1912608 (Refugee)

1912608 (Refugee) [2023] AATA 1272 (20 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912608
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Shahyar Roushan
DATE:20 February 2023
PLACE OF DECISION:  Sydney
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 20 February 2023 at 3:12pm
CATCHWORDS
REFUGEE – protection visa – Afghanistan – identity – Afghan naming conventions – exact date of birth – particular social group – former judges or judicial workers in Afghanistan – religion – not adhering to Islamic religious practices – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant is a [age]-year-old national of Afghanistan. He arrived in Australia [in] October 2013 as holder of a Subclass 300 Prospective Marriage visa on the basis of his relationship with his then partner, [Ms A].
On 22 November 2013, the applicant applied for a combined subclass 820 Partner visa, which was granted on 28 January 2014.
On 19 February 2015, the applicant and [Ms A] separated, and he subsequently withdrew his application for a subclass 801 Partner visa.
On 23 June 2015, the applicant lodged an application for a Protection visa.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 May 2019 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Claims and evidence
Protection visa application
According to his Protection visa application, the applicant previously known by the surname of ‘[Surname 1]’. He was born in Kabul in [year] and predominantly resided in that city. His father is deceased. His mother, one sister and one younger brother live in Pakistan. His [number] older brothers reside in Australia.
After completing his schooling, the applicant obtained a bachelor’s degree in law from [University 1] in 2007 and subsequently completed a [specialised] course. He also completed two [specified] courses, funded by [the United States].
In 2009, the applicant was appointed as a judge in [Court 1] in Kabul and approximately one year later he travelled to [Country 1] to undertake a Master [degree] in [Discipline 1] at [University 2]. He returned to Kabul in June 2012 and worked as a judge at [Court 2] in Kabul until March 2013. He was subsequently employed as a Legal Advisor at [a specified program] until one month prior to his departure for Australia.
In response to questions in relation to his reasons for claiming protection in his Protection visa application form, the applicant stated that he left Afghanistan on a Subclass 300 visa to marry [Ms A]. They were married [in] October 2013. Soon after arriving in Australia, however, he faced ‘difficult living circumstances and was mistreated’ by his in-laws, which led to the breakdown of the relationship.
The applicant stated that he fears harm in Afghanistan because he is an ‘atheist’ and worked as a judge at [Court 1 in] Kabul, where he was ‘targeted and threatened by his colleagues for saying that he does not believe in prayer and religion anymore.’
He claimed that in March 2013, he was approached by his supervisor, [Mr B], a former Taliban militant fighter, and was threatened with death for contravening Islamic laws. The applicant was told that he had made a ‘huge mistake’ by attempting to preach ‘Western mentalities’ and ‘being a servant of the Americans and spying for them.’ Following this incident, he continued to receive threats and phone calls from persons claiming to be members of the Taliban. As a consequence, he changed jobs and moved houses, but the threats continued, including a letter from the Taliban stating that he ‘soon will be shot dead’ and that ‘infidels deserve to die’. He is unable to relocate to avoid the harm he fears, and the authorities are unable to protect him.
In support of his Protection visa application, the applicant provided a statement dated 9 June 2015. In his statement, the applicant provided the following details in relation to his claims.
He was born in Kabul in [year]. He was brought up in an educated family and both his parents were [occupations]. He was a follower of Shi’a Islam, but he chose to become an ‘atheist’ due to the discrimination he faced. After attending ‘one of the best high schools’ in Afghanistan, he graduated from [University 1] in 2007. He was subsequently accepted in the [specified program], funded by the US Government.
In 2008, he obtained his lawyers licence and enrolled in [a specialised course] in Kabul. Upon completing the course in 2009, he was appointed as a judge in [Court 1] in Kabul and was employed as a judge until mid-2010 when he received a scholarship from the [Afghanistan government] to complete further studies. In June 2012, he graduated with a Master [degree] from [University 2] in [Country 1].
He was introduced to [Ms A] through his brother, [Mr C], and they were subsequently engaged [in] June 2012 in Pakistan. Shortly after, he was appointed as a judge of [Court 2] in Kabul. The Court dealt with [specified matters].
During his employment as a judge, he became ‘close’ to two colleagues: [Mr D] and [Mr E]. When they queried why he did not pray, he first told them that he only prayed at home, but eventually ‘confessed’ to his colleagues that he does not ‘believe in prayer and religion anymore’. He stated that ‘…religion was a source of knowledge when human didn’t have proper access to science. Now the civilisation is dominant enough, there … [is] rule of law to implement justice, and science to find a logical answer to every single problem in the world. In twenty first century religion is something out of date it is noting, but a traditional mentality’ (sic). There was a ‘huge reaction’ to his views and everyone around the court was saying that he was ‘out of Islam’ and was ‘preaching westernise mentalities’.
Around March 2013, the applicant’s supervisor, [Mr B], a former ‘Taliban militant fighter’ and self-described ‘Jihadist’, approached him in the office and said that he must be ‘beheaded because he is out of Islam’ and that he ‘made a huge mistake by attempting to preaching westernise mentalities’ (sic). [Mr B] further ‘blamed’ the applicant for being a ‘servant of Americans and spying for them’.
A week later, the applicant received a phone call from an unidentified individual, threatening him with death. He was accused of being trained by the Americans, spying for them and preaching ideas against Islam. The applicant was told that his ‘details’ have been released by the Taliban ‘all over Afghanistan’ and that he cannot hide from them. He was also asked to co-operate with them and provide information in relation to those who ‘have sent you to preach these ideas which are against Islam also who else is involved with you is this sin’. He continued to receive calls from different people and different locations, stating that they were from the ‘Afghanistan Taliban Allover Movement’ (sic). He also noticed being followed by a vehicle.
He believes his house was not attacked because he lived near [an official] of Afghanistan, [named] and there were security guards, police and intelligence officers present. He stopped going to court and looked for employment in embassies, foreign NGOs and organisations. He found a job in [a program], funded by the [US Department of State].
One day before going to work, he found a handwritten letter from the Taliban on his driveway, stating ‘we recently have been informed that you are working with the Americans.’ The letter stated that he deserved to die and that he will be shot dead soon. As he was afraid, he stayed with an aunt, a cousin and at friends’ places. He also avoided going to public places and other locations where he did not feel safe.
He eventually came to Australia in October 2013. Whilst in Australia, a friend in Canada told him that his ex-girlfriend ([Ms F]) had committed suicide and that [Ms F]’s family and friends blamed him for her death on [social media]. He deleted all the messages on [social media] and changed his privacy settings. He spoke to another friend in Kabul, who confirmed the news and told him that his ex-girlfriend’s father and brother had visited the applicant’s house asking for information regarding his whereabouts.
His ex-girlfriend’s family was related to a dangerous war lord and politician by the name of ‘[Mr G]’. The applicant was scared and particularly worried for the safety of his younger brother as he did not know where he was. He called his brother and advised him not to go to Kabul and move to another address in Islamabad.
Supporting evidence
The applicant’s former representative, [Mr H], made submissions in support of the application, reiterating the applicant’s claim and migration history. He also provided a number of supporting documents, including:
·Copy and translation of a purported handwritten threatening letter, signed by [Mr I], [office bearer] of the General Council for Afghan Mujahidin Movement, dated [in] March 2013.
·Copy and translation of the applicant’s Taskera ([number]).
·Certified copy and translation of an Afghanistan [License Certificate] ([number]), issued to the applicant [in] 2009 and valid [until] 2010.
·Copy of an [Employment Record of Judges and Staff], stating that in March 2008 the applicant was appointed as a student of ‘[specialised course]’ and in 2009 he was as ‘a member of [a specified court]. After which he was appointed as a [judge] in [Court 1]’. He received a scholarship from the [Court] for a master’s degree and was in [Country 1] from [date] June 2010 to [date] June 2012.
·Country information in relation to the general treatment of returned refugees, the Taliban’s presence in Kabul, the Taliban’s presence in the rest of Afghanistan and the ineffectiveness of local authorities.
The interview
The applicant attended an interview with the Department on 26 October 2015. The applicant provided his oral evidence to the delegate in English. Where relevant, this evidence is referred to in the Tribunal’s analysis below.
On 1 March 2017, [Mr H] requested an update on the progress of the application and advised that the applicant is suffering from depression. In subsequent correspondence, the applicant referred to his state of mental health, financial difficulties and his unsuccessful efforts in securing employment due to his immigration status.
The delegate’s decision
The delegate was unable to make a ‘definitive’ finding in relation to the applicant’s identity due to the inconsistencies with the applicant’s name, date of birth, employment history and family composition in various documents including migration applications by other members of his family. She made a finding that ‘the applicant’s identity is not supported.’ The delegate, nevertheless, proceeded to assess the applicant’s claims ‘using’ the identity details in departmental systems and the applicant’s passport.
The delegate accepted that the applicant is of Tajik ethnicity with Qizilbash ancestry, that he was born a Shi’a Muslim and that he is now an ‘atheist’. The delegate further accepted that the applicant was employed in some capacity within the legal sector of Afghanistan but held significant concerns about the credibility of his claim as being employed as a judge in 2009 in consideration of the applicant’s age at the time. The delegate did not accept that the applicant was threatened by the Taliban or that he had a girlfriend who committed suicide. She was not satisfied that the applicant had a profile that would bring him to the attention of perpetrators of violence if he was to return to Afghanistan. She was of the view that the applicant had overstated his claims and was not satisfied that by not practicing Islam, the applicant would be restricted or would raise his profile. The delegate found that the applicant is able to modify his behaviour in order to avoid a real chance of harm, namely he can seek employment outside of the legal and international community sectors. The delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Afghanistan on the basis of his claims.
The review application
On 13 May 2020, the applicant made a detailed submission to the Tribunal in support of his application, addressing the concerns raised by the delegate in relation to his identity and claims.
The applicant asserted that he has provided consistent documents in relation to his identity since 1998 and that the delegate’s concerns were unwarranted. In her decision record the delegate had stated that ‘the applicant’s Taskera states his eyes are “[Colour 1]”, yet his eyes are [Colour 2]. The applicant stated that this was due to a translation error and submitted a copy and new translation of his Taskera.
The delegate had also raised concerns in relation to the applicant’s surname, noting that in all of the documentation presented to the Department by the applicant, his name is shown as variations of [the applicant] or [variant], but in his Protection and combined Partner visa applications, he declared that he has been known by the surname [Surname 1]. The applicant responded that all the identification documents he had provided record his name consistently and that the Taskera does not have an allocated space for the last name to be stated. He further submitted that the last name is not recognised in Afghan documents. To demonstrate that ‘[Surname 1]’ was his last name prior to 2006, he provided a copies and translations of a library card issued by [a library] in Kabul in 2004, an Afghan Citizen Proof of Registration issued by the Government of Pakistan, a letter from the embassy of the Islamic Republic of Afghanistan Refugee Affairs Attache- Islamabad, dated [in] 2020 and a letter by [name], then Principle Migration Officer, Australian High Commission in Pakistan, dated [in] June 2004. He referred to an AAT decision record and a website article on naming conventions in Afghanistan and stated that [Surname 2] is his current surname and that [Surname 1] was his previous surname. He referred to his evidence to the delegate at the interview that he had changed his surname around 2005/2006 to avoid being mocked because [Surname 1] means ‘[specified]’ in his language.
In relation to his date of birth, he submitted that the delegate relied on information previously provided by family members in various application forms in relation to his date of birth, instead of referring to his Taskera. The information provided by other family members was either marred by misspelling or inability of other family members to recall his exact date of birth. He referred to a 2013 Washington Post article in relation to individuals in Afghanistan not knowing their exact date of birth. He stated that whilst his Taskera and passport record his date of birth correctly, his Lawyers License issued by the Ministry of Justice recorded an incorrect age by mistake.
In relation to his brother [Mr J], he stated that his brother was killed in the 1990s and that he only became aware of his death in 2017. In 1997 or 1998, his father told him that his brother [Mr J] had already left for Pakistan to find a place for them to live with the help of an uncle. He believed [Mr J] was ‘somewhere distant from the house Iran, Moscow, Europe and USA’.
In relation to his employment history, he stated that he worked for [Company 1] in a legal advisory role while employed as a judge. He submitted a letter of reference by friend who is a shareholder of the company and who has also provided a character reference.
He further submitted that the delegate had miscalculated his age at the time of his appointment as a judge. As he had explained during the Departmental interview, the minimum age requirement to become a judge in Afghanistan is at least 25 at the time of appointment. However, the age requirement was not strictly applied by the [the government] at the time. He provided a copy and translation of a decree by former President Hamid Karzai, appointing him and others as judges of the [courts]. He also provided a character reference from a fellow judge attesting that the age requirement was not strictly applied at the time. The applicant also referred to a DFAT Country Information Report in relation to Afghanistan, reporting that there is a shortage of judges in Afghanistan. He stated that there has been a new law introduced which lowers the age requirement for appointment of judges from 25 to 23. A copy of the extract and translation of this new law enacted on 21 December 2012 and published on 30 June 2013 was submitted.
He stated that after he left his employment as a judge, he was employed as a legal advisor in the [specified program] where security is high. He changed his job because he feared for his security. It is when he received the threatening letter at the end of April or beginning of May he realised that ‘the threat is much bigger than what I conceived’. He decided to reside with family and friends to change locations and travelled to work irregularly in different times via different transport systems.
In relation to his ex-girlfriend, he reiterated his previous claims and stated that his ex-girlfriend’s family blames him for her death, they believe that having an affair before marriage is socially not acceptable, that he had brought shame upon them and that killing him would restore honour to the family. The applicant referred to a number of character references written by friends and acquaintances in support of his claims of a relationship with his ex-girlfriend.
The applicant also addressed other concerns raised by the delegate and referred to country information in relation to Afghanistan to support his claims.
In support of his claim that he was employed as a judge, as well as his claims in relation to his ex-girlfriend and how he had come to change his surname, the applicant submitted letters and statements from a number of former classmates and judicial colleagues, confirming the applicant’s account of his education and employment history. The authors of these letters included former Afghan Judges [Mr K] (now a lawyer and legal consultant based in the US), [Ms L] (currently Solicitor of the Supreme Court of NSW), [Mr M] (currently an immigration lawyer and consultant in Canada), [Mr N] (currently based in the US) and [Mr O] (currently residing in Sydney).
In addition, the applicant submitted the following documents in support of the application:
·Copy of a letter dated [in] 2020 from the Embassy of the Islamic Republic of Afghanistan, Canberra, confirming that the applicant’s Taskera is a verified and genuinely issued document. It states that the applicant is a citizen of Afghanistan and that he was born in Kabul, Afghanistan on [date].
·Copy and translation of [social media] messages purportedly received by the applicant from various individuals between March 2013 and January 2014.
·Copy and translation of a [Record of Judges and Employees], stating that he was appointed as a ‘[judge]’ to the [Court 1] of Kabul in 2009. [From] June 2010 [to] June 2012, he was sent to [Country 1] for his Master’s degree. He was hired as a judge of [Court 2] on [date] January 2013 and retired on [date] April 2013.
·Copy of an Islamic Republic of Afghanistan Supreme Court Card, issued [in] 2009.
·Copy and translation of an extract from an official law gazette on Structure and Authority of Attorney General’s Office by the Ministry of Justice. The extract is in relation to Chapter 6, Article 81, section 1, subsection 5. According to Article 81, section 1, the conditions that must be satisfied for a person to be nominated and appointed as a judge include ‘being at least 23 years old or older at the time of the appointment as a judge’.
·Three ‘case overviews’ relating to matters the applicant had presided over as a judge [in Court 2].
·Copy and translation of a decree issued by former President Hamid Karzai’s decree, appointing the applicant and a number of other individuals as Judges of the Afghanistan Islamic Republic [courts].
·Medical evidence relating to the applicant’s state of mental health.
The hearing

On 8 February 2023, the applicant appeared before the Tribunal in person to give evidence and present arguments. The applicant provided his evidence in English. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
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, 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.
Analysis, findings and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Having carefully considered the applicant’s written and oral evidence throughout the process, as well as the evidence submitted in support of his claims, the Tribunal does not share the delegate’s concerns regarding the applicant’s identity or the credibility of his claims. Overall, the Tribunal found the applicant to be a believable witness who has attempted to provide a detailed and consistent account of his claims.
Identity
The applicant has provided consistent evidence regarding his identity in his dealings with the Department and throughout the process concerning his Protection visa application. The applicant had never concealed the fact that his surname was previously [Surname 1]. He has provided persuasive reasons as to why he had opted to change his surname and has submitted a Taskera and multiple reliable witness statements supporting his evidence. The evidence submitted by the applicant shows that his Taskera was verified by the Embassy of the Islamic Republic of Afghanistan in Canberra [in] 2020.
There is also ample evidence to support the view that Afghan names traditionally consist of a first name or personal name alone, without a surname.[1] In her paper ‘The Structure of Afghan Names’, Karine Megerdoomian notes that ‘many Afghans that have contact with the Western world adopt a surname.’ Citing other sources, she further notes that ‘even if an Afghan possesses a last name, the official name generally remains the first name’ and ‘an Afghan may change his last name at a whim’, but ‘altering the first one requires an application to the government and official permission.’[2] According to a report by the US Embassy in Afghanistan:
It is not uncommon for Afghans to use different names for different circumstances. For example, an Afghan may be known by one name to family and friends, and another to his/her employer. Most Afghans identify themselves just by one name, and, occasionally, what appears as a surname is either a father’s name or the last part of a long, single name that was broken up. An Afghan man sometimes identifies himself by his first name and his father's first (or only) name. Sometimes, he chooses as his surname the name of his tribe, or his family's home region, or simply a word whose definition is a positive characteristic. It is not uncommon for an Afghan to invent a surname, often based on a word with characteristics the individual likes (such as excellence, religious connotations, etc.).[3]
[1] See, for example, Evason, Nina, Afghan Culture, retrieved from 2016; and Megerdoomian, Karine, The Structure of Afghan Names, The Mitre Corporation, November 2009, Megerdoomian, ibid.
[3] US Embassy Kabul. (2011). A guide to Afghan documents.
The above evidence is consistent with the applicant’s own submissions in relation to naming conventions in Afghanistan.
The delegate also raised concerns in relation to the applicant’s stated date of birth, noting that other family members in their own previous visa applications had cited a different date of birth for the applicant. The Tribunal accepts the applicant’s submission that any error may be attributable to those family members. The Tribunal also accepts his evidence that it is not unusual for nationals of Afghanistan not to know their exact date of birth as the date is rarely formally recorded. Indeed, historical cultural challenges associated with names and highly inadequate registration of births have meant that basic information obtained in connection with the issuing of Taskeras can be manipulated and its control is inadequate.[4] According to Landinfo, ‘more than sixty percent of children are not registered at birth. The Afghan population size and composition is not known, and all quantitative descriptions of the population are estimates.’[5]
[4] See Afghanistan: Tazkera, passports and other ID documents, Landinfo Country of Origin Information Centre, 22 May 2019,
[5] Ibid.
The only aspect of the applicant’s evidence that the Tribunal did not find persuasive was his evidence in relation to his brother, [Mr J]. Neither in his Protection visa application nor in his interview with the delegate the applicant made any mention of [Mr J]. The delegate noted in her decision record that another one of the applicant’s brothers had stated in his own Protection visa application that [Mr J] was killed by the Taliban in November 1997. In his submissions in support of the application for review the applicant attempted to address this issue by explaining that [Mr J] was killed in the 1990s and that he only became aware of his death in 2017. In 1997 or 1998, his father told him that [Mr J] had already left for Pakistan to find a place for them to live with the help of an uncle and he remained under the assumption that [Mr J] was living in a Western country. The applicant repeated these claims at the hearing, referring to the cultural practice of concealing tragic news from close family members. The Tribunal finds these explanations unpersuasive. He did not claim to have enjoyed a particularly close relationship with [Mr J] prior to his death and he was unable to explain why the news of [Mr J]’s death was only concealed from him and for a period of 20 years, without raising any concerns or questions in his mind. In any event, the applicant’s unsatisfactory evidence in relation to his brother [Mr J] does not undermine the other compelling evidence submitted in support of his identity or the credibility of his claims. The Tribunal is satisfied that the applicant’s identity is as claimed and explained above.
Employment and religious beliefs
The applicant has provided a consistent and persuasive account of his education and employment history. Central to this account was his claim that he was appointed as a judge in 2009 and worked in that capacity intermittently until his departure from Afghanistan. In support of this claim, the applicant submitted numerous credible documents, including letters of support from former classmates and colleagues, many of whom now reside outside of Afghanistan. Amongst those who have written in support of the applicant’s claims are [Ms L], Solicitor of the Supreme Court of NSW and [Mr M] an immigration lawyer and consultant in Canada. The credentials of the authors of these letters of support were independently verified by the Tribunal and the Tribunal has no reason to doubt the veracity of the contents of the letters. The applicant has also provided persuasive explanations, supported by evidence, in response to the concerns raised by the delegate in relation to his age at the time of his appointment as a judge. The Tribunal accepts that the applicant was appointed as a judge in 2009, that he was initially assigned to [Court 1] in Kabul and that he was subsequently assigned to [Court 2] in Kabul.
In his written evidence to the Department, the applicant claimed to be an ‘atheist’. At the hearing, he identified himself as an ‘agnostic’, stating that he believes in a ‘creator’, but he does not believe in religion or religious practices. As it was put to him, his stated beliefs do not align with the commonly understood definitions of an atheist as a person who disbelieves or lacks belief in the existence of God or gods or an agnostic as someone who neither believes nor disbelieves in a god.[6] In response to this concern and other probing questions asked by the Tribunal, he repeatedly stressed that he does not believe in the practice of religion and that he does not identify with any religion, including Islam. Whilst the applicant’s evidence initially raised some concerns in the Tribunal’s mind, a close scrutiny of his evidence throughout the process demonstrates that, regardless of the particular term or label he has assigned to his religious beliefs, he has consistently described these beliefs in terms of not believing in religion or religious practices. It is understandable that in the absence of a commonly referenced exact term in English, let alone in the applicant’s first language, to describe his beliefs, he has resorted to the use of other imprecise terms. The Tribunal accepts the applicant’s claims regarding his religious beliefs. The Tribunal further accepts that he had harboured these beliefs in Afghanistan and had given expression to these beliefs whilst employed as a judge. The Tribunal accepts that the applicant’s superior and judicial colleagues had reacted adversely to the applicant’s views. The Tribunal further accepts that his views had come to the attention of the Taliban who had sought to repeatedly threaten and intimidate the applicant, resulting in the applicant resigning from his position as a judge and moving addresses to avoid harm.
[6] See, for example, Weir, K, What do you believe?, American Psychological Association, 1 July 2020, Vol. 51, No. 5 (print version),
In a Thematic Report on Political and Security Developments in Afghanistan, DFAT reported that after coming to power in mid-August 2021, the Taliban offered an amnesty to all Afghans, including those who had worked for the previous government. The amnesty, however, has been unevenly respected, with much of the violence following the Taliban takeover being the result of local score-settling, as well as targeted killings. The report further stated:
The Taliban have targeted Afghans of all ethnicities working for, supporting, or associated with the government and/or the international community. This includes, but is not limited to, government employees, judges and prosecutors, judicial workers, police, Afghan and international security force personnel, and interpreters…Despite the amnesty, since August 2021 there are signs that some Taliban forces are actively targeting members of the Afghanistan Government’s security forces, particularly those adjudged to be impossible to recruit to the Taliban’s cause: namely former Special Forces soldiers and members of the National Directorate of Security (NDS), along with those who specifically aided foreign forces. Sources variously report four members of the NDS were hunted, tortured and killed in September 2021…[7]
[7] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022.
In August 2022, the European Union Agency for Asylum (EUAA), citing a number of sources, also reported that the amnesty was not systematically enforced nor fully respected by the Taliban, underscored by rise in targeted killings of military and civilian former government personnel.[8] In relation to judges, citing multiple other sources, the report noted that among the people hiding because of ‘specific, targeted, personalised threats’ were former government and security officials, judges, local politicians and community leaders.[9] EUAA stated:
In October 2021, a Taliban official assured that the general amnesty announced in August 2021 extended to former judges and lawyers. Nevertheless, in September 2021, in a joint statement, two professional organisations of Afghan judges warned that revenge killings might occur, and that former judges had been subjected to house-searches, threatening messages and physical harassment, and had their bank accounts suspended. Their family, friends and neighbours were said to have been under pressure to reveal their whereabouts. Later on, former judges and prosecutors gave similar accounts. Some noted that along recently released ISKP members and criminals , some Taliban fighters were pursuing ‘personal vendettas’ against former judges, and could not be controlled by the Taliban leadership. According to another judge, as of October 2021, five of his colleagues had been killed since the takeover. The New York Times also documented the killing of a former prosecutor and his brother in October 2021, while they were driving in Kabul.
In December 2021, OHCHR deemed ‘the safety of Afghan [former] judges, prosecutors, and lawyers – particularly women legal professionals – a matter for particular alarm’. OHCHR later expressed concern over former law and court personnel who were still living in hiding as of March 2022 or were subjected to threats and intimidation. The Taliban had reportedly gained access to the payroll system of the former Supreme Court and used it to identify former judges – in Bamyan Province, one former judge was arrested in December 2021 while he was trying to renew his passport. In February 2022, Afghan news media Reporterly and Etilaat-e Roz wrote about the killing of a former prosecutor by unidentified gunmen in Gardez, Paktya Province.[10] (footnotes omitted and emphasis added)
[8] EUAA, Afghanistan – Targeting of Individuals, Country of Origin Information Report, August 2022.
[9] Ibid. See also van Bijlert, M., The Moment in Between: After the Americans, before the new regime, AAN, 1 September 2021,
[10] Ibid.
With regard to religious freedom, the United States Commission on International Religious Freedom has reported that ‘religious freedom conditions in Afghanistan worsened´ after the Taliban takeover and that ‘Afghans who do not adhere to the Taliban’s harsh and strict interpretation of Sunni Islam and adherents of other faiths or beliefs are at risk of grave danger.’[11]
[11] USCIRF, Annual Report 2022 – Country Chapters: Afghanistan, April 2022,
The EUAA report, cited a senior fellow with the Atlantic Council stating that in the Taliban’s view of Islam, the religion dictates every aspect of daily life, and saw a need of ‘re-Islamization’ of the Afghan society as it was ‘insufficiently Islamic’ under the rule of the republic. The report also cited Obaidullah Baheer, a Kabul-based academic and grandson of Afghan warlord Gulbuddin Hekmatyar describing the Taliban as seeing ‘any challenge to [its] policies as a challenge to the faith itself.’ Although many of the decrees issued by the Taliban, have been claimed to be only recommendations, its fighters have enforced them sometimes violently.[12] The Taliban also reportedly reinstated the Taliban MPVPV in September 2021, which has been enforcing policies based on their interpretation of Islamic law.[13]
[12] EUAA, n8, above.
[13] Ibid.
The Tribunal has accepted the applicant’s employment history and that he was a former [judge]. The Tribunal has also accepted that the applicant does not identify as a Muslim and does not adhere to Islamic religious practices. The Tribunal finds that the applicant will continue to express his views pertaining to religion if he were to return to Afghanistan and that the only reason he would seek to limit or restrict the expression of his views is his fear of harm.
Having carefully considered the evidence before it, 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 who are now governing Afghanistan. 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 reasons for the persecution feared by the applicant are his membership of the particular social group of former judges or judicial workers in Afghanistan, his political opinion and his religion. The Tribunal is satisfied that the real chance of persecution relates to all areas of Afghanistan. As the applicant fears harm by the Afghan authorities, the Tribunal finds that effective state protection against the harm he fears is not available to him. The Tribunal finds that the applicant has a well-founded fear of persecution in Afghanistan. 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.

The Tribunal is, therefore, satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided, the Tribunal does not consider it necessary to assess other protection claims arising from his evidence, including his claims in relation to his ex-girlfriend.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Shahyar Roushan
Senior 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.3.

[2023] AATA 1272

20 February 2023

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