2017621 (Refugee)

2017621 (Refugee) [2022] AATA 2665 (28 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Esther Pearson
CASE NUMBER:  2017621
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Nicole Burns
DATE:28 June 2022
PLACE OF DECISION:  Melbourne
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 June 2022 at 3:54pm

CATCHWORDS
REFUGEE – Protection Visa – Afghanistan –gender – member of a particular social group – failed asylum seeker – women at risk of honour attacks in Afghanistan – women in Afghanistan without any male protector – family dispute – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 Home Affairs on 27 November 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old married woman originally from Logar Province, Afghanistan. She came to Australia on [date] September 2017 holding a visitor visa and applied for the protection visa on 22 June 2018.
The applicant appeared before the Tribunal on 27 June 2022 to give evidence and present arguments about the issues in her case. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes DFAT published a Thematic Report providing an assessment of the political and security conditions in Afghanistan following the Taliban taking power in August 2021, on 14 January 2022 (considered where relevant below). The Thematic Report updated and replaces the previous DFAT Country Information Report on Afghanistan, published on 27 June 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
The applicant’s Afghan nationality is not in issue. She provided to the Department a copy of her Afghanistan passport and the delegate accepted her claimed identity and nationality as set out in that document, as does the Tribunal. It finds Afghanistan is her ‘receiving country’ for the purposes of assessing her protection claims.
Relevant background
According to information on the Department file, and information provided to the Tribunal, (which was confirmed at hearing), the applicant was born in Logar province, Afghanistan. She moved to Kabul with her family when she was around [age] until she moved to New Zealand with her husband shortly after she married in 2009. She has three children: two sons born in [New Zealand], and a daughter born in Kabul, Afghanistan in [year]. Her husband, originally from Afghanistan (who was born in [Country 1]) is a New Zealand citizen, as are their children.
From 2010 to 2013 the applicant resided in New Zealand with her husband. Along with her husband and children she went to [Country 1] in October 2013 to support her mother and [siblings] who had fled Afghanistan in order for her sister ([Ms A]) to escape a forced marriage with a man called [Mr B]. In early 2014 the applicant and her family went from [Country 1] to Kabul, Afghanistan to await processing of her New Zealand resident visa, which was eventually granted on 29 May 2016. In June 2017 the applicant and her children moved from Afghanistan to New Zealand and in May 2018 she came to Australia (with her children) on a visitor visa, when her New Zealand resident visa had expired,[1] to be closer to her family here. At hearing the applicant advised from sometime in 2017 her husband studied in [Country 1] for around a year before joining her and their children in Australia. Her husband and their children hold special category visas (Subclass 444) as New Zealand passport holders.
[1] On 29 May 2018
The applicant’s mother, [and siblings] reside in Melbourne, having been granted offshore humanitarian visas, arriving here in April 2015. Her father lives in Kabul with his second wife and works [there]. His wife also works [in] Kabul.
The applicant is Pashtun and Sunni Muslim. She finished high school in Afghanistan. She has never worked, supported financially by her father then husband. Her husband currently works for [a] company, and has visited Afghanistan twice since the Taliban took over, for work. At the time of the hearing the applicant’s husband was in Afghanistan.
Claims, evidence and findings
In summary, the applicant claims to fear persecution from the Taliban in Afghanistan due to her gender and status as a failed asylum seeker. She also fears persecution as a result of a family dispute involving her sister’s former fiancée, [Mr B] (described further below).
In her protection visa application, the applicant states she left Afghanistan in 2017 because she was constantly harassed by [Mr B] and his family. [Mr B] was engaged to her sister and she was threatened with harm – to her and her children – if she did not arrange their marriage. If she returns to Afghanistan without her husband and children, the applicant said she fears being harmed by [Mr B] or his family.
Whilst the delegate accepted the applicant’s sister was engaged to [Mr B], they noted the engagement broke off in 2013 and they did not accept the applicant received threats from [Mr B] or anyone associated with him as a result. Further the delegate found the applicant would have the support of her father in Afghanistan if she returned and was not satisfied she would be at a heightened risk as a woman on return there.
On review the applicant provided to the Tribunal a written statement dated 10 May 2022 in which she expands upon her protection claims and provides details about her current circumstances and fears if she has to return there.
In her oral evidence to the Tribunal the applicant described her background, reasons for leaving Afghanistan (in 2017) and extant fears upon return there now. She said she primarily fears harm from [Mr B] and his family members because her sister [Ms A] broke off their engagement, after fleeing Afghanistan in 2013 (to [Country 1], then to Australia in 2015). Despite the passage of time – and the fact [Mr B] is now married to someone else – the applicant said he continues to threaten her sister (via email) and other family members and would seek revenge if she returns home given his sister has dishonoured him and his family. The applicant said [Mr B] has threatened her in the past – including threatening to kidnap her children – blaming her for helping [Ms A] escape.
Specifically, the applicant said in around 2012 [Mr B] asked her sister to marry him and their parents agreed. However, after around a year of being engaged [Ms A] told her parents she did not want to marry [Mr B] as he was verbally abusive, telling her (among other things) she was ugly, that he was only marrying her to please his family, and he had other girlfriends. She would telephone the applicant – who was living in New Zealand at the time – and tell her the way she was treated. However, their father refused to break off the engagement, out of fear of enmity their family would face from [Mr B]’s family. The applicant said her parents’ relationship was also strained at this time. Then, sometime in 2013, with the help of maternal aunts and uncles, the applicant’s mother and [siblings] escaped Afghanistan and went to [Country 1], where they stayed in [a city] until granted offshore humanitarian visas to Australia in 2015.
The applicant said after her mother and siblings left Afghanistan – without telling her father – [Mr B] and her father made several visits to [Country 1] looking for them, but to no avail. [Mr B] threatened the applicant’s husband’s brother who lived in [Country 1] with harm if he did not reveal their location and involved ‘goons’ for hire in the process. However, her brother-in-law hired his own ‘goons’ to get them to back off.
Worried about her mother and siblings, the applicant (and husband and children) went to [Country 1] from New Zealand in 2014 to provide them with support. (She clarified that in her protection visa application she mistakenly stated she went to Afghanistan in 2013, which was incorrect: she went to [Country 1] first then Afghanistan.) After three months in [a city] the applicant and her husband and sons then moved to Kabul, where they stayed until 2017. They lived with the applicant’s father during this time and her husband helped work in a [business] owned by her father. The applicant said the reason they stayed in Afghanistan that long during that period was because she was awaiting the renewal of her New Zealand resident visa in order to return there, as well as trying to sort out the status of her daughter who was born in [Afghanistan]: there were delays as her husband did not have an Afghan birth certificate (taskera). Once these matters were sorted the applicant went to New Zealand with her children for a few months, then came to Australia to be with her mother and siblings, in 2017. Her husband went to [Country 1] to undertake [studies], before joining them in Australia.
The applicant said [Mr B] was calmer when they were in Kabul from 2004 to 2017, mainly because he thought he may still have a chance with [Ms A], who he was communicating with in Australia. However, after some time [Ms A] realised [Mr B] had not changed and told him over the telephone that they had no future, and the engagement was definitely, off: sometime in 2016. However, as [Mr B] still held hope, the applicant said he did not threaten her when this happened, or in the period up until she left Afghanistan in 2017. Nonetheless she said as he has been dishonoured, she fears he will harm her if she returns to Afghanistan, no matter how much time has passed.
The applicant said [Mr B] has not threatened or harmed their father, who has remained in Kabul, because he had supported the marriage.
In addition to her fears of [Mr B] if she has to return to Afghanistan, the applicant said she is fearful of the Taliban as a woman in general. She also would not want to return with her children, in particular her [son] who has [medical conditions].
As well she said the Taliban closed down a small religious school [after] they came to power last year, as they were against the type of Islam (Wahhabism) taught there. Also, her father’s stepmother had to flee Afghanistan to [a country], as she used to work with the Afghan government on women’s rights and had been targeted by the Taliban in the past.
The Tribunal has considered the applicant’s claims based on the material before it, including the applicant’s oral evidence at hearing. It accepts her evidence about her background, family composition and her travel history. It accepts her sister, [Ms A], was engaged to [Mr B] in around 2012; that [Ms A], along with their mother and other siblings, fled Afghanistan in 2013 to [Country 1] to escape the engagement after discovering [Mr B] was abusive, against their father’s wishes; and that [Ms A] and their father then tried to locate them in [Country 1], including by threatening relatives. Around this time the Tribunal accepts [Mr B] contacted her and other relatives in a bid to try and locate [Ms A], which may have included threats. The Tribunal accepts [Ms A], her siblings, and the applicant’s mother moved to Australia in 2015 holding humanitarian visas and have not returned to Afghanistan since. It accepts [Ms A] has called off the engagement with [Mr B], after some period of uncertainty and oscillation, sometime in 2016.
The Tribunal also accepts the applicant’s siblings have recently reconnected with their father in Afghanistan, based on the applicant’s oral evidence at hearing.
However, the Tribunal does not accept the applicant (or her father or husband) was threatened by [Mr B] when she was in Kabul from 2004 to 2017 as claimed, or thereafter, due primarily to inconsistencies in her oral evidence at hearing and her written statement to the Tribunal about the nature, frequency, and degree of such threats. For example, in her statement the applicant states that after [Ms A] had gone to Australia and rejected him clearly [Mr B] was furious and the threats escalated. This included [Mr B] calling and threatening her or her husband many times (including threatening to kidnap her children) between late 2015 and 2017; sometimes calling and threatening her father; throwing rocks on their house and banging on their door. As a result, she states that she and her husband moved five times in Kabul and her father had to organise guards, and that although her husband’s father reported these threats to the police twice, (in March or April 2016 and May or June 2016) they would not help as [Mr B] had contacts in the police, who were also corrupt. Yet at hearing the applicant did not mention having to move to a new house five times in Kabul, or that her husband and father reported [Mr B] to the police, or that they were threatened so regularly, or had rocks thrown at the house or there was banging on the door. Instead, she indicated that [Mr B] was calmer during this period because he considered there still may be a chance for him to marry [Ms A]. Furthermore, when asked if anything happened after [Ms A] had told him over the phone that she would not marry him in 2016, the applicant replied ‘no’. Additionally, she indicated her father did not experience problems from [Mr B], then or at other times, because he was considered supportive of the marriage arrangement.
The Tribunal also considers the recent visits by the applicant’s husband to Afghanistan with no apparent issues, including from [Mr B], undermines to some extent her claims that [Mr B] has threatened them in the past, and is still seeking revenge because his engagement with [Ms A] fell through.
The Tribunal also does not accept the applicant’s sister continues to receive threats from [Mr B], given the passage of time since she broke off the engagement and as her oral evidence in this regard was vague and general. Furthermore, despite claiming her sister has been receiving threatening emails, up until around eight months ago, she has failed to provide any evidence of such. In her written statement provided to the Tribunal the applicant said this is because her sister has deleted her accounts. The Tribunal is not persuaded by this explanation, particularly as this relates to her core protection claims it would have expected her to tell her sister to keep some of the threatening messages.
For these reasons the Tribunal does not accept the applicant (or her husband or father) was threatened by [Mr B] when they lived in Kabul from 2014 to 2017 in relation to her sister calling off their engagement or thereafter. Accordingly, the Tribunal finds remote the chance the applicant would face serious harm at the hands of [Mr B], his family, or his associates on return to Afghanistan in the reasonably foreseeable future because of the breakdown of his engagement with her sister, or for any other reason. Her fears of persecution on this basis are not well founded.
Membership of a particular social group of women
Given these findings the Tribunal has gone on to consider the other grounds advanced or that arise in the applicant’s case, including her fears on return to Afghanistan as a woman under the Taliban’s rule. In doing so it has considered country information about the security situation in Afghanistan with a particular focus on the situation for women (including that provided by the representative) there, to determine whether her fears of persecution on return to Afghanistan are well-founded.
In her submission to the Tribunal the representative argues that the applicant has a well-founded fear of persecution in Afghanistan based on her gender and status as a failed asylum seeker, as well as a family dispute involving her sister’s former fiancée, [Mr B]. She states her well-founded fear of persecution in Afghanistan is premised upon her membership of the particular social groups constituted by:
a.Women in Afghanistan without any male protector;
b.Women at risk of honour attacks in Afghanistan; and
c.Failed asylum seekers returning from a Western country.

Country information from a variety of sources is referenced (and attached as annexes in most instances) about the situation for women in Afghanistan, particularly since the Taliban takeover; prevalence of honour related crimes; the humanitarian crisis there; and treatment of failed asylum seekers. The representative submits, among other things, such country information indicates that the situation for women in Afghanistan, particularly since the Taliban take over, remains grave, and the applicant’s fear of violence or being unable to subsist due to socio-economic subjugation is well founded. Her profile as a woman without a male protector, makes her particularly vulnerable, it is submitted.
In her written statement provided to the Tribunal the applicant said the Taliban would punish her on return because she (and her sister) broke their rules by disobeying their father. She is scared to return there without male support, stating that she could not bring her children there to live under the Taliban rule and her father could not protect her because he is also against the Taliban, believing in women’s rights and equality.
For the reasons that follow the Tribunal finds the applicant has a well-founded fear of persecution from the Taliban (and/or non state actors such as the Islamic State in Khorasan Province (ISKP)) on return to Afghanistan as a member of a particular social group of ‘women in Afghanistan’. The Tribunal is satisfied that such a group meets the definition of a particular social group (other than the person’s family) pursuant to s 5L of the Act because the characteristic – that is the person’s gender – is shared by each member of the group; the person shares or is perceived as sharing the characteristic; the characteristic distinguishes the group from society; and the characteristic is not a fear of persecution.
The situation in Afghanistan – and Kabul in particular, where the applicant originates from – has changed significantly since the applicant applied for protection in mid-2018. Specifically, on 15 August 2021 Kabul fell to the Taliban, and the international military forces completed their withdrawal from Afghanistan on 30 August 2021. In early September 2021 the Taliban announced the formation of an ‘interim government’ and declared an ‘Islamic Emirate of Afghanistan’ (as they had when they took control of Kabul from the mujahadeen in 1996).[2] The Taliban appointed an all-male cabinet, made up mostly of religious clerics affiliated to them, predominantly Pashtun with little representation from ethnic minorities.[3]
[2] DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022), 14 January 2022 at 2.1 and 2.4.
[3] UK Home Office, ‘Afghanistan, Country Policy and Information note: Fear of the Taliban, Afghanistan’, February 2022; and Human Rights Council, Forty-sixth session, ‘Situation of human rights in Afghanistan’, Report of the United Nations High Commissioner for Human Rights, A/HRC/49/24, 4 March 2022
In terms of the political and security developments in Afghanistan since the Taliban’s take over, DFAT states that whilst the country is relatively less dangerous as a whole than before August 2021 for most Afghans due to the cessation of most armed conflict after the Taliban claimed victory, Afghanistan remains a dangerous country with ongoing threats of terrorism, kidnapping and other forms of violence.[4] They state further that the security situation is evolving, and it is unclear how long the current relative peace will continue, particularly if the economy collapses and the Taliban – which is divided into factions of moderates and hardliners with different aims and expectations of governance[5] – faces greater internal challenges. DFAT considers it likely the terrorist attacks will continue and potentially increase.[6]
[4] DFAT Thematic Report, op cit at 2.18
[5] DFAT Thematic Report, ibid at 2.12
[6] DFAT Thematic Report, ibid at 2.23
DFAT reports that the ISKP – an Afghanistan offshoot of Daesh (Islamic State) – grew in strength in 2021, including through recruitment of disaffected Taliban members, as well as fighters released from prisons. The ISKP is strongly opposed to Shia Muslims and the West and has been responsible for several bombings and attacks on civilians since August 2021.[7] Sources report that the ISKP and the Taliban have been in conflict for some time, and following the removal of their mutual foes, the Afghan and US governments, the ISKP is now fighting the Taliban regime exclusively in Afghanistan, and the Taliban regards it as a clear threat.[8] In addition to the ISKP, there are numerous other, smaller militant groups and local leaders, many of whom had pledged their support for the Taliban, perceiving it as the likely winner of a conflict with the Afghan government.[9]
[7] DFAT Thematic Report, ibid at 2.24
[8] DFAT Thematic Report, ibid at 2.25
[9] DFAT Thematic Report, ibid at 2.23
Additionally, DFAT (and other sources) reported on the wave of targeted killings launched by the Taliban prior to taking power nationally on 15 August 2021, directed at ‘influential and prominent Afghans, including journalists, human rights activists, judicial workers, doctors and clerics’.[10]
[10] DFAT Thematic Report, ibid at 2.17
Given such concerns, among others, DFAT assesses the security situation in Afghanistan remains dangerous, stating as follows:
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 ISKP 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 ISKP is strongest.[11]
[11] DFAT Thematic Report, ibid at 2.26; and UK Home Office report, ibid
In a recent report released by the United Nations Human Rights Council (UNHRC) about the human rights situation in Afghanistan, focusing on the period from 24 August 2021 to the end of February 2022 it states that whilst there has been a significant reduction in civilian casualties since the seizure of power by the Taliban on 15 August 2021, the protection of civilians remains a cause for concern. There had been ongoing civilian casualties, with almost 80 per cent of all civilian casualties during this period caused by Islamic State of Iraq and the Levant – Khorasan Province (ISIL-KP).[12]
[12] Human Rights Council, 46^th session, ‘Situation of human rights in Afghanistan’, Report of the United Nations High Commissioner for Human Rights, A/HRC/49/24, 4 March 2022, paras 22, 23 [footnotes omitted]
With respect to the situation for women in Afghanistan in such an environment, on taking power the Taliban announced that Sharia law regulates all matters of governance and established the Ministry for the Promotion of Virtue and Prevention of Vice (often referred to as the ‘religious’ or ‘morality’ police),[13] after abolishing the Ministry of Women’s Affairs. Its predecessor was responsible for much punitive violence between 1996 and 2001, particularly towards women.[14]
[13] UK Home Office Report, op cit, at 2.4.1
[14] DFAT Thematic Report, ibid at 3.18
DFAT states that although on takeover the Taliban made promises about inclusivity and women’s rights, many sources regard these were made for the benefit of the international community. Furthermore, such rights exist within the framework of Sharia law, which is subject to the Taliban’s conservative view of Islam and the role of women within it.[15] Many sources report that the Taliban has already broken its promises and is in the process of returning women to the position they were in between 1996 and 2001. While the Taliban has promised an ‘inclusive’ government, none of the almost 90 government appointments made so far includes a woman.
[15] DFAT Thematic Report, ibid at 3.14
According to Human Rights Watch (HRW) in a 1 November 2021 article about the loss of women’s rights since the Taliban took control of Afghanistan, the Taliban has banned women’s sport; dismantled the system to protect women from violence, including at home; closed shelters for women and girls fleeing violence; and dismantled the specialised courts and prosecution units that had been set up to enforce the relevant laws with respect to the elimination of violence against women. In terms of the policy of requiring a mahram, a male family member as chaperone, to accompany any woman leaving her home, they report that whilst it is not in place according to a Kabul official, Taliban members on the street are still sometimes enforcing it, as well as harassing women about their clothing.[16]
[16] Heather Barr, Associate Director, Human Rights Watch, ‘From Taliban to Taliban: Cycle of Hope, Despair on Women’s Rights’, November 1, 2021
Reports indicate that the Taliban has delivered mixed messages about women in the workplace and in education: at times telling them not to report to work until ‘proper systems’ were put into place.[17] In terms of access to school and universities for women and girls, DFAT states:
While the Taliban have permitted girls to attend primary schools, secondary schools for girls have been closed and women are not permitted to attend public universities. Some women continue to attend private universities, while girls’ high schools remained open in a number of provinces as of December 2021. Sources suggest that the mixed messages and inconsistent policies are a result of the organisation trying to balance internal factions while attempting to placate the international community to achieve regime recognition. One result of this balancing act is that the Taliban makes promises with regard to women that leaders know are very unlikely to be fulfilled; for example, promising that women can attend public universities if they are fully sex-segregated when there are insufficient facilities and female teachers.[18]
[17] DFAT Thematic Report, ibid at 3.15
[18] DFAT Thematic Report, ibid at 3.17
In the UNHRC report, it is stated that the Taliban (referred to in the report as the ‘de facto authorities’) has repeatedly given public assurances that girls’ education would continue, but on the asserted basis of an Islamic framework. The report states that in November last year it announced that schools would reopen in March 2022, including for girls beyond the 6th grade, pending development of a new education policy; in January this year the de facto minister for higher education announced that all of Afghanistan’s 40 public universities would resume operation; and on 2 February 2022 public universities in warm climate areas of the country for both women and men were opened. According to the report, while the authorities have given assurances that women can continue to enrol in higher education, they stressed that women will only be allowed in gender-segregated classrooms and Islamic dress will be compulsory (policies that were already in application in various parts of the country prior to the Taliban takeover). There are concerns that rigid gender segregation at universities will severely curtail women’s access to higher education and the quality of teaching and learning.[19]
[19] Human Rights Council, 46^th session, ‘Situation of human rights in Afghanistan, Report of the United Nations High Commissioner for Human Rights’, A/HRC/49/24, 4 March 2022, paras 19, 20
Nonetheless, subsequent reports indicate the situation about women and girls’ education (and workforce participation) continues to change, is unclear and sometimes a point of contention between moderate and ultra conservative Taliban members. For instance, on 15 April 2022, it was reported that secondary schools for girls were ordered to shut last month, just hours after being reopened for the first time since the Taliban’s return to power, after intervention by the Taliban’s leader.[20]
[20] France 24.com; ‘Girls’ education ban reveals deep rift within Taliban’, 15 April 2022
Overall, DFAT made the following risk assessment about women in Afghanistan:
DFAT assesses that women in Afghanistan, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. DFAT assesses that Afghan women continue to face a high risk of gender-based violence, including sexual assault and domestic violence, while Afghan girls face a high risk of being forced into early or involuntary marriage. DFAT further assesses that women face a high risk of harassment and violence from the Taliban if they depart from traditional female roles. While the Taliban has been relatively restrained as of late 2021—for example permitting women to protest in the street on some occasions (while resorting to violence on other occasions)—there is a risk such comparative restraint could end at any time. DFAT assesses that the situation of women in Afghanistan, with regards to access to employment, education, and healthcare services, is precarious; such access that exists may be altered or withdrawn by the Taliban with little warning or reason given.[21]
[21] DFAT Thematic Report, op cit at 3.19
In the UK Home Office Afghanistan country policy and information notes published in February 2022 it is noted that the November 2021 guidelines issued by the Ministry for the Promotion of Virtue and the Prevention of Vice include:
·     orders that women have a male escort (mahram) and wear the hijab;
·     prohibits the broadcast of entertainment shows featuring women; and
·     bars other acts deemed unIslamic by the Taliban such as gambling, cinemas and listening to music audible outside the home.[22]
[22] UK Home Office Report, op cit
In an article published by HRW on 29 October 2021 the author refers to several chapters of these guidelines, opining that ‘The manual is largely devoted to enforcing rules against ‘vice’, but its final chapters set out guidelines for all Afghans and for Taliban members, including tough restrictions on the conduct of women and girls’.[23]
[23] Human Rights Watch, ‘Afghanistan: Taliban ‘Vice’ Handbook Abusive’, October 29, 2021,
In their report the UK Home Office identifies several persons likely to be at risk of persecution, considered a threat or who do not conform to the Taliban’s strict interpretation of Sharia law, including women (particularly those in the public sphere); former employees/those linked to international forces and organisations (as in the applicant’s husband’s case); and:
Persons who do not conform to, or are perceived to not conform to, strict cultural and religious expectations/mores, in particular women, and which may also include persons perceived as ‘Westernised’ after having spent time in the West, though no clear definition of what ‘Westernised’ means or entails is available.[24]
[24] UK Home Office Report, op cit at 2.4.9
This list is not exhaustive and other groups may include civilians accused of spying, teachers and those involved in the education sector including students, tribal elders and religious leaders who resist the Taliban’s doctrine, and family members supporting or perceived to be associated with the above profile.[25]
[25] UK Home Office Report, op cit at 6.5.6
In the UNHRC report it is stated that although gender inequality, discrimination, and gender-based violence remained deeply entrenched in Afghanistan even prior to 15 August 2021, women had been active in all three branches of the government, while also playing a growing role in the private sector; they held some seats in Parliament; were civil servants; assumed leadership positions in civil society, including as human rights defenders; and contributed to the economic, political and social progress of the country (among other things). However, since 15 August 2021 it states that women have been excluded from political life, as well as the workforce more broadly; they are absent from the all-male de facto administration and occupy a limited number of civil service positions; and the authorities have repeatedly asserted commitments to uphold women’s rights within the framework of Islamic sharia law (as noted earlier).[26] The report also notes restrictions on women’s freedom of movement, unless accompanied by a mahram (a close male relative), and reports of women being detained if they breach such rules, in some provinces. The reports also notes that:
Limitations on freedom of movement negatively impact other aspects of women’s lives, such as access to health services and employment. In some provinces, women have reportedly been prevented from accessing medical care because they were not accompanied by a mahram. Women-headed households are also assessed as being at increased risk of poverty due to restrictions imposed on their freedom of movement and ability to work.[27]
[26] UNHRC report, op cit, para 33 [footnotes omitted]
[27] UNHRC report, op cit, para 38 [footnotes omitted]
Such country information shows the significant restrictions women face under the Taliban’s rule in Afghanistan, and risks – including of being harmed and/or punished – if they transgress them (noting DFAT’s assessment that women face a high risk of harassment and violence from the Taliban if they depart from traditional female roles (among other things)). Based on this, the Tribunal is satisfied she faces a real chance of serious harm such as threats to her life or liberty, significant physical harassment and/or significant ill-treatment from the Taliban (and/or others such as the ISKP) on return to Afghanistan as required by s 5J(4)(b) of the Act based on her membership of a particular social group of women in Afghanistan.
The Tribunal accepts the applicant’s claims that she would not want to expose her children to life under the Taliban and has particular concerns for her [son] due to his [medical condition] and a lack of specialised support there. It accepts therefore that if she had to return she would do so without her husband and children, who are New Zealand citizens. All of her other immediate family members are in Australia, except her father who continues to live and work in Kabul. Whilst the Tribunal considers the applicant’s father could provide her with at least some support initially such as accommodation, and may reduce her risk to some extent from the likes of the Taliban or other non-state actors, she would still face severe restrictions under Taliban rule – about her movements, dress, work, and studies (among other things) – and faces a risk of harm if she transgresses them, as noted in the country information above.
The Tribunal considers the applicant is more vulnerable to gender-based discrimination, sexual harassment, and serious gender-based violence because Afghanistan under the Taliban is a conservative society, operating under its strict interpretation of Sharia law.
Taking into account these considerations, the country information referred to about the treatment of women, and anyone who does not conform to, or are perceived to not conform to, strict cultural and religious expectations/mores in Afghanistan, and the applicant’s personal circumstances, the Tribunal finds that there is a real chance that the applicant would suffer treatment amounting to persecution involving serious harm from the Taliban (or non-state actors such as the ISKP) should she return to Afghanistan in the foreseeable future.
The Tribunal considers that the applicant’s membership of a particular social group of women in Afghanistan is the essential and significant reason for the persecution which she fears, as required by s 5J(4)(a). Also, that the persecution she fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves her selective harassment for reason of her gender.

The Tribunal has considered if effective protection measures are available to the applicant in Kabul as required by s 5LA. Given the harm that the applicant fears as a woman in Afghanistan is from the Taliban, which as of late 2021 controls the entire country including its capital, Kabul (with the exception of its inability to prevent terrorism by the ISKP and others),[28] the Tribunal is not satisfied that the state, party or organisation is willing and able to offer protection. The Tribunal is not satisfied the effective protection measures as per s 5LA are available to the applicant in Kabul provided by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Afghanistan for the purposes of s 5LA(2).
[28] DFAT Thematic Report, op cit at 3.11
For the same reasons – that is because the Taliban controls the entire country – the Tribunal is satisfied the applicant faces a real chance of persecution in all areas of Afghanistan as required by s 5J(1)(c). The Tribunal notes DFAT’s assessment that women in Afghanistan face a high risk of gender-based violence, official discrimination, and societal discrimination (and a precarious situation regarding employment and education, among other things) is not confined to a specific geographic area.
For these reasons the Tribunal finds the applicant has a well-founded fear of persecution in all areas of Afghanistan for reasons of her membership of a particular social group of women in Afghanistan.
The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case the Tribunal is satisfied that any such modification would alter or conceal the applicant’s gender identity and therefore s 5J(3) does not apply.
It follows that the Tribunal finds that the applicant has a well-founded fear of persecution for the purposes of s 5J. In considering whether she comes within the definition of a refugee contained in s 5H, it accepts that she is outside the country of her nationality and unable to return to it owing to her well-founded fear of persecution. Therefore, she meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, the applicant is a refugee.
Third country protection: s 36(3)
A question about whether the applicant has third country protection arises in this case. Under s 36(3) of the Act Australia is taken not to have protection obligations in respect of a person who: has a right to enter and reside in any other country – whether permanently or temporarily; and has not taken all possible steps to avail him/herself of that right.
In her written statement provided to the Tribunal the applicant advises that the last New Zealand resident visa she was granted on 29 May 2016 expired on 29 May 2018. At hearing she indicated she had applied for renewal of her New Zealand resident visa a few months prior. She has received an acknowledgement of the visa application from the New Zealand authorities, but no decision as yet.
Her representative submitted at hearing that although the applicant has applied for the resident visa (based on her marriage to a New Zealand citizen), currently she has no right to enter New Zealand, it could be many months until she hears anything, and even then there is no guarantee (she will be granted the visa).
The Tribunal agrees, noting that the right referred to in s 36(3) must be an existing right, and not a past or lapsed right, or a potential right or an expectancy. The relevant ‘liberty, permission or privilege’ must be a permission which obtains its effective substance from its grant ‘and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise’.[29] Even though the applicant has applied for another New Zealand resident visa, and may be granted that visa in the future, at the time of the Tribunal’s decision she does not have such a right. Accordingly, the Tribunal is not satisfied that there is an existing right to enter and reside in a third country – New Zealand in this case – and s 36(3) does not apply.
[29] MIMAC v SZRHU (2013) 215 FCR 35 at [45], citing Allsop J in V856/00A v MIMA (2001) 114 FCR 408 (at [31]).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nicole Burns
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2665

28 June 2022

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