1931671 (Refugee)

1931671 (Refugee) [2022] AATA 4883 (28 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Teresa Lee (MARN: 2217901)
CASE NUMBER:  1931671
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Simone Burford
DATE:28 October 2022
PLACE OF DECISION:  Perth
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 28 October 2022 at 11:32am

CATCHWORDS
REFUGEE – protection visa – Afghanistan – Federal Circuit Court remittal – jurisdictional error – fear of Taliban, informants and criminal elements by reason of accent – race – Hazara ethnicity – internal relocation – Kabul – withdrawal of US forces – seizing of control by the Taliban – religion – Shi’a Muslim – secular Muslim lifestyle – political opinion – pro-Western – anti-Taliban – returnee from the West – lack of family ties and familiarity to Afghanistan – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background to the application
The applicant is a [age]-year-old citizen of Afghanistan who was born in [Village 1] in the [District 1] of Uruzghan Province, Afghanistan. He claims to be ethnically Hazara and a Shi’a Muslim.
The applicant arrived as an Unauthorised Maritime Arrival on Christmas Island [in] June 2012. On 7 November 2012 the Minister for Immigration and Citizenship wrote to the applicant advising him that he had exercised his power under s 46A(2) of the Act to lift the bar to allow the applicant to lodge an application for a protection visa.
The applicant applied for the visa on 29 November 2012[1] and the delegate refused to grant the visa on 20 February 2014. The applicant sought a review of that decision to the Tribunal. That decision was affirmed by the Tribunal, differently constituted, on 4 November 2015.
[1] The Tribunal notes several dates for the filing of the application appear in the material including in the decision of the Federal Circuit Court of Australia which lists the date of application as 10 December 2012. Nothing turns of the discrepancy and the Tribunal has taken the date which appears in the Department’s file and was the date on which the applicant signed the application for protection.
The applicant applied for judicial review of that application to the Federal Circuit Court of Australia (as it then was) and on 3 October 2019 the Court quashed the Tribunal’s decision, remitting the application to the Tribunal to be determined according to law.
The applicant’s representative provided detailed written submissions and supporting documentation in support of the application for review on remittal. Having considered that material the Tribunal determined it could determine the application without holding a hearing.
For the following reasons, the Tribunal has concluded that the decision of the delegate refusing to grant the visa should be remitted for reconsideration.
Protection claims
Protection visa application
The applicant detailed his original claims for protection in his application for the visa and in a statutory declaration made in November 2012 which was provided to the Department in support of the application. The applicant attended an interview with the Department on 28 May 2013. In summary, the applicant claimed in his application and before the Department to fear harm on the basis of his:
a.    ethnicity as a Hazara;
b.    religion as a Shi’a Muslim;
c.     actual or imputed political opinion as anti-Taliban as a returnee from the West;
d.    membership of a particular social group as a family member of a former member of the Hazara defence militia;
e.    from the Taliban, informants and criminal elements in Afghanistan by reason of his accent which identified him as having lived outside Afghanistan from a very young age.
The applicant claimed to have left his village of [Village 1], which he claimed was in the [District 2] of Uruzgan Province Afghanistan, for Pakistan with his family in 1997 eventually settling in Quetta. He claimed his family left Afghanistan because the Taliban were targeting Hazaras in his home area. They were also attempting to forcibly recruit Hazaras to fight with them in Afghanistan. He claimed his father was a member of a local defence for Hazara people. He claimed to have left Pakistan following the death of his uncle when his bus was attacked by Lashkar-e-Jhanjvi in 2011. He travelled vis several countries, arriving in Australia by boat in June 2012.
Previous proceedings
Delegate’s decision
The Delegate accepted that the applicant was and Afghani citizen and that he was ethnically Hazara and a Shi’a Muslim from Uruzgan Province. The delegate found that the applicant’s account to of his travel to Australia, including his claimed age, was untruthful and this reflected negatively on his general credibility. The delegate also did not accept the applicant’s account of his uncle’s death or his claimed reasons for having left Pakistan.
The delegate accepted that the applicant was an Afghani citizen and that he was ethnically Hazara and identifiable by physical appearance.
The delegate found that the Applicant did not face a well-founded fear of persecution or a real risk of significant harm in or around [District 2], Uruzgan Province, Afghanistan on the basis that the Hazara were not persecuted specifically by the Taliban and the Taliban insurgency in Uruzgan Province at the time was not such as to make [District 2] ‘generally not safe’. The delegate did not accept economic circumstances in Afghanistan were such that the applicant would be unable to subsist having regard to his transferrable skills, health and lack of dependants. The delegate did not accept that the applicant’s period in the West and confidential application for asylum would draw adverse attention from extremists, noting the applicant’s lack of adverse political profile prior to leaving Afghanistan or while in Australia.
The delegate found that the Afghan National Security Forces (ANSF) were able to provide effective state protection from what were then Anti-Government Elements (AGE) like the Taliban in regional capitals.
Previous Tribunal decision
On 4 November 2015, the Tribunal (differently constituted) found that the Applicant faced a real chance of serious harm on the grounds of his nationality in Uruzgan Province; however, the Tribunal found that the Applicant would not face a real chance of serious harm in Kabul and that it would be reasonable to expect the Applicant to relocate there.
In that decision, the Tribunal accepted that the applicant was an Afghani citizen and that he was ethnically Hazara.
The Tribunal noted country information included in the then-current Department of Foreign Affairs and Trade (DFAT) Country Information report for Afghanistan[2], which reported that:
·Uruzgan Province was being contested by insurgent forces;
·Hazara minorities in Uruzgan – a Pashtun majority province – were ‘less safe than those living in Kabul or other Hazara majority areas in Afghanistan’; and
·The government was in effective control of urban areas, including Kabul.
[2] DFAT Country Information Report, Afghanistan, 18 September 2015.
The Tribunal accepted there was a real chance the applicant would suffer serious harm on the basis of his ethnicity as a Hazara in [District 2] because there was a very strong likelihood that the applicant would have to seek employment and accommodation from other ethnic groups, and in that process suffer discrimination which threatened his ability to subsist. However, the Tribunal found that it would be reasonable for the applicant to relocate to Kabul, where there was only a remote risk that the applicant would suffer serious harm. The Tribunal further found that ethnic and sectarian based violence is rare in Kabul, and that as there is a sizeable Hazara and Shi’a population in Kabul, the risk of the applicant suffering discrimination that prevents him from finding accommodation and employment and that amounts to serious harm is remote. The Tribunal further found that the insurgent attacks in Kabul are aimed at people associated with the Afghan government, its institutions, international forces and international institutions or groups, and that the applicant is not such a person. The Tribunal acknowledged that there was a risk that the applicant may suffer serious harm as a civilian casualty, but the number of casualties needs to be considered in the context of the overall population in Afghanistan. The Tribunal also found that the ANSF with the support of international forces maintains effective control over Kabul.
The Tribunal also found, based on country information, that the risk of the applicant suffering serious harm because he sought asylum in Australia, and therefore had spent time in a Western country, was remote.
The Tribunal acknowledged that the applicant had never been to Kabul before and had no family there, and that there were challenges in Kabul in providing adequate services in the face of its rapid population growth, and the high competition for accommodation and employment. However, the Tribunal was satisfied that the applicant's lack of family in Afghanistan would be less important in an urban area, that there was a large Hazara population in Kabul that the applicant could seek to integrate into, including finding work and accommodation, and that he would be well-placed to succeed as a young man of working age with work experience in Australia and Pakistan. The Tribunal also assessed the impact on the applicant of living in Kabul in terms of the effect on him of living in a city in which insurgent attacks take place, where the government is fighting an insurgency in other parts of the country, where sectarian and ethnic violence is infrequent, where ordinary crime takes place, as well as the challenges discussed earlier which are posed by the rapid growth in the population. The Tribunal concluded that even taking all of those factors into account cumulatively, it was reasonable for the applicant to relocate to Kabul.
The Tribunal found that for the same reasons that there was a real chance that he would suffer serious harm in his native area in Uruzgan, there was also a real risk that he will suffer significant harm in that area. The Tribunal also found, for the same reasons that there was not a real chance that the applicant would suffer serious harm in Kabul and it was reasonable to expect him to relocate there, that there was not a real risk that he would suffer significant harm in Kabul and that it would be reasonable for him to relocate there. The Tribunal therefore concluded that there was taken not to be a real risk that the applicant will suffer significant harm in Afghanistan, and accordingly there was not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Afghanistan, there was a real risk that he would suffer significant harm.
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention, and that the applicant did not satisfy the criterion in s.36(2)(a) of the Act and was also not satisfied that he was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Decision of the Federal Circuit Court
The applicant sought judicial review of the decision to the Federal Circuit Court on 3 December 2015. By an amended application filed on 17 August 2016, the applicant set out three grounds for review:
·Ground 1 - The Tribunal made a jurisdictional error by failing to consider the applicant's claim that he fears persecution from the Taliban, informants and criminal elements by reason of his accent.
·Ground 2 - The Tribunal made a jurisdictional error by failing to consider DFAT country information that it was required to take into account under Ministerial Direction No. 56 made under s 499 of the Migration Act 1958 (Cth) and failing to apply that information to the applicant's circumstances, specifically with respect to conditions in Kabul.
·Ground 3 - The Tribunal failed to properly take into account DFAT country information in accordance with Ministerial Direction No. 56 made under s 499 of the Migration Act 1958 (Cth) with respect to the impact of a lack of family networks impacting reintegration of single men in Afghanistan.
The Court found for the applicant with respect to Ground 1. The Court noted that the Tribunal did not consider the applicant’s claim to have an identifiable accent from his time in Pakistan, which was not Hazaragi, not Dari, nor generally seemingly Afghan, with the consequence that he might be identified as non-Hazaragi, non-Dari, or not even Afghan, and as a consequence be exposed to a serious risk of harm from various ethnic groups in Afghanistan. The Court noted that the Delegate had dealt with this claim. The Court found that in failing to deal with this claim the Tribunal fell into jurisdictional error.
The Court found no jurisdictional error with respect to Grounds 2 and 3.
Proceedings before the Tribunal
The applicant was represented in relation to the review. In response to an invitation issues to the applicant pursuant to s 424(2) of the Act, the applicant submitted the following information to the Tribunal:
·Statutory declaration from [the applicant] dated 21 October 2021;
·Afghan National Statistics and Information Authority, Document of Delivery of Services in Absentia (with translation) dated 27 January 2021;
·Department of Foreign Affairs and Trade, DFAT Country Information Report - Afghanistan, 27 June 2019;[3]
[3] report-afghanistan.pdf
·UK Home Office, Country Policy and Information Note – Afghanistan: Fear of the Taliban, October 2021;[4]
[4] M Latifi, ‘Afghans who fled Panjshir: “Everything can change by the hour”, Al Jazeera (online) ,17 September 2021;[5]
[5] Jackson, Life under the Taliban shadow government, Overseas Development Institute, June 2018;[6]
[6] National Intelligence Council, Afghanistan: Women’s Economic, Political, Social Status Driven by Cultural Norms, SOCM 2021-04038-A, 2 April 2021;[7]
[7] Ruttig, ‘Have the Taliban Changed?’, CTC Sentinel vol 14 iss 3 (excerpt), March 2021;[8]
[8] Colville, Briefing notes on Afghanistan, OHCHR, 17 August 2021;[9]
[9] Bachelet, The serious human rights concerns and situation in Afghanistan: Statement by Michelle Bachelet, UN High Commissioner for Human Rights, 31st Special Session of the Human Rights Council, 24 August 2021;[10]
[10] Bachelet, Oral update on the situation of human rights in Afghanistan: Statement by Michelle Bachelet, UN High Commissioner for Human Rights, 48th Session of the Human Rights Council, 13 September 2021;[11]
[11] Development Programme, UN Development Report Country Profiles -Afghanistan, 2020;[12]
[12] High Commissioner for Refugees, UNHCR Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, HCR/EG/AFG/18/02, 30 August 2018;[13]
[13] Asylum Support Office, EASO Country of Origin Information Report – Afghanistan: Individuals targeted under social and legal norms, December 2017; [14]
[14] Rights Watch, “You Have No Right To Complain”: Education, Social Restrictions, and Justice in Taliban-Held Afghanistan, June 2020;[15]
·US Department of State, 2019 Report on International Religious Freedom: Afghanistan, 10 June 2020;[16]
·UN Assistance Mission in Afghanistan, Afghanistan – Protection of Civilians in Armed Conflict: Midyear Update: 1 January to 30 June 2021, July 2021; [17]
·UN Secretary General, The situation in Afghanistan and its implications for international peace and security, A/75/1010-S/2021/759, 2 September 2021;[18]
·Program for Culture and Conflict Studies at the Naval Post Graduate School, Uruzgan Provincial Overview; [19]
·Peter Beaumont and agencies, ‘Shi’a mosque bombing kills dozens in Afghan city of Kunduz’, The Guardian (online), 9 October 2021;[20]
·Abdul Rauf Wafa and Emma Graham-Harrison, ‘Shi’a mosque bombing in Afghanistan that killed at least 47 claimed by ISKP’, The Guardian (online), 16 October 2021;[21]
·Sudarsan Raghavan, ‘Afghanistan’s war is over, but the Taliban faces a new hurdle: Enforcing the las – and protecting Afghans from ISIS’, The Washington Post (online), 19 October 2021;[22]
·Adela Sulima and Susannah George, ‘Taliban tells Kabul’s female city government employees not to come to work’, The Washington Post (online), 22 October 2021;[23]
·Author unnamed, ‘Afghanistan: Journalists tell of beatings by Taliban’, BBC (online), 9 September 2021.[24]
[15]^{^[15]} 0620_web_0.pdf
[16] >
The applicant also provided comprehensive written submissions from their then representative (a previous representative from the same organisation as their current representative).
In written submissions to the Tribunal and in his latest statutory declaration, the applicant claimed to have a well-founded fear of persecution on the basis of:
·His race as a Hazara;
·His actual religion / religious beliefs, as someone who does not strictly belief in the Islamic faith he was born into, as someone who disagrees with the Wahabi Sunni interpretation of Islam of the Taliban, and/ or as someone who does not conform with the Taliban's religious expectations/mores;
·His imputed religion, as someone who is culturally Shi'a and will be imputed with this faith through my participation in the cultural practices of this religion and / or my ethnic identity;
·His actual and/ or imputed political opinion, as someone who is strongly opposed to the Taliban, their actions and/ or their interpretation of Islam, and/ or as someone who does not conform to the strict cultural and religious expectations or mores of the Taliban;
·His imputed political opinion, as someone who will be perceived to be a supporter of the previous Afghan government which was ousted by the Taliban, the Western occupation of Afghanistan and / or the international community;
·His actual political opinion, as a supporter of the international community and/or the occupation of Afghanistan by the United States and their allies;
·His actual political opinion, as someone who believes in the rights of all people - including the rights of women and the LGBTI community - and in gender and sexual equality and freedoms;
·His membership of a particular social group, as a perceived apostate;
·His membership of a particular social group, as a Westernised Afghan, an Afghan who has been residing in the West for a long period, an Afghan whose wife and [child] are citizens of a Western country, an Afghan who fled the Taliban and chose not to live under their regime, and / or a failed Afghan asylum seeker returning from a Western country;
·His membership of a particular social group, as an Afghan who does not conform to the Taliban's strict interpretation of Sharia law and/ or an Afghan who does not conform to or is perceived as not conforming to strict cultural and religious expectations / mores of the Taliban; and/ or
·a combination of the above factors.

