2212935 (Refugee)

[2024] AATA 4465

2212935 (Refugee) [2024] AATA 4465 (2 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Besmellah Rezaee

CASE NUMBER:  2212935

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Melissa McAdam

DATE:2 October 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 02 October 2024 at 11:31am

CATCHWORDS

REFUGEE – Protection Visa – Afghanistan – religion – a Shia Muslim – race – Hazara ethnicity – imputed pro-government political opinion – is a citizen of Afghanistan – applicant has no right to enter and reside in Pakistan – applicant is vulnerable to abduction or violence while travelling by road – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 August 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Afghanistan, applied for the visa on 12 January 2019.

3. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   Background

10. The applicant came to Australia by boat to Ashmore Reef on [date] August 2012 and applied for a protection visa.

11. He stated his name as [Alias 1] and that he was born on [date] in [District 1] in Uruzgan Province Afghanistan.  He stated he is a Shia Muslim and of Hazara ethnicity.

12. He stated he was a citizen of Afghanistan but had lived primarily in Pakistan from approximately 1995 until 2012, apart from two periods in Iran.

13. He stated he was married with [children], all living in Pakistan, and he provided their names and details.  He also provided the names and details of his parents and siblings living in Pakistan.

14. He claimed to have a well-founded fear of persecution in Afghanistan.

15. At the time of his initial Protection visa application the Department obtained information from [Country 1] authorities that the applicant had applied for a [Country 1] visa in 2011 in [City 1, Country 2] using a Pakistan passport.  His [Country 1] visa application was refused.  The applicant confirmed that through a smuggler he had tried to travel to [Country 1] at that time but was refused entry in transit in [City 2, Country 2] because his Pakistan passport and visa were considered fraudulent.

16. A Department of Home Affairs delegate was satisfied that the applicant was a citizen of Afghanistan and that he was person in respect of whom Australia had protection obligations. The applicant was granted a three year Temporary Protection (Subclass 785) visa (‘TPV’) on 8 January 2016. 

17. The applicant’s TPV ceased on 8 January 2019. 

18. On 12 January 2019 the applicant applied for a Subclass 790 Safe Haven Enterprise visa (‘SHEV’), the subject of this review.

19. The Department obtained further information from the [Country 1] authorities in relation to his [Country 1] visa application, indicating that the applicant’s fingerprints were provided to the [Country 1] Embassy in [City 1, Country 2] in 2011. This information was put to the applicant.  He maintained that he had provided his fingerprints to the [Country 1] Embassy in Karachi and had never been to [City 1, Country 2]. 

20. The applicant admitted he had provided incorrect information in relation to his first name; his place of birth in Afghanistan; his day and month of birth; and the names of his father, one of his sisters ([Ms A]), and one of his brothers ([Mr B]).  

21. The applicant stated his name was [Name 1], his place of birth was [Village 1] village in [District 2] district in Ghazni province, and he only knew his birth year to be [year].  He stated his father had only one name (Haji) [Mr C] and did not have a second name ‘[Name 2]’.  He stated he paid for and obtained a fraudulent Pakistan National Identity Card while living in Quetta.  The card was eventually identified as fraudulent and blocked by the Pakistan authorities.  He stated he obtained a fraudulent Afghan Taskera in the name ‘[Alias 1]’ based on the records of a ‘[Name 2]’ from [District 1].  He has a genuine Taskera in his real name and details which he obtained when he was [age] years old.  He lost the document and received a duplicate replacement in 2003.

22. The Delegate put to the applicant that, based upon the information received from [Country 1] authorities, as set out above, he believed the applicant was a Pakistan citizen who had been working and living in [City 1, Country 2] in and around 2011. The applicant denied this and submitted his duplicate Afghan Taskera and property documents from Afghanistan to confirm he is an Afghan citizen.  He also submitted Afghan identity documents for three of his siblings.

23. In April 2022 the applicant submitted a Statutory Declaration to the Department in which he outlined the following:

    Correct name

    My full name is [Name 1].

    My surname is derived from one of my forefathers around seven generations back, a very wealthy man called [name].

    I adopted the alias [Alias 1] when I came to Australia. I had not previously been known by ‘[Alias 1]’ before this. I sincerely regret having doing so.

    The people smuggler gave me incorrect advice. He told me that as I had obtained a fraudulent Pakistani national identity card and fraudulent Pakistani passport the Australian government would consider me to be a criminal and would deport me to Afghanistan if they knew my real name.

    I was terrified of this happening and as I had paid the people smuggler a lot of money and entrusted my life to him I didn’t have any reason to doubt his advice. I recognise that this was an extremely serious error of judgement. I sincerely apologise for not having corrected this information with the Department earlier.

    Father’s name

    I previously advised the Department that my father had two names, [Name 2] and [Mr C].

    This is not correct. My father only had one name, [Mr C]. He was also known by the honorific title ‘Haji’ or ‘Al Haj’ [Mr C] as he had been on pilgrimage to Mecca.

    Date of birth

    My exact date of birth is not known, however my year of birth is [year].

    As stated at interview, I asked the Department to record my day and month of birth as [date] because that was the day that we were rescued by the Australian navy. That was the day that I felt like I had started a new life.

    My fraudulent Pakistani passport had the date of birth [date]. The year of birth was correct however the day and month were randomly assigned.

    Place of birth

    I would like to also advise that I provided incorrect information about my place of birth.

    I am not from the [District 1] district of the Uruzgan province in Afghanistan. I previously stated that I was from [District 1] because we used to have a shop there and I worked in [Village 3] area of Uruzgan.

    My actual place of birth is [Village 1] village in the [District 2] district of Ghazni Province of Afghanistan.

    Journey to Australia

    I tried to go to Australia before but was deported from [City 2, Country 2] to Karachi.

    I was successful on the second attempt.

    [Country 2]

    As stated at interview, I have never lived or worked in [Country 2]. I have never been to [City 1, Country 2].

    I went to the [Country 1] embassy in Karachi with the people smuggler and completed a visa application there and provided my fingerprints.

    Fraudulent Pakistani identity cards and Afghan citizenship

    I am an Afghan citizen and have never held nor been entitled to any other citizenship.

    My father has passed away but my mother is still alive. Both my parents have only ever held Afghan citizenship and were never entitled to Pakistani citizenship.

    As Afghan refugees living in Pakistan, my family and I were at risk of deportation and harassment. For this reason I obtained a fraudulent Pakistani national identity card through an agent.

    The name on my card was my real name, [Name 1 given name] but my father’s name was stated as [Name 3].

    I am aware that in Pakistan some fraudulent national identity cards are issued based on genuine Pakistani citizens’ family’s official records.  The agent told me that this was not the case when my card was issued.  He told me that there wasn’t an actual person called [Name 3] that the card was issued based on.

    I paid around 125,000 Pakistani rupees to obtain this fraudulent document in 1995. I provided two or three passport-sized photos along with the name [Name 1 given name].

