1909300 (Refugee)

1909300 (Refugee) [2023] AATA 3030 (16 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Alison Ryan (MARN: 0004377)
CASE NUMBER:  1909300
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Shahyar Roushan
DATE: 16 June 2023
PLACE OF DECISION:  Sydney
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 16 June 2023 at 11:00am
CATCHWORDS
REFUGEE – protection visa – Afghanistan – race – Hazara – religion – Christian convert – imputed Shi’a Muslim – imputed political opinion – supporter of former Afghan government – particular social group – failed asylum seekers – fear of harm by Islamic State Khorasan Province (ISKP) and Taliban – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 5K, 5L, 5LA, 36, 46A, 48A, 48B, 65, 91K, 189, 411, 412, 427, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
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 Immigration and Border Protection on 3 June 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant is [age] years old and a national of Afghanistan. He is of Hazara ethnicity and was born a Sunni Muslim in [Valley 1], [District 1] of Parwan Province.
The applicant departed Afghanistan on [date] September 2012 and arrived in Australia on [date] November 2012 by sea at the Territory of Ashmore and Cartier Islands (Ashmore Reef). He was detained under s 189(3) of the Act and transferred to Christmas Island Immigration Detention Centre.
Prior to June 2013, asylum seekers who arrived by boat at Ashmore Reef were considered to be Unauthorised Maritime Arrivals (UMAs) and subject to the bar against UMAs applying for visas under s 46A of the Migration Act 1958 (Cth) (the Act). Typically, they were brought onshore and granted bridging visas and Temporary Safe Haven visas (TSHVs). At the time it was considered that the grant of the bridging visa removed the s 46A bar (applicable to UMAs), so the TSHVs were granted to invoke the s 91K bar, with the object being to prevent any boat arrivals from applying for a permanent protection visa in Australia.
As the applicant was initially considered to be a UMA, he was granted a TSHV on 12 December 2012, triggering, as it was thought at that time, the s 91K bar.
On 20 May 2015, the applicant lodged an application for a Safe Haven Enterprise (SHEV) (Class XE)(Subclass 790) visa (the first SHEV application) and a delegate of the Minister refused the application on 3 June 2016.
On 7 June 2016, the applicant applied to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision, as he was thought to be subject to the ‘fast track’ review process. On 15 July 2016, the IAA affirmed the decision under review.
On 10 August 2016, the applicant sought a judicial review of the IAA decision, and on [date] November 2017, the then Federal Circuit Court of Australia made a judgment in favour of the Minister.
On 3 December 2017, the applicant made another application for a SHEV, which was subsequently deemed to be invalid due to the effect of s 48B of the Act.
However, on 6 August 2018, the Full Federal Court in DBB16 v MIBP (2018) 260 FCR 447 found an asylum seeker not to be a UMA through the act of entering Australia by sea at Ashmore. In essence, the Court declared that the Minister had no power to appoint the Western Lagoon of Ashmore Island to be a port. This meant that the appellant had not ‘entered Australia by sea’ as defined, and therefore he was not a UMA as defined under s 5AA of the Act at the time (prior to July 2013).
Accordingly, subject to certain exceptions, a decision to refuse a person who arrived by sea at Ashmore a Temporary Protection Visa (TPV), or a SHEV is in fact a ‘Part 7 reviewable decision’ under s 411 of the Act and can be reviewed by the Migration and Refugee Division of this Tribunal provided the review application meets the usual requirements under s 412.
On 15 April 2019, the applicant lodged an application for a review of the decision to refuse his first SHEV application to the Tribunal.
On 5 June 2020, the applicant was notified that the Minister had lifted the 91K bar to allow him an opportunity to apply again for a visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on ss 5H(2), 36(1B), or (1C) or s 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.
Following this, on 23 June 2020, the applicant made a second application for a protection visa. Notwithstanding the delegate’s reference to a SHEV application in the decision record, there is overwhelming evidence that the applicant made an application for a TPV, including records and communication by the Department. The Tribunal has treated the application made on 23 June 2020 as a TPV application. A delegate of the Minister refused that application on 16 November 2020 and the applicant applied for review of that decision to the Tribunal on 24 November 2020.
