1909300 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse the applicant, a national of Afghanistan, a protection visa. The applicant, of Hazara ethnicity and formerly a Sunni Muslim, arrived in Australia in 2012. He had previously lodged a Safe Haven Enterprise (SHEV) visa application which was refused, and subsequent reviews and judicial reviews were unsuccessful. A later SHEV application was deemed invalid, but due to a Full Federal Court decision concerning the definition of an "unauthorised maritime arrival" in relation to Ashmore Reef, the applicant's initial refusal was considered a "Part 7 reviewable decision" subject to review by the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, considering claims related to his ethnicity, imputed political opinion, and a claimed conversion to Christianity. Specifically, the court needed to assess the risk of significant harm the applicant might face upon removal from Australia, taking into account his Hazara ethnicity, potential imputation of Shi'a Muslim faith, and imputed political opinion as a supporter of the former Afghan government. The Tribunal also had to consider the applicant's claims of fear of harm from the Islamic State Khorasan Province (ISKP) and the Taliban, and whether he constituted a "particular social group" or had failed asylum seeker status.

The Tribunal concluded that the decision under review should be remitted for reconsideration. While acknowledging the delegate's concerns regarding the timing of the applicant's claimed conversion to Christianity, the Tribunal found the applicant to be a credible witness who had provided a sincere account of his claims. The Tribunal considered his conversion to be emotionally driven and reflective of his background and circumstances, and did not discount it for a lack of perceived intellectual depth. The Tribunal also noted that the applicant's claims regarding his ethnicity and imputed political opinion, stemming from his father's past involvement with a political group and subsequent death, and the threats made against him by a local commander, were relevant to the assessment of risk.

The Tribunal ordered that the decision under review be remitted to the delegate for reconsideration.