2103620 (Refugee) - [2025] ARTA 1308

2103620 (REFUGEE) [2025] ARTA 1308 (19 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2103620
Tribunal:General Member S Zelinka
Date:19 May 2025

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 19 May 2025 at 9:11am
CATCHWORDS
REFUGEE – protection visa – Afghanistan – political opinion – kidnapped and extorted – first application unsuccessful – new claims – fought with militant group against Russians before settling in third country – obtained birth certificate in name of deceased man then genuine passport in that identity – access to services and children’s education – identity check concluded citizenship of third country – detailed and consistent evidence about life and travels unlikely for citizen of third country to make up and sustain – Afghani documentation and supporting statements – supporting statements from three claimed brothers granted protection in Australia and fourth country – religion – minority Shiite converted to Christianity in Australia – family educated and well-known in local area – mental health and treatment – country information does not specifically mention Christians – human rights conditions under Taliban – enforced disappearances, arbitrary arrests and unlawful detention for those perceived as political opponents – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), 46A, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Afghanistan applied for the visa on 21 April 2020. The delegate refused to grant the visa on the basis that he found the applicant to be [Alias], a citizen of Iran and that he did not face any real chance of serious harm if he returned to Iran.
The applicant appeared before the Tribunal on 5 May 2025 to give evidence and present arguments. 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.
CRITERIA FOR 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
History of refugee status determination
The applicant arrived as an unauthorised maritime arrival in November 2010 and was first interviewed in relation to refugee status on 28 December 2010. He stated that he was [applicant name] from [Village] in the province of Farah, Afghanistan, and that he was an ethnic Tajik and a Shia Muslim. He stated that he was opposed to the Taliban and had spoken out against them, resulting in the Taliban kidnapping him and extorting money from him about April 2010. When they came again to his house a few months later, he sent his family (wife [and children]) off to Iran whilst he himself escape from Afghanistan by way of [Country 1]. His application was rejected in March 2011 and a review by the IMR and subsequent judicial review completed by July 2014 were likewise negative.
A check was made under the International Treaties Obligation Assessment (ITOA) and at his first interview in March 2015 the delegate indicated to the applicant that he “was of a mind to agree with the reasoning and assessments made by the RSA and IMR officers regarding the lack of credibility of his claims”. The applicant asked if he could change his claims and then presented the following claims.
The applicant again asserted that he was [applicant name] from Farah but said that he had left Afghanistan in 1980 (rather than in 2010) and had gone to Iran. He said he had left Afghanistan while he was a [student] in the face of the Russian invasion. He went to Iran where he joined his cousin who was fighting as a mujahideen against the Russians and the Russian-backed Afghan government. The applicant fought with this group until 1986 when he married and settled in Zahedan, an Iranian town very close to the borders with both Afghanistan and Pakistan. All his [children] were born in Iran.
The applicant wanted identity papers for his family so that the children could attend school. He obtained a fake Iranian birth certificate in the name of an Iranian who was deceased called [Alias]; with this he then obtained other pieces of Iranian identity documentation including relevant documents for his wife and children.
With the applicant having raised the issue of a second identity, the Department undertook an identity check. The ITOA assessment was finished on 13 November 2015 and concluded that the applicant was the Iranian citizen [Alias] and that he did not engage Australia’s treaty obligations.
In 2020 the Minister lifted the s 46A bar and the applicant subsequently applied for a Safe Haven Enterprise Visa (SHEV). He was interviewed by a Departmental officer in March 2021 who followed the previous delegate and found the applicant to be [Alias] of Iran and not entitled to a protection visa. The applicant appealed this decision and is now before the Tribunal.
Identity and nationality
The Tribunal put it to the applicant and his representative at the beginning of the hearing that it had to proceed on the basis of one name and one nationality. It said that for a variety of reasons (which it would explain) it would proceed on the basis that the applicant was [applicant name] of Afghanistan. However, at this point, this was not a definitive finding. If information emerged during the hearing that questioned this hypothesis, the Tribunal would have a second hearing.
The Tribunal’s basis for assigning a tentative Afghan identity to the applicant was that if he were an Iranian citizen who left Iran in 2010 and arrived on Christmas Island, then he would have had to make up a false Afghan persona and accompanying back story in the time it took to travel from Iran to Christmas Island. He would have had to keep this story intact during the next four and a half years until his ITOA interview in March 2015, the first time he advanced any new claims about his identity. The Tribunal felt it would be difficult to make up and stick to a complex story about identity, family, places of residence and geographical details etc. at a time of severe stress caused by irregular travel, the asylum process, no work rights, and a generally unsettled existence. The Tribunal notes that the applicant had submitted a medical report from a psychologist dated 6 March 2013 which noted that the applicant had been undergoing treatment at [organisation] since October 2012 for post-traumatic stress disorder, anxiety and depression. These are difficult conditions under which to keep up a fabricated story.
In addition, the Tribunal received submissions shortly before the hearing supporting his claim to his Afghan identity. These will be enumerated below. Significantly, the applicant offered to undergo DNA testing to confirm a fraternal relationship with three men who have all submitted their identity documents showing they were born in Afghanistan and who all claim that the applicant is their brother.
Documentation
During the initial phase of his refugee status determination process, the applicant submitted documents to support his identity as [applicant name] of Afghanistan. When he changed his story in 2015, he submitted some Iranian documents which he always claimed he obtained unlawfully. In appealing to the Tribunal, he submitted further documentation to establish what he claimed was his true Afghan identity. The documents are as follows:
Afghan identity
·Afghan taskera with translation (undated) submitted to first departmental officer
·Letter from village elders (no translation on file) attesting that applicant was from [Village] in Farah Province , Afghanistan.
With the above documents plus testimony, the departmental officer assessed as ‘highly probable’ on 11 July 2013 that the applicant was [applicant name] from Afghanistan.
During the ITOA process, the applicant provided further documents:
·Afghan taskeras with translations for applicant, wife, wife’s sister and wife’s mother, all dated [Feb] 2014.
·Letter from an Afghan with Australian citizenship, a lawyer with his own firm, who stated that he had been friends since 1998 with another Afghan man with Australian citizenship in Sydney. This man was the brother of the applicant [applicant name] and through the brother, this lawyer had met the applicant. This letter was dated 29 March 2014.
Iranian identity
·Iranian passport bearing a photo of the applicant issued [in] 2010 to the bearer [Alias]
On the basis of all the above material, the same departmental officer refuted his earlier finding on the applicant’s identity and stated that the Iranian passport was genuine and therefore the applicant was [Alias] of Iran. The departmental officer made this finding on 11 May 2015 but the ITOA decision was not finalised until 13 November 2015.
Further documents re Afghan identity to the Department
·Letter from an Afghan public servant in Victoria, dated 28 July 2015, stating that he was a relative of [applicant name] and could attest that the latter is from [Village], Farah Province.
·Letter and copy of [Country 2] identity card from applicant’s brother [Mr A] dated 3 August 2015 stating that he is a [Country 2] citizen born in Afghanistan and that the applicant is his elder brother.
·Letter from the IOM (International Organisation for Migration) office in Kabul in Dari stating that its office had checked and would attest that the applicant was [applicant name] of [Village], Farah Province, Afghanistan. (This document is undated but was put on file in November 2015).
Further documents re Afghan identity submitted to the Tribunal
·Identity document issued by the Islamic Republic of Afghanistan Deputy Civil Registration Authority dated [September] 2021 through its Embassy in Canberra.[1] This document has the applicant’s photo and gives his place of birth as Farah, Afghanistan.
·An Afghan passport issued by the Embassy in Canberra [in] 2021 on the basis of the document above.
·Screen shots of the applicant’s WhatsApp page showing his contacts – a nephew and great-nephew plus four friends from school or university – all with the Afghanistan telephone prefix of +93.
·Material gathered by his brother [Mr A] in [Country 2] when he made a brief trip to Afghanistan in 2020 to settle some property issues. He photographed the family registration page at the local Registry Office and this page has photos of all six brothers (including the applicant) and their father. There is also the father’s land ownership document for his property in [Village] dated 2 October 1984.
·Taskeras for two brothers ([Mr B] and [Mr A]) and two sisters, both deceased ([Ms C and Ms D]).
·The membership card for brother [Mr E] in the [Organisation, Country 1] issued on 1 March 1991. This is the brother who is now an Australian citizen.
·Afghan passport renewed in London in [1999] for brother [Mr F].
[1] The Embassy’s website notes that “The Embassy of Afghanistan in Canberra operates autonomously and independently from the Taliban’s control or influence after 15 August 2021”.
The Tribunal hearing
Proceeding on the assumption that the applicant was [applicant name] from Afghanistan (as explained in paragraph 17 above), the Tribunal asked the applicant where all his family members were at present and whether he had any family in Afghanistan. Two of his brothers are dead and all three of his sisters. None of his remaining brothers are in Afghanistan: one is in Australia, one is in [Country 3] and one in [Country 2]. The latter two are professionals ([occupations 1 and 2] respectively) and all three are now citizens of the country in which they live. The applicant’s wife, one son and one daughter are still living in Karaj in Iran. His other two daughters performed very well at school and university in Iran and are now both on scholarships and valid student visas undertaking post-graduate degrees in [Country 2]. His oldest son took on the responsibility for the family when the applicant left Iran in 2010 and he worked rather than continuing with studies. He could not get a student or other visa to [Country 1] so he entered illegally. He is currently in [Country 2] seeking asylum. This son has converted to Christianity and the applicant showed a photograph of his son with his uncle (the applicant’s [Country 2] citizen brother) at a church in [Country 2].
The applicant stays in touch with the few family members and some friends in Afghanistan through WhatsApp (paragraph 20 above refers to screenshots of his nephew and great-nephew). He says that they report feeling fearful as there are always new directives and fatwas coming out of the Taliban government. The applicant’s family have always traditionally been Shia and these family members are also Shia which puts them in the minority religious group in Afghanistan. One of the applicant’s nieces had been studying [subject] at university but was forced to cease her studies under the Taliban Government’s rules. A Taliban official then wanted to marry her: she was appalled at the prospect and fled to Iran. She is now living in exile in Marshad, Iran. The applicant said that his family had always placed a great emphasis on education, noting that he and his brothers had attended university and certainly supported girls’ education. They stood out in the village even when he was young for their education and position (his father had owned substantial property).
The applicant said it was this comparatively privileged background which caused him problems after the Russians invaded. He was at [institution] in [City] and the Russians took 100 of the students: only eight of them were released from detention. Amongst those released was another student from Farah (the town which is the capital of the eponymous province). He told the applicant who was his friend that he understood there was a list of a further 95 students whom the Russians would target, and that the applicant was amongst those on the list. The applicant and all the other students who originated from Farah immediately left university and the applicant made his way to Zabol in Iran, where his maternal cousin was fighting against the Russians with the mujihideen. The applicant joined him and the group and stayed with them for the next six years. He did a variety of work but not the day-to-day guerilla fighting. Being well-educated, the other fighters expected him to know things and turned to him for assistance when they were injured (although he had no formal medical training). However, he could read information, find out about treatments, travel into [Country 1] to source medical and pharmaceutical supplies. He earned the nickname “Doctor”.
In 1986 the applicant married the sister of his brother’s wife who was living in Iran with her sister and brother-in-law because all of her own family members in Afghanistan had been killed. Her family, like his, had originated in Farah and were well-educated; they were perceived to be bourgeois and targeted by local communists and the Russians. The applicant and his wife settled in Zahedan where they stayed for the next 12 years. They had [children] and, as they both wanted their children to be educated, the applicant had to find a way to get Iranian documents in order that the children could go to school. He was able to obtain the identity papers of a deceased Iranian man of about his age: the registry clerk was bribed not to register the man’s death. Hence the applicant took the identity of a genuine Iranian citizen and was given the man’s identity book but with his own photo on it. The identity he bought was that of [Alias]. With the identity card he was able to obtain a genuine Iranian passport and other documents for his wife and children so that the latter could enrol in school.
The Tribunal asked what name he was known by in Zahedan. He said that everyone in his community called him [applicant’s given name] (his Afghan name). He used the Iranian name only when he had to interact with Iranian society: for example, he made his living as [an occupation] and would have to make trips from time to time into Tehran. Then of course he would use his Iranian identity. He said he was fearful when he had to interact with Iranian businessmen or officials: he worried that his accent would give him away as an Afghan. Some Iranians exploited this fear and extorted money from him not to disclose the fact that he might have a forged identity.

The applicant used his Iranian passport to travel to [Country 4] to go to the UNHCR mission there and see if he and his family could be resettled somewhere. However, the ‘9/11 attack’ in New York occurred while he was there, throwing things into confusion. He could not afford to stay longer so returned to Iran.
The applicant said that in 2008, the family moved from Zahedan to Karaj just to the north-west of Tehran. The Tribunal asked why he left Iran, given that he was working sufficiently to provide for his family who were relatively settled with the children at school. The applicant said that in 2010 a number of Afghans with false Iranian papers were arrested. There seemed to be some sort of a blitz by the Iranian authorities. A friend of his who had also acquired the identity papers of a dead Iranian (like the applicant) was arrested and under duress gave the name of other Afghans with similarly-acquired identity papers. When the Iranian authorities arrested two of these men, they also took a genuine Iranian who happened to work for the two and who had been well-treated by them. This man was then released and he came and told the applicant that he had heard the applicant’s name mentioned by the authorities. The applicant then left Iran, making his way through [Country 1] and eventually to Christmas Island.
The Tribunal noted that 45 years had passed since he left Afghanistan and put it to him that the Taliban would no longer recall him or have any reason to target him for harm if he returned. Indeed, when he left, he fought against the Russians rather than the Taliban who emerged later. The applicant replied that he was still at risk. He said that in his home area, his family and the family name was well-known; it was documented that he and his brothers had all left the country and had not returned since the Taliban take-over. It was also documented that the family were Shia, a minority religion that had often been targeted by the Taliban. Moreover, the applicant had converted to Christianity in Australia in 2013 and found his Christian faith a source of comfort during the subsequent 12 years here. He would continue to be a Christian in Afghanistan and this – along with the apostasy in reaching that faith – would be very adversely regarded.
The Tribunal asked the applicant about his conversion to Christianity. He said that in his early years in Australia, a refugee support group had found him accommodation in the household of a woman academic whose daughter took him to her church in 2013. The woman academic wrote to the Department at the time attesting to this. The applicant found comfort in the church and continued to attend, being baptised in 2014. The pastor of that church wrote to the Department in 2014 attesting to the baptism and the bible studies the applicant attended; the same pastor has written again to the Tribunal (letter dated 4 May 2025) noting that the applicant is still committed to Christianity. The applicant has a bible translated into Dari and reads it; he also watches religious material on YouTube. He said that unfortunately he has to work in a [workplace] on the weekends and would be sacked if he failed to work on Sunday, so he has not been able to attend Sunday church services regularly for the past year. The pastor in his recent letter also noted that too, indicating that it did not mean a lack of commitment on the part of the applicant.
The applicant noted that he has not been in a mosque for possibly 40 years. He would not attend if he were to go back to Afghanistan, nor would he grow a beard. He would be noticeable as a non-Muslim.
REASONS AND FINDINGS
The issues in this case are firstly, to establish the identity of the applicant and his receiving country; and secondly, to find whether this applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the applicant is [applicant name], the receiving country Afghanistan and that the matter should be set aside and remitted for reconsideration.
Identity and nationality
The applicant has always asserted that his name is [applicant name] and that he is a citizen of Afghanistan. He said that currently in Afghanistan he has some nieces and nephews, the children of various brothers and sisters, younger people, but no-one of his age group who went through the experiences he and his brothers had. The Tribunal understands that the applicant’s sisters remained in Afghanistan but [all ] are now deceased. All his siblings, plus his wife and children, are outside of Afghanistan.
The Tribunal notes the large amount of documentation (see paragraph 20 above) supporting his identity and nationality as an Afghan, including those from his brothers (with identity cards) and two Afghan Australian public officials; plus his screen shots with his Afghan contacts (friends and family). It notes the Afghan taskeras for himself and his wife with the applicant’s convincing explanation for how these were obtained in 2014 when they were not in Afghanistan, in comparison with the false Afghan taskera obtained in 2011 which he had also submitted. The applicant explained that in 2011 he asked an Afghan friend in Iran to take his photo to his home village in Afghanistan and obtain a taskera. He subsequently found that the friend did not go to Afghanistan but simply acquired a false taskera in Iran from a person who made documents. The applicant then tasked a more reliable relative, his nephew, in Afghanistan with the same task in 2014 and this time it was accomplished. The nephew had taken photos sent from Iran to the registry office in Farah (his home province) which had all the information about his family. The registry office issued the taskera which bears the words: ‘duplicate taskera’. There is more information than on the false taskera and the Tribunal accepts that it is a genuine document. In style and content it matches taskeras submitted by his brothers.
The Tribunal also notes the Afghan identity card and subsequent passport issued by the Afghan Embassy in Canberra. The applicant was issued this identity card [in] September 2021: this was a month after the Taliban had taken over in Afghanistan. The Australian government did not recognise the Taliban as the legitimate government of Afghanistan and nor did the staff at the Embassy. They stayed on in the Embassy continuing to operate it under the Vienna Convention 1961, noting on its current website that “The Embassy of Afghanistan in Canberra operates autonomously and independently from the Taliban’s control or influence after 15 August 2021”. The websites also states that it provides services in relation to visas, travel permit letters, verification of identity etc. The Tribunal is satisfied that the identity card was provided by Embassy staff accustomed to making checks to verify the status of its nationals and therefore accepts that the applicant’s identity card and subsequently acquired passport are reliable documents attesting to his identity and nationality. The Tribunal also notes that when requesting these documents from the Afghan Embassy, the applicant’s brother [Mr E] acted as guarantor, attesting that the applicant was his brother. [Mr E] has Australian citizenship.
Against this evidence in favour of Afghan identity is only the passport from Iran. The delegate put weight on this as a genuine document. The Tribunal does not doubt that it is a genuine Iranian passport issued in Iran. However, it was issued to an Iranian citizen who was actually deceased at the time of issue and whose identity had been purchased by the applicant. So although it is a genuine passport, it does not signify the genuine identity of the man who was using it.
The Tribunal finds that the applicant in this case is [applicant name] and that he comes from the village of [Village] in Farah Province in Afghanistan. The Tribunal finds that the receiving country in this case is Afghanistan.
Credibility
The applicant has been designated as an Iranian citizen since the ITOA decision in 2015. By finding that the applicant was an Iranian, the delegate was finding that the applicant was not credible – that he was being untruthful about his identity, his country of origin and the claims made in respect to that country.
The Tribunal notes that the applicant has consistently stated for 15 years that he is [applicant name] from Afghanistan. There is no doubt that he offered identity papers in another name four and a half years into this 15-year period but he never at any point suggested that he was this other person. He said that he had bought these papers so that he could live in Iran and access services (school for his children) which his asylum status did not allow him to access. The Tribunal is satisfied that this is a credible explanation.
There is support for many of the claims the applicant has made: that he grew up in Farah in an educated family is supported by information from his brothers, professionals in the [Countries 3 and 1], and by his two daughters legitimately undertaking post-graduate studies in [Country 1] (showing that the applicant and his wife encouraged their daughters into academic paths). There is support for his claim that he converted to Christianity in 2013 in testimonials provided by the lady with whom he boarded in 2013 and by the pastor who has followed the applicant’s religious journey from 2014 to the present day.
The Tribunal recognises that the applicant initially told the Department that he had always lived in Afghanistan and had left that country to come to Australia in 2010. This was not true and he apparently gave this story “to keep it simple”. He was being processed at Christmas Island with a large number of Afghan boat arrivals and was not in a good mental state, being sent for counselling two years later for post-traumatic stress disorder, depression and anxiety. This mental state may have affected his judgement. However, eventually he told what the Tribunal accepts is the true story. The details of his family and life in Afghanistan until 1980 have never varied. The change to his story concerned his departure from Afghanistan in 1980 and the subsequent years he spent in Iran before coming to Australia. The account he has given is credible and again can be supported by documents such as the passport he bought.
The Tribunal accepts that the applicant is a credible witness and that his testimony as set out in paragraphs 20-29 above is a true account of his experience.
The applicant’s Christianity
The applicant has claimed that he fears persecution if returned to Afghanistan for reason of his Christianity. The Tribunal accepts that the applicant has been a Christian since 2013, that he is committed to the faith, and that he will continue to be a Christian if he returns to Afghanistan. The Tribunal accepts this claim because it has found the applicant to be a credible witness and because a pastor who has known him for 11 years since the applicant’s baptism has attested that this is so.
DFAT have ceased publishing their country reports on Afghanistan but its last update in 2022 had a brief paragraph about religion:
Virtually all Afghans (approximately 99 per cent) identify as Muslim. Around 85 per cent of the Muslim community is Sunni, and around 15 per cent Shi’a. While small communities of other faiths once lived in Afghanistan (including Jews, Christians, Sikhs, Hindus and Baha’i), virtually none remain today.[2]
[2] DFAT, Thematic report on political and security developments in Afghanistan (August 2021 to January 2022), para. 3.7
More recently, the UNHCR have surveyed the state of human rights in Afghanistan and noted the following about the treatment of Christians:
The Special Rapporteur has spoken to Afghan Christians and atheists who told him that, while they have never been free to express their beliefs publicly, they have come under increased pressure since the Taliban seized power and have taken additional measures to keep their beliefs hidden or have fled the country.[3]
[3] UNHCR, Report of the Special Rapporteur on the Situation of Human Rights in Afghanistan, A/HRC/58/80 (20 February 2025), paragraph 53.
The Tribunal also notes information from the European Union Agency for Asylum (EUAA):
The Taliban have been reported to threaten individuals to adhere to the expected religious practices. For example, as of January 2022, the Taliban have reportedly announced a requirement for all men to attend congregational prayers at mosques in parts of Kabul and Takhar provinces. In Herat City, the de facto security forces were reported to actively patrol the streets in some areas, looking for people not attending prayers during Ramadan and assaulting bystanders, shopkeepers, medicine vendors …Although no general dress code for me has been issued, cases were reported in which men were stopped and harassed by Taliban fighters for wearing western style clothes or shaving beards. [4]
[4] EUAA, Country Guidance: Afghanistan, 23 May 2024, para. 3.12
The EUAA report also outlines what happens to people who oppose the Taliban which is describes as ‘a hardline Islamic group that enforce their strict interpretation of Sharia law’[5] and that ‘is currently the sole entity exercising effective control of all parts of Afghanistan’.[6] Although it does not mention specifically what happens to Christians, the Tribunal assumes that it would be comparable to the punishment for those ‘perceived as political opponents’ against whom ‘the Taliban continues to use arbitrary arrests, enforced disappearances and unlawful detention’[7]
[5] BBC News, Who are the Taliban?, 12 August 2022 at EUAA, op.cit., para.2.1
[7] Amnesty International, Afghanistan 2024 at >
The Tribunal accepts that the applicant is a Christian. If he were to return to Afghanistan, he would not attend the mosque and would not grow a beard. He would read his bible privately. His non-compliance with the strict Islamic requirements enforced by the Taliban would mark him out and he would be identified as a non-believer (in Islam). This would be sufficient to attract punishment. If further information came to light about his Christianity (for example, a search of his possessions and the finding of his Dari language bible) then he would be in more severe trouble of the sort outlined in paraph 46 above.
The Tribunal finds that there is a real chance that serious harm will befall the applicant at the hands of the Taliban anywhere in Afghanistan in the reasonably foreseeable future if he were to return there. This harm would be for the essential and significant reason of the applicant’s apostasy and his belief in Christianity – in other words, for reason of religion, one of the five reasons set out in s. 5J(1)(a) of the Act.
The Tribunal finds that the applicant has a well-founded fear of persecution and that he Is a refugee within the meaning of s. 5H of the Act.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing:   5 May 2025
Representative:  Miss Vicky Chen
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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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