1909910 (Refugee)

1909910 (Refugee) [2024] AATA 4260 (16 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Barry Pike
CASE NUMBER:  1909910
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Simone Burford
DATE:16 July 2024
PLACE OF DECISION:  Perth
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 July 2024 at 4:21pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – arrival by sea – not unauthorised maritime arrival or fast-track applicant as defined, and statuary bar inapplicable – first application not invalid so second application invalid – ethnicity, religion and membership of particular social group – Hazara Shi’a living in other countries from young age and returned failed asylum seeker – fear of harm from extremist groups and authorities – significant inconsistencies in information – identity, family composition and authenticity of documentation – mental health and memory lapses – nationality and ethnicity accepted – wife may be Pakistani citizen but children are not, and applicant is not eligible – country information – Taliban takeover, volatile security situation, strict interpretation of Sharia law and repression of all forms of opposition – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H(1)(a), 5J(1)(c), (2), (3), (5), 5LA, 36(2)(a), (3), 65, 91K, 424(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
FCS17 v MHA [2020] FCAFC 68
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 dependants.
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 3 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [Age]-year-old who claims to be a citizen of Afghanistan. He claims to be ethnically Hazara and a Shi’a Muslim. He claims to have left Afghanistan for Pakistan with his family when he was around 2 or 3 years old. He claims to be married and have [children]. His wife and children reside in Quetta, Pakistan.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 16 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s 91K bar.
The applicant made an application for a Safe Haven Enterprise Visa (the protection visa) on 8 June 2017. That application was initially refused by the delegate on 3 May 2018. That refusal was initially referred to the Immigration Assessment Authority as the applicant was wrongly considered to be a ‘fast track applicant’. The applicant was renotified of the refusal of the protection visa on 2 April 2019 and made a valid application for review to the Tribunal on 20 April 2019.
For the following reasons, the Tribunal has concluded that the decision of the delegate refusing to grant the visa should be remitted for reconsideration.
Protection claims
Protection visa application
The applicant who claims to be a citizen of Afghanistan, applied for the visa on 8 June 2017. In a statement of claims accompanying his application he claimed he was born [Year] in the village of [Village] in Jaghori District, Ghazni Province, Afghanistan. He moved to Pakistan with his family when he was about two or three years old. His step-mother told him his family’s home area had fallen to Kuchis and there was a lot of killing of Hazaras to get control of their land and cattle. His father travelled to Afghanistan in 2004 and was missing until 2007 when he was found dead.
He claimed to be at at risk of persecution in Afghanistan for the following reasons:
·His ethnicity as a Hazara and his religion is Shi’a Muslim.
·It is unsafe for Hazaras in Afghanistan because they are being targeted and killed by the Taliban and ISIS.
·He feared that he will be treated as an infidel – a person who is a spy for westerners because he will be returning to Afghanistan from a western country.
·He cannot relocate to another area of Afghanistan because the risk of harm from the Taliban exists throughout the whole country.
The applicant was represented in relation to the application. He attended an interview with the Department officers on 11 January 2018 in respect of his protection visa application (protection visa interview).
In support of his application and claimed identity, the application provided the following documents to the Department:
·     An uncertified photocopy of a document purported to be his father’s taskera with a NAATI (National Accreditation Authority for Translators and Interpreters) accredited English translation;
·     An uncertified photocopy of a document purported to be his father’s Iranian refugee card with a NAATI accredited English translation.
·     An uncertified photocopy of a document purported to be his marriage certificate with a NAATI accredited English translation.
Following his interview, the applicant made written submissions including a further statement and summary of country information.
The delegate’s decision
The applicant provided a copy of the delegate’s decision to the Tribunal.
The delegate was not satisfied as to the applicant’s claimed identity but was satisfied that he was an ethnic Hazara and Shi’a Muslim.
The delegate refused to grant the visa on the basis that country information suggested that the situation in the applicant’s former home district of Jaghori was relatively safe and that he would not be a target for insurgent attacks based on his profile as a Hazara Shi’a Muslim. The delegate was also satisfied that the likelihood of the applicant being abducted, physically harmed or otherwise targeted by the Taliban, ISKP or any other persons or groups, in the reasonably foreseeable future, on account of his race or religion was remote.
The delegate also found, having regard to country information that societal discrimination against Hazaras occurred but that any discrimination the applicant may face upon return would manifest in the form of nepotism in favour of a person or group, rather than negative discrimination against Hazaras, or against the applicant personally, and that such discrimination would not amount to serious harm. The delegate also found that as the applicant would be returning to a Hazara dominant area, the risk of any discrimination on the basis of his ethnicity or religion would be even more remote.
Further, the delegate was not satisfied there was a real risk the applicant would be persecuted due to having real or imputed anti-Taliban views as someone who had spent time in the West. The delegate was not satisfied the applicant, having arrived in Australia when he was [Age] years old, would have developed any significant traits or behaviours during his time in Australia that would link him with the west. The delegate found the applicant had significant life experience and familiarity of living, travelling and working in foreign countries, including Pakistan and Iran, and would be able to live and communicate effectively and safely in Afghanistan. Further, the delegate was not satisfied that the applicant faces a real chance of serious harm in Jaghori District as a failed asylum seeker returning from a western country.
The delegate was satisfied that the applicant would be able to access Jaghori District without facing a real chance of serious harm and that country evidence suggesting his movement in and out of Jaghori District may be reduced or limited did not amount to serious harm.
With respect to complementary protection considerations, the delegate was satisfied there was not a real risk of the applicant being significantly harmed in criminal, insurgent, or generalised violence in his province or on the roads if he returned to Afghanistan. The delegate was also satisfied these risks are faced by the population of the country generally and are not faced by the applicant personally.
With respect to claims regarding the applicant’s mental health, the delegate accepted the applicant’s mental health problems at the time may be exacerbated by returning to Afghanistan and acknowledged the lesser standard of treatment and support available there, but found the applicant would not suffer significant harm on this basis.
