1925478 (Refugee)

The applicant sought a protection visa, claiming persecution based on his ethnicity as a Hazara, his religion as a Muslim Shia, and an imputed political opinion of being anti-Taliban. The case came before the Tribunal for reconsideration. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), which involves Australia having protection obligations under the Refugees Convention. This required assessing whether the applicant had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

The Tribunal considered extensive country information, including reports detailing the persecution of Hazaras and Shias in Afghanistan, particularly in light of the Taliban's takeover of the country. The evidence indicated that Hazaras were targeted for their ethnicity and religion, with reports of killings, torture, and destruction of religious symbols. The Tribunal also noted that the applicant had been present at a major bomb attack and that his family members were refugees in a third country, while his wife and child were an Australian permanent resident and citizen, respectively. The Tribunal applied the principles of the Refugees Convention, noting that persecution can be official, officially tolerated, or uncontrollable by authorities, and that the threat of harm need not be a product of government policy if the government fails to protect individuals.

The Tribunal found that the applicant faced a real chance of serious harm based on his race, religion, and imputed political opinion. Given the fall of the Afghan government and the Taliban's control, the Tribunal concluded that the applicant would not be afforded state protection and could not safely relocate within Afghanistan. Consequently, the Tribunal was satisfied that Australia had protection obligations under the Refugees Convention and that the applicant met the criterion set out in section 36(2)(a) of the Migration Act. The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies this criterion.