rep to Department: post interview submissions – dated 15/5/2018
27. Email from Rep to Department: post interview submissions – dated 22/5/2018
28. AUSTRAC records – dated 27/7/2018
29. Google Maps: [Town 1] to Kabul
30. Notification of refusal of application for a Safe Haven Enterprise (subclass 790) visa – dated 12/9/2018
31. Protection Visa Decision Record – dated 12/9/2018
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
(1)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
(1)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.
(2)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.
(3)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.
(4)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.
(5)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.
(6)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
(1)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.
(2)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.
…
36     Protection visas – criteria provided for by this Act
…
(2)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.
…

[2021] AATA 5273

15 November 2021

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