1933200 (Refugee)

The applicant, an Afghan citizen, sought a protection visa after arriving in Australia in March 2017. He claimed to fear persecution upon return to Afghanistan due to past threats from the Taliban related to rumours about his involvement in producing non-halal food, his imputed political opinion opposing the Taliban, and his status as a failed asylum seeker from the West. He also feared retribution from a distant cousin, Mr A, who was a member of the Hezb-e Islami Gulbuddin (HIG) militia group, stemming from a long-standing land dispute. The decision under review was made by Carolyn Wilson, a member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as defined by section 5J of the *Migration Act 1958* (Cth), and whether effective protection measures were available to him in Afghanistan. The Tribunal was also required to consider the complementary protection criterion under section 36(2)(aa) of the Act, which applies if there is a real risk of significant harm as a necessary and foreseeable consequence of removal to a receiving country.

The Tribunal considered the applicant's claims in light of the *Refugee Law Guidelines*, *Complementary Protection Guidelines*, and country information. It found that the applicant was an Afghan citizen and assessed his claims against Afghanistan as his country of nationality and receiving country. The Tribunal noted the applicant's past threats from the Taliban and the land dispute involving Mr A and the HIG. It also considered the applicant's fear that the HIG, having signed a peace agreement with the Afghan government, could operate with impunity and target him. The Tribunal concluded that the applicant had a well-founded fear of persecution and that Australia had protection obligations towards him under section 36(2)(a) of the Act.

The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the *Migration Act*.