It was claimed that the applicant feared he would be harmed or mistreated by the Taliban and the Afghan authorities under the Taliban. He also feared that he will be harmed by Islamic State of Iraq and the Levant - Khorasan Province (ISIL-KP) and other militia or extremist groups which target Shi'a communities in Afghanistan.
The applicant also claimed he feared harm from organised criminal groups and other opportunistic criminals because of his race, actual or perceived religion, and as a returnee from a Western country, causing him to appear to be a more lucrative target for kidnapping and extortion.
The applicant claimed that he would suffer harm including:
·intimidation and harassment;
·physical violence;
·arbitrary arrest and detention;
·cruel, degrading and/ or inhuman treatment or punishment;
·extortion;
·denial of the capacity to earn a livelihood of any kind and/or significant economic hardship,
·threatening his capacity to subsist;
·denial of access to basic services, threatening his capacity to subsist; and/or
·death.
The applicant claimed that if he returns to Afghanistan on a temporary travel document, the Taliban authorities will know he has sought asylum in a Western country. They will also know about his ties to Australia because he applied for his Taskera in 2020 through the Afghan embassy in Canberra, and since the Taliban has taken over all the government offices in Afghanistan, they will now have access to the government records which show he was in Australia when he applied for that document. He claimed on this basis that his ‘association with the West and opposition to the Taliban will be immediately known to the Taliban’ on return.
The applicant claimed that even if the Taliban do not immediately identify him as a supporter of Western values who is opposed to the Taliban and the Taliban's religious views this would soon come to their attention and he would need to take constant steps to conceal this and many other aspects of his religious beliefs, political opinions. He claimed to fear that he would be forced to profess religious convictions that he does not hold and to perform religious practices he does not agree with to try to avoid harm.
The applicant claimed that:
My life choices - including my choice not to engage with religion - and my political opinions are an important part of my identity. My choice to live in a Western country and the fact that I have spent over nine years living in Australia and have married an Australian citizen and have an Australian citizen [child] are also key parts of my identity and life story, as is the fact that my family fled the Taliban when I was a young child. If I am returned to Afghanistan, I will be forced to hide these parts of who I am and my story from everyone around me. I fear that this in itself will amount to cruel, inhuman or degrading treatment or punishment.
In submissions to the Tribunal the applicant’s current representative contended that the issues which now arise in assessing the risk/chance of serious and significant harm faced by the Applicant if he is returned to Afghanistan in the current environment, are:
·does the applicant face a real chance/risk of serious or significant harm from the Taliban, who are now the de facto authorities throughout Afghanistan; and
·what impact has the change of government in Afghanistan had on the risk/chance of serious or significant harm faced by the applicant from other non-state actors, in particular the ISIL-KP and its affiliates.
The applicant submitted that the Tribunal should find that he faces a real risk/chance of serious or significant harm throughout Afghanistan from both the de facto Afghani authorities (the Taliban) and from non-state actors, in particular militant groups like the ISIL-KP which target Shi’a communities in Afghanistan.
Country information indicates that the applicant faces this harm throughout the country from both the Taliban and militant sectarian organisations on the basis of his Hazara ethnicity and his actual or imputed religion, as a Hazara who is culturally Shi’a and therefore participates in Shi’a religious festivities. It also indicates that he faces a real risk/chance of serious and/or significant harm from the Taliban on the basis of his non-conformity with the strict religious/cultural mores of the Taliban throughout Afghanistan and has a well-founded fear of persecution and/or that he faces a real risk of significant harm if he is involuntarily returned to Afghanistan.
The applicant’s submissions and evidence are considered further below.
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has had regard to the country information assessments on Afghanistan prepared by DFAT including the most recent report – the DFAT Thematic Report of Political and Security Developments in Afghanistan (August 2021 to January 2022) (the DFAT 2022 Report)[25] and the DFAT Country Information Report: Afghanistan, 27 June 2019 (the 2019 DFAT Report). The Tribunal also had regard to the DFAT Thematic Report on Hazara in Afghanistan, 18 September 2017 as well as other relevant country information detailed below.
CONSIDERATION OF Claims and evidence
[25] DFAT Thematic Report of Political and Security Developments in Afghanistan (August 2021 to January 2022), Department of Foreign Affairs and Trade, 14 January 2022.
Evidence before the Tribunal
In his statutory declaration to the Tribunal the applicant confirmed his claims to be and Afghani citizen born in [Village 1] in the [District 1] of Uruzgan Province of Afghanistan. He claimed to be ethnically Hazara and he is culturally a Shi’a Muslim but stated in his statutory declaration to the Tribunal that he does not have ‘a regular religious practice of any kind’.
The applicant claimed he speaks Hazaragi and Urdu but does not read and write in any language.
The applicant’s father died in 2010 while living in Pakistan. His mother remains living in Quetta, Pakistan. He has two sisters, both of whom are married and living in Pakistan.
The Applicant is married to and Australian citizen also from Afghanistan. His wife was born in Mazar-e-Sharif, Balkh Province. They have a young [child], who is also a citizen of Australia.
In evidence to the Tribunal the applicant provided a copy of an Afghan Taskera which he stated he obtained from the Afghan Embassy in Canberra in 2020. He Taskera was issued by the (then) Afghan government in Kabul and collected for the applicant by a contact obtained via the Afghan community in Australia. He obtained the originals of these documents in March 2021. As no issue has been raised regarding the applicant’s identity in previous proceedings, the Tribunal accepts the Taskera as evidence of the applicant’s Afghani identity.
The applicant also stated that although he had originally said his home village was in [District 2] he had since learnt it was in [District 1]. Both districts are in Uruzgan. He explained this discrepancy on the basis he left when he was a child and when he did the original paperwork, he was told by Afghanistan Australia that his village was in [District 2]. As he had no memory of his village, he accepted this but later found out that it was incorrect. He also corrected information regarding his work history in Pakistan. Although the information regarding his home area is relevant to protection assessments, having regard to country information detailed below, the Tribunal does to regard these late corrections as signifcant.
Under the heading ‘Further information about why I fear returning to Afghanistan’ the applicant stated that his family are Shi'a Muslims, but his parents are not strict Muslims. He stated that since he was a child, he has not participated in the regular prayers required for Muslims. He stated that ‘I would do the evening prayer but I usually slept through the morning prayer, and I did not want to spend my lunch break praying so I would skip the midday prayer too.’ He stated that his father was not very religious and taught him how to pray when he was young, but they did not talk about religion in his. He stated he did not remember ever having had to study religious education as a child and attended a private school called the [School 1]. He said he did not remember learning about Islam at school.
He stated that as he cannot read and write he has never read the Quran and has not attended an imam bargah regularly in Pakistan or in Australia, so has not heard much of the formal teaching of Islam. He states he has heard Imams talk about Islam at Moharram but usually they focus on talking about Imam Hossein at that time of year. He states that he likes ‘the story of Imam Hossein and I enjoy learning about him’ but is not interested in other Islamic teachings or stories about other Islamic figures.
The applicant stated that he experienced freedom when he came to Australia. He stated that he is not very religious:
I do not follow many Islamic practices because I do not think it matters if you do them or not. I do not pray, or worry about eating halal food, or attend an imam bargah. I participate in Ashura and Muharram because it is a very important social and cultural practice for Hazara Shi'as - and because I respect Imam Hussein, I think he was a good man - but I do not really know if I believe Shi'a Islam. It is hard for me to say that I do or do not believe in it, because I know very little about Islamic teachings. When I participate it Shi'a events it is because they are important for my community, not because of my investment in the religious beliefs themselves - I do not know what I believe about God and the afterlife.
He stated that in Australia is he able to avoid contact with strictly religious people but that he would not have this freedom in Afghanistan, particularly now the Taliban were in power.
The applicant stated that he is opposed to the Taliban. He stated that he disagrees with the Taliban’s ‘views about women’ and that he made it clear to his wife when they married that he does not have traditional religious or cultural views about what it means to be husband and wife. He stated that he thinks all women in Afghanistan should be able to make their own choices, like his wife does including being able to study, to work and to go out in public.
He stated that if he were involuntarily returned to Afghanistan, he would find it very hard to stay silent about women and girls around him being denied opportunities by the Taliban. But he would not be able to safely express his opinions about women's rights in Afghanistan.
The applicant stated that in Australia he has friends who are members of the Lesbian, Gay, Bisexual, Transexual and lntersex (LGBTI) community and that he believes that people have the right to make their own choices in their personal life, including their sexual lives, and it is none of anyone else's business. He stated that if he expresses the view in Afghanistan that LGBTI people should have the same rights he will be killed so he will be forced to remain silent about that subject. He stated that in Afghanistan he would try and defend people who were being unjustly harmed because of other people's beliefs but that ‘I just do not know without being in that situation if I will be brave enough to face the almost certain violence or death that will result from expressing my views in defence of people who are seen as transgressing the laws of Islam in Afghanistan’.
The applicant claimed that because of his views about the Taliban he supported the Western occupation of Afghanistan and would support further intervention from the West to protect Afghan people from the Taliban. He claimed that he was I am completely opposed to the Taliban and believed that it was a good thing that foreign powers went to Afghanistan to help Hazaras and others who the Taliban has mistreated.
He stated that if he returned to Afghanistan, it would be important to for him to live life in accordance with his beliefs and principles and to express his views to others around him. He claimed that his religious views, opinions and the fact he has been living in Australia for more than nine years, have a wife and [child] who are Australian citizens and have adopted a Western worldview and way of life are key aspects of who he is and if he changed his behaviour to hide his religious beliefs or story, or stayed silent about his opinions and ties to Australia he would only be doing so because of fears for his safety.
In support of his claims he provided identity documents and country information regarding the security situation in Afghanistan, particularly for Hazara’s. Country information is considered further below.
Analysis, reasons and findings

