1910959 (Refugee)

The applicant sought review of a decision concerning his claim for a protection visa. The applicant stated he was born in Kabul, Afghanistan, of Hazara ethnicity and Shi’a religion. He claimed to fear harm due to these characteristics and his lack of legal status in Pakistan, where he had resided for many years and obtained Pakistani travel documents. The core dispute revolved around his nationality and the risk of harm he would face if removed from Australia, particularly to Afghanistan.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically whether he was a refugee with a well-founded fear of persecution for reasons of race or religion. This required the Tribunal to assess his Afghan citizenship, his claimed fear of harm as a Hazara and Shi’a individual, and the availability of effective state protection in Afghanistan. The Tribunal also considered the complementary protection criterion under section 36(2)(aa), which applies if there is a real risk of significant harm as a necessary and foreseeable consequence of removal to a receiving country.

The Tribunal considered extensive country information regarding the persecution of Hazaras and Shi’a Muslims in Afghanistan by groups such as the Islamic State of Khorasan Province (ISKP) and, in some instances, by the Taliban. It noted that these attacks often involved targeted killings, physical abuse, and property confiscation, and that the Taliban had not taken adequate measures to protect these communities. The Tribunal found that the applicant’s ethnicity and imputed religion were the essential and significant reasons for the persecution he feared, and that such persecution involved serious harm, including threats to life and liberty, and significant physical harassment and ill-treatment. It concluded that effective state protection was not available to him in Afghanistan and that the real chance of persecution related to all areas of the country.

Consequently, the Tribunal was satisfied that the applicant had a well-founded fear of persecution in Afghanistan and was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act. The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied section 36(2)(a).