Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 BurnsMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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 EVIDENCEReceiving 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