    When the Pakistani government started issuing computerised cards I applied for and obtained one. My card was later identified as fraudulent by the Pakistani government and was blocked.

    Fraudulent Afghan national identity document (tazkera)

    I sincerely apologise for having obtained a fraudulent tazkera under the alias [name]. I did so to substantiate the incorrect information I had provided previously.

    My distant relative [paid] an agent in Kabul to obtain the tazkera for me based on the records of another person called [Name 2] from the [District 1] district of Uruzgan province.

    Genuine tazkera

    I have a genuine tazkera with serial number [deleted] that I did not provide to the Department previously. I obtained this document myself when I was [age] years old.  I later misplaced the document and obtained a duplicate of it in 2003.

    A copy of this tazkera will be provided along with this statement.
    [10224437] ADD20222453276 - LYN067_ BEIGI,  - post-i
    Family composition

    I apologise for having incorrect information about my family composition and their whereabouts.

    My father [Mr C] is not alive, he is deceased. He passed away about two years ago in Pakistan.

    I incorrectly provided my sister [Ms A] ’s name as [name] in my previous visa applications. A copy of her tazkera will be provided along with this statement.

    I have also made the same mistake with my brother’s name. For my brother [Mr B], I stated his name as [name]. He is actually [Mr B].

    Below is my accurate family composition:

    Relationship to me; First name Last name Date of birth; Country of current residence

    Father [Mr C] [year] Deceased
    [Mother] [year] Pakistan
    Brother [Mr D] [year] Iran
    Sister [Ms E] (aka [alias]) [year] [Country 1]
    Brother [Mr F] [year] [Country 1]
    Sister [Ms A] [date] Afghanistan
    Brother [Mr B] [Country 1]

    Immediate family members

    Wife [name and year] Pakistan
    Daughter [name and year] Pakistan
    Daughter [name and year] Pakistan
    Son [name and year] [Country 1]
    Daughter [Daughter 1] [year] Pakistan
    Son [Son 1] [year] [Country 3]
    Son [Son 3] [year] Pakistan
    Son [Son 3] [year] Pakistan

    Sister [Ms A]

    My sister [Ms A] has a son [who] lives in Sydney.

    Supporting documents

    In support of my identity, I am providing copies of the following documents:

    - A copy of my tazkera [along] with English translation
    - A copy of my brother [Mr D]’s tazkera along with English translation
    - A copy of my brother [Mr F’s] tazkera along with English translation
    - A copy of my sister [Ms A]’s electronic tazkera
    - A copy of a document related to land I purchased in Afghanistan
    - A copy of a document related land my father purchased in Afghanistan
    - Historical photos evidencing my previous residence in Afghanistan

    Delegate’s Decision

24. The delegate found that the applicant was a citizen of Pakistan, not Afghanistan and refused his application for a SHEV.

    Information to the Tribunal

    Pre-Hearing Submissions

25. On 14 November 2023 the applicant’s Representative submitted two reports dated 27 April 2023 from the applicant’s treating Psychologist. In the reports the psychologist outlines the following:

    …
    [Alias 1] presented with severe symptoms of PTSD, Anxiety and Depression. [Alias 1]’s psychological health is significantly affected by his life circumstances and frustration of living away from his family for eleven years. He had severe levels of depressive symptoms that included insomnia, disturbed appetite, compromised self-care and limited social relationships. He felt very helpless to acknowledge his poor mental functioning. He experienced flashback and nightmares with abduction themes.

    [Alias 1]’s psychological disturbance affected his memory, attention, concentration and pragmatic skills. He depended on others to help him in decision making, problem solving and goal setting needs.

    [Alias 1] reported worries about his family all the time that gave his Anxiety symptoms that included shaking, palpitations, dizziness, headaches and neck pain. His anxiety affected his coping with his routine management. He constantly thought about his family overseas He deemed that their safety was at risk due to their ethnicity and religion.

    Treatment and Diagnosis
    [Alias 1]’s Psychological symptoms meet the diagnostic criteria of Major Depressive Disorder, Generalised Anxiety and Post Traumatic Stress Disorder (PTSD). [Alias 1] was provided with psychoeducation and basic counselling for his depression anxiety and stress. His treatment plan included relaxation strategies, psychoeducation, stress management and sleep improvement strategies as part of CBT to help his cope at better levels with his symptoms. His next appointment is booked in June 2023. He does not have a financial capacity to afford the psychology fees although it has been subsidised for him but due to his limited income and responsibilities of supporting his family, he cannot afford fortnightly or monthly sessions.

    Conclusion
    [Alias 1] presented with severe PTSD, Depression. Anxiety and Stress symptoms that was affecting all the areas of his daily life. His mental health issues could be related with living away from his family, his abduction, long term uncertainty of his life in Australia, issues related to his children and worrying about their safety and wellbeing.

26. On 18 September 2024 the applicant’s Representative submitted the following materials to the Tribunal:

    ·Country information regarding attacks on Shia Hazaras in Pakistan.

    ·Country information regarding targeting of Shia Hazaras in Afghanistan.

    ·The Australian Citizenship Certificate and Victorian Driver's licence for [Mr G].

    ·A written statement by [Mr G].

    ·An Afghan Identity document (not translated).

    ·The Australian passport and NSW Driver's licence of [Mr H].

    ·A written statement by [Mr H].

    ·An Afghan Taskera for [Mr H].

    ·A written submission by the Representative.

    ·The applicant’s Afghan Taskera issued in [2003], with English translation.

    ·The applicant’s Pakistan National Identity Card issued in 2002, with English translation.

    ·[Mother]’s Afghan National Identity Card, issued in [2022].

    ·[Wife]’s Afghan National Identity Card, issued in [2022].

    ·[Wife]’s Afghan Passport, issued in [2024].

    ·[Daughter 1]’s Afghan National Identity Card, issued in [2022].

    ·[Daughter 1] ’s Afghan Passport, issued in [2024].

    ·[Son 3]’s Afghan National Identity Card, issued in [2022].

    ·[Son 3]’s Afghan Passport, issued in [2024].

    ·[Son 2] ’s Afghan National Identity Card, issued in [2022].

    ·[Son 2]’s Afghan Passport, issued in [2024].

    ·[Mr D’s] Afghan Taskera with English translation.

    ·[Mr F]’s Afghan Taskera with English translation.

    ·[Ms A]’s Afghan National Identity Card issued in [2022].

    ·[Named person]’s Afghan Taskera with English translation.

    ·An Afghan Ministry of Commerce Business Licence in the name of [Name 1] and [Mr D], issued on [July] 2007 in Kabul, for a business ‘[name deleted]’.

    ·A property sale document (with English translation) for land [to] [Mr C] in October 2000.

    ·A property purchase document (with English translation) of land by the applicant in July 2003.

    ·Several photographs of the applicant with his family and others in his village, [Village 1], in 1992.

    ·Several photographs of the applicant with family and relatives in [District 3] in 2003.

    ·A copy of AAT Decision 1910959 issued on 8 August 2024.

