1921698 (Refugee)

1921698 (Refugee) [2023] AATA 3491 (14 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ahmad Wali Mohseni (MARN: 1804126)
CASE NUMBER:  1921698
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Peter Haag
DATE:14 August 2023
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 14 August 2023 at 11:32am
CATCHWORDS
REFUGEE – Protection Visa –Afghanistan – race – Tajik ethnicity – religion – Sunni Muslim – harm from the families of former fiancée – prevailing circumstances in Afghanistan – imputed beliefs – legitimacy of the Taliban government – membership of the particular social group – failed asylum seekers attempting to re-enter the country from Australia – applicant has a well-founded fear of persecution– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 65, 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 17 July 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, applied for the visa on 19 October 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 8 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The applicant was represented in relation to the review.
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.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s background
In his application for a protection visa, the applicant claims to be a citizen of Afghanistan, born in Kabul, Afghanistan. He claims to be of Tajik ethnicity and a Sunni Muslim who can speak, read and write in Dari.
In his visa application, the applicant provided details of his mother, father, [relatives], who are all citizens of Afghanistan residing in Afghanistan.
At the time of his visa application, the applicant had been residing in [a suburb], Victoria, Australia since 8 July 2015. Prior to this he resided in [Suburb 1], Victoria, Australia between [date] May 2015 and 29 June 2015. He previously resided in Kabul, Afghanistan between 1 January 1988 and 1 March 2015.
The applicant did not provide details of any education or qualifications in his visa application.
At the time of visa application, the applicant stated that he was currently employed as an [occupation]. He did not provide details of any previous employment.
Applicant’s identity
The applicant provided the Department with a copy of his Victorian Probationary Driver Licence and his Afghan passport.
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Afghanistan, and as such his protection claims will be assessed against Afghanistan as the country of reference and ‘receiving country’ respectively.
Migration history
On [date] May 2015 the applicant arrived in Australia from Afghanistan on a Class TO, Subclass 300 (Combined Partner) visa, sponsored by his Australian citizen fiancée.
On 19 October 2015 the applicant applied for a protection visa.
On 14 January 2016 the applicant’s Subclass 300 partner visa ceased.
On 17 July 2019 the delegate for the Minister refused the protection visa application.
On 6 August 2019 the applicant lodged an application with the Tribunal for review of the protection visa refusal decision.
Claims for protection and other supporting documentation
The applicant submitted his claims for protection when he lodged his protection visa application with the Department on 19 October 2015. The applicant’s claims are as follows:[1]
[1] Part C Application for a Protection Visa, Department file [DELETED], Doc ID 6091850.
89 I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside In. This includes countries you are a citizen or national of or you have a current visa for).
Afghanistan
90 Why did you leave that country(s)? Provide specific details
To get married to my ex-fiancé [name] and reside in Australia.
91 What do you think will happen to you if you return to that country(s)?
After my relationship turned sour with my ex-fiancé they became very unkind to me and they bought my ticket oneway to Afghanistan and they really wanted me to return back. After leaving my ex-fiancé home because I didn’t want to give up on my engagement I needed more time to resolve my issues. They became very angry with me and now they are seeking revenge from me. Fortunately taking revenge from someone in Australia is not easy because law protects people in here but in Afghanistan is very easy. My ex-fiancé have a very big and powerful circle of relatives in Afghanistan that are waiting for me to return. The relatives of my ex-fiancé in Afghanistan have warned my family who are living in Kabul that as soon as I return they will not let me breathe the air of Kabul. I am afraid for my life that for-sure as soon as I return they will kill me.
92 Did you experience harm in that country(s)?
Yes
My first cousin who was working in the same shop as I used to work got killed on the way home in a roadside bombing
93 Did you seek help within the country(s) after the harm?
No
Countless people dies everyday in the result of suicide bombing and rockets and government powerless against those acts. The government of Afghanistan is not able to protect even its own members of parliament then how can they protect their citizens
94 Did you move, or try to move, to another part of that country(s) to seek safety?
No
Comparing to other provinces, Kabul was the most safest provence in whole Afghanistan.
95 Do you think you will be harmed or mistreated if you return to that country(s)?
Yes
My ex-fiancé’s relatives in Afghanistan will kill me to seek their revenge wither themselves or through other criminal organisations like IS (Daiash) or Taliban who cuts heads off as a punishment for muslim people who chooses non-Islamic country to live. They have their informers in all parts of Afghanistan including Kabul who gets jobs from people in exchange for money.
96 Do you think the authorities of that country(s) can and will protect you if you go back?
No
The government in Afghanistan is so powerless and corrupted that they are not able to protect their own members of parliament and ministers, then how can they protect their normal citizen
97 Do you think you would be able to relocate within that country(s)?
No
Kabul is the most safest province comparing to other provinces, if I am not safe in Kabul where else I can relocate.
The applicant submitted the following documents in support of his visa application:
a)A certified copy his Afghan passport;[2]
b)Certified copies of his Victorian Learner Permit and [a] Bank Debit card;[3]
c)Statement made by the applicant at [Suburb 1] Police Station, regarding an incident with his ex-fiancée, signed by the applicant and dated 8 July 2015.[4]
[2] Department file [DELETED], Doc ID 6091853.
[3] Ibid, Doc ID 6091852.
[4] Ibid, Doc ID 6091854.
On 24 April 2019 the applicant was invited to attend an interview with the Department. On 15 May 2019 the applicant provided the following submissions to the Department:[5]
a)A written statement of the applicant’s claims and background prepared by the applicant’s Migration Agent;
b)   A Tax Invoice from Ambulance Victoria issued to the applicant on 15 February 2017;
c)   The applicant’s tax return assessments for the periods ending 30 June 2017 and 30 June 2018;
d)   A letter of support from a friend of the applicant’s, signed and undated;
e)   A letter of support from the applicant’s landlord, signed and undated;
f)    A letter of support from the applicant’s employer, [name], signed and undated;
g)   A copy of a confirmation letter to the applicant for an appointment for counselling with [Organisation 1], dated 23 July 2015;
h)   A copy of information provided by the applicant for his counselling appointment with [Organisation 1].
[5] Ibid, Doc ID 6091860.
On 17 May 2019 the applicant attended an interview with the Department.[6]
[6] Ibid, Doc IDs 6091864, 6091867.
On 6 August 2019 the applicant provided the Tribunal with a copy of the record of the primary decision made on 17 July 2019 refusing his application for a protection visa.[7]
[7] Tribunal file 1921698, Doc ID 6054091.
On 6 August 2019 the applicant submitted the following statement to the Tribunal, unsigned and undated:[8]
My full name is [name]. I was born on [date] in Kabul, Afghanistan.
I cannot return to Afghanistan because I will be harmed by the families of my former fiancée. They believe I have brought shame to the family. My former fiancée’s family has links with influential people in Kabul, Afghanistan who will harm me if I return to Afghanistan. My former father in law’s cousins, [name], is a rich and powerful in Kabul. He controls a large mafia in Kabul and other parts of Afghanistan. My ex-fiancée’s relatives in Afghanistan are very big and powerful in Kabul and some of them work for the government. There will be no one to protect me against the harms I face from the ex-fiancée’s relatives.
In addition to the threats I face from my former fiancée’s family, I will be harmed by the Taliban and Daesh. The Taliban and Daesh are present in parts of the country. They have been responsible for the deaths of thousands of people in Afghanistan in the last many years. The groups target innocent people every day.
The authorities in Afghanistan cannot protect me because they are unable to protect even their own personnel and interests. The power of the government is limited to the only small areas in the provincial centres and a city centre. The Taliban and Daesh attack government personnel and buildings whenever they want and wherever they want. I do not accept the ideology preached by the Taliban and Daesh. They kill anyone they find act against their beliefs and ideologies.
Many government officials share the same ideology as the Taliban and Daesh. Many of them have links with the Taliban and other terrorist groups, and openly assist them in targeting. I could not have a safe haven regardless of where I move to. It is impossible to find security anywhere else in the country. There is no such thing as a safe place in Afghanistan. You have to only follow the news to find out that Taliban have carried out continuous attacks in Kabul, Herat, Badakhshan, Mazar-e Sharif, Ghazni, and all across the country. Taliban control all the roads, and the government does not exist outside a few check-posts here and there.
To survive in Afghanistan, I would need to travel, use the roads to go to work or visit relatives. In doing so, I would be vulnerable and an open target for the Taliban other terrorists. Taliban have attacked and killed civilians like me in every corner of the country including Kabul, Mazar-e Sharif, Ghazni, Herat to name a few. It is not possible for me to find safety or community in another part of the country.
If I were to return, I will face a real risk of being killed and beheaded by the Taliban. As an individual who has lived in Australia for almost four years, my demeanour, behaviour, and characteristics are noticeably different to someone who has always lived in Afghanistan. I will be an easy target as a returnee from Australia. I will be considered a foreigner and an ally of the infidels in the eyes of the Taliban, Daesh and other extremist groups.
If I were to return as a failed asylum seeker, I will be considered as someone who has sought assistance from a western country which has had military presence in Afghanistan and has fought the Taliban and Daesh. This will make me an even more prominent target for the Taliban and other terrorists. As an individual who has lived in Australia for almost four years, I will be an easy target as a returnee from Australia. The people in my neighbourhood, my relatives and contacts know that I travelled to Australia. I will be treated as a foreigner and an ally of the infidels in the eyes of the Taliban, Daesh and other extremist groups. They will kill me for returning from a country which they consider an enemy.
[8] Ibid, Doc ID 6054093.
Claims for protection not raised before the primary decision was made
On 2 July 2023 the applicant submitted to the Tribunal a Statement[9] prepared by the applicant’s representative and signed by the applicant, which raises the claim that he would be harmed if he returned to Afghanistan because of his Tajik ethnicity. The applicant asserts that in the past Tajik people and Pashtuns sympathetic to the cause of the Taliban have been at war with each other. This claim was not raised before the primary decision was made.
[9] Ibid, Doc ID 11236788.
The claim is vague in nature and unsupported by cogent specificity, such as when the claimed warfare occurred, or other concrete evidence, such as specific country information consistent with the subject matter of the claim.
Evidence not presented before the primary decision was made
On 30 June 2023, in response to the Tribunal’s pre-hearing attendance form, the applicant submitted a bundle of untranslated identity documents, not presented before the primary decision was made, purportedly relating to other family members who have ‘escaped from Afghanistan’ and are seeking refuge in other countries.[10]
[10] Ibid, Doc IDs 11232316, 11232317.
On 2 July 2023 the applicant submitted to the Tribunal a bundle of documents, including three letters of support submitted previously to the Department (as per paragraph 27) and the following documents not presented before the primary decision was made:[11]
·Statement prepared by the applicant’s representative and signed by the applicant;
·Copy of a [Country 1] Confirmation of Permanent Residence, dated 30 September 2021, for the applicant’s sister, [name];
·Copy of a [Country 2] refugee visa for the applicant’s brother, [Mr A];
·A bundle of travel and identity documents relating to the applicant’s mother and two brothers who are refugees in [Country 3].
[11] Ibid, Doc ID 11236788.
On 25 July the applicant submitted to the Tribunal the following documents not presented before the primary decision was made:[12]
·Psychological Report, dated 23 July 2023, from [Ms B], Clinical Psychologist with [a] Services, detailing the applicant’s treatment for mental health issues;
·Copy of a death certificate, with certified translation, for the applicant’s father, whose date of death is registered as 30 January 2017.
[12] Ibid, Doc ID 11318942.
On 3 August 2023 the applicant submitted to the Tribunal documents summarising the applicant’s claims and supporting narrative which gave emphasis to the weight to be given to the prevailing circumstances in Afghanistan since the Taliban took control of the government of the country.[13]
[13] Ibid.
Consideration of the applicant’s claims and supporting evidence

At hearing the applicant said he would be harmed if he returned to Afghanistan because his ethnicity is Tajik, and there is a history of people of his ethnicity being persecuted [in] Afghanistan. However, according to the evidence, the applicant and his family lived in and were well established in Kabul, the capital city of Afghanistan, before he left the country in 2015, and prior to the Taliban capturing control of the country in 2021. There is no evidence of the applicant, or members of his family suffering persecution for reasons of their ethnicity prior to or after the applicant left his home country in May 2015.
According to the DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022), dated 14 January 2022 (DFAT report), DFAT assesses that people of Tajik ethnicity may face some risks of harassment from the Taliban if they are associated with any military threat.
There is no evidence that satisfies the Tribunal that the applicant, or members of his family, ever posed a military threat to the Taliban or actively supported the Government that was deposed by the Taliban. Relevantly, the applicant said in evidence that he was not involved in political activities in Afghanistan.
The evidence considered as a whole is insufficient to satisfy the Tribunal that the applicant would face a real chance of serious harm in his home country for the reason of his Tajik ethnicity.
The applicant also claims protection on the basis that he was formally engaged in his home country, in accordance with cultural norms and his faith, to a woman who is a permanent Australian resident.
The engagement was terminated by the applicant’s fiancée several weeks after the applicant arrived in Australia. Consequently, according to the applicant, his fiancée’s relatives in Afghanistan will seriously harm him because they believe he only proposed marriage and became engaged for the purpose of obtaining permanent residence in Australia.
At hearing the applicant accepted that in Afghanistan, couples who become formally engaged do not necessarily marry each other, for any number of reasons. The applicant also accepted in evidence that the termination of a formal engagement was within the common course of experience in Afghani society. The Tribunal infers from this evidence that the termination of a formal engagement is not necessarily perceived in Afghani society to be insulting or an affront to family honour.
Relevantly, according to the applicant’s evidence, the fiancée rejected the applicant after he arrived in Australia and, over a period, using various insults and by demeaning him personally and in the presence of members of her family, made it apparent to the applicant and her family that she would not marry him.
The applicant’s evidence that he would be harmed by his fiancée’s family in Kabul for the reasons he stated is unsupported by concrete evidence. For example, there is a lack of oral or written evidence from friends, family members or members of the applicant’s community in Afghanistan or Australia, or country information, capable of substantiating the applicant’s claims that his former fiancée’s family took offence, in circumstances where the applicant made the requisite dowry payment and the fiancée, for her own reasons, ended the engagement.
According to the evidence, the essential reason for the fiancée ending the engagement was that she was dissatisfied with the applicant’s standard of education, income earning capacity in Australia and his poor command of the English language, and that he was not compatible with her circle of friends in the Afghani community that she socialises in.
According to the applicant’s written case, he wanted the relationship to continue, but his fiancée and her family in Australia wanted to end the engagement, and, to achieve this end, they assaulted and ridiculed the applicant.
In that context, the applicant assaulted his fiancée. He was charged with assault and ultimately pleaded guilty to the charge.
The Tribunal notes that the applicant, by his guilty plea, accepted that he unlawfully assaulted his fiancée. The assault led to the applicant being obliged by court order to leave his fiancée’s family home, where he occupied a bedroom separate from his fiancée. In compliance with a court order, the applicant has not returned to his former fiancée’s home address.
It is evident that the fiancée wanted to end the relationship and her family in Australia supported her decision.
The applicant gave evidence that members of the fiancée’s family residing in Kabul regarded the termination of the engagement as a slight to the honour of the family. The slight was caused, according to the applicant, by their incorrect perception that he became engaged for the purpose of obtaining an Australia visa.
Common sense suggests that the fiancée’s family members in both Australia and Afghanistan would be likely to accept, without a sense of dishonour, the fiancée’s decision to terminate the engagement where the decision accorded with cultural norms, and a formal engagement admits of the prospect of the engaged couple ending their engagement unilaterally, or by mutual agreement.
The applicant’s evidence that the fiancée’s relatives would harm him for the reasons he asserts if he returned to Afghanistan is unsupported by concrete evidence. It is inconsistent with the apparent support the fiancée’s family in Melbourne gave to her decision to end the relationship, and it is inconsistent with the applicant’s evidence that he wanted to remain in the relationship, rather than end it after he had gained entry to Australia.
On balance, the Tribunal regards the applicant’s assertion that the fiancée’s family in Afghanistan intended to harm him because he insincerely became engaged in order to obtain a permanent Australian visa, to be speculative in nature and unpersuasive.
The evidence is insufficient to satisfy the Tribunal that the applicant would face a real chance of being seriously harmed by members of the former fiancée’s family if he returned to Afghanistan now or in the reasonably foreseeable future.
It is relevant to observe that circumstances in Afghanistan relevant to the assessment of any risk of harm the applicant would be subjected to in his home country changed substantially sometime after 17 July 2019, the date on which the delegate of the Minister refused to grant the applicant a protection visa.
It is a matter of common knowledge that the armed forces of the US and its allies, including Australia, withdrew their armed forces from Afghanistan in August 2021; and, that the Taliban took control of the whole country, and formed government in September 2021: DFAT report [2.1] – [2.4].
According to the applicant’s evidence, he does not agree with the policies of the Taliban and the Taliban in Government, and he disagrees with the restrictions the Government has imposed on women. The Tribunal accepts this evidence.
The Tribunal also accepts that the applicant’s father is deceased, and that his mother and siblings left Afghanistan to escape the Taliban.
The Tribunal accepts that the applicant’s mother and two of his siblings, [reside] in [Country 3], where their applications for asylum are being considered.
The Tribunal accepts the applicant’s sister, [and] brothers, [Mr A] and [name], are residing in [Country 2], where their applications for asylum are being considered.
The Tribunal also accepts that the applicant’s sister, [name], granted permanent residence in [Country 1] in September 2021.
Additionally, the Tribunal accepts that one of the applicant’s sisters is residing in Afghanistan. She did reside in the family home in Kabul. To avoid being subjected to the Taliban in Kabul, she moved out of the city to another location in the country where, according to the applicant’s evidence, she is more likely be able to avoid direct contact with members of the Taliban. Currently, family members are endeavouring to facilitate her exit from the country.
The applicant asserts that the endeavours to remove his sister from Afghanistan have been unsuccessful because the Taliban Government has implemented tight border controls and restricted the ability of Afghanis to obtain official permission to travel outside the country, and closely controls entry into the country.
According to the applicant’s evidence, his family abandoned the family home in Kabul when they left the country, and as far as he is aware, the house is unoccupied.
The Tribunal is satisfied that if the applicant returned to Afghanistan, he would not have the benefit of an established and reliable family network to support him and to help him re-establish himself.
The applicant’s evidence raises the claim that he would be harmed if he returned to Afghanistan because he will be classified as a failed asylum seeker returning from Australia, a country that recently occupied Afghanistan militarily, and actively opposed the Taliban for many years, and disagrees the Taliban having control of the country.
The applicant contends that a real chance of serious harm would be inescapable upon his return because, upon arrival at Kabul airport, he would be subjected to close examination by State officials who would be part of the State security apparatus responsible for protecting the Taliban from real and imputed threats to the longevity of their rule.
It is reasonable to apprehend that State officials acting in furtherance of the purposes of the Taliban would classify the applicant as a failed asylum seeker returning after a long period of residence in Australia, a country that recently used its military to go to war with the Taliban, and as a person likely not to accept the Taliban’s political objectives, its methods of public administration and Government.
It is also reasonable to apprehend that the applicant would face a real chance of State officials imputing to the applicant beliefs, potentially cultivated while living in Australia, that are contrary to the political and social objectives of the Taliban government. Such beliefs could include being resistant to the rules of conduct enforced by the Taliban, for example, the discriminatory exclusion of women from access to education, prohibitions on their participation in paid employment and their usage of certain public places such as parks, and the restriction of women’s attire to the officially approved style of clothing.
These rule-based restrictions have been the subject of widespread reportage by reputable media organisations and the subject of widespread public discussion, and in the opinion of the Tribunal, it is reasonable to treat those well-known matters of public administration in Afghanistan as matters of common knowledge.
The applicant claims that upon returning to Afghanistan from Australia, as a failed asylum seeker who chose to remain in Australia whilst it was engaged in warfare in Afghanistan against the Taliban, he would face a real chance of State officials imputing to him beliefs that are antipathetic to the Taliban, the legitimacy of the Taliban government, and the controls it has placed on women and society generally.
Findings
Based on the evidence considered in conjunction with the DFAT report, and common knowledge about the prevailing state of political and social reorientation now occurring under the Taliban government, which comprises mostly long serving Taliban commanders with little relevant government experience,[14] the Tribunal is satisfied the applicant would face a real chance of serious harm from State actors, as well as supporters of the Taliban and its system and methods of public administration, if he is removed to Afghanistan now or in the reasonably foreseeable future.
[14] DFAT report, [2.11].
Having considered the applicant’s claims individually and cumulatively, the evidence is sufficient to establish, to the satisfaction of the Tribunal, the existence of a real chance the applicant would be subjected to serious harm for reasons of his membership of a particular social group, namely failed asylum seekers attempting to re-enter the country from Australia, that being a reason that meets the provisions of s 5J(1)(a) of the Act, if he is removed to Afghanistan now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
The Tribunal is also satisfied the real chance of persecution by State sponsored actors and individuals who identify with the Taliban, arising from the applicant’s membership of the identified particular social group, is the essential and significant reason for the real chance of persecution faced by the applicant, and that the real chance of persecution would operate throughout the country.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely membership of a particular social group, and that the applicant meets the definition of refugee as set out in s 5H of the Act.
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) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Haag
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.
…

[2023] AATA 3491

14 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Remedies