The applicant has made a number of claims which the Tribunal has considered, both individually and cumulatively.
The applicant’s submissions to the Tribunal and his 2021 Statutory Declaration raised several claims which had not previously been raised by the applicant in the context of the application for protection. In particularly the applicant had not previously claimed to be a non-practicing Shia, defender of women’s rights or to have links to the LGBTI community or to be a defender of the rights of members of that community.
Given the late raising of these claims and the fact the are based on views not previously expressed by the applicant in the context of his application for protection the Tribunal had significant concerns regarding credibility of these claims.
Initially, those concerns lead the Tribunal to list the application for a hearing to give the Tribunal an opportunity of exploring the new claims and apparent inconsistences in the applicant’s evidence over time. However, on further review of the material and country information the Tribunal was satisfied it could make a decision in the applicant’s favour without the need for a hearing. For the reasons outlined below and, in particular, having regard to the aspect of the applicant’s adverse profile which have been accepted in previous proceedings and are accepted by this Tribunal, concerns regarding the applicant’s new claims are not determinative of the application.
Country of reference and third country protection
The applicant claims to be an Afghan citizen. As discussed above, the delegate and previous Tribunal accepted his claimed identity and there is no information before the Tribunal to suggest the applicant is not the person claimed in the application.
The Tribunal finds that the applicant is a citizen of Afghanistan, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
While the applicant has spent a significant period in Pakistan and has family remaining there, both the Department and the previous Tribunal accepted the applicant had no right to enter and reside in Pakistan or any other country. The Tribunal so finds.
Applicant’s home area
In assessing the applicant’s fear of persecution, the Tribunal must assess the place or places to which the applicant is likely to return. Identifying a home area or region may assist in determining where a person will return or be returned to.
The Tribunal accepts that the applicant lived in [Village 1] in the [District 1] of Uruzgan Province of Afghanistan and left when he was a young child. There was no information before the Tribunal that he has family members remining there. The Tribunal notes that according to DFAT, ‘returnees from Western countries almost exclusively return to Kabul’ and that ‘many returnees choose to remain in Kabul for economic reasons rather than return to their home provinces.’[26] The applicant claims that Uruzgan is his home area and the Tribunal accepts this is the case. The Tribunal also considers based o country information that if he were to return, he would seek to relocate to Kabul (which would be his likely point of entry to Afghanistan by air).
[26] 2019 DFAT Report; see also Office of the Commission General for Refugees and Stateless Persons (Belgium), COI Focus - Afghanistan: Security Situation in Kabul City', 8 April 2020.
As noted earlier, the area the applicant claimed as his home district in his application, [District 2], is not the district where his village is located. Notwithstanding this, the Tribunal considers the country information regarding Uruzgan province is generally applicable to all districts in Uruzgan.
The Tribunal notes that the delegate found the applicant did not fact a real chance or real risk of serious or significant harm in [District 2] based in part of the availability of state protection from the Afghan National Security Forces (ANSF). The previous Tribunal accepted the applicant did face a real chance of serious harm in [District 2] but assessed that here was not a real chance of harm in Kabul again in part due to the availability of state protection in Kabul from the ANSF.
The applicant submitted before the Tribunal that the withdrawal of US forces in Afghanistan and the seizing of control by the Taliban through Afghanistan meant that the applicant faces a risk of harm throughout Afghanistan. Further it was submitted that country information regarding the risks of harm to minority communities including Hazara and Shi’a do not make any useful distinction between areas of Afghanistan including Uruzgan and Kabul. The applicant submitted that given that the whole of the country is now under the control of the Taliban differentiating between areas is not useful in assessing the risk of serious or significant harm.
Having regard to the current credible country information the Tribunal largely accepts this submission. The previous Tribunal’s assessment was that the applicant would have a real chance of serious harm in Uruzgan where Hazara’s are a minority. There is no information before the Tribunal to suggest that Hazara’s do not continue to suffer minority persecution in Uruzgan. Indeed, as the economic circumstances in Afghanistan have reportedly worsened since the Taliban took power, the risk of an inability to subsist due to the discrimination found in the Tribunal’s earlier decision may said to have increased. As noted below, country information also suggests that minority groups including Hazara face a risk of harm in Kabul and other areas where they are targeted in areas and communities where they are a majority.
The Tribunal has also had regard to country information suggesting that returnees overwhelmingly return to Kabul, including for economic reasons. Accordingly, Tribunal has considered the informtion for both Kabul and Uruzgan Province as well as for Afghanistan more broadly.
The applicant’s claims
While the applicant’s claims have altered somewhat over time, and his current claims for protection centre around his claimed adverse cumulative profile as a Shi’a Hazara, an imputed opponent of the Taliban, ISIL-KP and other extremist and criminal groups in Afghanistan due to (in summary):
·His race as a Hazara;
·His actual religion / religious beliefs, as someone who does not strictly belief in the Islamic faith he was born into, as someone who disagrees with the Wahabi Sunni interpretation of Islam of the Taliban, and/ or as someone who does not conform with the Taliban's religious expectations/mores;
·His imputed religion, as someone who is culturally Shi'a and will be imputed with this faith through my participation in the cultural practices of this religion and / or my ethnic identity;
·His actual and/ or imputed political opinion, as someone who is strongly opposed to the Taliban, their actions and/ or their interpretation of Islam, and/ or as someone who does not conform to the strict cultural and religious expectations or mores of the Taliban;
·His imputed political opinion, as someone who will be perceived to be a supporter of the previous Afghan government which was ousted by the Taliban, the Western occupation of Afghanistan and / or the international community;
·His actual political opinion, as a supporter of the international community and / or the occupation of Afghanistan by the United States and their allies;
·His actual political opinion, as someone who believes in the rights of all people - including the rights of women and the LGBTI community - and in gender and sexual equality and freedoms;
·His membership of a particular social group, as a perceived apostate;
·His membership of a particular social group, as a Westernised Afghan, an Afghan who has been residing in the West for a long period, an Afghan whose wife and [child] are citizens of a Western country, an Afghan who fled the Taliban and chose not to live under their regime, and / or a failed Afghan asylum seeker returning from a Western country;
·His membership of a particular social group, as an Afghan who does not conform to the Taliban's strict interpretation of Sharia law and/ or an Afghan who does not conform to or is perceived as not conforming to strict cultural and religious expectations / mores of the Taliban; and/ or
·a combination of the above factors.
It was submitted that these factors placed him at risk of serious or significant harm from the Taliban, ISIL-KP, criminal gangs and extremists on return to Afghanistan.
The Tribunal had concerns about some aspects of the applicant’s claims to fear harm as an a secular or non-practicing Shi’a. This was the claimant raised in statements before the Tribunal and was not raised as a reason that the applicant left Afghanistan or Pakistan or as a reason that he feared returning there in his original application. The Tribunal accepts that the applicant’s views may have developed over the period which he has been in Australia and that he may well be living a more secular Muslim lifestyle in Australia. However, the Tribunal also notes that the applicant has consistently identified himself as a Shi’a Muslim and as fearing harm on that basis in the context of his application or protection. Further, there is evidence he maintains connections with the Afghan Muslim community in Australia including through his wife and in the context of getting assistance to obtain his Taskera. He states that he participates in Muslim festivals and engages in some forms of prayers or Muslim observances. In the context of this information, the Tribunal considers that his statements regarding his lack of observance of the Muslim faith to have been exaggerated in evidence to the Tribunal.
While the Tribunal accepts the applicant has adopted a secular lifestyle and does not practise or intend to practise Islam, the Tribunal had difficulty with his declared intention to advocate or defend LGBTI rights for women in Afghanistan, in circumstances where he has not demonstrated any intention or practice of doing while he is in Australia where he enjoys the freedom to do so. In particular, the Tribunal notes that there is no material offered to support his claim to be a defender of LGBTI community rights or of women’s rights whilst in Australia or previously in Afghanistan. The Tribunal does not accept these claims and considers that the applicant has embellished the strength of his political views in this regard to strengthen his claims protection. The Tribunal does not accept that he faces a real chance of harm on that basis.
Notwithstanding this, based on country information and considering the current circumstances in Afghanistan, discussed further below, the Tribunal accepts that the applicant’s secular lifestyle choices are genuine and would add to an adverse profile in Afghanistan. The Tribunal accepts those choices may be sufficient for the applicant to be imputed with political views which bring may potentially bring him to the adverse attention of the Taliban or religious extremists in Afghanistan including ISIL-KP.
Fear of harm as a Hazara
Central to the applicant’s claims and profile is his claim to fear harm as an ethnic Hazara. Hazaras, as an ethnic group, originate from and are predominantly based in Afghanistan. However, due to periods of persecution throughout history, many were forced into exile and settled in neighbouring countries. While some Hazaras are Sunni, the majority identify as Shi’a.[27]
[27] Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Pakistan: Shi'a and Hazaras, June 2018,
The delegate accepted that the applicant was a Hazara noting:[28]
The applicant possesses the typical Asiatic physical features of the Hazara people and appeared to demonstrate fluency in the Dari/as a regular language. The information provided during interviews with the department is consistent with his claim having been born in Afghanistan and having lived later in Pakistan.
[28] Delegate’s decision, 20 February 2024, page 2.
In the 2019 DFAT Report in relation to Afghanistan, DFAT noted: [29]
The Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan. Hazaras living in rural Afghanistan tend to speak Hazaragi, a dialect of Persian that is mutually intelligible with Dari (Afghan Persian), one of Afghanistan’s two official languages and the most commonly used. Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian. Most Hazara are Shi’a.
[29] Department of Foreign Affairs and Trade, DFAT Country Report: Afghanistan, 22 June 2019 at [3.7].
The applicant has consistently claimed to be of Hazara ethnicity and to have been born into the Shi’a faith. The delegate’s decision records that his facial features identify him as being of Hazara ethnicity and he speaks Hazaragi, as well as Dari. This is supported by this identity documents. The Tribunal finds that the applicant is a Hazara and a Shi’a Muslim by birth. The Tribunal finds that the applicant was born to Afghani parents of the same ethnicity and faith and that he lived in Uruzgan, Afghanistan and then in Pakistan, principally in Quetta, prior to travelling to Australia.
According to DFAT, there has not traditionally been a significant sectarian divide between Sunni and Shi’a in Afghanistan and conflict between communities has instead tended to be along either ethnic or political lines. However, even prior to the dramatic events of August 2021 including the dramatic fall of the Afghan government and the return to power of the Taliban leadership on 15 August 2021[30] and the final withdrawal of US and Coalition troops on 31 August 2021, militants in Afghanistan had engaged in an ongoing series of major attacks against Shi’a targets including political demonstrations and religious gatherings. The number and scale of attacks on Shi’as increased since 2017. ISIL-KP has claimed responsibility for many of the attacks.[31]
[30] The fall of Kabul: a 20-year mission collapses in a single day | Afghanistan | The Guardian; The fall of Kabul: The fateful choices that led to the Taliban takeover of Afghanistan - The Washington Post
[31] Ibid.
In its 2018 Annual Report on Protection of Civilians in Armed Conflict, United nationals Assistance Mission in Afghanistan (UNAMA) provided the following information:
[ISIL-KP] was formally established in January 2015, following the progressive and partial realignment of some dissident factions or fighters from the Taliban, the Islamic Movement of Uzbekistan and the Tehrik-e-Taliban Pakistan. Daesh/ISIL-KP is present in the east of Afghanistan, with an estimated 3,000 fighters currently active, primarily in Nangarhar and Kunar provinces. Its expansion has been constrained by Afghan National Defense and Security Forces/international military forces operations (including airstrikes), local militia mobilization and, separately, Taliban offensives. As its territorial expansion became compromised, Daesh/ISIL-KP has increasingly relied on asymmetric tactics, including suicide and complex attacks deliberately targeting civilians (including most prominently the Shi’a Hazara community) in Kabul, Herat and Jalalabad cities.[32]
[32] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2018’, February 2019, >
In 2017, UNAMA had observed:
Since its emergence in Afghanistan, ISKP [ISIL-KP] has been responsible for some of the deadliest attacks in the country, refusing to discriminate between Afghan forces, civilians, and other established anti-government forces such as the Taliban. UNAMA in its 2016 report noted that the groups’ primary tactics were suicide attacks and targeted killings, particularly targeting members of the Shi’a Muslim religious minority.[33]
[33] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016’, February 2017, ort_2016_final280317.pdf. See also Khan, A, ‘Islamic State Khorasan Province (ISKP) in Afghanistan – An Assessment’, Islamabad Paper, Institute of Strategic Studies, Islamabad, January 2019,
DFAT notes that the Hazara are an ethnic group of distinctive East Asian appearance, native to the Hazarajat region of Afghanistan. Their language, Hazaragi, is a variety of Persian that is mutually intelligible with Dari. The Hazara are one of Afghanistan’s fourteen recognised ethnic groups, estimated at around 10-20 per cent of Afghanistan’s population. The majority of Hazara are Shi’a. The takeover of Kabul and most of Afghanistan by the predominantly Sunni and Pashtun Taliban in 1996 marked a period of considerable repression and hardship for the Hazara nationwide: the worst single recorded massacre in the country’s recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazara. Many Hazara fled Afghanistan during this period to escape Taliban oppression.[34]
[34] DFAT 2022 Report at [3.2]/
In 2018, UNAMA continued to document high levels of sectarian-motivated violence by Daesh/ISIL-KP against the Shi’a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. From 1 January to 31 December 2018, UNAMA documented 19 incidents of sectarian-motivated violence against Shi’a Muslims, resulting in 747 civilian casualties and representing a 34 per cent increase in civilian casualties from such attacks as compared to 2017. UNAMA expressed grave concerns about ‘the safety and security of this religious minority population, and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.’[35]
[35] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2018’, February 2019, >
UNAMA also observed that while the majority of sectarian-motivated attacks against Shi’a Muslims in 2017 occurred in places of worship, the majority of attacks against Shi’a Muslims in 2018 occurred in other civilian areas, including in Shi’a Muslim majority or ethnic Hazara neighbourhoods. UNAMA’s report referred to the following examples:
[In] Kabul city, on the morning of 22 April, a suicide attacker detonated a body‑borne IED outside the entrance of a tazkira (national identification card) distribution centre in a Hazara populated area where a large crowd of local residents were gathered to collect their tazkiras as the first step of the voter registration process. As a result, 60 civilians were killed, including 23 women and 11 children, and another 138 were injured, including 65 women and 17 children. Daesh/ISKP claimed responsibility for the attack explicitly citing a sectarian motive. On 15 August, in another egregious incident, in Dasht-i-Barchi, a Shi’a Muslim majority area of Kabul, a suicide attacker detonated explosives inside a classroom of an educational centre. As a result, 40 civilians were killed, including at least 14 females, some of whom may have been under 18, and 67 were injured, including at least five children and 14 women.[36]
[36] Ibid.
In relation to Kabul, the report observed that the attacks perpetrated in Kabul mainly targeted civilians, including the civilian government administration, places of worship, education facilities, election-related sites and other ‘soft’ targets. UNAMA concluded:
Attacks on Shi’a Muslims infringe their right to freedom of religion, and the wide scope of these attacks beyond places of worship – at education centres, sports clubs, celebratory events and other social gatherings – directly impede their ability to carry out normal lives.[37]
[37] Ibid.