However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, the TSHV grants in the Ashmore affected cases were invalid, the s 91K bar was not applicable and the Tribunal could undertake a substantive review of decisions to refuse these applicants SHEVs or TPVs. Accordingly, the applicant’s first SHEV application was not subject to the s 91K bar. It was a valid application and the applicant had made a valid application to the Tribunal for review of the delegate’s decision of 3 June 2016. As a result, the s 48B determination is not applicable, the s 48A bar was not lifted and the post-bar lift visa applications made following the purported bar lift were invalid. Therefore, the second visa application is, and always was, barred under s 48A. The second visa application is therefore invalid.
In view of the above circumstances, which have resulted in the applicant having two applications for review of two separate decisions made by delegates of the Minister, the Tribunal decided to combine the two reviews pursuant to s 427(2). Despite the second application being invalid, the Tribunal, with the applicant’s consent, has considered all claims and evidence submitted in relation to that application for the purpose of reviewing the delegate’s decision with respect to the first valid application.
CLAIMS AND EVIDENCE
The first SHEV application
According to his application form, the applicant is of Hazara ethnicity and Sunni faith. He lived in [District 1] until 2001 when he moved to Kabul. He resided in Kabul until his departure from Afghanistan in 2012. He has not completed any school-level education and his employment was varied and included livestock care, labouring and [Occupation 1]. He is married and his wife and [children] reside in Afghanistan with his mother and brother.
In a statement attached to his first SHEV application form, dated 6 August 2015, the applicant made the following claims.
He was born on [date] in [Valley 1], located in [District 1], Parwan Province. At some point he relocated to Kabul and established a small business, selling [product]. He operated the business until his departure from Afghanistan. The business provided him with a comfortable living, and he was able to own assets such as cars and property. His family remained in [District 1] until a few months before his departure and he travelled to [District 1] every weekend to visit them.
His father, [named], was involved with the Hezb-e-Islami (HI), a political group in Afghanistan, and worked alongside [Mr A] in the Parwan area.
In or around 1995, his father and [Mr A] were accused of killing [Mr B], who was the commander of Hezb-e Jamiat-e-Islami (Jamiat), an opposing political group. Jamiat are currently in control of [District 1].
In or around 1996, his father was killed by [Mr B]’s brother, [Mr C]. Following the murder, [Mr C] and [Mr B]’s family, including [Mr B]’s son, [Mr D], were exiled to Khost Province.
Three years before the applicant departed for Australia, [Mr B]’s bother and his son returned to [Valley 1], residing in an area about 15 minutes’ drive away from the applicant’s home area. With the help of a warlord named [Mr E], [Mr D] was given a position in the local government. [Mr D] is currently the commander of the private security firm responsible for policing [Valley 1] which is funded by the government. [Mr D]’s uncle acts as his adviser. [Mr D] is feared by the people in [District 1] and does not face any consequences from the actual police if he were to commit crimes.
One and a half years before the applicant departed for Australia, [Mr D] issued death threats against him, [Mr A] and their respective families in retribution for [Mr B]’s killing in 1995.
Around 10 or 11 months before he departed for Australia, [Mr A]’s wife, son and brother were killed by [Mr D] and their bodies were put on display in the streets of [District 1]. The applicant became fearful for his safety and the safety of his family and decided to relocate to Kabul. Subsequently, he was told by a relative that [Mr D] had set fire to the applicant’s family home in [District 1] and had taken his livestock. Upon hearing this information, the applicant went into hiding in Kabul. He stopped going to work as he feared for his life and trusted the management of his business to his employees, who informed him that unknown people had visited the shop enquiring about his location.
About six or seven months after he left Afghanistan, the applicant’s mother told him that his youngest brother had fled to [Country 1] because he was being targeted by [Mr D]. His family continue to reside in Kabul, but they are in hiding.
The applicant fears harm from [Mr D] and [Mr D]’s family members. He cannot relocate to Kabul and the authorities are unable to protect him. He also fears harm by the Taliban for the reason of his Hazara ethnicity, as well as general violence in Kabul.
Departmental interview
The applicant attended a protection visa interview with the Department on 25 September 2015. The interview was conducted with the assistance of an interpreter in the Dari and English languages. Where relevant, the applicant’s oral evidence at that interview is referred to in the Tribunal’s analysis below.
