1909910 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant a protection visa. The applicant, who claimed to be an Afghan citizen of Hazara ethnicity and Shi’a Muslim faith, arrived in Australia by sea in April 2013. He had previously been granted a Temporary Safe Haven visa. The applicant lodged his protection visa application on 8 June 2017, which was initially refused, then renotified, and subsequently validly applied for review by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, or alternatively under section 36(2)(aa) as a person in respect of whom Australia has protection obligations due to a real risk of significant harm if removed from Australia. The Tribunal was required to consider the applicant's claims regarding his identity, nationality, ethnicity, religion, and his fear of persecution from extremist groups and authorities in Afghanistan, taking into account significant inconsistencies in his statements, mental health, memory lapses, and the authenticity of documentation.

The Tribunal found that while the delegate had concerns about the applicant's identity, they were satisfied he was an ethnic Hazara born in Afghanistan. The Tribunal explored these identity concerns and invited further information. Crucially, the Tribunal determined that the applicant was not an unauthorised maritime arrival, meaning a statutory bar under section 91K of the Act did not apply to his protection visa application. After considering the applicant's claims cumulatively and in light of country information regarding the volatile security situation in Afghanistan, the strict interpretation of Sharia law, and the repression of opposition, the Tribunal was satisfied that Australia had protection obligations towards the applicant under section 36(2)(a) of the Act.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth).