1931671 (Refugee)

This matter concerns an application for review of a delegate of the Minister for Immigration and Border Protection's decision to refuse the applicant, an Afghan citizen, a Protection visa. The applicant, who claims to be ethnically Hazara and a Shi’a Muslim, arrived in Australia as an Unauthorised Maritime Arrival in 2012. After the delegate refused the visa in 2014, the applicant sought review by the Tribunal, which affirmed the delegate's decision. The applicant then sought judicial review in the Federal Circuit Court, which quashed the Tribunal's decision and remitted the application for redetermination according to law. The Tribunal was therefore required to reconsider the application on remittal.

The legal issues before the Tribunal included whether the applicant had a well-founded fear of persecution based on his ethnicity as a Hazara, his religion as a Shi’a Muslim, his imputed political opinion as anti-Taliban due to his returnee status from the West, his membership in a particular social group as a family member of a former militia member, and the risk posed by his accent identifying him as having lived abroad. The Tribunal also had to consider whether it would be reasonable for the applicant to relocate within Afghanistan to an area where he would not face such risks, whether he could obtain protection from an Afghan authority, and whether any identified risks were faced by the general population rather than personally by the applicant, as per section 36(2B) of the Migration Act 1958 (Cth).

In its reasoning, the Tribunal considered extensive country information regarding Afghanistan, including reports on political and security developments and the specific situation of Hazaras. The applicant provided evidence of his Afghan identity, including an Afghan Taskera, and clarified discrepancies in his earlier statements regarding his place of origin. While the applicant identified as culturally Shi’a Muslim, he stated he did not practice regularly. The Tribunal noted that the applicant's family resided in Pakistan and that he was married to an Australian citizen with whom he had a child, both also Australian citizens. The Tribunal ultimately concluded that the decision to refuse the visa should be remitted for reconsideration, indicating that it could not determine the application without further review.