In May 2019, the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) referred to a number of sources in observing that Kabul is ranked high in the category of districts where the inhabitants are most impacted by the conflict and a continuing pattern of ISIL-KP attacks on soft targets in the western Shi’a/Hazara neighbourhoods of the capital, where the group has attacked schools, mosques and training centres.[38] CGRS referred to numerous incidents in the reporting period where Shi’a Muslims were, for example, deliberately targeted in the ISIL-KP -claimed attacks in Kabul:
[38] CGRS, Afghanistan, COI Focus - Security Situation in Kabul City, 15 May 2019,
Kabul remains a violent city, with attacks by anti-government elements (AGE) ongoing in 2020. Violent attacks have been perpetrated by AGE, including the Taliban and ISK against civilian targets during the first six months of the year. The most notable attacks in Kabul include an attack on a ceremony commemorating a Hazara leader, Abdul Ali Mazari, which left at least 32 killed.[39] The same ceremony was also attacked in 2019 and ISK claimed responsibility for both attacks.[40] In an attack on 12 May 2020, gunmen entered a maternity hospital in Dashti Barchi, a mostly Shi’a neighbourhood and home to a large Hazara population, killing 24 people, including two newborn babies. While no group claimed responsibility, the attack has been attributed to ISK.[41]
[39] Najim Rahim and Mujib Mashal, 'Gunmen Kill Dozens at Event Attended by Afghan Politicians', The New York Times, 6 March 2020.
[40] Afghanistan: Taliban deny involvement in deadly attack on Hazara ceremony in Kabul', The Defense Post, 6 March 2020, Stefanie Glinski, Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce', Foreign Policy, 14 May 2020,

100. In February 2020, UNAMA stated they were ‘gravely concerned about the safety and security of the Hazara minority group and the negative impact on their freedoms of religion and movement and their quality of life’.[42] The Hazara population in Kabul has seen several major attacks against them in 2020. On 6 March 2020 in Kabul, an attack on a ceremony commemorating a Hazara leader, Abdul Ali Mazari, left at least 32 killed.[43] On 12 May 2020, gunmen entered a maternity hospital in Dashti Barchi, a mostly Shi’a neighbourhood and home to a large Hazara population. Twenty-four people were killed, including two newborn babies.[44]
[42] 'Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)', United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, p. 47.
[43] 'Gunmen Kill Dozens at Event Attended by Afghan Politicians', Najim Rahim and Mujib Mashal, The New York Times, 6 March 2020.
[44] 'Babies among 24 killed as gunmen attack maternity ward in Kabul', Aljazeera, 13 May 2020, 20200624104037; 'Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce', Stefanie Glinski, Foreign Policy, 14 May 2020.
101. During 2020, the Taliban incresed attacks on the provinces which constitute the Hazarajat and other areas populated with Hazaras, in the north and south of Afghanistan.[45] The Kabul-Bamiyan road in Wardak, the shortest way to the provinces of Ghor and Daikundi, has been unsafe for several years.[46]
[45] 'Central provinces feared to lose security', Afghanistan Times, 23 August 2020; 'Taliban launch offensives on Hazara populated areas ahead of peace talks', Kabul Now, 05 September 2020; 'Taliban kill 10 security forces in Daikundi and Urozgan', Kabul Now, 16 August 2020; 'Officials: Govt Retakes Ghor's Murghab District from Taliban', Fariba Aram, Tolo News, 19 August 2020; 'Taliban set up checkpoints on key highway', Saifullah Maftoon, Pajhwok Afghan News -Afghanistan, 19 October 2020.
[46] 'Central provinces feared to lose security', Afghanistan Times, 23 August 2020.
102. An October 2020 Human Rights Watch report states the following:
A massive suicide bombing on October 24 outside the Kawsar-e Danish educational center in west Kabul was the latest attack cruelly targeting the Hazara Shi’a minority. The explosion took place in a crowded, narrow street outside the center, killing 30 people and injuring more than 70, mostly children and young adults between 15 and 26 years old who were attending classes.