Accordingly, the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations.
Tribunal proceedings
As noted above the applicant applied for a review of the decision to the Tribunal.
The applicant’s previous representative advised the Tribunal in August 2023 that she was no longer acting for the applicant.
The applicant was invited to a hearing before the Tribunal on 13 October 2023, however the applicant failed to attend. The Tribunal exercised its discretion to invite the application to a further hearing on 4 December 2023 and the applicant appeared on that occasion, unrepresented, to give evidence and make submissions in support of the review application.
The hearing was conducted with the assistance of an interpreter in the English and Hazaragi languages.
At that hearing, the Tribunal discussed with the applicant his background and claims for protection. The Tribunal also discussed with the applicant concerns raised in the delegate’s decision regarding his identity and inconsistencies in his account of his personal history in information provided to the Department in interviews and written information submitted in support of his protection visa application. This information is considered further below.
At the hearing the applicant indicated he had a number of family members in Australia, however he was evasive regarding their details. He also claimed to hold an Afghan taskera which there was no record of him having provided to immigration authorities. He claimed he had received this document from the Afghan Embassy in Australia who had verified its authenticity. Given concerns raised about the applicant’s identity in the delegate’s decision, the Tribunal indicated it would provide time for the applicant to provide his taskera, background details and copies of his family’s identity documents. Following the hearing, the Tribunal sent the applicant an invitation pursuant to s 424(2) of the Act to provide the following information:
·A copy of his Afghan Taskera and any correspondence from the Afghan Embassy or Afghan government regarding the issuing of the Taskera.
·A copy of the passport, citizenship or identity documentation for:
i.His mother (or step-mother), who he identified as [Ms A];
ii.His sister, who he identified as [Ms B]; and
iii.His brother, who he identified as [Mr C].
·Full names, dates of birth, country of citizenship and country of residence for all his siblings.
·A full list of his residential addresses in Australia and Pakistan.
The applicant engaged a migration agent to represent him on 22 December 2023 and sought an extension of time to provide the information requested which was granted.
On 14 January the applicant provided the following information via his representative in response to the invitation:
Tazkira with translation of the Applicant. The Applicant does not know the current whereabouts of any correspondence from the Afghan embassy in this matter, as he moved house on 19 December 2023 and does not know where he put them;
Passports for:
·     The Applicant’s mother, [Ms A];
·     The Applicant’s sister, [Ms B];
·     The Applicant’s brother, [Mr C – Alias] (AKA [Mr C]);
The details of the Applicant’s siblings are as follows:
Applicant’s addresses are as follows:
·     [Address 1, Suburb 1], [WA] from 19 December 2023 to present;
·     [Address 2, Suburb 2], [WA], 2021 till Dec 2023
·     Share house in [Suburb 2, WA], but does not recall the street name, about 6 months only;
·     [Address 3, Suburb 3 NSW] with [Mr C];
·     [Location][Road], Quetta, Pakistan.
Please note the slight differences in the spellings of the surnames, this sometimes is seen in different spellings by different translators. [Ms D] is married in [Country 1], using her married surname;
Please note that the Applicant has been attending psychological counselling for mental health problems due to stress. He complains of poor memory with lapses in recall. An example of this is the address of the share house in [Suburb 2]. However he has provided all information to the best of his knowledge and ability.
No further information was provided. This includes with respect to the claim the applicant was undergoing psychological counselling.
The information provided is discussed further below.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Analysis, reasons and findings
The applicant has made a number of claims which the Tribunal has considered, both individually and cumulatively. These claims were discussed with the applicant at the hearing.
Identity, country of reference and third country protection
The applicant claims to be an Afghan citizen. As noted above, the delegate detailed significant concerns regarding the applicant’s claimed identity. Ultimately, the delegate was not satisfied as the applicant’s identity but was satisfied that he was an ethnic Hazara born in Afghanistan. The delegate assessed the applicant’s claims on that basis.
The Tribunal explored the applicant’s background and concerns regarding his identity with the applicant at the hearing and invited the applicant to provide further information regarding his identity and that of his claimed family members following the hearing.
According to the delegate’s decision, the applicant stated during his protection visa application interview that he was originally named [Original name] by his parents, but they changed his name to [the applicant] because he kept getting ill when he was very young. The applicant said that when he first arrived in Australia the Department had incorrectly spelt his first name as [incorrect spelling], and the correct spelling is [correct spelling]. The applicant confirmed at the hearing that this information was correct. He said [Surname] was a family name.
The delegate’s decision noted that the applicant submitted uncertified photocopies of documents purporting to be his father’s taskera and his father’s Iranian refugee card as evidence of his identity, nationality and citizenship. The English translation for the taskera provides the registration place as [Village] in Jaghori District, Ghazni Province and states the holder’s name as [Mr E – Name 1] whose father’s name was [Mr F – Name 1] and his age was [Age] years old in 1354 of the Afghan solar calendar, which relates to a period covering 21 March 1975 to 20 March 1976 in the Gregorian calendar. The English translation for the Iranian refugee card states the holder’s name as [Mr E – Name 2], his father’s name as [Mr F – Name 2] and indicates it was issued in Chahar Mahal State on 10 August 1988.
According to the delegate’s decision, during entry and protection visa interviews the applicant stated he was born on [Date] in the village of [Village], which is located in Jaghori District, Ghazni Province, Afghanistan. The applicant stated during his protection visa interview that his family moved from [Village] to Pakistan when he was about two or three years old. He lived in Pakistan with his family until about 2004 when he travelled to Iran to investigate whether it would be good for his family and to find a wife. He returned to Pakistan in 2008 and remained living there until he commenced his journey to Australia [in] March 2013.

