2105004 (Refugee)

2105004 (Refugee) [2022] AATA 2140 (5 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2105004

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Nicole Burns
DATE:5 May 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 Act1958 (Cth).

Statement made on 05 May 2022 at 5:03pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – secular Shi’a Muslim – imputed political opinion – past Baath Party membership – expressed views against corruption – family of Communist Party member – fear of killing – Shia militias – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 dependants.
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 8 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old married woman from Afghanistan. She came to Australia [in] June 2018 holding a visitor visa and applied for the protection visa on 25 July 2018. The delegate refused to grant the visa on 8 April 2021, before the Taliban took control of the country in August 2021.
The applicant appeared before the Tribunal on 20 April 2022 to give evidence and present arguments about the issues in her case. The Tribunal also received oral evidence from her son, [Son A], who lives in Australia. 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 by her registered migration agent. He did not attend 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 certified copy of her Islamic Republic of Afghanistan passport biodata pages and a copy of her Afghanistan driver’s license. The delegate accepted her claimed identity and nationality as set out in those identity documents, as does the Tribunal. It finds Afghanistan is her receiving country for the purposes of assessing her protection claims.
Relevant background, claims and evidence
In summary, the applicant claims to fear persecution from the Taliban in Afghanistan because she used to be a teacher and is an educated woman, and because her husband used to work for the Americans.
The applicant’s initial protection claims were set out in her protection visa application, in which she claimed that her entire family were subjected to threats mainly from the Taliban and/or affiliated groups. She lists specific incidences as follows (in summary):
·Her husband was jailed by the Taliban without trial because he worked with the Afghan government. He continues to receive death threats because he works with the Americans.
·The applicant received death threats. She is a schoolteacher and was targeted as an educated woman.
·Other family members have been victimised, including the applicant’s daughter who studies at [University 1] in Kabul.
The Tribunal accepts the applicant’s claims about her background, work history and family composition. Specifically, according to information contained in her protection visa application and confirmed in her oral evidence at the Tribunal hearing, the applicant is Sunni Muslim and of the Tajik ethnicity, from Kabul. She is married with [number] children and has several grandchildren. Presently her husband and youngest son (who is [age]) reside in [Country 1] as does her daughter with her husband and child. The applicant’s daughter and son-in-law moved to [Country 1] a couple of months before the applicant left Afghanistan (in mid-2018) as the university where they were studying – [University 1] in Kabul – had been the site of a bomb blast, which killed several of their friends. Her other son lives in [Country 2], having migrated there around two years ago, married to a [Country 1] citizen. [Son A] lives in Australia with his wife and [children], having moved here (on a partner visa) in 2011.
The applicant lives in a share house in Melbourne and works as a volunteer [at] [an agency]. At hearing the applicant said she has a [sibling] who lives in [Country 3]. Her mother – who lived in Kabul – died around five months ago. Her nephew, who worked for the Afghanistan army, was killed by the Taliban not long after they took over the capital in August 2021. As such she has no remaining relatives in Afghanistan. When her husband and youngest son moved to [Country 1] in around mid-2019 they sold their family home in Kabul and have been living off the proceeds, as her husband, previously an [occupation 2], is unable to work due to back injuries.
[Son A] told the Tribunal his father and brother have applied for humanitarian visas to Australia, which, according to advice he received from a Departmental officer, are in the final stages of processing.
The applicant lived in Peshawar, Pakistan from around 1998 to 2002, returning to Kabul after the Taliban left. She is a qualified teacher and has worked at a primary school in Pakistan and at [high schools] – teaching [specified subjects] – in Kabul from 2002 until she left Afghanistan in mid-2018. As evidence she provided to the Tribunal a translated copy of her Afghan teachers training student identity card; teachers training completion certificate; and an Afghan Ministry of Education identity card. She had provided to the Department a scanned copy of a [International Agency 1] card from Pakistan (expiring [in] December 2002) which lists her occupation as teacher, and a bank card showing the type of account as a government salary account (undated). On this basis the Tribunal accepts the applicant is a qualified teacher who worked as a teacher in both Afghanistan and Pakistan in the past.
The Tribunal notes the delegate doubted the applicant’s claims to be a teacher because she had not provided evidence of such, apart from the card from [International Agency 1] from Pakistan, despite being requested to do so. As noted, she has now provided further evidence of being a teacher in Afghanistan to the Tribunal, which it accepts.
The delegate also noted in their decision record that they were unable to locate any evidence of ‘[a named]’ school, the high school the applicant claimed to have taught at for several years in Kabul at her interview with the delegate. At hearing the applicant explained this school was first called ‘[another named]’ school, which is reflected in information contained in her Ministry of Education identity card provided to the Tribunal, issued [in 2011]. This may explain why the delegate was unable to locate evidence of [this named] school.
The applicant’s evidence about her husband is that he worked as an [occupation 2] in Afghanistan for several different employers including the Americans and [another country], building [infrastructure]. His most recent job was with a private [service company, named], up until around 2016 when he started to experience back pain and could no longer work. [Son A] clarified at hearing that the statement in his mother’s protection visa application form that his father also worked for the Afghan government was a mistake, as was the failure to indicate he had worked for the [other country] (in addition to the Americans) in the past. [Son A] provided to the Tribunal several letters, including from his father’s former employer in Afghanistan which show he worked for [Employer 1], a US headquartered [company] that operated in different parts of the world, including Afghanistan,[1] on various public works projects from around 2003 to 2005. On this basis, the Tribunal accepts the applicant’s husband’s qualifications and work history as claimed. It accepts he is a qualified [occupation 2] who worked for several employers in the past in Afghanistan, including a US company.
[1] [Source deleted.]
At hearing the applicant gave oral evidence about her background, reasons for leaving Afghanistan and fears if she has to return there now. She said initially she was not planning to stay in Australia. However, sometime after she left Afghanistan her husband was warned by Taliban members from the province he originates from (Logar), via others, to tell her to return to Afghanistan and not live in a county of ‘infidels’. He had received similar threats before, for several reasons including because the Taliban were not happy the applicant was a teacher, that her husband had worked for foreigners, and because their daughter had attended [University 1] in Kabul. The threats were sometimes in the form of letters: one of which the applicant’s husband sent to her son in Australia (a translated copy of which has been provided to the Tribunal).
The applicant said several years ago – she could not remember specifically when – her husband was abducted by the Taliban and detained for around a month. She is not sure why but noted that [occupation 2s] (among others) were targeted by the Taliban at the time. He was able to escape following a clash between the Taliban and Afghan government forces. In that same year her husband’s boss at the time – [Country 3] man named [Mr A] – was killed on his way to work when a bomb detonated in his car. [Son A] said his father usually drove to work with [Mr A], but for some reason he did not on the day of the bombing.
The applicant said over the years the Taliban also sent messages via others warning her to stop teaching; she just ignored them at the time. If she had to return to Kabul now, she believes the risk remains, or has increased given that the Taliban have taken over the country. Additionally, she would not be able to teach, and support herself financially as the Taliban would not let her and she has no other relatives there to assist her. Further she has no house, and the situation is very bad for women in Afghanistan. [Son A] noted a few days ago a school was bombed in Afghanistan, showing the Taliban’s (or whatever group was responsible) dislike of education there.
[Son A] added that his mother has experienced some mental health issues. When asked about this, the applicant said she finds it difficult in Australia, apart from most of her family. She initially lived with [Son A], his wife and their [children] (who she helped care for) in Australia, but due to a falling out with her daughter-in-law, she is no longer welcome at their house.
The Tribunal has considered the applicant’s claims about her and her family members’ past experiences in Afghanistan and current circumstances and fears. It accepts she worked as a teacher for many years in Kabul, that her husband worked as an [occupation 2], including for an American [occupation 2] company, and her daughter attended [University 1] in Kabul up until she left the country in 2018. At hearing the applicant said her daughter also worked part time (whilst studying) for [an international agency] in Afghanistan, which the Tribunal accepts.
The Tribunal accepts the applicant’s husband was abducted and detained by the Taliban for around a month in the past, possibly due to his work with the international community. It also accepts the applicant and her husband (and daughter) received threats from local Taliban members – either directly or indirectly – in the past, unhappy about the nature of their work, their employers, and place of study (in their daughter’s case). Country information indicates the Taliban targeted Afghans working for, supporting, or associated with the government and/or the international community, who were subject to threats, intimidation, abduction, and targeted killings.[2] The Tribunal accepts these threats have continued after the applicant left the country and was the trigger for her husband and youngest son to leave Afghanistan in around mid-2019 for [Country 1], where they remain.
[2] DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022), 14 January 2022, at 3.25
The Tribunal has some concerns about the veracity of the translated letter provided, allegedly from the Taliban to the applicant’s husband, accusing him and his family members of spying, and warning him of the repercussions if his family members overseas return to Afghanistan. This is because the applicant was somewhat vague about what the letter said at hearing, when it was received, and how her husband received it. At hearing [Son A] explained that he had obtained the letter from his father in [Country 1], which he then submitted to the Tribunal: this may explain why the applicant was somewhat vague about the details of the letter and how it was obtained and received. Despite these concerns, as the Tribunal accepts the applicant’s claims about her and her husband’s background and work history, and that they have received threats from the Taliban over the years due to the nature of their work, who they worked for, and given country information confirming who the Taliban used to intimidate and threaten (among other things) as set out above, the Tribunal is willing to accept the applicant’s husband received threatening letters from the Taliban as submitted. The Tribunal acknowledges she was outside Afghanistan at the time and relying on what her husband and/or son had told her about the letter in question.
The Tribunal also accepts the applicant has no family members or relatives remaining in Kabul, that her family are spread around the world, that her husband and youngest son are awaiting finalisation of humanitarian offshore visas to Australia in [Country 1], and that therefore if she returned to Kabul she would be doing so alone. It also accepts her husband has sold their family home in Kabul.
Well-founded fear of persecution in the future
Given these findings about the applicant’s (and her family members) past experiences in Afghanistan and profile, and current circumstances, the Tribunal has considered country information about the security situation in Afghanistan with a particular focus on the situation for women (and teachers) there, to determine whether her fears of persecution on return to Afghanistan are well-founded.
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).[3] The Taliban appointed an all-male cabinet, made up mostly of religious clerics affiliated to them, predominantly Pashtun with little representation from ethnic minorities.[4]
[3] DFAT Thematic Report, ibid at 2.1 and 2.4.
[4] 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.[5] 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[6] – faces greater internal challenges. DFAT considers it likely the terrorist attacks will continue and potentially increase.[7]
[5] DFAT Thematic Report, op cit at 2.18
[6] DFAT Thematic Report, ibid at 2.12
[7] 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.[8] 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.[9] 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.[10]
[8] DFAT Thematic Report, ibid at 2.24
[9] DFAT Thematic Report, ibid at 2.25
[10] 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’.[11]
[11] 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.[12]
[12] 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).[13]
[13] 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),[14] after abolishing the Ministry of Women’s Affairs. Its predecessor was responsible for much punitive violence between 1996 and 2001, particularly towards women.[15]
[14] UK Home Office Report, op cit, at 2.4.1
[15] 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.[16] 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.
[16] DFAT Thematic Report, ibid at 3.14
According to Human Rights Watch (HRW) in a 1 November 2021 article about on 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.[17]
[17] 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.[18] 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.[19]
[18] DFAT Thematic Report, ibid at 3.15
[19] DFAT Thematic Report, op cit 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 sixth 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.[20]
[20] 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.[21]
[21] France 24.com; ‘Girls education ban reveals deep rift within Taliban’, 15 April 2022: Girls’ education ban reveals deep rifts within Taliban (france24.com)
In terms of the situation for female teachers – relevant in the applicant’s case – the report from the UNHRC states:
The funding crisis has also meant that public-school teachers, in particularly contract teachers did not receive their monthly salaries on a regular basis, and are without clear perspective when or whether they will be paid again. In addition, no funds are available to provide key inputs to education such as funding to keep school operational, the provision of teaching and learning materials, including textbooks, or teacher training support, putting children in public schools at risk of dropping out. Even where girls have been allowed to attend schools, instruction has been constrained due to the absence of women teachers.
According to UNICEF “[f]emale teachers and education administration workers have continued to remain at home with exceptions being reported in some provinces across the country”. Due to ongoing restrictions, UNICEF has also suspended the Girls’ Access to Teacher Education (GATE) classes that provide much needed teacher training for female teachers.[22]
[22] UNHRC report, op cit, para 20 [footnotes omitted]
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.[23]
[23] DFAT Thematic Report, op cit at 3.19
In the UK Home Office Afghanistan country policy and information note 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.[24]
[24] 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’.[25]
[25] 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.[26]
[26] 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 [Tribunal emphasis] 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.[27]
[27] 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).[28] 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.[29]
[28] UNHRC report, op cit, para 33 [footnotes omitted]
[29] 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, and what it accepts of the applicant’s profile and past experiences, 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 applicant – as an educated woman (and teacher) who has received threats from the Taliban in the past – would be returning alone to Kabul without support.
Furthermore, based on the above country information the Tribunal considers the applicant would have little prospect of being able to work as a teacher to support herself, as she had in the past. Whilst the Taliban’s policies about whether women are able to work or not (and if so what kind of work) are not necessarily clear or unanimous, the early signs are that it has severely curtailed access to employment and education (among other things) for women, as the country information above indicates. The Tribunal therefore is of the view that the applicant also faces a real chance of serious harm in the form of denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
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, and she does not have a male protector and/or chaperone such as a husband, brother, or adult son. As noted, it also considers she is economically vulnerable given that even though she is a qualified and experienced teacher, it is unlikely the Taliban would allow her to work, and in some instances, she may be targeted as a teacher. She would likely experience significant difficulties finding accommodation and being able to support herself should she return to Kabul, with no support.
Taking into account these considerations, the country information referred to about the treatment of women, teachers 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),[30] 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).
[30] 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 also 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.
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 1958 (Cth).
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 2140

5 May 2022

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