    ·A copy of AAT Decision 2002465 issued on 27 September 2022.

    ·A Statutory Declaration by the applicant in response to the Tribunal’s written request for further information.

    ·A Taskera with English translation for [Ms A] .

    ·The [Country 1] passport for [Ms E alias] showing place of birth as Ghazni.

    ·The [Country 1] Driver's licence for [Mr B], showing country of birth as Afghanistan.

    ·The [Country 1] Driver's licence for [Mr I], showing country of birth as Afghanistan.

    ·A [Country 3] National ID Card for [Son 1], showing place of birth as [Village 1], Afghanistan.

1. In the applicant’s Statutory Declaration he writes the following:

   Details about how I obtained my duplicate Afghanistan Taskera in 2003:

   I obtained my duplicate Taskera in 2003. I went in person to Ghazni city in Ghazni province of Afghanistan. I got an application form for 20 Afghan Afghani. I took the application form to a petition [writer]. I paid the petition writer to fill in the application form and the petition writer filled in the application form for me. Then I took the filled application form to the office where Taskeras are issued. The officer working at that office found my record and confirmed my Afghan family lineage, and asked me for photos. I provided the required photos to the officer. The officer confirmed and attested that the details provided in the application form were correct and sent me to another officer in the same office. This officer received all the attested application form, photos and fees. Then the officer asked me to receive my Taskera the next day from the same office.

   Details about how my sister [Ms A] obtained her Afghanistan National Identity Card issued in [2022]:

   My sister [Ms A] took her old previous paper Taskera to the Office in Kabul where Taskeras are issued. She showed her old paper Taskera to the officer and requested to obtain a computerized Taskera. She was referred to other Officer who received a fee of about 300 Afghan Afghani and the officer asked her for the fingerprints and photographs. The next day when she provided her fingerprints and photographs, the officer told her to receive her computerized Taskera after one month from the same office.

   English translation of the front of [Ms A]'s Afghanistan National Identity Card:

   Please see Annexure 1 for the English translation of the front of [Ms A]'s Afghanistan National Identity Card.

   Explanation as to why I initially provided incorrect names for my sister [Ms A] and my brother [Mr B]:

   In my family when someone became sick then my mother changed the name in family only without changing the name in record of the government of Afghanistan. When my sister [Ms A] and my brother [Mr B] got very sick in their childhoods, my mother changed their names in the family only. Their correct names, on record with the government of Afghanistan, are [Ms A] and [Mr B] while the incorrect names are [name] and [name] respectively.

   Information as to whether [Alias 1] of [District 1] is any relation of, or has any connection to, you:

   [Alias 1] is my incorrect name and my mother used to call me [Alias 1] only at home because in my childhood I got very sick and my mother had to change my name. My actual and real name is [Name 1]. I had a shop in [Village 3] village in [District 1]. It takes about thirty minutes of drive from [Village 1] village to reach [Village 3] village. I closed my shop in [Village 3], [District 1] because I was kidnapped by Taliban in [District 1]. I was imprisoned by Taliban for one month. Then after one month I was freed from the prison by Taliban. I heard that I was freed from prison because my father bribed Taliban. After I was freed, I went to [Village 1].

   Submission of Historical Photos:

   Please see annexure 2 for the historical photos.

   Details about when (precise date if known), where (location address) and how (description of what happened) I provided my fingerprints to the [Country 1] authorities in Karachi in or around 2011:

   In Karachi, Pakistan I met an agent who told me to apply for a visa to the [Country 1]. He led me to the [Country 1] Consulate in Karachi, Pakistan for a visa application. In Karachi, Pakistan we travelled [to] the [Country 1] [Consulate]. I do not exactly remember the location address of the [Country 1] Consulate but it was somewhere in Karachi, Pakistan. I also do not remember the precise date. I went inside the [Country 1] Consulate building alone and I submitted the Pakistani Passport. They received an amount of fees, the copy of Pakistani ID card and a mobile number. I think they took my fingerprints too. They said they will be in contact with me. After 15 or 20 days they informed me that my visa application was rejected.

   Please see the Annexure 3 for [Ms E] (also known as [Ms E alias]), Annexure 4 for [Mr B]'s, Annexure 5 for [Mr I] and Annexure 6 for [Son 1’s] official documents confirming they are citizens of Afghanistan.

2. In the written statement by [Mr G] he writes:

   My name is [Mr G]  … I am an Australian citizen. …

   I and [Name 1] are originally from the village of [Village 1] in [District 2] district of Ghazni province in Afghanistan.

   We studied at a government school in [Village 1] from class 1 to 3. After class 3 we studied at a local Mosque under a religious [teacher]. We studied for approximately four years in the same local Mosque.

   [He] was very smart student and he always learnt his lessons very quickly. The teacher used to praise him for his intelligence.

   I remember in winter, on our return to home from the Mosque we used to make snow balls and hit each other with snow balls.

   After studying for four years at the local Masjid, I then started working as a farmer at a local farm in [Village 1]. [He] started working at the shops owned by his father.

   In [Village 1] we used to see each other regularly. When [he] worked at his shop in [District 2], then we used to see each other every Friday whenever he returned to his family house in [Village 1].

   Approximately, in 1998 I migrated with my family to Pakistan. There, I met [him] in Quetta, Pakistan where he owned a [shop]. I visited him at his shop and we used to meet at least twice a week. We had good relations in Pakistan.

   I left Pakistan at the end of 2009 and came to Australia by boat in May 2010. I was on Christmas Island and later in 2013 when I settled in Melbourne, [he] called me from Brisbane to know how I was.

   Approximately, in 2014 I invited [him] at my friend's house in Melbourne and there we saw each other in person. When I saw him, I was very happy that he was healthy and out of the camp because we faced hard times in Afghanistan and Pakistan.

   I regularly see [him] and he is a very good friend of mine. I invite him in our celebrations and we go to Mosque together in Melbourne.

   [He] is a respectable person. He has good and complete personality in terms of politeness, education and humanity. He is always helpful in the community.

3. In the written statement by [Mr H] he writes:

   My name is [Mr H]…. I am an Australian citizen. …

   I am from [Village 1] village of [District 2] district in Ghazni province of Afghanistan. [Name 1] is also originally from [Village 1] village.

   I know [him] from childhood. We grew up in [Village 1]. He is about 5 years older than me. In Afghanistan the date of birth is not given importance and is not properly recorded.

   My house in [Village 1] is approximately 50 meters away from [his] family house. We used to see each other every day.

   We studied at a government school in [Village 1]. I was in class 1 and he was in class 3. Then we studied at a local Mosque in [Village 1]. There were boys with different ages in the same class and we used to call our teacher as '[name]'.

   In childhood [he] was a quite boy but he was very nice and respectful with others. I remember, he was a very smart student in our class and our teacher told every student in the class that [he] was the best student because he learnt very quickly and he was very intelligent.

   I also remember that we used to play in the field and we went home after getting very tired. We played so much in the field that our shoes tore apart and only [him] used to get angry about his torn shoes. I think because his family was wealthier and he liked money a lot.

   Later, [he] went to [District 2] to work at his father's shop. I used to travel from [Village 1] to his father's shop [to] buy groceries.

   He used to return to [Village 1] on Fridays to his family home and we used to see each other on Fridays.

   I lived in [Village 1] until approximately I was [age] years old. When I migrated with my family to Quetta, Pakistan, around 16 years ago I saw [him] there. I went to his house in [Quetta], Pakistan. We had a very good family relationship.

   I came to Australia by boat in July 2012. We settled in Sydney, NSW, then [he] called me and I sent him my home address. He came to my home and until now we have regular communications. We see each other during celebrations.

   [He] is just like my close family member. He is always helpful to me. He has a very good heart. Last year when there was [an incident] in [Village 1], he collected donations in Australia and sent to [Village 1] to help the flood affected people there.

   He always helps others in the community. He is a very nice person and he has a very good character.

   Tribunal Hearing

4. The applicant appeared before the Tribunal on 25 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant lived in his village [Village 1] for [number] years. He was born there.  His village was situated between [districts]. His village was in a valley surrounded by mountains. He named the prominent mountains in the [area].

   b.The applicant left his village in around 1995 and went to Pakistan.  He crossed into Pakistan illegally.

   c.The applicant first went to Iran when he was still living in Afghanistan. He stayed there for six months and then returned to Afghanistan.

   d.The applicant went to Iran again when he was living in Pakistan. He stayed there for one year and then returned to Pakistan.

   e.The applicant travelled into Iran illegally.  He and others were driven across the border using alternative routes without security checkpoints.

   f.The applicant obtained a business licence with his brother [Mr D] in Afghanistan in 2002.  They wanted to open a shop but could not find a location.

   g.The applicant went to Ghazni in 2003 to obtain another Taskera because he was hoping to work in Afghanistan.  He stayed in Afghanistan for only about two weeks because he observed the work conditions there were not good.

   h.The applicant obtained a Pakistan National ID Card by paying a person money. The person gave the applicant the ID Card and a Pakistan passport but he did not register the card or passport in the official records. The card and passport expired so the applicant could no longer use them.

   i.The applicant’s siblings and a son travelled to [Country 1] and Europe through Iran and then Turkey. They have obtained permanent residence in [Country 1] and Europe.

   j.One of the applicant’s sisters is still in Afghanistan. She is in Kabul.  He also has a cousin in Sang-e Masha.  He no longer has any family or relatives in [Village 1].

   k.The applicant’s mother, wife and other children are still in Pakistan in [Quetta].

   l.The applicant cannot return to Pakistan. Pakistan is not his home. He cannot legally return to Pakistan because his documents were obtained through bribery and have expired.

   m.The applicant has been in Australia for nearly 13 years. He gets quite depressed being away from his family and struggles sleeping.  His children in Pakistan cannot study and his wife has mental health and physical health problems.

   Country Information

   Afghanistan

6. DFAT’s ‘Thematic Report on Political and Security Development ins Afghanistan (August 2021 to January 2022)’, published on 14 January 2022, contains the following:

   Hazara
   The Hazara are an ethnic group of distinctive East Asian appearance, native to the Hazarajat region of Afghanistan. Their language, Hazaragi, is a variety of Persian that is mutually intelligible with Dari. The Hazara are one of Afghanistan’s fourteen recognised ethnic groups, estimated at around 10-20 per cent of Afghanistan’s population. The majority of Hazara are Shi’a. The takeover of Kabul and most of Afghanistan by the predominantly Sunni and Pashtun Taliban in 1996 marked a period of considerable repression and hardship for the Hazara nationwide: the worst single recorded massacre in the country’s recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazara. Many Hazara fled Afghanistan during this period to escape Taliban oppression.

   The Hazara made significant social, political, and economic gains in Afghanistan after the fall of the Taliban in 2001, albeit from a low base. The return of the Taliban in 2021 was met with great fear by the Hazara community. The Hazara community regards the Taliban’s promises of amnesty and inclusivity with scepticism. One member of the Hazara community has been appointed to a relatively minor position in the interim Taliban ministry (Dr Mohammad Hassan Gheyasi, who was appointed Deputy Minister of Public Health), but Hazaras are not otherwise represented in the interim Taliban government.

   Two of ISKP’s mass-casualty terror attacks, along with smaller attacks since mid-August 2021,  have directly targeted Shi’ite mosques chiefly used by Hazaras. After the Kandahar attack of 15 October 2021, ISKP issued a statement saying it would target Shi’a in their homes and centres ‘in every way, from slaughtering their necks to scattering their limbs… and the news of [ISIS’s] attacks…in the temples of the [Shi’a] and their gatherings is not hidden from anyone, from Baghdad to Khorasan.’ Sources report that the Taliban referred to the largely Shi’a victims of the Kunduz bombing of 8 October 2021 as having been ‘martyred’, indicating possible support for Hazara victims ordinarily derided by the Taliban as ‘infidels’ (and therefore incapable of martyrdom). While the Taliban may be attempting to disrupt ISKP and prevent its attacks on Hazaras, this, along with the Taliban’s professed amnesty, does not indicate that it has put aside its historical antipathy towards Hazaras. Since its takeover in August 2021, the Taliban has summarily executed Hazaras who were former members of the security forces. Furthermore, hundreds of Hazara families have been forcibly evicted from their homes in central Afghanistan. The Taliban claims these evictions are ‘property disputes,’ but NGOs have described them as a form of ethnic cleansing (although one source suggests these evictions may be the result of local score-settling, rather than ethnically-based).

   DFAT assesses that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. While the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISKP terror attacks and Taliban violence, including hundreds of evictions.
   …

   Shi’a

   The overwhelming majority of Afghan Shi’a are Hazara, although a small number of Hazara are Sunni. There are also some Shi’a from other ethnic groups, including some Pashtun, Tajiks and Turkic peoples. The Taliban, ISKP, Al-Qa’ida and most other terrorist/insurgent forces in  Afghanistan are Sunni. While Sunni and Shi’a Muslims have lived side-by-side for much of Afghanistan’s history, religious hardliners such as the Taliban typically do not consider Shi’a to be true Muslims.

   DFAT assesses that Shi’a face a high risk of being targeted by ISKP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat. …

7. The 2023 US DOS ‘Country Reports in Human Rights: Afghanistan’ includes the following:

   Significant human rights issues included credible reports of: killings; severe physical abuse; harsh and life-threatening prison conditions; unjust detentions and abductions, including disappearances; serious problems with independence of the judiciary; political prisoners or detainees; arbitrary or unlawful interference with privacy; punishment of family members for alleged offenses of a relative; serious abuses in a conflict, including widespread civilian deaths or harm, disappearances and abductions, and severe physical abuse; unlawful recruitment or use of children in armed conflict by the Taliban; serious restrictions on freedom of expression and media freedom, including detentions of and violence against journalists, and censorship; serious restrictions on internet freedom; substantial interference with freedom of peaceful assembly and freedom of association; restrictions on religious freedom; restrictions on freedom of movement and residence and on the right to leave the country; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious corruption; serious restrictions on and harassment of domestic and international human rights organizations; extensive gender-based violence, including domestic and intimate partner violence, sexual violence, child, early, and forced marriage, and other harmful practices; substantial barriers to accessing sexual and reproductive health services; crimes involving violence or threats of violence targeting members of ethnic and religious minority groups (Hazara, Sikh, Shia, Salafi, Ahmadi, Hindu, and Christian groups); trafficking in persons, including forced labor; existence and enforcement of laws criminalizing consensual same-sex sexual conduct; crimes involving violence against lesbian, gay, bisexual, transgender, queer, or intersex persons; significant restrictions on workers’ freedom of association; and the existence of the worst forms of child labor.

   There was widespread disregard for the rule of law and official impunity for those responsible for human rights abuses. The Taliban and ISIS-K reportedly engaged in child recruitment and used child soldiers younger than 12 during the year. Armed groups threatened, robbed, kidnapped, and attacked foreigners, medical and nongovernmental organization workers, and other civilians. 

   …

   Religion and ethnicity in the country were often closely linked. The population included a wide range of distinct ethnic groups. The Hazara, the third largest ethnic group in the country and predominantly Shiite Muslims, bore the brunt of systemic discrimination by the Taliban. Societal discrimination against Hazaras existed in the form of extortion through illegal taxation, forced recruitment, forced labor, physical abuse, property confiscation, and detention. There were many reports Taliban fighters, ISIS-K members, and other unknown actors targeted and killed members of the Hazara community, although ISIS-K attacks reportedly decreased during the year. … [emphasis added].

8. The UNHCR’s February 2023 ‘Guidance Note on the International Protection Needs of People Fleeing Afghanistan – Update 1’, contains the following:

   The Taliban de facto authorities are reported to have committed serious human rights violations, including extrajudicial killings, arbitrary arrest and detention, torture and other forms of ill-treatment. In addition, the de facto authorities have imposed restrictions on the rights of Afghans to freedom of opinion, freedom of speech, and freedom of assembly, in violation of Afghanistan’s obligations under international human rights law.

9. The UNHCR’s report also includes Hazaras among the groups having “increased refugee protection needs compared to the situation prior to the events of 15 April 2021” [at para 16].

10. A recent Human Rights Watch article refers to the Hazara community in Afghanistan and states:

    The Islamic State Khorasan Province (ISKP), affiliated with ISIS, has claimed responsibly for killing 14 men in Daikundi province this week, the latest attack on the Hazara community in Afghanistan. The killings took place in a remote border district between Daikundi, which has a predominantly Hazara population, and Ghor provinces, in central Afghanistan. The men were returning from a pilgrimage to Shia holy sites in Karbala, Iraq when gunmen opened fire on the group.

    Since emerging in Afghanistan in 2015, ISKP has killed and injured thousands of Hazaras and members of other religious minorities in attacks targeting mosques, schools, and workplaces. After the Taliban took over Afghanistan in August 2021, ISKP has claimed responsibility for at least 17 attacks against Hazaras, killing and injuring more than 700 people.

    In October 2021, Human Rights Watch concluded that ISKP bombings and other targeted attacks against the Hazara community amounted to crimes against humanity. Richard Bennett, the United Nations special rapporteur on human rights in Afghanistan, has called for investigations into ISKP attacks. This latest attack underscores the urgent need for the Taliban to take effective measures to protect all at-risk communities in Afghanistan, including Hazaras and other Shia Muslims.[1]

    Pakistan

    [1] Human Rights Watch, 2024, “Afghanistan’s Hazara Community Needs Protection”, 13 September.

1. DFAT’s most recent Country information report on Pakistan, published in January 2022 contains the following:

   Hazaras

   The Hazaras are an ethnic group of distinctive East Asian appearance, native to the Hazarajat region of Afghanistan. Their language, Hazaragi, is a variety of Persian that is mutually intelligible with Dari. There are an estimated 600,000 to 1 million Hazaras in Pakistan. Most are Shi’a Muslims of the Twelver Sect, although some belong to the Ismaeli sect and a small number are Sunni.

   Large groups of Hazaras migrated to Pakistan from Afghanistan in the late 19th century, during the 1978-89 Afghan War, and following the Taliban takeover in 1996. Most live in enclaves in Quetta due to the security situation in Balochistan. Smaller populations live in Karachi, Lahore and Islamabad. Hazaras outside Quetta tend not to live in enclaves to reduce the risk of ethnic profiling, discrimination and attack. Hazaras participate in regional politics, and there are two MPs from the Hazara Democratic Party (HDP) in the Balochistan provincial assembly. Some Hazaras are documented Pakistani citizens or possess other forms of documentation that permit them to legally reside in Pakistan. Others are undocumented. Whether a Hazara is legally entitled to access public services and the like depends partly on their documented status, although other factors may curtail access regardless, including the security situation for Hazaras in Pakistan.

   Militant groups including, LeJ and IS consider the Hazaras ‘infidels’ who are ‘worthy of killing’. A 2019 report by the NCHR said at least 2,000 Hazaras had been killed by militants in Pakistan since 1999 ‘in various incidents including bomb blast, suicide attacks and target killings’. No one has been held accountable for these attacks. Hazara political and religious leaders have been targeted for assassination. In April 2019, a bombing in Hazarganji market killed 24 people, many of them Hazaras. In January 2021, IS militants killed 11 Hazara miners in Mach. While there have been no attacks outside Balochistan since 2014, Hazaras have previously been targeted in Karachi, Peshawar and elsewhere. Militant groups retain the intent and capacity to attack Hazaras throughout Pakistan.

   The Hazara community in Quetta lives in two enclaves: Hazara town and Mariabad. The Pakistani government provides security in these communities, including vehicle checkpoints and searches on entry and exit. Government forces also provide security for Hazara religious processions and Hazarganji market. Hazaras who leave Quetta are required to notify the security agencies. Local sources report Frontier Corps routinely harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps have described Hazaras as ‘agents of Iran’ and ‘untrustworthy’.

   Medical, education and other services inside the enclaves are basic. Food and other essentials must be brought in from outside, and prices are reportedly double those elsewhere in Quetta. Those who can afford to travel to Karachi for medical treatment do so, while others must attend Quetta hospitals outside the enclaves, where they have been attacked in the past. Sectarian militants have also attacked Hazara religious processions, places of worship, and pilgrims on their way to Iran.

   Schools exist within the enclaves, but there is little opportunity for higher education. Many Hazara students have abandoned the hope of higher education due to the risk of travelling. A small number of wealthier Hazaras send their children to study at universities in Lahore or Islamabad, where they reportedly feel safer.

   …

   While most Hazaras in Pakistan can obtain formal identification such as Computerised National Identity Cards (CNICs), Hazaras claim National Database and Registration Authority (NADRA) officials at times cause delays for Hazaras. Hazaras have suffered lethal attacks outside the NADRA office in Quetta while trying to obtain passports and CNICs. As a result, many Hazaras do not feel safe leaving the enclaves to apply for documentation.

   DFAT assesses Hazaras who live in the enclaves in Quetta face a moderate risk of societal discrimination in the form of impeded access to higher education, medical services, employment and affordable food. Within and outside the enclaves, Hazaras face a moderate risk of official discrimination, including by government officials and security forces, in the form of obstruction at checkpoints and denial of or delay in access to identity documentation, employment and services. DFAT assesses such discrimination reflects widespread individual prejudice rather than official policy.

   DFAT assesses Hazaras in Balochistan face a high risk of violence from militants on the basis of their ethnic and sectarian identity. Outside Balochistan the risk of violence for Hazaras is moderate. Hazaras face a higher risk of violence than other Shi’a due to their distinctive appearance and segregation. Outside Balochistan, DFAT assesses Hazaras face a low risk of societal or official discrimination, but notes relocation to these areas is difficult or impossible for many.

   …

   Afghans

   Successive wars, chronic instability and a lack of economic opportunities have driven millions of Afghans to Pakistan since the late 1970s. As of August 2021, there were approximately 1.4 million registered Afghan refugees and at least the same number of unregistered Afghans in Pakistan, more refugees than in any other country in the world except Turkey. Of this number, more than 80 per cent are Pashtun, while the remainder includes Tajiks, Uzbeks, Hazaras and others. Some have been in Pakistan for decades. Many younger Afghans were born in Pakistan. In 2018, Prime Minister Imran Khan declared that the children of Afghans and other refugees who were born in Pakistan were constitutionally entitled to citizenship, but in practice NADRA continues to refuse to issue identity cards for these people. Under Section 10 of the Citizenship Act of 1951, it is possible for foreign women, including Afghans, to obtain Pakistani citizenship by marrying a Pakistani, but the reverse is not true; that is, a Pakistani woman cannot transmit her citizenship to her foreign husband by marriage.

   The border between Pakistan and Afghanistan is porous and, given the high rate of document fraud, it can be difficult to verify whether someone is a Pakistani or an Afghan national. The legal status of Afghans in Pakistan varies. Some hold documents issued by the Pakistani government, while others are registered as refugees or asylum seekers with the UNHCR. Many are completely undocumented. Pakistan is not a signatory to the 1951 Refugee Convention.

   In 2007, Pakistan, Afghanistan and the UNHCR signed a tripartite agreement which gave Afghan refugees the right to register and obtain a Proof of Registration (PoR) Card, identifying them as Afghan refugees eligible for protection and support through the UNHCR under Pakistani refugee laws. PoR holders are entitled to stay temporarily in Pakistan, enjoy freedom of movement, and have access to public health and education. They can rent property, open bank accounts and register births. They are allowed to attend Pakistani universities, but places are limited and very few have the means to do so. They cannot legally work, although many do work in the informal economy. They are ineligible for Pakistani government welfare payments, although some assistance is available through UNHCR programs.

   In 2017, the government launched a further, six-month program to register undocumented Afghans by issuing them with a new Afghan Citizenship Card (ACC). The ACC is a temporary identity document for Afghans without other forms of identification and offers far more limited benefits than the PoR. ACC holders are entitled to stay temporarily in Pakistan and have freedom of movement but cannot access public health services or public education. Like PoR holders, they cannot legally work and, while many do work in the informal economy, they are vulnerable to abuse and exploitation. During the registration period any self-declared Afghan could apply for an ACC, but PoR card holders and single males under 18 were excluded.

   Many Afghan refugees in Pakistan hold neither an ACC nor PoR. Some are registered as refugees or asylum seekers with the UNHCR and can legally stay temporarily in Pakistan, although this is not always understood or respected by security forces. Afghans registered with the UNHCR can theoretically rent property, register births and access health services and education, but this usually requires intervention by the UNHCR and is unattainable for many. Others have no Pakistani or UNHCR documents, although they may hold a tazkira (Afghan national identity document) or Afghan passport. These undocumented Afghans are in breach of the Foreigners Act, 1946 and are liable to arrest, detention and deportation.

   Afghans are often treated with suspicion by Pakistani security forces. According to the UNHCR, they are frequently targeted for arrest and detention, and are vulnerable to labour exploitation, including of children. Afghan women in Pakistan suffer high rates of early and forced marriage and gender-based violence. A 2017 Human Rights Watch report claimed abuse of Afghan refugees by Pakistani authorities was widespread and included ‘extortion, arbitrary detention, house raids without warrants, unlawful use of force, and theft’.

   …

   Corruption

   Corruption, both petty and serious, is a major problem in Pakistan. It is driven by low public sector wages and a culture of nepotism, patronage and kinship ties that overrides loyalty to the state or respect for the law. Transparency International ranked Pakistan 124 out of 180 countries in its 2020 Corruption Perceptions Index. According to Transparency International’s Global Corruption Barometer, 40 per cent of Pakistanis surveyed reported having paid a bribe to access public services in the 12 months prior to the survey, the worst result in the Asia-Pacific. This figure jumped to 68 per cent for people in contact with law courts and 75 per cent for people seeking help from the police.

   High-level corruption is common in Pakistan, despite efforts to combat it.

   …

   National Identity Cards

   CNICs and SNICs are the most common form of identification in Pakistan. They are required to obtain a passport or drivers’ licence, engage in formal employment, register as a voter, access services such as bank accounts, obtain a SIM card, open new water, electricity or gas accounts, purchase land or vehicles, and gain entry to college or university. NADRA began a program in 2012 to replace all CNICs with SNICs, with a view to completion by 2020. However, as SNICs are more expensive and are linked to other basic services such as bill payment, mail and taxation, many Pakistanis do not obtain SNICs. CNICs and SNICs both remain valid.

   To obtain a CNIC or SNIC, applicants need to submit the CNIC or MNIC number of a blood relative along with their own birth certificate, school, university certificate or citizenship certificate. An applicant who was previously registered and had an MNIC is required to submit the original or a copy of their MNIC. An applicant who has turned 18 and holds a child registration certificate (CRC) must submit the CRC or a copy.

   It is possible to apply for identity documents through NADRA’s Pak-Identity online issuance service, but applicants seeking a CNIC for the first time are required to present in-person at any NADRA registration centre to submit their paperwork, have their photograph taken, and provide their signature and an impression of their thumb. Pakistanis living abroad can apply online for a NICOP, which will be delivered to them via courier.

   Applicants with an existing computerised CNIC can apply online to renew, replace or modify their CNIC, without having to attend a NADRA office, although they may be required to attend in-person to have certain documents certified. Applications to renew, replace or modify non-computerised CNICs must be made in-person at any NADRA office. DFAT is aware of reports CNIC applicants have been told they must travel to a NADRA office in their district of origin to apply, but this is not official policy. In some cases it may be necessary for applicants to travel to their district of origin to obtain other documents required for a CNIC application. For example, a birth certificate can only be issued by the union council of the district of origin.

   CNICs record the following information about the holder: legal name; gender (male, female or transgender); father’s name (or husband’s name for a married female); identification marks; date of birth; CNIC number; family registration ID number; current address; permanent address; date of issue; date of expiry; signature; photo; and thumbprint. CNICs do not display information on the holder’s religion, but NADRA collects this information during the application process. CNICs are valid for five or ten years; CNICs issued to citizens over the age of 65 are valid for life.

   SNICs contain similar information to CNICs, and have a smart chip containing biometric information and a number of additional security features. While the document itself is highly secure, rigorous identity checks are not undertaken in the issuance process for SNICs.

   NADRA can block a CNIC, PoR card or ACC for suspicious use ­– or allegedly for certain groups as a form of harassment (see Afghans). DFAT understands individuals have found it impossible to reverse a decision to block a card, and blocking is a precursor to cancelling a card.

   Passports

   Pakistan issues machine-readable ordinary, official and diplomatic passports. These contain biometric and security features, including a photograph of the holder, fingerprints, and watermarks. Passports contain information about the holder’s religion. Manual passports are no longer issued.

   All Pakistani citizens are eligible to apply for a passport, although some groups face discriminatory barriers to doing so. Generally, the only supporting documentation required is the applicant’s CNIC. Pakistani diplomatic missions in other countries, including Australia, can issue passports to Pakistani citizens.

   ...

   Prevalence of Fraud

   Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.

   Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.

   Union councils and NADRA can verify whether documents are genuine, but they may not be able to identify fraudulently obtained genuine documents. NADRA issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still available from hospitals. FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.

   As self-declaration as an Afghan is the only requirement to apply for an ACC, it is possible for an individual not in either the NADRA or MORR databases to fraudulently obtain an ACC.

2. DFAT stated in 2014 that recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani National Identity Cards required to access government and other services.[2] 

   [2] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14

3. The Pakistan Citizenship Act makes provision for citizenship by birth, descent, migration, naturalisation, or if a non-national woman marries a Pakistani man. Relevant to this consideration, Section 4 provides that every person born in Pakistan after the commencement of the Act shall be a citizen (except those born in Pakistan to a father who was an enemy alien in Pakistan), Section 5 provides that a person is a citizen if his parent was a citizen of Pakistan (Noting exceptions for those born outside the territory or in the service of a government), Section 9 allows a person granted a certificate of naturalization under the Naturalization Act 1926 to be registered a citizen of Pakistan by naturalization or allowing the government to register any person as a citizen.[3]

   [3] The Pakistan Citizenship Act 1951, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >

   The Naturalization Act allows a person to be granted a certificate of naturalization if they are not a minor, are neither a citizen of Pakistan or a citizen of any state which does not allow Pakistan citizens to be naturalized, have resided in Pakistan for the twelve months before the application and for a period of years prior to that time, are of good character, have adequate knowledge of a language gazetted by the Government, and intend to reside in Pakistan.[4]

   [4] The Pakistan Naturalization Act 1926, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >

   The country information demonstrates however that none of these avenues to citizenship appear available to Afghan refugees or the children of Afghan refugees who were not present in Pakistan after 1962.  According to an article in Foreign Policy:

   Over time, a number of Afghan refugees have tried to naturalize in Pakistan as citizens, but these claims have always been denied. In 1999, a young man named Ghulam Sanai applied for a Pakistani national identity card when he turned 18, citing Section 4. The Peshawar High Court refused his petition, ruling that despite being born in Pakistan, Sanai could not get a national identity card since his parents were Afghan refugees and their stay in Pakistan was meant to be temporary. As a result, a child born to Afghan parents in Pakistan is neither a Pakistani citizen nor can he or she legally claim asylum in Pakistan. In other words, such children have no way to live in Pakistan legally.[5]

   [5] Siddiqui, Z., ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019,

4. The European University Institute has provided a comprehensive and detailed report on Pakistan citizenship law. In this report, the author notes that ‘Over time, an increasing number of Afghan refugees made efforts to naturalise in Pakistan as citizens, however, their claims have been denied both at administrative and judicial levels.’[6] The report references a case heard in the Peshawar High Court, Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai). In this case Mr Sanai was born in Pakistan to Afghan refugee parents and was denied a national identity card. His father had obtained his Pakistan national identity card and passport by providing false information to officials. The Peshawar High Court held that children of Afghan refugees cannot claim citizenship by birth because their parents, as refugees, were provided only temporary refuge in the country, had their status in Pakistan governed under the Foreigners Act 1946 and were not covered by the provisions of the Citizenship Act as they would be deemed foreigners and Aliens.[7]

   [6] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 5 Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 5-6 type="1">

5. A CODE Pakistan 2019 report notes that:

   Initially, the Government of Pakistan did not maintain a proper record and database of refugees entering and leaving Pakistan. Since Pakistan’s national registration system was newly established at the time of the arrival of the refugees, and the mechanism for enquiry and verification of nationality was inadequate, some Afghan refugees also managed to register with the District Registration Authorities as citizens of Pakistan and to obtain CNICs, which later became a serious concern for NADRA. Presently, about 20,000 CNICs are suspended for being verified as belonging to Afghan refugees. On April 17, 2018, Mrs. Nusrat Sahar Abbasi, a member of the Sindh Assembly stated on the floor of the house that about 500,000 foreigners, including Afghan refugees, had fraudulently obtained Pakistan’s CNICs and had registered themselves as voters.[8]

   CONSIDERATION OF CLAIMS AND EVIDENCE

   [8] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, of Reference

6. The applicant claims to be a citizen of Afghanistan and no other country.  He presented oral and written evidence in support of this aspect of his claims.

7. He has obtained and used a Pakistan National ID Card and a Pakistan passport in the past. The Department Delegate decided that the applicant was a national of Pakistan.

   Afghanistan

8. The applicant has provided a great deal of evidence to support his claim to be a citizen of Afghanistan. This includes copies of official documents namely the applicant’s Afghan national identity document, commercial documents from Afghanistan naming him, his father and brother; Afghan national identity cards for his wife and children; and Afghan national identity documents for some of his siblings. 

9. The evidence also includes written statements from two witnesses in Australia who are from the applicant’s birth village in Afghanistan, [Village 1]. The two witnesses wrote persuasively of their knowledge of the applicant in their village and their youth together there. The applicant submitted several photographs showing him living in rural Afghanistan.

10. The applicant was also able to readily provide oral evidence about his place of birth and years in Afghanistan. The information he provided corresponds with available independent information about his locale in Afghanistan. The applicant was also well able to establish his birth and life in [Village 1] in Afghanistan in his oral evidence.  His evidence at the Tribunal hearing was clear, non-hesitant, and accorded to independent geographical and cultural information about the region he claimed to have been raised in. He readily volunteered further information about his home region, outside of the questions put to him. The applicant found the applicant’s oral evidence of growing up in Afghanistan as an Afghan citizen credible.

11. The Afghan identity documents he submitted for himself and other family members contained features and details which support their authenticity and indicate that official records in Afghanistan do contain entries for the family.

12. The applicant has also submitted identity documents from [Country 3] and [Country 1] for several of the applicant’s close family members. These documents refer to the family members’ birth in Afghanistan.

13. The information is sufficient for the Tribunal to be satisfied that the applicant was born in Afghanistan to Afghan national parents, and that he is a citizen of Afghanistan. In view of the weight of credible evidence the Tribunal accepts that the applicant is [Name 1] and that he is a citizen of Afghanistan.

    Pakistan

14. The Department obtained information from the [Country 1] authorities that the applicant had applied for a [Country 1] visa in 2011 in [City 1] using a Pakistan passport, and that his [Country 1] visa application was refused. 

15. This information was put to the applicant who confirmed he had used a Pakistan passport to apply for a [Country 1] visa which was refused but he did this from within Pakistan, not from [City 1, Country 2].

16. The Tribunal notes available country information[9] which indicates that at the relevant time, the [Country 1] Embassy in [City 1, Country 2] was the central [Country 1] visa processing hub for countries in the region including Pakistan.  [Country 1] Visa applications were completed in a regional country and then sent to the Embassy in [City 1, Country 2] for processing. It is therefore possible that the applicant did submit his visa application, including his fingerprints, at a [Country 1] Embassy in Pakistan, however because his application was sent to [City 1, Country 2] for processing, [City 1, Country 2] was recorded as the point of lodgement for processing purposes. 

    [9] [Deleted].

17. The applicant has constantly maintained that he applied for the [Country 1] visa from within Pakistan and did not travel to [City 1, Country 2]. There is no apparent advantage to the applicant to conceal any past travel to [City 1, Country 2] even on a Pakistan passport, given he readily confirmed he obtained the Pakistan passport, albeit unlawfully, and used this to apply for the [Country 1] visa. He has also admitted to other incorrect information in his original Protection visa application.  In contrast he has steadfastly denied making a [Country 1] visa application in [City 1, Country 2].

18. In view of the above the Tribunal gives the applicant the benefit of the doubt that he completed his [Country 1] visa application from within Pakistan, not in [City 1, Country 2].

19. The applicant claims that his Pakistan documents were unlawfully obtained and that he has no right to Pakistan nationality and is not a citizen of that country. 

20. The country information referred to above highlights the high level of corruption in Pakistan which lends itself to the availability of fraudulent documents and unlawfully issued official documents.  The information also highlights that thousands of Afghan refugees in Pakistan have unlawfully obtained Pakistan National ID cards and passports through bribery and other fraudulent means.

21. The Tribunal accepts the available information that dual nationality is not possible between Afghanistan and Pakistan.  There is also no apparent indication that the applicant falls within any category that would allow him to readily obtain Pakistan nationality.  According to the information set out above it is not possible for someone of the applicant’s profile to legally acquire Pakistan nationality, in practice.. On the basis of the country information considered above, there appears no practicable process by which the applicant could have lawfully acquired Pakistan citizenship.

22. There is no indication in the evidence obtained by the Department that the Pakistan authorities have asserted or recognise that the applicant is a Pakistan national. 

23. In view of the likelihood that the applicant obtained his Pakistani documents through fraud and bribery, and that he has no legal right to them, the Tribunal finds that he is not a citizen of Pakistan.

24. The Tribunal therefore assesses the applicant’s protection claims against Afghanistan.

    Fear of Harm

25. The applicant claims to fear serious harm in Afghanistan for reason of his Shia religion and Hazara race.

26. The Tribunal accepts that the applicant is a Shia Hazara.

27. The available country information repeatedly highlights that since the takeover of Afghanistan by the Taleban in 2021 Shia Hazaras have become increasingly vulnerable to a range of severe harms in Afghanistan.  The reports refer to the targeting of Shia Hazaras by both the Taleban and the ISIS-K/ISKP.

28. The available information, as set out above, indicates that there is a real chance the applicant will be targeted for serious harm as a Shia Hazara, if he returns to Afghanistan.

29. The Tribunal notes that the applicant has limited education and no formal qualifications. Therefore, the opportunities for him to obtain secure safe accommodation and secure and adequate employment in Afghanistan are minimal.  The applicant has not lived in Afghanistan for many years and has no close family remaining in [Village 1] that could provide him protection and shelter.

30. Further, the applicant will also have to travel on Afghanistan’s road network to return to the  [Village 1] district.  Based upon the available country information the Tribunal considers there is a real chance that, as an Hazara, the applicant is vulnerable to abduction or violence while travelling by road.

31. In these circumstances the Tribunal is satisfied there is a real chance he will face serious harm if he returns, or attempts to return, to his home area of [Village 1] district for the essential and significant reasons of his Hazara race, his Shia religion and his imputed pro-government political opinion.  The Tribunal is satisfied this harm amounts to persecution.

32. The Tribunal accepts the available country information that Shia Hazaras have been increasingly targeted in Kabul – at religious and political gatherings, and in their mosques, hospitals, schools and neighbourhoods.  With a lack of protective connection to Kabul the Tribunal is satisfied the applicant is vulnerable to targeted harm in Kabul. 

33. The country information indicates the lack of security is widespread in Afghanistan, and that insurgent activity and Taleban control are present throughout the country.  The Tribunal is therefore satisfied that the real chance of persecution to the applicant exists in all areas of Afghanistan.

34. The Tribunal is satisfied that the essential and significant reasons for the real chance of serious harm to the applicant is a combination of his religion as a Shia Muslim and his race as an ethnic Hazara.

35. The Tribunal is satisfied that the serious harm involves systematic and discriminatory conduct in that it will be done to the applicant selectively and intentionally.

36. Based on the above findings and reasoning the Tribunal is satisfied the applicant has a well-founded fear of persecution in Afghanistan as defined by s.5J of the Act.

    Section 36(3)

37. The Tribunal accepts that the applicant was living in Pakistan as an Afghan refugee and that many of his family continue to live there.

38. The applicant has given evidence that he was able to stay and live in Pakistan however achieved this by unlawfully obtaining Pakistan national identity documents, which are no longer valid. The Tribunal accepts this evidence.

39. Having left Pakistan the applicant has no apparent right to re-enter and reside there.  Further, the available country information shows that Afghan refugees are vulnerable to recurring deportation and repatriation drives by the Pakistan government.

40. On the basis of this information the Tribunal finds that the applicant has no right to enter and reside in Pakistan.

41. There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds he has no such right and that he is not excluded from Australia’s protection by s.36(3) of the Act.

    Conclusion

42. 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

43. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Melissa McAdam
    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.

    …