The delegate found the applicant had not provided sufficient evidence to establish his identity, noting he acknowledged that he had multiple identities in Afghanistan. He has submitted a Nikah, which provided inconsistent information in respect of his family name and which was only submitted after it was specifically requested during the protection visa interview. The applicant’s only explanation for this before the Tribunal was that he wasn’t asked for it earlier.
The delegate noted that in the documents submitted for the person the applicant claims to be, that his father’s documents (taskera and Iranian refugee card), contained different names for the holder and the applicant had not provided any evidence to support his claims that that person was his father. The delegate also noted that the applicant had obtained a fake passport and provided ‘vague responses’ when questioned about this in the protection visa interview.
The delegate observed that the applicant stated that he never previously held any identity documents from Afghanistan, nor from Pakistan where he lived for 23 years. He later stated that he was issued with a marriage certificate (Nikah) by the local clergyman when he got married. He subsequently submitted a copy of his Nikah to the Department on 24 January 2018. The English translation for the Nikah states that [the applicant] aged [Age], son of [Mr E – Name 3], married [Ms G] on [Date]. When asked by the Tribunal about why both his and his father’s names are different on the Nikah he said that in their culture Muhammad was put as a prefix and a suffix as Ali. The Tribunal queried how this was reflected in the names and he said that he didn’t have proper identity documents so ‘I got those documents’. The Tribunal understood him to be saying that he did not have identity documents when he obtained the Nikah.
The Tribunal asked where he obtained his father’s identity documents and he said his mother had photos of them. The Tribunal asked why he hadn’t used those when he got married and he said that when you get married they just ask the names and dates. He said they didn’t have identity documents on them but they were in the house. The Tribunal queried where his father’s identity documents had come from if his father was killed in Afghanistan (while separated from the family) and he said ‘probably they were at home. Maybe there are still documents at home.’ When the Tribunal queried why the Iranian refugee card would not have been with his father who he said had gone to Iran, he said he didn’t know and it was a very old one. The Tribunal asked if his father had returned at some point from Afghanistan to Pakistan and he said he didn’t know.
The Tribunal noted country information suggesting document fraud was prevalent in Pakistan and Afghanistan. The applicant agreed. The applicant stated on his protection visa application form that he used a fake passport during his journey from Pakistan to Australia. He stated during the protection visa interview that the passport was green in colour and contained his photo but he could not remember whether it was in his own name. He said a smuggler took it from him when he was in [Country 2]. Before the Tribunal he said he had a fake Pakistani passport which he obtained to leave Pakistan and travel to Australia.
At the hearing the Tribunal asked if he had any other identity documentation from Afghanistan and he said he had a taskera which had been provided to his previous lawyer. He said he didn’t know if had been given to the Department. The Tribunal noted there was no record of any taskera for him being given to the Department or the Tribunal. The Tribunal asked when and where he had obtained it from and he said he got it as confirmation from the Afghan Embassy in Australia in around 2019 or 2020. He said he would provide the document following the hearing, which he did, though he did not provide the requested correspondence from the Embassy which his representative submitted had been lost in a house move on 19 December 2023. The Tribunal notes that this is after the date on which the Tribunal held the hearing and after it sent the invitation to the applicant to provide the correspondence. The Tribunal does not accept the claim the document was lost in a house move to be credible and considers this and the delay in providing the document to the Department or the Tribunal causes concerns regarding its authenticity.
The Tribunal asked the applicant about his family and background at the hearing. He said his father was deceased but his mother was alive and was in Quetta Pakistan. He said he had one brother in Sydney, a sister in [Country 1] and two sisters in Quetta. He said he didn’t know if his sisters in Pakistan were married. He could not recall when his brother came to Australia, but it was prior to the applicant arriving. He said he didn’t recall when they were last in touch, but it was around 2021 or 2022. The Tribunal asked if he had other family in Australia and he said he did and that they had arrived in Sydney a month and a half ago. The Tribunal asked where his mother lived and he said she was in Pakistan but he thought she had come to Sydney. He said he didn’t know when but he had heard. He was not in contact with his siblings because of his relationship with his brother. He could not recall why he and his brother no longer spoke to one another. He said his brother in Sydney was his step-brother; they had the same father.
He said he had spoken to his mother about 2-3 months prior to the hearing but he didn’t know if she was in Islamabad or Australia at that time, and she had not told him she was coming to Australia. He told the Tribunal his wife told him his mother had gone to Australia but he had not raised it with his mother because he was too upset. When asked why his mother would not have told him, he said it was probably because his brother told his mother not to tell him. He said he didn’t know where his brother was living now. His sister [Ms H] was living in Pakistan and he had not had contact with her for a year and a half to two years. He said his sister [Ms B] had come to Sydney with his mother. He said one brother mentioned in the application, [Ms I], and a sister grew up in their house and were orphans so they were adopted. The ‘girl’ got married but [Ms I] was still in Quetta.
He said he and his wife married in [Year] in Quetta Pakistan. His wife was ‘originally from Pakistan but was born in Afghanistan’. The Tribunal asked if she held Pakistani identity cards and he said he thought so but did not know. They have [children], who are around [Ages] years old and who do not have Pakistani papers. They go to private school. He said before he got married he went to Iran for work but he couldn’t say for how long and did not know how old he was at the time. He thought he was there for maybe a year and a half. He said his father was there when he went but he did not know for how long. They did not work at the same place. The applicant was unable to say where he was working in Iran. He said he left because he was deported and sent to the boarder of Afghanistan. He used a people smuggler to get back to Quetta.
He said he didn’t know if his father was still in Iran when he left because he didn’t know much about him. He said he went to Afghanistan and passed away there in 2004 or 2005. He said the community told them, but he couldn’t remember when it was or how long he had been back in Pakistan when he found out. He said his memory was ‘cleaned’ from being away from his wife and children. He said some people said his father had been killed by Pashtuns and others said it was a car accident.
In response to the s 424(2) invitation, the applicant told the Tribunal that he had one sister in [Country 1], [Ms D] who is a [Country 1] citizen and resident. His brother, [Mr C – Alias] (AKA [Mr C]) is an Australian citizen and resident, and [Ms B] who is an Afghan Citizen and is living in Australia. His mother is [Ms A] who is a citizen of Afghanistan and is living in Australia. These details were not consistent with the application which listed the applicant’s siblings as [Ms D] and [Ms I] (as a step-brother). When asked about this at the hearing the applicant said that [Ms I] was ‘like a brother’ but was an orphan who grew up in his house. As noted above, he said he remained in Quetta. He said his other siblings ([Ms B] and [Mr C]) were not mentioned in the application because he didn’t like them. The Tribunal noted that he had lived and worked with his brother in Sydney, and he agreed but said he ‘didn’t like him from childhood’. [Ms H] was not mentioned in the 424(2) response.
The documents provided to the Tribunal indicate that the applicant’s claimed mother (who he told the Tribunal was in fact his step-mother following the death of his mother as a child) shows that she is an Afghan citizen born in Ghazni. His sister [Ms B]’s passport also shows she is an Afghan citizen and lists her place of birth as Ghazni. However, it lists her date of birth as [Year] which is well after the applicant claims to have left Afghanistan with his family. His brother holds an Australian passport listing his birthplace as Lashkar Gar. The Tribunal notes that Lashkar Gah, is the capital of Helmand, Province, Afghanistan. [Ms D]’s UK passport lists her birthplace as Jaghori.
Despite the applicant producing some documentary evidence consistent with his claimed family composition and Afghan identity, the Tribunal remained concerned about significant inconsistencies in this information. These concerns were amplified by the evasive nature of the applicant’s evidence before the Tribunal and the concerns detailed in the delegate’s decision regarding the credibility of the documents initially provided in support of the application for the protection visa. The Tribunal could find no reasonable explanation for the applicant’s resistance to providing evidence relating to his family, particularly those granted visas to enter Australia and found his answers to these questions before the Tribunal gave rise to serious concerns about the credibility of his evidence with respect to details of his family composition and identity.
Given the issues and concerns detailed above, the Tribunal is not satisfied as to the applicant’s claimed identity. Notwithstanding these concerns, the Tribunal was satisfied that the applicant is a Shi’a Hazara from Afghanistan.
The delegate observed that the applicant has physically distinct Asiatic facial features and appeared fluent in the Hazaragi language during the protection visa interview, which are both common traits of the Hazara people according to credible country infromation. These are consistent with his appearance before the Tribunal. The delegate also observed the applicant’s responses throughout his history of interactions with the Department and at protection interview have remained consistent in relation to his nationality and ethnicity and this supports his claim that he is a Hazara Afghan national who was born in Afghanistan.[1] This was also consistent with his appearance before the Tribunal.
[1] DFAT Country Report: Afghanistan, 22 June 2019 at [3.7] (2019 DFAT Report).
The Tribunal finds that the applicant is a citizen of Afghanistan, which is also his receiving country for the purposes of the refugee and complementary protection assessments. The Tribunal considers that such a finding is sufficient to determine the issues arising in the review.
The applicant claimed to have held a fake Pakistani passport provided by people smugglers and confiscated. Further, he claims his wife was born in Pakistan and may hold Pakistani papers. Given the evasive nature of his responses in questioning, the Tribunal considers his wife is likely a Pakistani national. However, the Tribunal notes the applicant’s evidence that he and his children do not hold Pakistani papers is consistent with country information suggesting that Pakistani women cannot pass citizenship to foreign nationals or children whose fathers’ are foreign nationals.[2] The Tribunal is not satisfied the applicant is or has a right to Pakistani citizenship based on the information before it.
[2] xxx
While the applicant has spent a significant period in Pakistan and has family remaining there, there is no information before the Tribunal that the applicant has a right to enter and reside in Pakistan or any other country and the Tribunal finds that s 36(3) of the Act does not apply to him.
Applicant’s home area
The Tribunal accepts that the applicant is from Jaghori but that he has no contact with any family members in Afghanistan having left as a child. According to DFAT, ‘returnees from Western countries almost exclusively return to Kabul’ and that ‘many returnees choose to remain in Kabul for economic reasons rather than return to their home provinces.’[3] Accordingly, Tribunal has considered the information for both Kabul and Jaghori Provinces as well as for Afghanistan more broadly.
The applicant’s claims
[3] 2019 DFAT Report; see also Office of the Commission General for Refugees and Stateless Persons (Belgium), COI Focus - Afghanistan: Security Situation in Kabul City', 8 April 2020.
The applicant told the Tribunal he fears harm from the Pashtuns in Afghanistan who he feared would kill him for reasons of his religion (as a Shi’a) and ethnicity (as a Hazara). He said he hadn’t been in Afghanistan for more than 30 years and didn’t know the people or the culture. He said he didn’t think there was any safe place for him based on what he heard in the media and saw on social media. In summary the applicant claims to fear harm from Pashtuns, the Taliban and Sunni Muslim extremist groups in Afghanistan due to (in summary):
·     His Hazara ethnicity;
·     His religion as a Shi’a Muslim; and
·     Being a returnee and failed asylum seeker who has spent a significant period outside Afghanistan and in a Western country.
He claims that these factors placed him at risk of serious or significant harm from authorities on return to Afghanistan.
The Tribunal notes that while the applicant claimed his family left Afghanistan because they had been attacked by Kuchis, or because Kuchis had attacked their village, he did not base his claims to fear harm on return on any profile connected with his family, other than as members of the Shi’a Hazara community.
Fear of harm as a Hazara
Central to the applicant’s claims and profile is his claim to fear harm as an ethnic Hazara and Shi’a Muslim. Hazaras, as an ethnic group, originate from and are predominantly based in Afghanistan. However, due to periods of persecution throughout history, many were forced into exile and settled in neighbouring countries. While some Hazaras are Sunni, the majority identify as Shi’a.[4]
[4] Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Pakistan: Shi'a and Hazaras, June 2018,
The 2019 DFAT Report in relation to Afghanistan noted:[5]
The Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan. Hazaras living in rural Afghanistan tend to speak Hazaragi, a dialect of Persian that is mutually intelligible with Dari (Afghan Persian), one of Afghanistan’s two official languages and the most commonly used. Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian. Most Hazara are Shi’a.
[5] 2019 DFAT Report at [3.7].
As noted earlier, the applicant has consistently claimed to be of Hazara ethnicity and to have been born into the Shi’a faith. His facial features identify him as being of Hazara ethnicity and he speaks Hazaragi. The Tribunal finds that the applicant is a Hazara and a Shi’a Muslim by birth. The Tribunal finds that the applicant was born to Afghani parents of the same ethnicity and faith.
The circumstances in Afghanistan have changed significantly since the delegate’s decision with respect to the governance of Afghanistan and the risk factors associated with return. The most significant of these for the current application were events in August 2021 when Afghanistan fell to the Taliban. Coalition forces withdrew from Afghanistan on 31 August 2021.[6] In September 2021, the Taliban announced the formation of an ‘interim government’ and declared an ‘Islamic Emirate of Afghanistan’.^[7] According to DFAT, the Taliban, who had previously presided over a period of considerable hardship for ethnic and religious minorities, promised an ‘inclusive’ government that would be representative of Afghanistan’s ethnicities and claimed to have fulfilled this by appointing a handful of Uzbeks, Tajiks and ‘a single Hazara’ to mostly technical roles. Most roles in the government are reported held by Pashtuns.[8]
[6]Taliban are back - what next for Afghanistan? - BBC News
[7] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022 (2022 DFAT Report).
[8] Ibid.
Although levels of armed violence dropped immediately after August 2021, compared to previous years of conflict, there has been an increase in security-related incidents since August 2022. DFAT has assessed that whilst Afghanistan’s security situation remains volatile, the country as a whole is relatively ‘less dangerous’, due to the cessation of most armed conflict after the Taliban takeover in August 2021. Nevertheless, DFAT has also noted that Afghanistan ‘remains a dangerous country with ongoing threats of terrorism and kidnapping and other forms of violence.’[9] Crime levels have increased in the face of the deteriorating humanitarian and economic situation, and the security situation is evolving. The Taliban rule has been marked by repression of all forms of opposition, and their implementation of a strict interpretation of sharia law.[10]
[9] Ibid.
[10] 2022 DFAT Report.
The situation for Shi’a Hazara’s in Afghanistan has been precarious for some time. DFAT reports that militants in Afghanistan had engaged in an ongoing series of major attacks against Shi’a targets including political demonstrations and religious gatherings.[11] In February 2020, United Nations Assistance Mission in Afghanistan (UNAMA) stated they were ‘gravely concerned about the safety and security of the Hazara minority group and the negative impact on their freedoms of religion and movement and their quality of life’.[12]
[11] Ibid.
[12] 'Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)', United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, p. 47.
In 2020, the Hazara population in Kabul saw several major attacks against them.[13] The Taliban also increased attacks on the provinces which constitute the Hazarajat and other areas populated with Hazaras, in the north and south of Afghanistan.[14] In June 2020, the UK Home Office noted UNAMA reported high levels of sectarian‑motivated violence by Daesh/ISKP against the Shi’a minority, most of whom also belong to the Hazara ethnic group:
UNAMA remains gravely concerned about the safety and security of this religious minority population and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.
[13] 'Gunmen Kill Dozens at Event Attended by Afghan Politicians', Najim Rahim and Mujib Mashal, The New York Times, 6 March 2020; 'Babies among 24 killed as gunmen attack maternity ward in Kabul', Aljazeera, 13 May 2020, 20200624104037; 'Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce', Stefanie Glinski, Foreign Policy, 14 May 2020
[14] 'Central provinces feared to lose security', Afghanistan Times, 23 August 2020; 'Taliban launch offensives on Hazara populated areas ahead of peace talks', Kabul Now, 05 September 2020; 'Taliban kill 10 security forces in Daikundi and Urozgan', Kabul Now, 16 August 2020; 'Officials: Govt Retakes Ghor's Murghab District from Taliban', Fariba Aram, Tolo News, 19 August 2020; 'Taliban set up checkpoints on key highway', Saifullah Maftoon, Pajhwok Afghan News -Afghanistan, 19 October 2020.

A report from Amnesty International also indicates that prior to the fall of Kabul the Taliban was targeting Hazaras:[15]
It comes as Amnesty International revealed that Taliban fighters killed nine ethnic Hazara men after taking control of Ghazni province last month. The killings, which took place between 4 and 6 July in the village of Mundarakht, Malistan district, saw six men shot and three others tortured to death.
One man was strangled with his own scarf and had his arm muscles cut off, while another had his legs and arms broken and his hair pulled out, researchers from the human rights charity said.
[15] >
The 2022 DFAT Report provided an update on the evolving situation in Afghanistan under Taliban rule. According to DFAT, the Hazara community made significant social, political, and economic gains in Afghanistan after the fall of the Taliban in 2001, albeit from a low base. The return of the Taliban in 2021 was met with great fear by the Hazara community which regards the Taliban’s promises of amnesty and inclusivity with scepticism. One member of the Hazara community has been appointed to a relatively minor position in the interim Taliban ministry (Dr Mohammad Hassan Gheyasi, who was appointed Deputy Minister of Public Health), but Hazaras are not otherwise represented in the interim Taliban government.[16]
[16] 2022 DFAT Report at [3.3].
DFAT assesses that the security situation in Afghanistan remains dangerous. The cessation of conflict between the Taliban and the former administration has made many parts of the country, especially rural areas, effectively free from armed conflict. However, the situation is highly volatile. The ability of the Taliban to control violent actors is not currently clear. This applies particularly to ISIL-KP but also its related entity, Tehrik-e-Taliban Pakistan, which targets Pakistan. There is significant potential for violence across the country, especially in the eastern provinces where ISIL-KP is strongest.[17] DFAT reports that:
Two of ISKP’s mass-casualty terror attacks, along with smaller attacks since mid-August 2021, have directly targeted Shi’ite mosques chiefly used by Hazaras. After the Kandahar attack of 15 October 2021, ISKP issued a statement saying it would target Shi’a in their homes and centres ‘in every way, from slaughtering their necks to scattering their limbs… and the news of [ISIS’s] attacks…in the temples of the [Shi’a] and their gatherings is not hidden from anyone, from Baghdad to Khorasan.’ Sources report that the Taliban referred to the largely Shi’a victims of the Kunduz bombing of 8 October 2021 as having been ‘martyred’, indicating possible support for Hazara victims ordinarily derided by the Taliban as ‘infidels’ (and therefore incapable of martyrdom). While the Taliban may be attempting to disrupt ISKP and prevent its attacks on Hazaras, this, along with the Taliban’s professed amnesty, does not indicate that it has put aside its historical antipathy towards Hazaras. Since its takeover in August 2021, the Taliban has summarily executed Hazaras who were former members of the security forces (see People associated with the former government or international community including security forces). Furthermore, hundreds of Hazara families have been forcibly evicted from their homes in central Afghanistan. The Taliban claims these evictions are ‘property disputes,’ but NGOs have described them as a form of ethnic cleansing (although one source suggests these evictions may be the result of local score-settling, rather than ethnically-based).
[17] 2022 DFAT Report at [2.26].
Sources consulted for a December 2021 Danish Immigration Service report stated that while the Taliban have not been targeting the Hazara population systematically, these evictions showed that the Taliban are not willing to protect them. Hazaras have also faced discrimination regarding access to the legal system as well as resources since the Taliban takeover.[18]
[18] 'Afghanistan: Recent events', Danish Immigration Service, 13 December 2021, p.28.
With respect to the Shi’a population, DFAT notes that the overwhelming majority of Afghan Shi’a are Hazara, although a small number of Hazara are Sunni. There are also Shi’a from other ethnic groups, including some Pashtun, Tajiks and Turkic peoples. The Taliban, ISIL-KP, Al-Qa’ida and most other terrorist/insurgent forces in Afghanistan are Sunni. While Sunni and Shi’a Muslims have lived side-by-side for much of Afghanistan’s history, religious hardliners such as the Taliban typically do not consider Shi’a to be true Muslims.[19] ISKP membership has grown in recent months and the group has a presence in half of Afghanistan’s 34 provinces.[20]
[19] 2022 DFAT Report at [3.8].
[20] 'Tracking Disorder during Taliban Rule in Afghanistan', Armed Conflict Location and Event Data Project (ACLED) and Afghan Peace Watch (APW), 14 April 2022, p.10.
ISIL-KP (or ISKP) has targeted Shi’as, including Hazaras, in a series of attacks since the Taliban took control of Afghanistan. ISIL-KP is the Afghanistan offshoot of Daesh (also known as Islamic State or IS). It is strongly opposed to Shi’a Muslims and the West. ISIL-KP has claimed responsibility for the bombings of Shi’a mosques in Kunduz, Kandahar Nangarhar and in Mazar-e-Sharif since US forces withdrew.[21] ISIL-KP also either claimed responsibility, or had responsibility attributed to them, for bombing attacks on the Dasht-e Barchi area of western Kabul which is heavily populated by Shi’a Hazaras, on 13 November 2021, 17 November 2021, 10 December 2021, 19 April 2022 and 21 April 2022.[22] Shi’a Hazaras travelling in two minibuses were also the target of a bomb attack in Mazar-e-Sharif on 28 April 2022 for which ISKP subsequently claimed responsibility.[23]
[21] 2022 DFAT Report at [3.5]; [2.24]-[2.25]; International Religious Freedom Report for 2021 - Afghanistan', US Department of State, 2 June 2022, Executive Summary; 'IS bomber kills 46 inside Afghan mosque, challenges Taliban', Kullab, S and Akhgar, T, Associated Press, 9 October 2021; 'Afghanistan: Dozens killed in suicide bombing at Kunduz mosque', Aljazeera, 9 October 2021; 'ISIS Bomber Kills Dozens at Shiite Mosque in Northern Afghanistan', Gibbons-Neff, T and Arian, W, The New York Times, 8 October 2021; 'Suicide attack on Shi’a mosque in Afghanistan's Kunduz underscores Islamic State's intent to discredit Taliban rule through targeted sectarian violence', Theodosiou, A, Jane's Terrorism ＆ Insurgency Monitor, 13 October 2021, p.1; 'Afghanistan: Surge in Islamic State Attacks on Shi’a', Human Rights Watch (HRW), 25 October 2021.
[22] 'Afghanistan: School bombings a ‘reprehensible attack’ on religious and ethnic minorities', Amnesty International, 19 April 2022; 'At least six killed in blasts at Kabul high school', Reuters, 19 April 2022;
[23] 'ISIL Claims Responsibility for the Series of Explosions in Mazar-e-Sharif', Eqbal, S, Khaama Press, 26 May 2022.
DFAT assesses that Shi’a face a high risk of being targeted by ISIL-KP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.[24]
[24] 2022 DFAT Report at [3.9].
The Tribunal is mindful of the fact that the security situation in Afghanistan overall is uncertain and evolving.[25] Similarly, the level of Taliban control over ISIL-KP and other groups going forward is unclear.[26] In the lead-up to US withdrawal and immediately following, the Taliban leadership was reported to be striking a more moderate tone regarding the minority Shi’a population.[27]
[25] 2022 DFAT Report at [2.23].
[26] 2022 DFAT Report at [2.26].
[27] Taliban Reach Out to Shiite Hazara Minority, Seeking Unity and Iran Ties - WSJ; Who are the Hazaras of Afghanistan? (indianexpress.com)
However, reports indicated the Hazara leadership had been targeted by the Taliban and that the Hazara community, including in Kabul, have been targeted for attack.[28] The Hazara community have continued to express concerns regarding targeting and reprisals from the Taliban and extremist groups. This contrasts with information suggesting that the Taliban is not targeting Hazara or Shi’a and in some instances are attempting to protect them or allow them to defend themselves.[29]
[28] Afghanistan’s Shi’a are fearful in face of Taliban takeover | Financial Times; Hazara Shi’as flee Afghanistan fearing Taliban persecution | Afghanistan | The Guardian‘; Afghanistan: Taliban’s impact on the population’, Country of Origin Information (COI) Brief Report, Danish Immigration Series, Junes 2022 at [6.2.1]
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)[30]
[30] UNHCR, Guidance Note on The International Protection Needs of People Fleeing Afghanistan – Update I, February 2023,
In 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. The 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].’[31]
[31] Ibid.
On the situation of returnees from the West more generally, Landinfo reported in 2022, that there is little information regarding the situation in Afghanistan for returnees perceived as westernised as there had been no forced returns from Western countries since the Taliban takeover.[32]
[32] Landinfo, Afghanistan: Departures and returns after Taliban’s takeover of power. 29 September 2022.
The European Union Agency for Asylum (EUAA) reported in December 2023 that senior Taliban officials called upon Afghans to stay in Afghanistan and have created obstacles for people wanting to leave and that there is no information available of individuals being deported or returned from the European Union since the Taliban takeover. Western states have halted deportations to Afghanistan and the International Organisation for Migration (IOM) has suspended activities facilitating or accompanying returns to Afghanistan. Regarding the treatment of ‘westernised’ Afghans, the Taliban have stated an aim to ‘purify’ Afghan society and eject foreign influence from the country.[33] The Taliban have issued instructions against trimming beards or wearing Western-style clothing and there have been reports of actions including arrest and beatings for people perceived as transgressing religious, social or cultural norms, including by adopting Western clothing or lifestyle choices.[34]
[33] EUAA, Afghanistan Country Focus, December 2023; Country of Origin Information: Afghanistan - Country Focus (europa.eu)
[34] UK Home Office, Country policy and information note: fear of the Taliban, Afghanistan, April 2022 Updated 29 April 2022 at 6.10.
While country information suggests that a lack of returnees from Europe (or the West generally) makes it difficult to confidently determine how such individuals may be treated by the Taliban or other groups on return to Afghanistan, previous failed asylum seekers returned from Europe were said to have faced suspicion and questions as to what extent they had been ‘contaminated’ by Western ways.[35] This suggests an ongoing risk of such treatment is likely.
[35] EUAA, Afghanistan Country Focus, December 2023; Country of Origin Information: Afghanistan - Country Focus (europa.eu)
With respect to returnees including those who have sought asylum in the West, the Office of the Commission General for Refugees and Stateless Persons Belgium (CEDOCA) reported in December 2023 that:
According to [the Dutch Country Report on Afghanistan], it is not clear whether factors such as whether or not the person has left Afghanistan illegally, the ethnicity of the person returning, any residence in Europe or another Western country or in one of the neighbouring countries (such as Iran and Pakistan) play a role in whether or not problems would be experienced when returning to Afghanistan or would manifest in a difference in treatment when returning to Afghanistan.
One source, cited in the 2023 Dutch Country Report on Afghanistan, stated that there was no reliable information available on the treatment by the Taliban of people voluntarily returning to Afghanistan. The information on this is described as limited and anecdotal. Other sources cited in this report state that they are not aware of any problems or difficulties with the de facto authorities in returning registered or undocumented refugees from neighbouring countries. According to another source cited in this report, there is always a chance, but not necessarily in each individual case, of problems in returning for people who left as economic refugees. Prominent individuals with certain profiles (such as former ANDSF personnel, for example) or people who already had certain problems before leaving Afghanistan could face retaliation upon their return. The source did not speak of any consistently occurring problems, but did state that such problems can never be ruled out. The same source claimed that no information was available on the treatment by the de facto Taliban authorities of people who are forced to return from a European or Western country, as there are hardly any such cases known.
According to a Freedom House report published in January 2023, in terms of the profile of human rights defenders, the Taliban would consider certain factors such as having received a Western education, having worked for a Western organisation, wearing Western-style clothing and speaking English as indicators of association with the “enemy”.[36]
[36] Office of the Commission General for Refugees and Stateless Persons (Belgium), CEDOCA, Migration movements of Afghans since the Taliban takeover of power, 14 December 2023; see also . EASO Afghanistan Country Focus, Country of Origin Report January 2022; EASO Country of Origin Information Report: Afghanistan Security situation (January 2022) - Afghanistan | ReliefWeb at 2.11 and at pp 15, 23.
The International Office of Migration (IOM) has reportedly suspended assistance for voluntary returns to Afghanistan because in their assessment there is ‘no safe environment for return’. IOM also anticipated the conditions that led to this assessment will remain unchanged for the foreseeable future and will likely deteriorate further due to the multi-layered crisis in Afghanistan. Other sources told the CEDOCA that people who oppose the Taliban are considered ‘instruments of Western influence’ and will be seen as a problem upon return to Afghanistan. Afghans who sought asylum in Western countries are perceived by the Taliban to have discredited them.[37]
[37] Ibid.
Notably in its February 2023 Guidance Note on Afghanistan the UNHCR:
Calls on decision-makers to give due weight to the uncertainty and unpredictability inherent in the modalities adopted by the de facto authorities for issuing decrees, coupled with the ongoing uncertainties regarding the applicability of Afghanistan’s previous legal framework. UNHCR considers that these circumstances render it particularly difficult to evaluate a future risk of persecution based on the currently available information on the human rights situation in Afghanistan, and in particular to conclude with the requisite level of confidence that an Afghan asylum applicant would not face a real risk of persecution upon return to the country of origin.[38]
[38] UNHCR, Guidance Note on Afghanistan – Update 1, February 2023
In addition and having regard to the availability of state protection, country information suggests that there had been an increase in criminal activities in western and southern provinces of Afghanistan, mainly in Uruzgan, Helmand and Kandahar, as well as in the northern province of Kunduz.[39] Reports from October and November 2021 referred to a surge in criminal activity in Kabul and elsewhere in Afghanistan.[40] There have been reports, however, that Taliban security forces have taken action to combat crime, such as rescuing kidnapped persons, seizing and destroying drugs, and arresting persons for committing crimes such as murder, kidnapping, robbery and drug-related offences.[41]
PROTECTION ASSESSMENT
[39] 'Afghanistan: Country focus (January 2022)', European Asylum Support Office (EASO), 7 January 2022, p.62
[40] 'Afghanistan: COI Repository (1st September 2021 - 18th May 2022)', Asylos and Clifford Chance, 19 May 2022, pp.56-58
[41] For recent examples of these reports, see 'Several kilograms of narcotics seized in Khost raids', Mangal, Y, Pajhwok Afghan News, 11 May 2022; '246 crime suspects arrested in Nangarhar last month', Zarifi, Y, Pajhwok Afghan News, 10 April 2022; '7 held with alcohol, K tablets in Kabul raid', Hasrat, A S, Pajhwok Afghan News, 28 March 2022, 20220329100333; 'Narcotics producing factory destroyed in Helmand', Bilal, R, Pajhwok Afghan News, 16 March 2022; '23 held on robbery, drug sale charges in Khost', Pajhwok Afghan News, 7 December 2021; 'Afghanistan: Country focus (January 2022)', European Asylum Support Office (EASO), 7 January 2022, p.62.
Conclusion
The Tribunal has accepted that the applicant is a Shi’a Hazara. The Tribunal also accepts that the applicant will continue to identify and associate with the Hazara Shi'a community should he return to Afghanistan and that he would be identified as a Hazara and imputed to be a Shi’a on return there. The Tribunal also notes the length of time the applicant has been absent from Afghanistan and considers that he would identified as a person who has spent significant time in the West and who has little familiarity and no identified support network within Afghanistan.
On the basis of the current evidence before it, the Tribunal is satisfied that there is a real chance, that is, one that is not remote or far-fetched, that the applicant would be subjected to serious harm in Afghanistan as a result of violence perpetrated by the Taliban and/or anti-Shi’a groups, including ISIL-KP, on the basis of his Hazara ethnicity and Shi’a religion. The Tribunal considers the fact the applicant left Afghanistan as a child and has spent significant time in the West elevates his risk of exposure to serious harm on return to Afghanistan.

The Tribunal is also satisfied that the harm he would suffer would amount to serious harm. Indicative examples are set out in s 5J(5) of the Act, and include a threat to the person’s life or liberty, significant physical harassment of the person and significant physical ill‑treatment and denial of capacity to earn a livelihood where it would threaten the capacity to subsist. The Tribunal finds that the harm faced amounts to serious harm including mistreatment, harassment or torture by the Taliban or ISKP or other Sunni Muslim extremist groups.
The Tribunal is also satisfied that harm would be for the essential and significant reasons of his religion and ethnicity. The Tribunal is satisfied that the harm the applicant would suffer would involve systematic and discriminatory conduct directed at the applicant because of his ethnicity and religion.
According to reports, the Taliban currently controls most of Afghanistan and will for the foreseeable future. As the Taliban is responsible, in part, for the persecution that the applicant fears, the Tribunal is not satisfied that effective protection measures as per s 5LA are available to the applicant in Afghanistan provided by the State, party or organisation. Further, the extent of Taliban control over extremist organisations in the country remains uncertain and such organisations remain active in perpetrating attacks including against members of the Shia Hazara community. The Tribunal finds that the applicant would not be able to access effective protection if returned to Afghanistan for the purposes of s 5LA(2).
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the relevant receiving country. Whilst this consideration does not require an assessment of whether it would be reasonable for an applicant to relocate to another part of the country, the areas in which there is freedom from persecution must be areas where there is safe human habitation and to which safe access is lawfully possible.[42]
[42] See FCS17 v MHA [2020] FCAFC 68 at [81], [21].
Prior to the fall of the Afghan government and withdrawal of foreign forces from Afghanistan, country information indicated that there are areas in Afghanistan, namely Bamiyan in Hazarajat and Mazar-e-Sharif in Balkh Province, that may be considered safe for Shia Hazara returnees.[43] However, in light of recent developments, the Tribunal is not satisfied that there is any part of Afghanistan in which the applicant would be safe from the persecution that he fears. The Tribunal is satisfied the applicant would face a real chance of persecution in all areas of Afghanistan and therefore satisfies s 5J(1)(c).
[43] 2019 DFAT Report; DFAT, Thematic Report on Hazaras in Afghanistan, 18 September 2017.
The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to alter his ethnicity and religion therefore, s 5J(3) does not apply.
Accordingly, for the reasons given above, the Tribunal finds that the applicant has a well‑founded fear of persecution in Afghanistan as defined by s 5J of the Act. The Tribunal finds that the applicant is a refugee under s 5H(1)(a) of the Act. In considering whether he comes within the definition of a refugee contained in s 5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant. For the reasons outlined earlier, the Tribunal is not satisfied that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Simone Burford
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.
…

‘Bleak Future with Education Under Attack in Afghanistan', Barr, H, Human Rights Watch (HRW), 20 April 2022; 'Regional Overview: South Asia and Afghanistan 16-22 April 2022', Karacalti, A and Sharma, I, Armed Conflict Location and Event Data Project (ACLED), 28 April 2022;

[2024] AATA 4260

16 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice