1910959 (Refugee)

1910959 (Refugee) [2024] AATA 4323 (8 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Besmellah Razaee
CASE NUMBER: 1910959

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Michael Brereton
DATE:8 August 2024
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 08 August 2024 at 4:11pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – race – Hazara – religion – Shi’a – nationality – Pakistani and Afghan citizenship – removal to Afghanistan – right to return to Pakistan – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 109, 499
Migration Regulations 1994, Schedule 2
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 9 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Afghanistan and a Hazara, applied for the visa on 16 January 2017. The delegate found that the applicant is a citizen of Pakistan and refused to grant the visa.
The applicant appeared before the Tribunal on 24 June 2024 to give evidence and present arguments. The Tribunal also heard evidence from Mr S, the applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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). 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.
There is no current country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes with respect to Afghanistan. The Tribunal has considered previous assessments and other Afghan country information as noted, to the extent that they are relevant to the decision under consideration.
The Tribunal has also considered the DFAT country information prepared with respect to Pakistan, to the extent that it is relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the applicant’s claim to fear harm as a Hazara and Shi’a citizen of Afghanistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Application to the Department
In his application to the Department the applicant stated that he was born in Kabul, Afghanistan. He said that his father obtained Pakistani documents for the family. He said that he feared harm because he is a Shi’a, a Hazara and has no legal right to remain in Pakistan.
Application for review
The applicant, through his representative, sought review of the decision on the basis that he is a citizen of Afghanistan and is not a citizen of Pakistan. The applicant provided the Tribunal with copies of documents said to be the applicant’s Afghan identity card (tazkera) and translation, a Pakistani passport in the applicant’s name, a Pakistani identity card in the applicant’s name and witness statements from persons purporting to have known the applicant as a young man in Afghanistan.
The applicant told the Tribunal that he was born in Kabul, Afghanistan and that he is of the Hazara ethnicity and Shi’a religion. He said that as a young child he went with his family to live in his father’s home province of Ghazni. When he was about [age range] years of age, he and his family (including his wife) left Afghanistan and went to Pakistan. He has not been back to Afghanistan since that time.
The applicant said that in around 1989, he obtained a letter giving him permission to work in Iran. He went to Iran and worked there for some years. In about 1992, his father obtained Pakistani documents for the family. The applicant did not have these documents when he returned to Pakistan, and he had to cross the border illegally. He obtained his first Pakistani passport in 1993, in Quetta, Pakistan. He then travelled to [Country 1] for work and renewed his passport on three further occasions. Each renewal was done at the Pakistan Embassy in [Country 1].
The Tribunal asked the applicant if his Pakistani documents were genuine and if he has been granted Pakistani citizenship. He said he did not think so because his wife tried to renew her documents and the application was not recommended. He said that if he goes back to Pakistan, the Pakistani authorities will remove him to Afghanistan.
The applicant provided witness statements from two persons who claim to have known the applicant as a young man in Kabul.
The applicant’s representative provided pre-hearing submissions stating:
[The applicant] has submitted photocopies and English translations of Afghan Tazkeras (Identity Documents) for himself and his father, evidencing three generations of Afghan citizenship. These documents, along with the Tazkeras for his wife and [child], align with the requirements for proving Afghan citizenship. The Tazkera is a recognized and official Afghan identity document, and the consistency across multiple generations should be accepted as substantial evidence of [the applicant’s] Afghan nationality. Given the historical and familial continuity demonstrated, the Tribunal should be satisfied of [the applicant’s] Afghan citizenship.
[The applicant’s] father acquired Pakistani identity documents in the mid-1980s when the family had moved to Pakistan. In his {the applicant’s} absence, his father applied for a Pakistani passport and National Identity Card (NIC) for him and his wife in 1990. These documents were obtained due to the family’s longstanding presence in Pakistan, and there were no restrictions on such acquisitions at the time. This historical and social context should validate the legitimacy of the documents. The presence of these Pakistani documents does not negate [the applicant’s] Afghan citizenship, which is substantiated by the Afghan Tazkeras provided. During the time when he acquired Pakistani documents, he again obtained Afghan Refugee card in Pakistan in 1992. This shows that there was no restriction in acquiring Pakistani document besides genuinely possessing Afghan Refugee card.
The representative referred the Tribunal to a recent decision of a differently constituted Tribunal.[1] That decision was made in relation to a cancellation decision under s 109 of the Act, but the consideration of citizenship issues is directly relevant to the applicant’s submission. The present Tribunal considers the starting point in this matter is whether the Pakistani documents are genuine and, importantly, whether the applicant is legally permitted to hold them.
[1] Case Number 2002465 dated 27 September 2022.
DFAT reports that document fraud is widespread in Pakistan. While identity cards and passports contain security features, these genuine identity documents can be obtained with fraudulently issued or counterfeit feeder documents. Pakistani authorities can verify whether identity cards and passports are genuine but may not be able to identity fraudulently obtained genuine documents. DFAT reports that given the high rate of document fraud in Pakistan, it can be difficult to verify whether someone is a Pakistani or Afghan national and the legal status of Afghans in Pakistan varies.[2]
[2] DFAT, ‘DFAT Country Information Report: Pakistan’, 25 January 2022, at 5.52–5.54 and 3.19.
DFAT reports that in 1962, Pakistan had recognised the Hazara tribe as “local” and Hazaras in Pakistan at that time became citizens. However, more recent arrivals are considered Afghan citizens and are not legally able to obtain Pakistani citizenship.[3] The Tribunal notes the applicant’s claim he was born in Afghanistan, to Afghan parents, and accepts that if this is true, the applicant appears to have no legal entitlement to Pakistani citizenship. The possession of Pakistani documents is not inconsistent with the claim that he is an Afghan citizen.
[3] DFAT, ‘DFAT Thematic Report Hazaras in Afghanistan and Pakistan’, 26 March 2014, at 3.14.
The Tribunal also notes that while the applicant was able to renew his passport in past years, this was done at the Pakistan Embassy in [Country 1] and was not subject to any deeper investigation. However, as noted by DFAT, Pakistan has been strengthening its checks and balances in recent years. In 2017 DFAT reported that large numbers of Afghan refugees have been encouraged to return to Afghanistan.[4]
[4] DFAT, ‘DFAT Country Information Report: Pakistan’, 1 September 2017, at 3.10.
The European Union Agency for Asylum (EUAA) reported in May 2022 that Afghan refugees in Pakistan are not able to obtain Pakistani citizenship, even if a child of an Afghan refugee is born in Pakistan. Some Afghan refugees have sought to become naturalised citizens in Pakistan, but their requests have been rejected at administrative and judicial levels.[5] The Tribunal also notes that Pakistan has dual nationality arrangements with some countries, but this does not include Afghanistan.[6]
[5] European Union Agency for Asylum (EUAA), ‘Pakistan - Situation of Afghan refugees’, 20 May 2022,
[6] Directorate General of Immigration and Passports (Pakistan), ‘Dual Nationality’, at accessed 19 July 2024.
Reporting from this year (2024) indicates an upsurge in the number of persons being returned from Pakistan to Afghanistan, including forced returnees:
In the past three days, a total of 4,233 Afghan citizens have returned from Iran and Pakistan, both voluntarily and under duress. Through its official X account, the Ministry of Repatriations and Refugees (MoRR) announced on Saturday, that 3,504 individuals returned from Iran through Islam Qala border crossing and Nimruz’s Silk Bridge route. Additionally, 729 individuals returned from Pakistan through the Torkham and Spin Buldak border crossings, the ministry added. According to the MoRR, these individuals have been registered and referred to the offices of the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) to receive assistance. Lately, the International Organization for Migration reported that during the second quarter of the current year, over 858,000 Afghan citizens returned to their country from Iran and Pakistan.[7]
[7] Salam Watandar, ‘Over 4,000 Afghan nationals repatriated from Iran, Pakistan’, 20 July 2024, >
See also:
More than two thousand Afghan refugees were deported or voluntarily returned from Iran and Pakistan on Wednesday, July 17, according to Taliban authorities. The Taliban Ministry of Refugees and Repatriation (MoRR) said in a statement that 1,019 Afghanistan nationals entered the country via western Herat’s Islam Qala crossing, near the Afghanistan-Iran border and 1,193 others were repatriated through Pul‑e‑Abresham crossing in southwestern Nimruz province, also bordering Iran. At least 31 people were sent back from Pakistan via the key Torkham border in the eastern Nangarhar province, the statement added. The ministry also said that after going through a registration process, these people were referred to the UN Refugee Agency (UNHCR), the World Food Programme (WFP), and the International Organization for Migration (IOM) to receive assistance. For decades, Iran and Pakistan have hosted millions of Afghan refugees, fleeing conflict, persecution, economic constraint, and political instability. However, following the U.S. exit from Afghanistan which led to a swift takeover by the Taliban, hundreds of thousands of Afghans have been forced to return by these countries. According to the UN report, both countries currently host approximately 7.7 million Afghan refugees, with 4.5 million in Iran and 3.2 million in Pakistan. The implementation of anti-migrant policies and continued crackdowns on undocumented Afghan refugees in Iran and Pakistan have resulted in the deportation of over a million Afghan refugees, mainly women and children, back to Taliban-controlled Afghanistan. Upon returning to their country, Afghans are faced with worsening economic, humanitarian, and healthcare crises, which have deteriorated since the Taliban’s return to power. The UN reports that over 23 million people, representing over half of the population, rely on humanitarian assistance this year. Iran’s and Pakistan’s crackdown on undocumented migrants has drawn sharp criticism from the UN, aid agencies, and human rights groups, who have repeatedly called on the neighboring countries to halt forced deportation and continue supporting refugees. Pakistani authorities claim that undocumented refugees are a major source of insecurity and illegal activities in their country. They justify the crackdown as a counter-terrorism measure, pointing to the recent surge in security incidents in the country. So far, Pakistan has deported over 620,000 Afghan nationals after initiating a deportation scheme in October last year. Pakistani authorities have now moved on to the second phase of refugee expulsions, targeting the deportation of around 840,000 Afghan Citizen Card holders, who were granted Afghan refugee legal status in Pakistan in 2017. In a recent development, the UN Refugee Agency (UNHCR) announced that Pakistan suspended the deportation of 1.45 million undocumented Afghan refugees following the agency’s chief Filippo Grandi meetings with Pakistani authorities. The claim was, however, denied by Pakistan’s Ministry of Foreign Affairs, which reiterated that the expulsion of Afghan refugees residing in Pakistan remains in place and will be “implemented in an orderly and phased manner.”[8]
[8] Kabul Now, ‘Over 2,000 Afghan Refugees Sent Back from Iran and Pakistan in a Day’, 18 July 2024, >
The Tribunal finds that the applicant is a citizen of Afghanistan and that, consequently, he has no legal right to return to or reside in Pakistan. The Tribunal finds that even if he was to attempt to return to Pakistan, he will be unable to remain there legally and will be encouraged, or forced, to return to Afghanistan. The Tribunal finds that Afghanistan is the receiving country and country of reference for the purposes of this review.
Claims against Afghanistan
The applicant claims, and the Tribunal accepts, that he is a Shi’a and a Hazara who has not lived in Afghanistan since the late 1980s. As noted above, the Tribunal has found that he has no legal right to return to or reside in Pakistan.
In its Guidance Note, dated February 2023, the United Nations High Commissioner for Refugees (UNHCR) stated (footnotes omitted):
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.[9]
[9] United Nations High Commissioner for Refugees (UNHCR), ‘Guidance Note on the International Protection Needs of People Fleeing Afghanistan - Update I’, 14 February 2023, >
UNHCR identified ‘members of minority religious groups and members of minority ethnic groups, including the Hazaras’ amongst other profiles with increased refugee protection needs compared to the situation prior to the events of 15 August 2021. UNHCR cited numerous sources in support of the view that attacks against Hazaras, frequently claimed by Islamic State of Khorasan Province (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].’

In January 2022, DFAT reported that ‘while the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISKP terror attacks and Taliban violence, including hundreds of evictions.’ DFAT assessed that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP on the basis of their ethnicity and sectarian affiliation. DFAT has also assessed that Shi’as face a high risk of being targeted by ISKP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, and that this risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.
A 2024 analysis posits that for many Afghans, the country’s armed conflict has never ended:
The armed group Islamic State of Khorasan Province (ISKP) attracted worldwide attention in March when it attacked the Crocus City Hall in Moscow, killing at least 143 people and injuring many others. Since emerging in Afghanistan in 2015, the group has carried out a bloody campaign mostly targeting Shia-Hazara mosques and schools and other facilities in predominantly Hazara neighborhoods.
In the most recent attack, on April 29, an armed member of the group opened fire on worshippers at a Shia-Hazara mosque in western Herat province, killing six, including a child. On April 20, a magnetic bomb attached to a bus whose passengers were primarily Hazara exploded, killing one and injuring 10. On January 6, a similar attack on a bus in Dasht-e Barchi, a predominantly Hazara neighborhood of Kabul, killed five people, including at least one child, and injured 14. Dasht-e Barchi has been the site of numerous ISKP attacks. When ISKP claimed responsibility for the January 6 attack, they said it was part of their “kill them wherever you find them” campaign against “infidels.”
Between 2015 and mid-2021, ISKP attacks killed and injured more than 2,000 civilians primarily in Kabul, Jalalabad, and Kandahar. Since the Taliban took over Afghanistan in August 2021, these attacks have continued – killing and injuring over 700.
The Taliban have long battled the ISKP, which have also targeted Taliban personnel. A suicide bombing outside a Kandahar bank on March 21 killed at least 21 people and injured 50, many of them Taliban ministry employees who had lined up to collect their salaries.
Attacks on Hazara and other religious minorities and targeted attacks on civilians violate international humanitarian law, which still applies in Afghanistan. Deliberate attacks on civilians are war crimes. Beyond the immediate loss of life, such attacks incur lasting damage to physical and mental health, cause long-term economic hardship, and result in new barriers to education and public life.
Like the previous Afghan government, Taliban authorities have not taken adequate measures to protect Hazaras and other communities at risk or provide assistance to survivors of attacks, though they are responsible for ensuring the safety of all Afghan citizens.[10]
[10] Fereshta Abbasi, Human Rights Watch (HRW), ‘Attacks Target Afghanistan’s Hazaras’, 3 May 2024, >
The most recent report the Tribunal has obtained states (footnotes omitted):[11]
[11] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘ecoi.net featured topic on Afghanistan: Overview of recent developments (16 July 2024)’, 16 July 2024.
The Hazara […] bore the brunt of systemic discrimination by the Taliban. Societal discrimination against Hazaras existed in the form of extortion through illegal taxation, forced recruitment, forced labor, physical abuse, property confiscation, and detention. There were many reports Taliban fighters, ISIS-K members, and other unknown actors targeted and killed members of the Hazara community, although ISIS‑K attacks reportedly decreased during the year.
According to sources in the Hazara community, the Taliban’s “killing, torture, and forced displacement” of ethnic Hazaras and seizure of their lands and houses continued in Bamiyan, Daikundi, Maidan Wardak, Baghlan, Balkh, Kunduz, Badakhshan, Herat, Ghazni, Kandahar, Uruzgan, Takhar, Samangan, and Sar‑e Pul Provinces.
While no Hazara Shi’a were initially included in Taliban governing structures, the Taliban have now appointed three Hazara Shi’a representatives as deputy ministers, but none to a cabinet-level posting. In addition to calls for meaningful political representation, Hazara Shi’a leaders continue to seek from senior Taliban leadership legal protections for their rights and their land and property, and more decisive action by Taliban authorities to protect their mosques, educational centers, and neighborhoods from persistent attacks by extremist groups such as Islamic State‑Khorasan (IS-K). State told SIGAR that they are not aware of any new measures or significant actions taken by the Taliban to protect religious minority groups this quarter.
So far, the Tal[i]ban’s public messaging towards Shias and Hazaras has largely been conciliatory, as they sought to establish control, but has not been backed by positive action.
Hazaras, who are overwhelmingly Shia, are historically one of the most severely persecuted groups in Afghanistan. […] In addition, an increase in inflammatory speech is being reported, both online and in some mosques during Friday prayers, including calling for Hazaras to be killed.
According to the London-based journalist and the Afghan professor of law, however, Hazaras in Afghanistan are regarded as inferior by many Taliban members as they are Shia Muslims [source: an Afghan professor of Law; a London-based journalist]. In this relation, two sources consulted for this report stated that Hazaras in Afghanistan have faced discrimination regarding access to the legal system as well as resources, since the Taliban takeover.
The Hazara-Shia community in west Kabul city, particularly its sprawling neighbourhood Dasht-e Barchi, has been the target of some of the city’s deadliest attacks, especially since 2016. The community has particularly been hit hard in west Kabul, but Hazaras and Shias have also been persistently targeted elsewhere in Afghanistan. […] After the Tal[i]ban first took over in August 2021, the neighbourhood experienced a short-lived respite from attacks but has since become the scene of a new cycle of assassinations and bombings, leaving its ethnic Hazara and Shia Muslim residents particularly vulnerable to an unrelenting campaign of targeted killings.
In addition to attacks on Shi’a places of worship, a number of IED attacks targeting the – predominantly Shi’a Muslim – Hazara community in schools, educational facilities, crowded streets and on public transportation occurred between 15 August 2021 and 30 May 2023. […] While the majority of attacks against the Hazara community were claimed by ISIL-KP, a number of significant incidents […] remain unclaimed.
“Taliban tries to assure that they have done this [offered protection to vulnerable communities]. In several media they have condemned attacks and stated their responsibility to protect the Shias. But in reality; where the Hazaras live there is not much security, no protection.”
However, mass murder is not limited to ISKP. Also, Taliban have committed mass murders against the Hazara community. Just three days ago in Daikundi, Taliban killed nine members of a Hazara family, including three children and a woman. According to Taliban they had joined the National Resistance Front, an armed group fighting against Taliban in Panjshir. This is a huge accusation for a small family far from Panjshir, in Daikundi, to be joining the National Resistance Front. But even if it was true, the massacre of an entire family including women and children is a violation of all human right standards. And it is not the only case. The same pattern was imposed on another Hazara family in Ghur province in June this year. A family of six or more members. Six were killed in their houses in cold blood. The same accusations were made against this family. […] In April this year there was also an incident of five Hazara coal miners, who were all killed on their way home. Taliban rejected their involvement, and the incident was probably not organizational, but according to witnesses it was local Taliban members performing the killings. All these incidents were intentional. While the last incident did not seem organizational the other three incidents were confirmed by Taliban, and they appeared to be in line with the organizational policy and thus systematic in nature. I believe this could reach the level of crimes against humanity.
In addition, in October, November and December, a series of targeted killings of Shi’a clerics were carried out in Jibriel area of Herat city. On 22 October, one Shi’a cleric was shot and killed; on 23 November, two Shi’a clerics were shot and killed; and on 1 December, six people were killed (including two Shi’a clerics) and two wounded when unknown armed individuals opened fire on a rickshaw in which the clerics were travelling. There has been no claim of responsibility for any of these incidents and the perpetrators remain unknown.
The Tribunal also notes that in May 2022, people in the Hazara‑dominated Bamyan and Daykundi Provinces were reportedly harassed and arrested due to ‘baseless accusations’ that they had worked for the former government.[12] A November 2022 Taliban raid in Daykundi Province reportedly left dozens of ‘armed rebels’ dead; the families of those killed claimed to foreign media outlets that many were actually civilians, including children.[13]
[12] European Union Agency for Asylum (EUAA), ‘Afghanistan - Targeting of individuals’, 16 August 2022, p.134, Kittleson, S, Al-Monitor, ‘Afghanistan’s Hazara minority increasingly fearful under Taliban’, 13 January 2023, >
The Tribunal has carefully considered the evidence of conditions and risks faced by Hazaras in Afghanistan. The Tribunal finds that if the applicant were to be removed to Afghanistan, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Taliban and ISKP. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reason for the persecution feared by the applicant is his ethnicity and imputed religion. The Tribunal finds that effective state protection against the harm the applicant fears is not available to him in Afghanistan. The Tribunal is satisfied that the real chance of persecution relates to all areas of Afghanistan.
As the Tribunal has accepted that the applicant faces a real chance of persecution in Afghanistan for the reason of his religion and ethnicity, the Tribunal finds that he has a well‑founded fear of persecution in Afghanistan. The Tribunal is, therefore, satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. Section 36(3) therefore does not apply.
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).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Michael Brereton
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.
…

p.33.

[2024] AATA 4323

8 August 2024

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Immigration

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