Since 2017, the Dasht-e Barchi neighborhood, home to a predominantly Hazara community, has seen numerous attacks on civilians. A bombing at the Imam Zaman mosque in October 2017 killed 39; an attack on a school in August 2018 killed more than 34 students; and twin bombings at a wrestling club in September 2018 killed 20, including journalists and first responders who arrived after the first explosion. In May, gunmen murdered 15 women in the maternity wing of the Dasht-e Barchi hospital, many of whom were in labor or had just given birth.

The Islamic State of Khorasan Province (ISKP/ISIL-KP), the Afghan branch of the Islamic State (ISIS), claimed responsibility for Saturday’s attack. The armed group has claimed responsibility for many such bombings and has long singled out Afghanistan’s Hazara Shi’a community for attack. Intentional attacks on civilians are grave violations of the laws of war, and those responsible should be prosecuted for war crimes.

Many mosques and educational facilities in Kabul now have armed guards, but this offers little protection from such calculated attacks. Afghan authorities repeatedly promise investigations, including tasking the attorney general’s war crimes unit to carry them out, but none have yielded results, leaving family members of victims with neither answers nor justice.[47]
[47] Gossman P., 2020, ‘Afghanistan School Bombing Targets Minority Community’, Human Rights Watch, 26 October, In June 2020, the UK Home Office noted UNAMA reported high levels of sectarian‑motivated violence by Daesh/ISIL-KP against the Shi’a minority, most of whom also belong to the Hazara ethnic group:
UNAMA remains gravely concerned about the safety and security of this religious minority population and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.
104. In August 2021, Afghanistan fell to the Taliban. Coalition forces withdrew from Afghanistan on 31 August 2021.[48] A report from Amnesty International indicates that prior to the fall of Kabul the Taliban was targeting Hazaras:[49]
[48]Taliban are back - what next for Afghanistan? - BBC News
[49] comes as Amnesty International revealed that Taliban fighters killed nine ethnic Hazara men after taking control of Ghazni province last month. The killings, which took place between 4 and 6 July in the village of Mundarakht, Malistan district, saw six men shot and three others tortured to death.
One man was strangled with his own scarf and had his arm muscles cut off, while another had his legs and arms broken and his hair pulled out, researchers from the human rights charity said.

105. The applicant submitted with respect to country information on Afghanistan that the circumstances in Afghanistan have changed ‘dramatically’ since the Delegate’s Decision was made in 2015. The applicant submitted that in its DFAT 2019 Report identified the following categories of people who are risk of serious or significant harm from the Taliban:
·civilians living in areas controlled by AGEs, particularly the Taliban, are at a high risk of torture or other abuses through parallel justice structure punishments’; and
·Hazaras:
i)‘Because Hazara are widely perceived to be supporters of the [former] Afghan government, the risk profile described in People associated with the government or international community is applicable to them’; and
ii)people ‘supporting or associated with the government and/or the international community (or perceived to be doing so) face a high risk of violence perpetrated by AGEs, particularly the Taliban.

106. The applicant submitted that given that the whole of the country is now under the control of the Taliban, the risk of harm from parallel justice structures faced by civilians in general as outlined in the DFAT report does not appear to be capable of giving rise to claims for protection. However, as outlined below, not all civilians in Afghanistan are equally at risk of being subjected to these punishments. There are many civilians in Afghanistan who agree with the Taliban’s strict interpretation of Sunni Islam, and these civilians are therefore at little to no risk of being subject to punishment by the Taliban for deviating from their religious expectations.
107. It was submitted that individuals in the applicant’s position, whose own religious and political views differ from those of the Taliban are at much higher risk of the serious and significant harm arising from the punishments inflicted on the civilians by the Taliban, and therefore face a risk of harm which is both systematic and discriminatory (against individuals with non-conforming religious and political views and ways of life) and affects the applicant personally (as an individual who holds these views) rather than the population generally.
108. It was submitted that DFAT’s 2019 Report also identified the following relevant risk profiles for harm from non-state actors other than the Taliban:
·Shi’a, who ‘face a high risk of being targeted by ISIL-KP and other militant groups for attack based on their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals;
·Hazaras, since: ‘Because the overwhelming majority of Hazara are Shi’a (or widely perceived to be)’, the risk profile for Shi’a ‘is applicable to them’; and
·Hazaras living in areas where they are not the majority ethnicity, who face a moderate risk of societal discrimination on that basis.

109. It was submitted that the 2019 DFAT Report notes that the risk faced by Hazaras and Shi’a from ISIL-KP and its affiliates increases for those living in Shi’a majority areas or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat, which means to avoid this risk of harm they would have to live in areas where they are minority, where they would face increased societal discrimination on the basis of their ethnicity. The assessment appears to be an assessment of the risk of harm faced throughout Afghanistan.
110. In addition to these submissions the applicant offered country information on the evolving situation in Afghanistan since the Taliban took effective control of the country highlighting incidents of violence against the Shia community and the reintroduction of repressive practices, particularly with respect to women and potential critics of the Taliban including journalists.[50]
[50] UN Secretary General, The situation in Afghanistan and its implications for international peace and security, A/75/1010-S/2021/759, 2 September 2021;; Peter Beaumont and agencies, ‘Shi’a mosque bombing kills dozens in Afghan city of Kunduz’, The Guardian (online), 9 October 2021; Abdul Rauf Wafa and Emma Graham-Harrison, ‘Shi’a mosque bombing in Afghanistan that killed at least 47 claimed by ISKP’, The Guardian (online), 16 October 2021; Sudarsan Raghavan, ‘Afghanistan’s war is over, but the Taliban faces a new hurdle: Enforcing the las – and protecting Afghans from ISIS’, The Washington Post (online), 19 October 2021; Adela Sulima and Susannah George, ‘Taliban tells Kabul’s female city government employees not to come to work’, The Washington Post (online), 22 October 2021; Author unnamed, ‘Afghanistan: Journalists tell of beatings by Taliban’, BBC (online), 9 September 2021.
111. The 2022 DFAT Report provides an update on the evolving situation in Afghanistan under Taliban rule. According to DFAT, the Hazara made significant social, political, and economic gains in Afghanistan after the fall of the Taliban in 2001, albeit from a low base. The return of the Taliban in 2021 was met with great fear by the Hazara community. The Hazara community regards the Taliban’s promises of amnesty and inclusivity with scepticism. One member of the Hazara community has been appointed to a relatively minor position in the interim Taliban ministry (Dr Mohammad Hassan Gheyasi, who was appointed Deputy Minister of Public Health), but Hazaras are not otherwise represented in the interim Taliban government.[51]
[51] 2022 DFAT Report at [3.3].
112. DFAT assesses that the security situation in Afghanistan remains dangerous. The cessation of conflict between the Taliban and the former administration has made many parts of the country, especially rural areas, effectively free from armed conflict; however, the situation is highly volatile. The ability of the Taliban to control violent actors is not currently clear. This applies particularly to ISIL-KP but also its related entity, Tehrik-e-Taliban Pakistan, which targets Pakistan. There is significant potential for violence across the country, especially in the eastern provinces where ISIL-KP is strongest.[52]
[52] 2022 DFAT Report at [2.26].
113. DFAT reports that:
Two of ISKP’s mass-casualty terror attacks, along with smaller attacks since mid-August 2021, have directly targeted Shi’ite mosques chiefly used by Hazaras. After the Kandahar attack of 15 October 2021, ISKP issued a statement saying it would target Shi’a in their homes and centres ‘in every way, from slaughtering their necks to scattering their limbs… and the news of [ISIS’s] attacks…in the temples of the [Shi’a] and their gatherings is not hidden from anyone, from Baghdad to Khorasan.’ Sources report that the Taliban referred to the largely Shi’a victims of the Kunduz bombing of 8 October 2021 as having been ‘martyred’, indicating possible support for Hazara victims ordinarily derided by the Taliban as ‘infidels’ (and therefore incapable of martyrdom). While the Taliban may be attempting to disrupt ISKP and prevent its attacks on Hazaras, this, along with the Taliban’s professed amnesty, does not indicate that it has put aside its historical antipathy towards Hazaras. Since its takeover in August 2021, the Taliban has summarily executed Hazaras who were former members of the security forces (see People associated with the former government or international community including security forces). Furthermore, hundreds of Hazara families have been forcibly evicted from their homes in central Afghanistan. The Taliban claims these evictions are ‘property disputes,’ but NGOs have described them as a form of ethnic cleansing (although one source suggests these evictions may be the result of local score-settling, rather than ethnically-based).

114. Sources consulted for a December 2021 Danish Immigration Service report stated that while the Taliban have not been targeting the Hazara population systematically, these evictions showed that the Taliban are not willing to protect them. Hazaras have also faced discrimination regarding access to the legal system as well as resources since the Taliban takeover.[53]
[53] 'Afghanistan: Recent events', Danish Immigration Service, 13 December 2021, p.28.
115. DFAT assesses that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISIL-KP, on the basis of their ethnicity and sectarian affiliation. While the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISIL-KP terror attacks and Taliban violence, including hundreds of evictions.[54]
[54] International Religious Freedom Report for 2021 - Afghanistan', US Department of State, 2 June 2022, Executive Summary; 'Afghanistan: 13 Hazara killed by Taliban fighters in Daykundi province – new investigation', Amnesty International, 5 October 2021; 'Afghanistan: Taliban Forcibly Evict Minority Shia', Human Rights Watch, 22 October 2021
116. With respect to the Shi’a population, DFAT notes that the overwhelming majority of Afghan Shi’a are Hazara, although a small number of Hazara are Sunni. There are also some Shi’a from other ethnic groups, including some Pashtun, Tajiks and Turkic peoples. The Taliban, ISIL-KP , Al-Qa’ida and most other terrorist/insurgent forces in Afghanistan are Sunni. While Sunni and Shi’a Muslims have lived side-by-side for much of Afghanistan’s history, religious hardliners such as the Taliban typically do not consider Shi’a to be true Muslims.[55] ISKP membership has grown in recent months and the group has a presence in half of Afghanistan’s 34 provinces.[56]
[55] 2022 DFAT Report at [3.8].
[56] 'Tracking Disorder during Taliban Rule in Afghanistan', Armed Conflict Location and Event Data Project (ACLED) and Afghan Peace Watch (APW), 14 April 2022, p.10.
117. ISIL-KP (or ISKP) has targeted Shi’as, including Hazaras, in a series of attacks since the Taliban took control of Afghanistan. ISIL-KP is the Afghanistan offshoot of Daesh (also known as Islamic State or IS). It is strongly opposed to Shi’a Muslims and the West. ISIL-KP has claimed responsibility for the bombings of Shia mosques in Kunduz, Kandahar Nangarhar and in Mazar-e-Sharif since US forces withdrew.[57] ISIL-KP also either claimed responsibility, or had responsibility attributed to them, for bombing attacks on the Dasht-e Barchi area of western Kabul which is heavily populated by Shia Hazaras, on 13 November 2021, 17 November 2021, 10 December 2021, 19 April 2022 and 21 April 2022.[58] Shia Hazaras travelling in two minibuses were also the target of a bomb attack in Mazar-e-Sharif on 28 April 2022 for which ISKP subsequently claimed responsibility.[59]
[57] 2022 DFAT Report at [3.5]; [2.24]-[2.25]; International Religious Freedom Report for 2021 - Afghanistan', US Department of State, 2 June 2022, Executive Summary; 'IS bomber kills 46 inside Afghan mosque, challenges Taliban', Kullab, S and Akhgar, T, Associated Press, 9 October 2021; 'Afghanistan: Dozens killed in suicide bombing at Kunduz mosque', Aljazeera, 9 October 2021; 'ISIS Bomber Kills Dozens at Shiite Mosque in Northern Afghanistan', Gibbons-Neff, T and Arian, W, The New York Times, 8 October 2021; 'Suicide attack on Shia mosque in Afghanistan's Kunduz underscores Islamic State's intent to discredit Taliban rule through targeted sectarian violence', Theodosiou, A, Jane's Terrorism ＆ Insurgency Monitor, 13 October 2021, p.1; 'Afghanistan: Surge in Islamic State Attacks on Shia', Human Rights Watch (HRW), 25 October 2021.
[58] 'Afghanistan: School bombings a ‘reprehensible attack’ on religious and ethnic minorities', Amnesty International, 19 April 2022; 'At least six killed in blasts at Kabul high school', Reuters, 19 April 2022;
[59] 'ISIL Claims Responsibility for the Series of Explosions in Mazar-e-Sharif', Eqbal, S, Khaama Press, 26 May 2022.
118. DFAT assesses that Shi’a face a high risk of being targeted by ISIL-KP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.[60]
[60] 2022 DFAT Report at [3.9].
119. The Tribunal is mindful of the fact that the security situation in Afghanistan overall is uncertain and evolving.[61] Similarly, the level of Taliban control over ISIL-KP and other groups going forward is unclear.[62] In the lead-up to US withdrawal and immediately following, the Taliban leadership was reported to be striking a more moderate tone regarding the minority Shi’a population[63]:

[61] 2022 DFAT Report at [2.23].
[62] 2022 DFAT Report at [2.26].
[63] Taliban Reach Out to Shiite Hazara Minority, Seeking Unity and Iran Ties - WSJ
In an interview to NPR, Suhail Shaheen, Taliban spokesman in Qatar, said, “Now we have a policy that we do not have any kind of discrimination against the Shi’a people. They are Afghans. They can live in this country peacefully and they can contribute to the reconstruction, prosperity and development of the country.”[64]
[64] Who are the Hazaras of Afghanistan? (indianexpress.com)

120. Further reports indicated the Hazara leadership had been targeted by the Taliban and that the Hazara community in Kabul have been targeted for attack. [65] The Hazara community have continued to express concerns regarding targeting and reprisals from the Taliban and extremist groups.[66] This contrasts with information suggesting that the Taliban is not targeting Hazara (or Shi’a) and in some instances is attempting to protect them or allowing them to defend themselves. However, they are suffering discrimination and are generally considered to be apostates.[67]
[65] Afghanistan’s Shi’a are fearful in face of Taliban takeover | Financial Times; Hazara Shi’as flee Afghanistan fearing Taliban persecution | Afghanistan | The Guardian
[67] ‘Afghanistan: Taliban’s impact on the population’, Country of Origin Information (COI) Brief Report, Danish Immigration Series, Junes 2022 at [6.2.1]
121. With respect to state protection, country information suggests that there had been an increase in criminal activities in western and southern provinces of Afghanistan, mainly in Uruzgan, Helmand and Kandahar, as well as in the northern province of Kunduz.[68] Reports from October and November 2021 also referred to a surge in criminal activity in Kabul and elsewhere in Afghanistan.[69] There have also been reports, however, that refer to Taliban security forces taking action to combat crime, such as rescuing kidnapped persons, seizing and destroying drugs, and arresting persons for committing crimes such as murder, kidnapping, robbery and drug-related offences.[70]
[68] 'Afghanistan: Country focus (January 2022)', European Asylum Support Office (EASO), 7 January 2022, p.62
[69] 'Afghanistan: COI Repository (1st September 2021 - 18th May 2022)', Asylos and Clifford Chance, 19 May 2022, pp.56-58
[70] For recent examples of these reports, see 'Several kilograms of narcotics seized in Khost raids', Mangal, Y, Pajhwok Afghan News, 11 May 2022; '246 crime suspects arrested in Nangarhar last month', Zarifi, Y, Pajhwok Afghan News, 10 April 2022; '7 held with alcohol, K tablets in Kabul raid',
122. However, the basis of the current evidence before it, the Tribunal is satisfied that there is a real chance that the applicant would be subjected to serious harm in Afghanistan as a result of violence perpetrated by the Taliban and/or anti-Shi’a groups, including ISIL-KP, on the basis of his Hazara ethnicity and cumulative profile, detailed below.
Other claims
123. There were other claims made by the applicant which the Tribunal finds are not supported on country information or the evidence offered by the applicant.
124. With respect to use of documents kept by the prior administration to target individuals, there was information to suggest that the Taliban was using biometric records to identify those who worked for the US forces and former government of Afghanistan. However, there was no information to suggest Taskera records were being used to target people who had spent time overseas or applied for asylum in the West.[71] The applicant claimed that if he returns to Afghanistan on a temporary travel document, the Taliban authorities will know he has sought asylum in a Western country and that his ‘association with the West and opposition to the Taliban will be immediately known to the Taliban’ on return on that basis. The Tribunal does not accept that country information supports this claim. The applicant has no history of working for the previous government of US forces and left the country as a young child. Information regarding the use of biometric data to target persons associated with the US occupation or previous government is inconclusive. However, none of that information points to a real chance of being targeted on the basis of having obtained a Teskera overseas. The Tribunal finds that applicant does not have real chance of serious harm on that basis.
[71] 2022 DFAT Report at [4.1] – [4.2].
125. Country information also did not support the applicant’s claim that he would be at risk of serious harm from criminal gangs as a result of being identified as a returnee from the West. While country information indicated levels of generalised crime in Afghanistan are high itdid not support a contention that returnees are subjected to criminal harm for the reason of being returnees from the West, or that the generalised risk of crime is a risk to them personally on that basis.
126. There was also no country information to support the applicant’s earlier claims to be at risk due to his father’s activities protecting the Hazara community in his local area prior to the family leaving Afghanistan. In any event, given the significant time which has elapsed since he left the country the Tribunal finds there is not a real chance he will be seriously harmed by the Taliban, ISIL-KP or any other group on this basis.
127. Also as noted above, while the Tribunal accepts that human rights defenders, including those who advocate for women’s rights and the rights of opposed groups such as the LGBTI community may be come to the adverse attention of the Taliban and extremist groups in Afghanistan, the Tribunal does not accept on the evidence that the applicant’s commitment to those issues is such that he would be identified or imputed to be a defender of those groups on return to Afghanistan. The Tribunal finds there is no real chance he would face serious harm on that basis.
The applicant’s cumulative profile
128. The Tribunal accepts that the applicant is a Hazara and that, as a Hazara, the applicant will continue to identify and associate with the Hazara community should he return to Afghanistan and that he would be so identified by the Taliban, ISIL-KP and other extremist groups in Afghanistan.
129. The Tribunal accepts the applicant has the following cumulative profile:
·     He is of Hazara ethnicity and would be easily identified as such, including by his physical appearance;
·     The applicant is a Shi’a Muslim. In any event, as a Hazara, he would be imputed to be a Shi’a Muslim;
·     He would return to live in a Hazara or mixed Hazara neighbourhood in his home area of Uruzgan Province or would (more likely) seek to settle in Kabul for economic reasons. If he did no he would live in a Hazara or mixed Haraza neighbourhood where his opportunities for employment would be less limited and he would race lower levels of discrimination;
·     He would practise as a Muslim in a manner consistent with his practice in Australia which includes some observance of Muslim prayer and significant cultural festivals;
·     He would attempt to continue with secular Muslim lifestyle in Afghanistan, and may be imputed to hold political views opposed to the Taliban and other extremist Sunni Muslim groups on this basis;
·     His immediate family members have left Afghanistan and are living in Pakistan or elsewhere;
·     He has an Australian citizen wife and child;
·     He would be a returnee from the West who has spent significant time outside Afghanistan and is unfamiliar with the day-to-day practices and social norms of Afghanistan, particularly under Taliban rule.

130. The applicant claims that he is no longer a practising Muslim. As such he claims he does not attend regular religious gatherings, prayer services or imam bergers and would not do so were he to return to Afghanistan. This may place him at less of a risk from attacks targeting Shi’a religious sites. However, he did claim to be ‘culturally Shi’a’ and to be active in some aspects of Shi’a religious cultural observance. Further, and as indicated in the country information, attacks on Shi’as in city areas including Kabul have been wide in scope and not confined to places of worship.
131. As noted above, the Tribunal does not accept some aspects of the applicant’s claims. However, taking into account what the Tribunal has accepted of the applicant’s claims and his profile, and considering these cumulatively, the Tribunal finds that there is a real chance of the applicant being seriously harmed on return to Afghanistan for reasons of his ethnicity as a Hazara, his imputed religious beliefs as a Shi’a, his actual or imputed political opinions as pro-Western and anti-Taliban and as a supporter of previous US government or forces in Afghanistan. This is particularly the case given the current instability in Afghanistan caused by the overthrow of the Afghan government and the withdrawal of international forces which heightens the risk to the minority ethnic and religious Hazara community in the country, now or in the reasonably foreseeable future.
PROTECTION ASSESSMENT
132. Having considered the applicant’s claims individually and cumulatively, the Tribunal has considered what will happen if the applicant were to return to Afghanistan, now or in the reasonably foreseeable future.
133. The Tribunal accepts that the applicant’s home area is Uzurgan Province. The Tribunal accepts he has no immediate family there. The Tribunal finds based on country information and the applicant’s lack of family ties to Afghanistan and lack of familiarity with Afghanistan he would likely settle in Kabul where economic opportunities are greater. As noted above, the Tribunal accepts the applicant would be identified as a Hazara in Afghanistan and that he would seek to continue to live a secular Muslim lifestyle consistent with his personal experience and expression of the Islamic faith.
134. While the Tribunal does not accept some aspects of the applicant’s claims, based on the evidence and country information, the Tribunal finds that there is a real chance that the applicant would be subjected to harm on the basis of his ethnicity, imputed religion and real or imputed political beliefs on return to Afghanistan now and in the reasonably foreseeable future. The Tribunal finds that there is a real chance, that is, one that is not remote or far-fetched, that if the applicant returns now or in the reasonably foreseeable future to Afghanistan, he will face serious harm amounting to persecution from the Taliban government, ISIL-KP or other religious extremist groups for these reasons. The Tribunal is not satisfied there is a real chance of serious harm from criminal gangs in Afghanistan also but accepts that the fact that applicant would be identifiable as someone who has spent significant time outside Afghanistan, including in the West, would increase the likelihood of him being subjected to generalised criminal activity.
135. For the reasons outlined above and having regard to the country information concerning the situation for Shia Hazara persons with the applicant’s profile, the Tribunal accepts that should the applicant return to Afghanistan , now or in the foreseeable future, there is a real chance he will face serious harm from Taliban authorities, ISIL-KP or other religious extremist groups in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment and denial of capacity to earn a livelihood where it would threaten the capacity to subsist: s 91R(1)(b). The Tribunal finds that the harm faced amounts to serious harm including mistreatment, harassment or torture by the Taliban or ISIL-KP or other religious extremist groups.
136. Having regard to the applicant’s cumulative adverse profile Tribunal finds the applicant’s ethnicity and religion are the essential and significant reason for the persecution which the applicant fears, as required by s 91R(1)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his ethnicity as a Hazara ad religion as a Shia Muslim.
137. The Tribunal notes that individuals seeking protection are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm: Appellant S395/2002 v MIMA (2003) 216 CLR 473. In this case, the Tribunal is satisfied that the modification would require the applicant to alter his personal history, ethnicity and political beliefs which cannot be expected of him.
138. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29].
139. Prior to the fall of the Afghan government and withdrawal of foreign forces from Afghanistan, country information indicated that there are areas in Afghanistan, namely Bamiyan in Hazarajat and Mazar-e-Sharif in Balkh Province, that may be considered safe for Shi’a Hazara returnees.[72] However, in light of developments in Afghanistan, the Tribunal is not satisfied that there is any part of Afghanistan in which he would be safe from the persecution that he fears. The Tribunal does not regard that such areas offer protection now or in the reasonably foreseeable future having regard to uncertainty associated with the Taliban agenda regarding historically persecuted minority groups including the Hazara and the Taliban’s level of control of Afghanistan, particular with respect to extremist groups.
[72] 2019 DFAT Report; DFAT, Thematic Report on Hazaras in Afghanistan, 18 September 2017.
140. Since the Taliban administration is now controlling Afghanistan and is one of the agents responsible for the persecution that the applicant fears, the Tribunal is not satisfied that the Afghani state will take reasonable measures to protect him by reference to international standards.
141. For the same reasons, the Tribunal is not satisfied that there is any part of Afghanistan in which he would be safe from the persecution. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
142. As the applicant has a well-founded fear of persecution from the Taliban and from extremist organisations including ISIL-KP which continue to operate in some areas of Afghanistan. The extent of Taliban control over extremist organisations in the country remains uncertain, at least for the foreseeable future and country information suggests some extremist activities are tolerated or supported by the Taliban. The Tribunal is satisfied the applicant has a well-founded fear of persecution in all areas of Afghanistan.
143. Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of Art 1A(2). In considering whether he comes within the definition of a refugee contained in the Convention, the Tribunal accepts that the applicant is outside the country of his nationality or former country of habitual residence and unable or, owing to the fear of persecution, is unwilling to return to it. There is no evidence before the Tribunal that any of the exclusions apply to the applicant.
144. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
145. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Simone Burford
Senior Member

Future with Education Under Attack in Afghanistan', Barr, H, Human Rights Watch (HRW), 20 April 2022; 'Regional Overview: South Asia and Afghanistan 16-22 April 2022', Karacalti, A and Sharma, I, Armed Conflict Location and Event Data Project (ACLED), 28 April 2022;

Hasrat, A S, Pajhwok Afghan News, 28 March 2022, 20220329100333; 'Narcotics producing factory destroyed in Helmand', Bilal, R, Pajhwok Afghan News, 16 March 2022; '23 held on robbery, drug sale charges in Khost', Pajhwok Afghan News, 7 December 2021; 'Afghanistan: Country focus (January 2022)', European Asylum Support Office (EASO), 7 January 2022, p.62.

[2022] AATA 4883

28 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies