1912576 (Refugee)

The applicant, an Afghan national of Tajik ethnicity, sought a protection visa. The dispute centred on whether the applicant faced a real risk of significant harm if returned to Afghanistan, particularly from a gang leader named Mr A, with whom the applicant had a past altercation. The applicant also raised concerns related to his status as a returnee from a Western country, his divorce, his religious beliefs, alcohol consumption, and mental health issues. The case was before the Tribunal for reconsideration.

The Tribunal was required to determine whether the applicant would face a real risk of significant harm upon return to Afghanistan, considering the deteriorating security situation. Specifically, the Tribunal had to assess if the applicant's fear of Mr A constituted a well-founded fear of persecution or significant harm, and whether this risk was personal to the applicant or faced by the population generally. Further issues included whether internal relocation within Afghanistan would be reasonable, whether state protection would be available, and if the applicant's mental health and other personal circumstances impacted the assessment of risk.

The Tribunal reasoned that while the applicant's past interactions with Mr A were accepted, the primary risk stemmed not from the applicant's race, religion, nationality, political opinion, or membership of a particular social group, but from a personal grievance. However, the Tribunal found that the deteriorating security situation in Afghanistan would significantly increase the likelihood of Mr A being able to act on his desire for revenge or to assert dominance, without fear of reprisal from weakened state security forces. The Tribunal considered the applicant's claims regarding his Tajik ethnicity, his return from Australia, his divorce, and his religious beliefs, but found these did not, in themselves, establish a risk of significant harm. The Tribunal also considered the applicant's mental health, noting his depression and anxiety, but concluded that treatment was available in Afghanistan, despite the applicant's reservations. Crucially, the Tribunal found that internal relocation would not be reasonable given the applicant's mental health challenges, his long period of residence in Australia, and the general insecurity of the country. The Tribunal also found that state protection would be diminished in the prevailing circumstances.

The Tribunal concluded that the applicant did not meet the criteria for a protection visa under s.36(2)(a) of the Migration Act, as the risk was not based on protected attributes. However, the Tribunal was satisfied that the applicant met the alternative criterion under s.36(2)(aa), as he faced a real risk of significant harm arising from cruel or inhuman treatment or punishment from Mr A. Accordingly, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies s.36(2)(aa).