The delegate’s decision
The delegate did not accept the applicant’s claims in relation to the circumstances of his father’s death. She did not accept that the applicant’s father was involved in [Mr B]’s death or that [Mr B]’s family were intent on avenging [Mr B]’s death by targeting the applicant and his family. Nor did she accept that the applicant faces a real chance of serious harm in Afghanistan as a returning failed asylum seeker. However, the delegate found that the applicant faces a real chance of suffering serious harm amounting to persecution and/or a real risk of significant harm on account of his race and imputed political opinion if he were to return to his home area in Afghanistan. Having made these findings, the delegate did not accept that the real chance of persecution relates to all areas of Afghanistan. She also found that it would be reasonable for the applicant to relocate internally in Afghanistan and as such there is taken not to be a real risk that the applicant will suffer significant harm.
The second (TPV) application
In a statement attached to his second application, dated 23 June 2020, the applicant reiterated the claims made in his first application and provided the following additional claims.
He was born a Sunni Muslim and he is ethnically Hazara, but he now considers himself a Christian. In Afghanistan, he believed in Islam, he practised his faith, he prayed and attended the mosque.
He owned a [Occupation 1] business in Kabul and was the breadwinner for his family. Although the commute between Kabul and [District 1] posed safety risks due to ‘thieves’, he had ‘no other choice’ and continued to take this route to visit his family every weekend.
His father was a ‘local member’ of HI and worked under [Mr A], but he did not know what role exactly his father played in the group. HI was often involved in armed conflict with Jamiat. His father and [Mr A], who were related by marriage, were accused of killing [Mr B]. Following [Mr B]’s death, [Mr A] relocated to Kabul, but his father remained living in [District 1].
He cannot recall the circumstances surrounding his father’s death as he was young, but he recalls seeing his father working in the field before hearing shots being fired. He was later told that his father was killed by [Mr C].
[Mr E] is the current leader of Jamiat and he commands [Organisation 1], a private security group in [District 1]. Upon [Mr D]’s return from exile, [Mr E] appointed him to [Organisation 1] as a commander. At first, the applicant did not feel threatened by [Mr D]’s return to the district as the elders of his village had warned [Mr D] that they did not want any violence and [Mr D] and [Mr C] had made declarations of peace. However, as [Mr D] gained ‘influence with the government and Taliban’, he issued death threats against the applicant, [Mr A] and their respective families vowing for his father’s death. In response to the death threats, the applicant changed routes when commuting between Kabul and [District 1]. He also met with [Mr A] in Kabul to make arrangements for moving their respective families from [District 1] to Kabul. Eventually, the applicant moved his family to Kabul shortly before his departure from Afghanistan as a safety measure. Soon after, he was informed that [Mr D] had taken possession of his belongings and livestock and set fire to his property in [District 1]. While living in Kabul, he was approached at his place of business by a man who was from the same area as [Mr D] and this man warned the applicant to ‘look after’ himself and not to return to [District 1] as [Mr D] was after him. He went into hiding following this incident and was later informed by his employee of two or three subsequent visits by similar unknown men seeking information about the applicant. As a result, he decided to sell his business. Since his departure from Afghanistan, his family have resided at different addresses in Kabul in order to maintain a low profile.
[Mr A] also moved his family to Kabul. However, on one occasion when they returned to the district for a funeral, members of [Mr A]’s family, including his wife, children, brother and nephew, were killed on their way back to Kabul. [Mr A] had survived as he had travelled separately. When he complained to the authorities, no action was taken in response.
About six or seven months after he departed Afghanistan, the applicant’s mother informed him that his youngest brother, [named], had to flee to [Country 1] as [Mr D] ‘was after him’. About two years after the applicant’s departure from Afghanistan, his brother was deported from [Country 1] and returned to Kabul. He is not aware of his brother’s whereabouts and has not been in contact with him. His mother has since passed away. He also lost contact with [Mr A] after his departure from Afghanistan.
In early 2018, the applicant was introduced to Christianity by a friend and began attending [Church 1]. In mid-2018, he converted to Christianity and was subsequently baptised. He regularly attends church and participates in Bible study classes. He has not told his family about his conversion to Christianity. If he were to return to Afghanistan, he would continue to practise Christianity and his conversion would render him an ‘apostate’ and an infidel. Consequently, he will be targeted, severely punished and ‘slaughtered’ by the Taliban, as well as members of the general public.
Departmental interview
The applicant attended a telephone interview with the Department on 9 September 2020. The applicant was assisted by an interpreter in the Hazaragi and English languages. Where relevant, the applicant’s oral evidence to the delegate in the course of this interview is referred to further below.
Following the interview, the applicant’s representative, Ms Alison Ryan of RACS, made a submission to the Department, addressing the issues and concerns raised by the delegate at the interview in relation to the plausibility of the applicant’s claims regarding being targeted by [Mr D] and his claimed conversion to Christianity. Ms Ryan provided a summary of the applicant’s claims, stressing that he fears persecution on the basis of his Hazara ethnicity, his Christian faith, his imputed political opinion, and his membership of particular social groups, being his family and Afghan failed asylum seekers.
In relation to the applicant’s conversion to Christianity in 2018, it was submitted that the applicant continued practising Islam when he first arrived in Australia and only converted to Christianity when he was introduced to it in 2018. It was submitted that the applicant first attended [Church 1] when his friend [Mr F] took him to the church. Ms Ryan referred to a supporting statement by [Mr G], dated 8 September 2020, noting that the applicant had been engaged in lengthy discussions with [Mr G] on his first visit to the church. Ms Ryan submitted a letter of support from [Pastor H], Pastor of [Church 1], dated 9 September 2020, stating that the applicant has been attending [Church 1] since 2018 and that he attends Sunday services ‘regularly’ and ‘on a small number of occasions on Tuesdays and Thursdays in the past two years.’ Ms Ryan submitted that [Pastor H]’s records in relation to the applicant’s church attendance should not be relied upon as a ‘complete representation of the applicant’s actual attendance’, noting that services and Bible sessions were previously generally conducted in English and then translated into Farsi, however they have only been conducted in English this year. Ms Ryan submitted that the applicant attended most sessions on Sunday and occasionally on Tuesday and Thursday in 2018–2019 and that he was unable to attend church in 2020 due to COVID-19. A certificate of baptism, dated 17 June 2018, was also provided in support of the applicant’s claims.
Ms Ryan submitted a large volume of country information in relation to HI, the situation of Hazaras in Afghanistan, the persecution of Hazaras by the Taliban and Islamic State Khorasan Province (IS/ISKP) and treatment of Christians. Sources relied upon included reports by the Minority Rights Group International, DFAT, the European Asylum Support Office, Human Rights Watch, UNAMAT, UK Home Office and UNHCR.
The delegate’s decision
The delegate did not accept the applicant’s claims in relation to [Mr D] to be credible. She did not accept that the applicant faced any threat of harm from [Mr D] or [Mr E], that his father was killed due to his affiliation with HI, that he is involved in an ongoing blood feud with [Mr D], or that the applicant or his family occasioned any harm in Kabul. She also found that there is no real chance or a real risk that the applicant would face serious or significant harm in Kabul for the reason of his ethnicity or as a failed asylum seeker. Further, the delegate formed the view that the applicant had failed to demonstrate a genuine and ongoing commitment to Christianity and rejected his claim to have converted to Christianity.
The review

As noted earlier, in view of the procedural history outlined earlier, the Tribunal decided to combine the first and the second review applications pursuant to s 427(2) of the Act.
Pre-hearing submissions
On 24 February 2023, Ms Ryan submitted an updated letter from [Pastor H], dated 12 February 2023. In his letter, [Pastor H] referred to the applicant’s strong dislike of Islam and provided a background to the applicant’s attendance at his first Bible study class and what was discussed on that occasion. [Pastor H] stated that the applicant was baptised on 17 June 2018 and regularly attends Sunday church services. The applicant has also donated money to the church, he has provided handyman services, he assists with Christian activities and had brought one person to Bible study classes. He further stated that the applicant is a kind, helpful, dedicated Christian who learns the Bible and that many people have come to know that he is a church-attending Christian.
The hearings
On 1 March 2023, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. Ms Ryan also attended the hearing. Where relevant, the applicant’s oral evidence to the Tribunal at the hearing is referred to below.
At that hearing, the Tribunal explained to the applicant the procedural history of his case, resulting in two review applications being lodged with the Tribunal. Based on the view the Tribunal had formed at that time, the applicant was advised that the Tribunal had decided to proceed on the basis that the protection visa applications lodged by him were both valid. The Tribunal subsequently formed the view that the second visa application is barred under s 48A and, therefore, is invalid. This view was discussed with the applicant at a second hearing held on 15 June 2023. At the same hearing, the applicant consented to the Tribunal considering all claims and evidence submitted in relation to the second application for the purpose of reviewing the delegate’s decision with respect to the first valid application.
Post-hearing submissions
On 16 March 2023, Ms Ryan provided a submission to the Tribunal, stating that the applicant fears harm in Afghanistan due to his Hazara ethnicity, the imputation or suspicion of having supported or been associated with the former Afghan government, his conversion to Christianity and being a returning failed asylum seeker from a Western country. Ms Ryan submitted that the applicant also continues to fear harm from [Mr D] and his associates.
Ms Ryan submitted that the applicant is identifiable as a Hazara on the basis of his appearance, language, familial, and cultural and community affiliations. He faces a real chance of harm from the Islamic State Khorasan Province (ISKP), Taliban and other groups on the basis of his Hazara ethnicity, irrespective of him not being a Shi’a Muslim. The harm faced by the applicant is both as a Hazara and as a Hazara who will be imputed to be a Shi’a Muslim.
Referencing DFAT’s January 2022 report and other sources, Ms Ryan highlighted the high risk of violence faced by Hazaras in Afghanistan based on their ethnicity, as well as religion. She noted that there have been incidents of violence in Afghanistan directed at Hazaras outside of a religious setting since the Taliban takeover and how these incidents are not specific to Hazaras who identify as Shi’a Muslims. Ms Ryan cited country information sources to note that the Taliban actively target Hazaras, and this has taken place both prior and subsequent to the Taliban takeover. She submitted the Taliban have killed or otherwise caused serious or significant harm to Hazaras in multiple attacks leading up to the Taliban takeover and she provided a history of this targeting by the Taliban and referred to a number of sources to support her argument.
It was submitted that if the applicant were to return to Afghanistan, he would be unable to avoid engaging with the Taliban. The Taliban run immigration and customs and all other relevant government organs, and it would not be possible for the applicant to hide his ethnicity from the Taliban upon return. The applicant cannot be reasonably expected to conceal his Hazara identity, religion and where he has resided for over a decade as it would require him to lie to state authorities. In addition, the Hazara community is imputed to have been supporters of the former Afghanistan government. Accordingly, the general threat profile applicable to those who are imputed to have worked with the Afghanistan government or foreign government equally applies to Hazaras.
Ms Ryan submitted that the applicant would also be associated with Australia because he is returning from the West and would likely face persecution on this basis. Ms Ryan noted that even if the applicant passes through transport nodes into Afghanistan without detection, his period of residence in Australia is likely to be uncovered at any location in Afghanistan. The country information attests that being perceived to be associated with the West results in serious or significant harm. Ms Ryan provided examples of the harm and asserted that the applicant may face such harm either by reason of membership of a particular social group or otherwise by imputation of political opinion by persecuting agents.
It was further submitted it is imperative to consider ‘the perceived, suspected or imputed status’ of the applicant in the eyes of ‘persecuting agents’ when assessing his risk profile. Ms Ryan noted that in view of the fact that Hazara ethnicity is entwined with Shi’a Islam in Afghanistan, the applicant is likely to be perceived to be a Shi’a Muslim by persecuting agents. Further, the applicant may not be granted time to refute this perception, and, in any event, the applicant will not be afforded protection as a non-Muslim. The risk profile associated with being Shi’a in Afghanistan also applies to Hazaras and, accordingly, anti‑Shi’a persecuting agents pose a threat to all Hazaras. Ms Ryan noted that Shi’as face a high risk of targeting by ISKP and other militant groups. This risk increases in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat. Multiple recent attacks indicate that the ISKP poses a considerable threat to Hazaras and has the capacity to commit considerable violence against Hazaras. These attacks have continued since the Taliban takeover and the Taliban do not appear capable of reducing the capacity of ISKP to carry out further violent acts in Afghanistan. The ISKP, renowned for their extreme and violently exclusionist interpretation of Sunni Islam, remains active and dangerous. Afghanistan is also host to multiple other non-government extremist groups. Referring to country information sources, Ms Ryan submitted that there have been multiple instances of acts of violence perpetrated against Hazaras in non-religious communal settings or when engaging in non-religious activities. The perpetrators target Hazaras as a group and there is no attempt to distinguish non-Shi’a Hazaras from Shi’a Hazaras. As such, non-Shi’a Hazaras face an equal threat of harm from anti-Shi’a extremist groups. In addition, attacks against Shi’as generally are indicative of persecuting action against Hazaras specifically.
Finally, Ms Ryan submitted that the applicant has practised and publicly worshiped in a church in Australia since 2018. The church was attended by others, including at least one person from Afghanistan, and the applicant would likely attract the imputation or suspicion of being Christian.
Ms Ryan provided the following documents in support of the applicant’s claim that he has converted to Christianity:
·Statement by [Mr I], dated 10 March 2023. In his statement [Mr I] stated that he is an Afghan-born Christian and met the applicant while they were both working on a construction site. Subsequently, they formed a friendship and [Mr I] spoke to the applicant about Christianity and invited him to attend [Church 1]. After a while, the applicant told [Mr I] that he wanted to be baptised. [Mr I] stated that the applicant actively attends church and that he and the applicant speak regularly about the Bible and share videos about Christianity. [Mr I] further stated that the applicant has contributed to the development of the church by providing his [Occupation 1] services and donating money. The applicant is serious about the Christian faith and has requested that [Mr I] call him by [a Christian first name] as opposed to [his Muslim name].
·Statement by [Mr J], dated 10 March 2023, stating that he is a Christian born in [Country 1]. He converted to Christianity in 2014 and attends [Church 1]. [Mr J] stated that he has witnessed the applicant attending church and assisting with cleaning, serving tea and coffee and doing handyman work.
·Statement by [Mr G], dated 10 October 2023. [Mr G], also a Christian convert born in [Country 1], stated that he met the applicant in 2018 while sharing the Gospel as an Assistant in Training at [Church 1]. They spoke about Christianity and Islam and the applicant subsequently converted to Christianity and was baptised. [Mr G] has witnessed the applicant attending church regularly. He participates in Bible studies and is eager to hear and understand the Bible. [Mr G] stated that he has moved to Canberra but maintains contact with the applicant by telephone and they have conversations about their faith. [Mr G] said he believes the applicant to be a genuine Christian.
·Photographs of the applicant’s baptism.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Religion
The applicant’s claims in relation to his conversion to Christianity were raised in connection with his second invalid protection visa application. As noted above, the Tribunal has considered these claims for the purpose of reviewing the delegate’s decision to refuse the applicant’s first application.
As the delegate noted in her decision to refuse the second protection visa application, the applicant commenced attending church six years after arriving in Australia and his conversion to Christianity had occurred after he had lodged his first protection visa application. In the Tribunal’s experience, the timing of a protection visa applicant’s claimed religious conversion may raise legitimate questions in relation to the applicant’s genuine commitment to his or her new faith, as it did for the delegate in this case. However, assessing the genuineness of what can be a deeply personal and internal act, such as a religious conversion, is exceptionally difficult.[1] Religious conversion is often a gradual and continuing process. Bookending the commencement and the end of this process is not always possible nor determinative of the genuineness of the convert’s commitment to the new faith.
[1] Rose Lena, Thebault Deborah, Case comment: What kind of Christianity? A. vs. Switzerland, Oxford Journal for Law and Religion 7 (3) 2018, 543–50.
The Tribunal has listened to the applicant’s oral evidence to the delegate regarding his conversion to Christianity and had the opportunity to further probe and examine his claims at the hearing held in March 2023. The applicant’s responses to doctrinal questions pointed to an unsophisticated student of Christianity. This is unsurprising given the applicant’s very limited education. Other aspects of his evidence in relation to his reasons for embracing Christianity appeared somewhat simplistic. Nevertheless, the Tribunal's overall impression of the applicant throughout the process, particularly at the first hearing, was that of a credible witness who has attempted to provide a sincere and truthful account of his claims, including his conversion. The applicant’s evidence, in the Tribunal’s view, convincingly demonstrated an emotionally driven conversion, based on a consistently articulated derision towards Islam and assisted by being introduced to [Church 1] by a friend. The explanations behind the applicant’s encounter with Christianity in 2018 should not be discounted or delegitimised for lack of a perceived adequate intellectual component. Indeed, the applicant’s evidence suggests careful deliberations in his engagement with Christianity reflective of his unique background, profile and circumstances.
For the above reasons and having had regard to the supporting evidence submitted by the applicant, including letters from [Pastor H], [Mr G], [Mr J] and [Mr I], the Tribunal accepts that the applicant is a genuine Christian convert and committed to his new faith. The Tribunal finds that the applicant practises Christianity in Australia and would continue to do so should he be removed to Afghanistan.
In its most recent International Religious Freedom Report in relation to Afghanistan, the United States Department of State (USDoS) noted that according to the Taliban, Hanafi jurisprudence is the basis for the country’s legal system. Under Sunni Hanafi jurisprudence, conversion from Islam to another religion is apostasy. If the individual does not recant his or her conversion from Islam within three days, then he or she shall be subject to punishment for apostasy. Beheading is appropriate punishment for male apostates, while life imprisonment is appropriate for female apostates, unless the individual repents. A judge may impose a lesser penalty, such as short-term imprisonment or lashes, if doubt exists as to the individual’s status as an apostate. Under Hanafi jurisprudence, the government may also confiscate the property of apostates or prevent apostates from inheriting property.[2]
[2] USDoS, International Religious Freedom Report for 2022 – Afghanistan, 15 May 2023, 441219-AFGHANISTAN-2022-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf (state.gov).
USDoS noted that whilst there were no reports of Taliban representatives having directed sharia‑related punishments at converts, Christian converts could be considered apostates and subject to execution, as had occurred during the time of the Islamic Republic and under the Taliban from 1996 to 2001, when apostates were sentenced to death. According to the NGO International Christian Concern, fear of such punishment had driven Christian converts into deeper hiding.[3]
[3] Ibid.
The European Union Agency for Asylum (EUAA) has also reported that apostasy is a crime defined by Shari’a in Afghanistan and includes conversion from Islam and proselytising. EUAA reiterated that ‘appropriate’ punishments for apostates are beheading for men and life imprisonment for women, unless the individual repents. It added that, reportedly, ‘the Taliban see those individuals who preach against them or contravene their interpretations of Islam as “apostates”.’[4] EUAA has expressed the view that ‘for individuals considered to have committed blasphemy and/or apostasy, including converts, well-founded fear of persecution would in general be substantiated.’[5]
[4] European Union Agency for Asylum (EUAA), Country Guidance: Afghanistan, January 2023, Ibid.

The US Commission on International Religious Freedom (USCIRF) reported in April 2022 that Christians, Ahmadiyya Muslims, Baha’is and nonbelievers in Afghanistan are unable to express their faiths or beliefs openly because they face dire consequences, including death, if discovered by the Taliban or ISKP. The report stated:

Afghans who converted to Christianity from Islam over the past 20 years are considered “apostates,” a crime punishable by death according to the Taliban’s strict interpretation of Islam. Converts, who already faced ostracization and the threat of honor killings by family and village members, are at heightened risk following the Taliban takeover. USCIRF received reports that the Taliban have gone door to door looking for Christian converts. Christians have received threatening phone calls, and one leader of a house church network received a threatening letter in August from Taliban militants. Some Christians have turned off their phones and moved to undisclosed locations.[6]
[6] USCIRF, 2022 Annual Report: Afghanistan, April 2022, >
In August 2022, in a Country Update in relation to religious freedom in Afghanistan, USCIRF reported that religious freedom conditions in Afghanistan have drastically deteriorated since the Taliban seized control of the country on August 15, 2021. USCIRF reiterated that the Taliban and ISKP consider Afghan Christians to be converts from Islam and that Christians practise their faith in hiding since the Taliban’s strict interpretation of Hanafi jurisprudence deems conversion from Islam to another religion as apostasy and punishable by death. The report stated that currently Christians are ‘under extreme threat in Afghanistan.’[7]
[7] USCIRF, Country Update: Afghanistan, August 2022, type="1">
According to a report published in Christian Today:
Almost all Afghan Christians are converts from Islam and are not able to practise their faith openly. With the Taliban takeover, the pressure on Christian converts has grown exponentially, so many of them have gone into hiding in remote rural areas or fled the country. The Open Doors' field expert says for Christian converts who remain in Afghanistan there is no option other than to 'play the role of a Muslim'.[8]
[8] Christian Today, Afghan Artist Describes Life under Taliban, 10 February 2022, >
The Tribunal accepts this evidence. The Tribunal has found that the applicant would continue to practise Christianity if he were to return to Afghanistan. The Tribunal further finds that the only reason he would seek to limit or restrict the expression of his faith or religious views in Afghanistan is his fear of harm.
On the basis of the evidence before it, the Tribunal finds that if the applicant were to be removed to Afghanistan, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Afghan authorities, militias or members of the public. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reason for the persecution feared by the applicant is his religion. The Tribunal finds that effective state protection against the harm the applicant fears is not available to him in Afghanistan. The Tribunal is satisfied that the real chance of persecution relates to all areas of Afghanistan.
Ethnicity
The applicant’s ethnicity is not in dispute and the Tribunal accepts that he is of Hazara ethnicity.
In its most recent Guidance Note, dated February 2023, UNHCR stated:
Civilians in Afghanistan continue to be gravely affected by the security, human rights and humanitarian crises in the country. By the end of 2022, activities by armed opposition groups were reported to have intensified, with the UN Assistance Mission in Afghanistan (UNAMA) recording 22 armed groups claiming to operate in 11 of Afghanistan’s 34 provinces. Between 17 August and 13 November 2022, the UN recorded 1,587 security-related incidents, a 23 per cent increase compared to the same period in 2021. The provinces with the highest number of security incidents were Kabul, Herat and Kandahar. A total of 530 civilian casualties were reported (124 civilians killed and 406 wounded). The Taliban de facto authorities are reported to have committed serious human rights violations, including extrajudicial killings, arbitrary arrest and detention, torture and other forms of ill-treatment. In addition, the de facto authorities have imposed restrictions on the rights of Afghans to freedom of opinion, freedom of speech, and freedom of assembly, in violation of Afghanistan’s obligations under international human rights law. There has been widespread condemnation of the growing curtailment by the de facto authorities of the human rights of Afghan women and girls. (Footnotes omitted)[9]
[9] UNHCR, Guidance Note on The International Protection Needs of People Fleeing Afghanistan – Update I, February 2023,
In addition to the situation of women and girls, UNHCR identified ‘members of minority religious groups and members of minority ethnic groups, including the Hazaras’ amongst other profiles with increased refugee protection needs compared to the situation prior to the events of 15 August 2021. UNHCR cited numerous sources in support of the view that attacks against Hazaras, frequently claimed by ISKP, and the historical persecution of Hazaras and other minorities, ‘appear to be systematic in nature and reflect elements of an organisational policy, thus bearing hallmarks of international crimes, including crimes against humanity.’ It was further reported that ‘Hazara in Afghanistan, as a religious and ethnic minority, are at serious risk of genocide at the hands of the Taliban and [ISKP].’[10]
[10] Ibid.
In January 2022, DFAT reported that ‘while the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISKP terror attacks and Taliban violence, including hundreds of evictions.’[11] DFAT assessed that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. DFAT has also assessed that Shi’as face a high risk of being targeted by ISKP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, and that this risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.[12]
[11] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022.
[12] Ibid.
The Tribunal accepts Ms Ryan’s submissions that Hazara ethnicity is perceptibly entwined with Shi’a Islam in Afghanistan, and the applicant, irrespective of his religion, is likely to be perceived to be a Shi’a Muslim and therefore at risk of being targeted by both the Taliban and the ISKP.
On the basis of this evidence, the Tribunal finds that if the applicant were to be removed to Afghanistan, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Taliban and ISKP. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reason for the persecution feared by the applicant is his ethnicity and imputed religion. The Tribunal finds that effective state protection against the harm the applicant fears is not available to him in Afghanistan. The Tribunal is satisfied that the real chance of persecution relates to all areas of Afghanistan.
As the Tribunal has accepted that the applicant faces a real chance of persecution in Afghanistan for the reason of his religion and ethnicity, the Tribunal finds that he has a well‑founded fear of persecution in Afghanistan. The Tribunal is, therefore, satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. Section 36(3) therefore does not apply. Having reached these conclusions, the Tribunal does not consider it necessary to assess other protection claims arising from the applicant’s evidence, including his claims in relation to [Mr D].
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Shahyar Roushan
Senior Member

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.
…

Key Legal Topics

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Immigration
Administrative Law

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[2023] AATA 3030

16 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction