1935510 (Refugee)

The applicant, a citizen of Afghanistan, sought a protection visa. The matter was remitted to the Administrative Appeals Tribunal by the Federal Circuit Court for reconsideration. The applicant's claim for protection was based on his ethnicity (Hazara Shi’a), his religion, and an imputed political opinion, as well as the fact that he was a returned failed asylum seeker. He asserted that his brother had been killed by the Taliban and that he himself had received threats. The applicant also claimed to have been sexually assaulted by the Taliban, a fact first raised at a previous tribunal hearing. His mental health was also a consideration, alongside country information regarding the ongoing volatility in Afghanistan following the Taliban's takeover.

The Tribunal was required to determine whether the applicant was a person in respect of whom Australia had protection obligations under the *Migration Act 1958* (Cth), specifically under section 36(2)(a), which concerns the assessment of whether a person would be in danger if returned to their country of origin. This involved assessing the credibility of the applicant's claims, including the alleged killing of his brother, the threats against him, and the sexual assault. The Tribunal also had to consider the impact of the Taliban's return to power on the safety of Hazara Shi’a individuals and returned asylum seekers, and the likelihood of the applicant being identified as a returnee and facing persecution.

The Tribunal was satisfied that the applicant met the criterion set out in section 36(2)(a) of the *Migration Act 1958*. This satisfaction was based on the cumulative assessment of the evidence presented, including the country information, the applicant's personal circumstances, and the specific risks he faced as a Hazara Shi’a individual and a returned failed asylum seeker in the current Afghan context. The Tribunal concluded that Australia had protection obligations towards the applicant under the Refugee Convention. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958*.