2212935 (Refugee)

This matter concerned an application for a protection visa by an Afghan national. The applicant claimed to have a well-founded fear of persecution in Afghanistan due to his Shia Muslim religion and Hazara ethnicity. The Administrative Appeals Tribunal was required to determine whether Australia had protection obligations towards the applicant.

The primary legal issue was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), specifically whether he was a refugee with a well-founded fear of persecution. A secondary issue, arising from the applicant's history of using fraudulent documents and his lack of legal status in Pakistan, was whether he was excluded from protection under section 36(3) of the Act.

The Tribunal found that the applicant was a citizen of Afghanistan and that his claims of persecution based on his religion and ethnicity were credible, supported by country information indicating that Shia Hazaras are increasingly targeted in Afghanistan. The Tribunal was satisfied that the applicant had a well-founded fear of persecution, with his race and religion being the essential and significant reasons for this fear, and that this harm would amount to persecution. The Tribunal also determined that the applicant had no right to enter or reside in Pakistan, and therefore was not excluded from protection under section 36(3). Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied section 36(2)(a) of the *Migration Act*.