1910791 (Refugee)
[2021] AATA 5110
•8 November 2021
1910791 (Refugee) [2021] AATA 5110 (8 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1910791
COUNTRY OF REFERENCE: Afghanistan
MEMBER:Jason Pennell
DATE:8 November 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 8 November 2021 at 10.40am
CATCHWORDS
REFUGEE – protection visa – Afghanistan – particular social group – person who will be harmed by members of wife’s family due to separation – cannot be described as an innate or immutable characteristic – person whose family member is wanted by the Taliban – brother’s position at the Office of National Security Council (ONSC) – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559Any 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
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant, who claims to be a citizen of Afghanistan, applied for the protection visa on 15 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c)) of the Act.
3.The applicant appeared by video hearing before the Tribunal on Thursday 21 October 2021 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
4.The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. Apart from the applicant, no other witnesses attended the Tribunal hearing to give evidence. The applicant’s current representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
5.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.
6.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.
7.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).
8.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.
9.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
10.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.
APPLICANT’S BACKGROUND
Applicant’s identity
11.The applicant claims he was born on [date] in [District 1], Afghanistan.[1] He claims to belong to the Pastu ethnic group and is Muslim.[2]
[1] Application for a protection visa application form dated 21 September 2016, Department File [number], Doc ID No: 5601248, folio 153
[2] Ibid, folio 151
12.The applicant provided the Department with a number of documents including a certified copy of his Afghani passport, issued [in] 2014, with an expiry [date in] 2019[3], a certified copy of the Australian passport of his wife, [Ms A], valid [from] 2013, with an expiry [date in] 2018[4], payment advice slips for his [employment] in August 2016 and September 2016[5], a [Centrelink form] dated 21 September 2016 relating to his daughter, [Child B], born [date][6], and a translation of the couple’s marriage certificate[7], together with documents not in English[8].
[3] Afghanistan passport valid [until] 2019, Department file [number], Doc ID No: 5601256, not folioed
[4] Australian passport valid [until] 2018, Department file [number], Doc ID No: 5601256, not folioed
[5] Department file [number], Doc ID No: 5601248, folios 155 & 156
[6] Ibid, folio 171
[7] Ibid, folio 167
[8] Ibid, folio 157 - 167
13.The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Afghanistan and as such his protection claims will be assessed against Afghanistan as the country of reference and ‘receiving country’ respectively.
Migration history
14.The applicant was granted a Partner (Provisional) (Subclass 309/100) visa (‘the partner visa’) on 2 June 2015 when he was [age] years old. He first arrived in Australia [in] June 2015 on the partner visa. The applicant departed Australia [in] December 2015 to visit his parents in Afghanistan, Kabul[9] and returned to Australia [in] April 2016 on his partner visa.
[9] Application for a protection visa application form dated 21 September 2016, Department File [number], Doc ID No: 5601248, folio 141
15.On 29 June 2016, the applicant responded to the Department’s invitation to comment on adverse information.[10]
[10] Department decision, Department file [number], Doc ID No:5601283
16.On 24 August 2016, the applicant’s partner visa ceased and his application for a Partner (Permanent) visa was refused.[11] The applicant has held a number of bridging visas and he is presently lawfully in Australia on a Bridging visa C granted on 6 March 2017.[12]
[11] Ibid
[12] Ibid, and Department file [number], Doc ID No: 5601241
17.On 21 September 2016, the applicant lodged an invalid protection visa application as he had not provided personal identifiers. The Department notified him of the invalidity of the visa application in a letter dated 14 November 2016.[13] The applicant lodged a subsequent protection (Subclass 866) visa application on 15 November 2016 which was acknowledged by the Department in a letter dated 25 November 2016.[14]
[13] Department file [number], Doc ID No: 5601228
[14] Department file [number], Doc ID No: 5601231
18.This protection visa application was refused by the Department on 8 April 2019, and the applicant then applied for a review of this decision on 30 April 2019.[15]
Claims for protection and other supporting documentation
[15] Department decision, Department file [number], Doc ID No:5601283 and Tribunal file, case number no 1910791 Doc ID No: 5586711
19.The applicant submitted the following claims for protection in his protection visa application signed 20 September 2016, and lodged with the Department on 15 November 2016[16], together with an undated and unsigned statement[17]:
[16] Application for protection visa form, Department File [number], Doc ID No: 5601248 folios 133 to 135 and Department acknowledgement letter, Department file [number], Doc ID No: 5601231
[17] Applicant’s undated and unsigned statement, Department File CLF2015/5656, Doc ID No: 5601257, folios 172 - 174
Why did you leave that country(s)? Provide specific details
please check attached statement
What do you think will happen to you if you return to that country(s)?
please check attached statement
Did you experience harm in that county(s)?
No
Did you seek help with the country(s) after the harm?
Yes. Please check attached statement
Did you move, or try to move, to another part of that country(s) to seek safety?
No. please check attached statement
Do you think you will be harmed or mistreated if you return to that country(s)?
Yes. If I go to Afghanistan, my wife’s family back in Afghanistan will cause lots of ham to me because of the fight that came between me and my wife. they would want to take a revenge from me and, they are telling me that i have ruined their reputation and they are upset about that.
Do you think the authorities of that country(s) can and will protect you if you go back?
No. The authorities of that country will not protect me because Afghanistan does not have enough rules to protect the rights of human they will just ignore my matter.
Give details as to which authorities you think would protect you
no one will protect me there.
Do you think you would be able to relocate within that country(s)?
No. Please check attached statement
20.The delegate in the Department’s decision[18] summarised the applicant’s claims as follows:
[18] AAT file No 1910791 ID Doc 5586709
(a)In an email to the Department dated 30 June 2016, the applicant claimed that:
· He did not want to divorce his wife or separate from her.
· The applicant and his wife had family problems because his wife’s family was interfering.
· His wife’s family wanted to force their way of living on the applicant. They started to have a grudge against the applicant and were blackmailing the applicant that they can send the applicant home and will kill him there.
· The applicant has been accused of bad behaviour towards his wife but is pleading not guilty.
· The applicant’s brother-in-law has warned the applicant several times that he will do anything to take the applicant’s life. The applicant has contacted the police about this.
(b)The delegate summarised the applicant’s written claims as follows:
· The applicant was introduced to his wife after she returned to Afghanistan for her brother’s wedding. Both families blessed the wedding.
· The processing of the applicant’s Partner visa took about eight months. After that he came to Australia.
· Upon arrival in Australia the applicant stayed with his wife’s family.
· The applicant’s daughter, [Child B], was born on [date].
· [Child B]’s birth was a major cause of the applicant’s PV application. Due to the young age of the applicant and his wife, problems took place between them, each refusing to concede.
· His wife made a quick decision to report the end of the relationship to the department. The department sent a notice of intention to cancel the applicant’s visa.[19]
· The applicant was not sure what to do as he started to get threatening calls from an unknown source. His family has advised him that he will not be safe for him Afghanistan because of the separation from his wife.
· The applicant wants to take his child back to Afghanistan, but his wife does not agree.
· The has received many calls from people from his tribe who have told the applicant of he returns to Afghanistan without his child it would mean he is not a man enough and would be worth nothing. It would mean he is not following proper religious rules. People have spread rumours that the applicant has dropped Islam and that is why his wife is against him.
· There is no place in Afghanistan he can hide.
· If the applicant returns to Afghanistan, his wife’s family will harm him because of the fight between the applicant and his wife. They would want to take revenge on him. They are telling the applicant that he has ruined their reputation.
· The authorities will protect him because Afghanistan does not have enough rules to protect human rights.
[19] The delegate noted that the Department sent a notice that it had received information the relationship was over and advised that this would be grounds to cancel his Partner visa (see delegate’s decision at p.2; AAT file No 1910791 ID Doc 5586709)
21.Finally, the applicant claimed[20] that if he is returned to Afghanistan he faces a direct threat from the Taliban following the withdraw of the allied forces from Afghanistan due to the fact that his brother was [specified position] at the Office of National Security Council (ONSC) working in the area of [specified location].
Applicant’s documents
[20] Applicant’s personal statement dated 15 October 2021 at [52]
22.The applicant submitted the following material to the Department and the Tribunal in support of his protection visa application:
(a)The birth certificate of the couple’s son, [Child C], born [date] at [Hospital 1].[21]
[21] Department File [number], Doc ID No: 5601235
(b)Emails from the applicant’s then migration agent, [Mr D], that the mother of the applicant’s two (2) Australian born children, is an Australian citizen. Consequently, the children would not be included in his protection visa application.[22]
[22] Ibid, Doc ID No: 5601238 and DOC ID No: 5601247, not folioed
(c)Application by [Ms A] dated 25 March 2019, lodged with [the] Magistrates Court, seeking to revoke the intervention order against the applicant.[23]
[23] Ibid, Doc ID 5601277, not folioed
(d)Email dated 18 September 2016 from [Ms A] that she and the applicant had reconciled.[24]
(e)Email from [Mr D], dated 28 March 2019, that the applicant’s spouse had sought to restore the relationship with her partner and revoke the intervention order against him.[25]
(f)Submissions from the representative in support of the review application, dated 15 October 2021.
(g)Personal statement made by the applicant in support of his visa application, dated 15 October 2021.
(h)Evidence that the applicant’s brother was involved with the coalition government before the Taliban takeover of Afghanistan, being his Afghan National Security Council identity card and various evidentiary photographs.
(i)Letter addressed to the applicant from the Department of Families, Fairness and Housing advising completion of a child protection investigation, dated [September] 2021.
(j)Birth certificates for the applicant’s two Australian citizen children, namely [Child B] and [Child C], issued [in] October 2016 [and] October 2017 respectively.
(k)Photographs of the applicant and his family accompanied by a Father’s Day card addressed to the applicant.
(l)Parenting plan made between the applicant and [Ms A], dated 7 October 2021.
(m)DFAT Country Information Report for Afghanistan, dated 27 June 2019.
[24] Ibid, Doc ID: 5601280, not folioed
[25] Ibid, Doc ID: 5601268, not folioed
Applicant’s evidence
23.In addition to his oral evidence to the Tribunal the applicant provided a statement of claim[26] that was attached to his application for a protection visa.
[26] Department file No [number] Doc ID:5601257
24.The applicant’s evidence was that he was born on [date] in [District 1], Afghanistan and acquired Afghani citizenship by birth[27]. He claims to be of Pastu ethnicity and Muslim.[28] The applicant stated in his protection visa application form that he can speak, read and write in English, Dari and Pashto.[29]
[27] Application for a protection visa application form dated 21 September 2016, Department file [number], Doc ID No: 5601248, folio 153
[28] Ibid, folio 151
[29] Ibid, folio 151
25.The applicant states that his mother and father continue to live in Kabul, Afghanistan,[30] together with his [number] sisters and [number] brothers.[31] He claims that his father had held several managerial positions and because of his work his family moved to Kabul soon after the applicant was born.
[30] Persons included in this application, Department file [number], Doc ID No: 5601248, folio 121 & 122
[31] Ibid, folio 120 & 121
26.The applicant married [Ms A], in Afghanistan [in] August 2014. [Ms A] was born on [date]. They have a daughter, [Child B] born on [date]. [Ms A] and [Child B] are both Australian citizens living in Australia.[32] The applicant claims that the relationship with [Ms A] began [in] March 2013, in Afghanistan but that they separated in Melbourne.[33]
[32] Ibid, folio 125 & 126
[33] Application for a protection visa application form dated 21 September 2016, Department File [number], Doc ID No: 5601248, folio 151
27.The applicant claims he was educated in Afghanistan[34]. He declared in his protection visa application that he attended:
·[School 1] in [specified neighbourhood], Afghanistan from January 2001 to December 2013, where he completed his education.[35]
·[University 1] in Kabul, Afghanistan from January 2013 to January 2015 where he was enrolled in [Discipline 1], but later withdrew from the course[36].
[34] Ibid, folio 137
[35] Ibid, folio 137
[36] Ibid, folio 137
28.In Australia the applicant has been employed as a [Occupation 1] with [Employer 1], in [Suburb 1], Australia since June 2015.[37]
[37] Ibid, folio 139
29.The applicant’s evidence was that he was first introduced to [Ms A] in Afghanistan at her brother’s wedding. The applicant was a friend of her brother and she had returned to Afghanistan to attend her brother’s wedding. After the wedding, [Ms A] returned to Australia but she remained in contact with the applicant. She returned to Afghanistan to marry the applicant. It was the applicant’s evidence that both their families blessed their marriage.
30.Upon his arrival in Australia the applicant lived with [Ms A]’s family. Problems developed in their marriage and [Ms A] advised the Department they were no longer in a relationship in late June 2016. Their daughter [Child B] was born on [date].
31.The applicant gave evidence that he received a notice of cancellation from the Department and was preparing to leave Australia with [Child B], to which [Ms A] did not agree. However, he claimed that he started receiving threats from unknown sources in Afghanistan.
32.He claims that his and [Ms A]’s families became aware of the issues between them and he has received calls from people of his tribe, telling him that if he returns to Afghanistan without his child he will not be considered a man and will be worth nothing. That is, he will be considered not to have followed the proper religious rule.
33.The applicant claims he has been accused by his own family and [Ms A]’s family of deserting Islam. As a result, the applicant fears returning to Afghanistan as he fears being harmed by his own family and others for having left his child in Australia.
34.He claims that there is no place in Afghanistan he can hide as he will be identified by government officials. In addition, he claims that the Afghanistan government cannot protect him from the tribes and families in Afghanistan.
35.Finally, the applicant’s evidence[38] was that if he was returned to Afghanistan there was a real chance that he would be seriously harmed by the Taliban following the withdrawal of the allied forces from Afghanistan. His evidence was that his brother ([Brother E]) was [specified position] at the Office of National Security Council (ONSC) working in [specified location]. His evidence was that his family had attempted to leave the country through the American Embassy. The applicant claimed that there was a real chance that on his arrival in Afghanistan he would be identified and detained as result of his brother’s role with the ONSC.
[38] Applicant’s personal statement dated 15 October 2021 at [52]
COUNTRY INFORMATION
36.In accordance with Ministerial Direction No. 8 September 4 of 24 June 2019 made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT).
CONSIDERATION OF CLAIMS AND EVIDENCE
37.The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s relevant grounds
38.The applicant submits that his claims fall within s 5(1)(a) of the Act as a member of a particular social group (PSG) as a person who will be harmed by members of his wife’s family due to the separation of the applicant and his wife. In addition, he claims to be a member of a PSG as a person whose family member is wanted by the Taliban.
39.To be considered a member of a PSG it is necessary for the applicant to share (or be perceived to share) an innate or immutable characteristic with each member of the group that is fundamental to a member’s identity or consciousness and distinguishes the group apart from society.[39]
[39] Section 5L of the Act.
40.The Tribunal does not accept that as a person who may be harmed by his wife’s family because of their separation, the applicant is a member of a PSG. In the Tribunal’s view, the fact that the applicant has separated from his wife cannot be described as an innate or immutable characteristic. While the Tribunal accepts that the applicant’s marriage and his children may be important to his sense of identity within his community, it does not accept that it is so fundamental to his identity or consciousness that it can be described an innate or immutable characteristic to the extent that it distinguishes the applicant, as part of a group, from the rest of society, as required by s 5L of the Act.
41.Section 5J(1) of the Act provides that for a person to be considered a refugee under s 36(2)(a) of the Act they must have a well-founded fear of persecution by reason of their race, religion, nationality, membership of a PSG or political opinion. In this case, the Tribunal is not satisfied that the applicant’s claim of being harmed by his wife’s family due to their separation falls within s 5J(1)(a) of the Act. As such, the Tribunal finds that the applicant does not have a well-founded fear of persecution, and therefore is not a refugee pursuant to s 36(2)(a) of the Act, as a result of his separation from his wife, as claimed.
42.The applicant claims that if he is returned to Afghanistan, he has a well-founded fear of persecution as a member of a PSG due to a family member (the applicant’s brother) being wanted by the Taliban. In this case the applicant claims that his brother was [specified position] at the ONSC working in [specified location]. He claims that his brother is wanted by the Taliban and that he will be targeted by the Taliban upon his return to Afghanistan. The Tribunal accepts that the relationship with his brother is an innate and immutable characteristic fundamental to his identity or consciousness. As a result, the Tribunal accepts that the applicant is a member of a PSG pursuant to s 5J(1)(a).
The applicant’s well-founded fear
43.Section 5J of the Act states that for the purposes of an application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and if there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
44.In Chan v MIEA[40] the Court held that, when considering ‘well-founded fear’ for the purposes of the Refugees Convention, it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[41]
[40] (1989) 169 CLR 379 at [396].
[41] (1989) 169 CLR 379 at [396]. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ.
45.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.
46.However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[42] stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[42] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.
In MIEA v Guo, the Court stated that: [43]
[43] MIEA v Guo (1997) 191 CLR 559 at [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293].
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
48.The Tribunal has found that the applicant does not have a well-founded fear of persecution by reason of his separation from his wife as claimed due to the fact that he does not fall within the criteria detailed in s 5J(1)(a) of the Act.
49.The applicant claims that there is a real chance he will be seriously harmed as a member of a PSG, due to his brother being [specified position] at the ONSC working in [specified location], if he is returned to Afghanistan. In relation to this claim, for the reasons detailed below, the Tribunal accepts that the applicant has a well-founded fear of persecution, on a subjective and an objective basis, if he is returned to Iran.
The applicant’s domestic claim
50.For the reason stated above, the Tribunal has found that the applicant does not have a well-founded fear of persecution by reason of his separation from his wife as claimed, due to the fact that he does not fall within the criteria detailed in s 5J(1)(a) of the Act. As a result, the Tribunal finds there is no real chance he will be seriously harmed if he is returned to Afghanistan by reason of his separation from his wife, as claimed, pursuant to s 36(2)(a) of the Act.
The applicant’s brother
51.The applicant’s evidence[44] was that if he was returned to Afghanistan there was a real chance that he would be seriously harmed by the Taliban following the withdrawal of the allied forces from Afghanistan. His evidence was that his brother was [specified position] at the ONSC working in [specified location]. As a result, the Taliban wanted to detain his brother and would harm members of his family. His evidence was that his family had tried to leave the country through the American Embassy but had failed to do so. He claimed that they were now keeping a low profile and living in fear of the Taliban in Kabul. His evidence to the Tribunal was that his brother had gone into hiding. He was not able to say where he had gone. The applicant claimed that upon his arrival in Afghanistan there is a real chance he would be identified and detained as a western sympathiser due to his relationship with his brother.
[44] Applicant’s personal statement dated 15 October 2021 at [52]
52.The UHNCR[45] has reported that the Taliban take over Afghanistan in 2021 has caused a humanitarian and displacement crisis within the country. It reports[46] that 665,000 Afghans were displaced inside the country, of which 80% were women and children. The highest number of conflict-related casualties were recorded in 2021,[47] with families being forced to flee at a moment’s notice, faced with the risk of improvised explosive devices and attacks by armed groups.
[45] UNHCR ‘Afghanistan Emergency’; Ibid
[47] Ibid
53.Prior to 2021 Afghans were already one of the world’s largest refugee populations, with over two million[48] having been registered as refugees in Iran and Pakistan.[49] A further three million people were already displaced inside the country before new fighting broke out in 2021.
[48] UNHCR reports that there are 2.2 million registered refugees in Iran and Pakistan
[49] Ibid
54.The country information[50] reports that since the takeover of Afghanistan the Taliban have reinstated harsh punishments, including whipping, chopping off hands and even hanging people from cranes. Its claimed that the Taliban's "vice and virtue" squads operate out of sight of the media.[51] It’s reported[52] that Afghan women have experienced widespread and serious human rights violations in which they have been prohibited from working, running businesses or in some cases even going outside without being accompanied by a male family member. It’s reported that the Taliban have instilled fear among women and girls by searching out high-profile women; denying women freedom of movement outside their homes; imposing compulsory dress codes; severely curtailing access to employment and education; and restricting the right to peaceful assembly.
[50] NPR, ‘A more moderate Taliban? An Afghan journalist says nothing has changed’ dated 7 October 2021 by Terry Gross,
[51] UNHCR ‘Afghanistan Emergency’; Human Rights Watch, ‘Afghanistan: Taliban buses Cause Widespread fear’, 23 September 2021; the time of taking over Afghanistan, the Taliban communicated a more moderate image. In a press conference after the group took control of Kabul, chief spokesman Zabihullah Mujahid made a declaration of forgiveness.[53] However, it’s reported that despite the Taliban’s claims they would grant an amnesty to all, including those who worked for western military forces or the Afghan government or police, the reality is different to the rhetoric coming from Taliban leaders and spokesmen.[54] It’s reported[55] that Taliban fighters are searching for, and allegedly killing, people they pledged they would leave in peace. In or about August 2021, Taliban fighters executed two senior police officials - Haji Mullah Achakzai, the security director of Badghis province, and Ghulam Sakhi Akbari, security director of Farah province. Video footage showed Mr Achakzai kneeling, blindfolded, with his hands tied behind his back before he was shot.[56]
[53] BBC NEWS ‘Amid violent reprisals, Afghans fear the Taliban's 'amnesty' was empty’ dated 31 August 2021, Yogita Limaye, Ibid
[55] Ibid
[56] Ibid
56.It’s reported that those who have fled the Taliban fear for their colleagues. A former female Afghan police officer, one of thousands trained since the Taliban was deposed in 2001, claimed that she was still in contact with some of her former colleagues. She stated that the Taliban call them from their office phones asking them to come to work and for their home address. It’s reported that even those who have left are not out of the reach of the Taliban as they continue to contact their relatives.[57] In the case of one former Afghan soldier who fled from Badakhshan province along with his three brothers, all of whom were in the army, the Taliban fighters continued to harass his family, "asking them for money saying your son was in the special forces".[58]
[57] Ibid
[58] Ibid
57.A former Afghan special forces soldier still inside the country reported that he and his family were in hiding after former colleagues were killed. He claimed that "Since the Taliban have come to power, they haven't stopped killing." [59]He said. "A few days ago, they killed twelve members of the special forces in Kandahar and three soldiers in Jalalabad as well. They were my close friends. I was in touch with them. The Taliban took them out of their homes and shot them."[60]
[59] Ibid
[60] Ibid
58.It’s reported by the BBC that a high-ranking Afghan police official was in hiding as he had heard the Taliban were searching for him. He claimed the Taliban had caught his assistant and interrogated him for five hours.[61] As a result he claimed he was changing location every day with his wife and children as he did not have the money to cross the border. He claimed that the problem was ‘the Taliban have no justice system. They have no courts, no jail. They are just killing.’[62]
[61] Ibid
[62] Ibid
59.Finally, it’s reported that it’s not just members of the military who are being targeted. People who worked in the security forces are being targeted. Members of the civil administration, and those who worked in jobs disapproved of by the Taliban have similar stories.
60.In this case, the applicant claims his brother was the [specified position] at the ONSC working in [specified location]. The applicant provided the Tribunal with copies of his brother’s Islamic Republic of Afghanistan Office of National Security ID card together with photos of his brother in [specified location]. Based on the applicant’s evidence and the documentary evidence provided by him to the Tribunal, the Tribunal accepts that his brother did work in [specified location] as the [specified position] at the ONSC as claimed.
61.The applicant claims that his brother is currently in hiding from the Taliban. He claims that his brother is in danger because of his previous employment with the ONSC. He claimed that he did not know where his brother was located but said he was in hiding from the Taliban. His evidence was that his family are very concerned and are afraid that they will be harmed by the Taliban. He claimed that they were keeping a very low profile and moving from place to place in and about Kabul to avoid being contacted by the Taliban. Based on the applicant’s own evidence, the available country information and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant’s brother is of interest to the Taliban and that his family fear being harmed as claimed.
62.Therefore, having accepted that the applicant’s brother worked with the ONSC as claimed by the applicant, and that he was of interest to the Taliban as claimed, then the Tribunal accepts the applicant’s claim that there is a real chance he would be identified and detained upon his arrival in Afghanistan as a member of his brother’s family. In such circumstances, and based on the available country information, the Tribunal accepts that there is a real chance the applicant would be seriously harmed in the event he is returned to Afghanistan as a result of his brother’s previous employment as claimed.
63.Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J(1)(a) and s 5J(1)(b) of the Act and finds that he is a refugee pursuant to s 5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a).
Applicant’s complementary protection claim
64.Having found that the applicant satisfies the criterion set out in s 36(2)(a) there is no need for the Tribunal to consider the applicant’s claim under complementary protection pursuant to s36(2)(aa) of the Act. As such, the Tribunal does not make any formal order in relation to his claims under complementary protection.
65.Nevertheless, as to the applicant’s domestic claim, the Tribunal is prepared to indicate that, based on his own evidence, it accepts he would suffer some discrimination upon his return to Afghanistan without his children due to his domestic circumstances. However, it does not accept that any discrimination he would suffer as a result of returning to Afghanistan without his children would amount significant harm and as such he does not satisfy s.36(2)(aa) of the Act.
CONCLUSION
66.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s 36(2)(a) of the Act.
DECISION
67.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jason Pennell
Senior MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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