2308809 (Refugee)

2308809 (Refugee) [2024] AATA 3926 (15 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2308809
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Simone Burford
DATE:15 July 2024
PLACE OF DECISION:  Perth
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 15 July 2024 at 2:37pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – Federal Circuit and Family Court remittal – cumulative profile – real or imputed political opinion – anti-Taliban – particular social group – returnee from the West – mental health issues – religion – non-practicing or secular Muslim – Tajik – ethnicity – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a citizen of Afghanistan born in [year] in [District 1], Kunduz Province, Afghanistan. According to his application the Applicant speaks Dari and Farsi and does not read or write in any language. He is ethnically Tajik and is from a Sunni Muslim family. He claims not to practice any religion. The applicant’s mother, two sisters and a brother reside in Australia. An older sister resides in Kabul. His father is deceased.
The applicant was married and divorced in 2022. He has one child from that marriage who was born in [year] in Shiraz, Iran and is living with his sister in Kabul. According to the delegate decision, on 21 December 2006, the applicant’s mother applied for a Refugee and Humanitarian (Class XB) (Subclass 204) visa (Humanitarian visa), that included the applicant and his siblings as dependent applicants. The applicant was granted a Humanitarian visa on 30 January 2009 as a dependent on his mother’s application. He arrived in Australia [in] August 2009.
According to submissions from the applicant, on 3 March 2011 an application for a Partner visa was lodged for the applicant’s wife at the Australian embassy in Dubai.
On 21 January 2014 the applicant’s Humanitarian visa was cancelled (the Cancellaton Decision) as the delegate found that the applicant was married when he came to Australia and therefore was not able to satisfy the definition of a member of the family unit of the applicant’s mother (for the purposes of being a dependant on her visa application).
The applicant applied to the Migration Review Tribunal (MRT) for review of the Cancellation Decision on 11 February 2014. The Cancellation Decision was affirmed by the MRT on 13 October 2014. The applicant’s wife’s partner visa was refused on 2 February 2015.
The applicant applied for a Protection (subclass XA 866) visa on 7 November 2014 and the delegate refused to grant the visa on 29 September 2016.
The applicant applied for a review of that decision to the Tribunal on 1 November 2016. The Tribunal initially held hearings in relation to the application in December 2020 and April 2021. The applicant failed to appear at the hearing on 21 April 2021 and the application was dismissed. The applicant sought judicial review of that decision to the Federal Circuit and Family Court of Australia and [in] May 2023 the Court remitted the application to the Tribunal for determination according to law.
The applicant appeared before the Tribunal on the remitted application on 3 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s sister.
The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The applicant was represented by Ms Claire Faulkner of Estrin Saul Lawyers at the initial hearings. However, that representation was withdrawn when the matter was remitted to the Tribunal. In the proceedings on remittal the applicant nominated his sister, [Ms A], as his authorised recipient. [Ms A] assisted the applicant at the hearing. The applicant confirmed at the hearing that he continued to rely on submissions prepared by his previous representatives and the Tribunal has had regard to these in reaching its decision.
Protection visa application
The applicant’s initial claims were detailed in his application for protection and in an interview with the Department. In summary the claims were that:
·The applicant left Afghanistan in 1996 to escape from the Taliban. He was in Iran for 12 years before he came to Australia living in [location] and then Shiraz, Iran. He claimed to have moved to Iran illegally and obtained the green certificate ID given to Afghans who were residing illegally in Iran.
·His wife and son were living in Kunduz with his wife's father and his wife would sometimes go to the applicant's sister's house. The applicant claimed that his wife is a distant relative of his and is his maternal uncle's grand-daughter.
·He first met his wife in Shiraz in 2007. As they were distant relatives they would visit each other. In 2008 he got to know his wife more and met her in Shiraz at the shop where she came to buy something and that is where their relationship started. In 2008 and 2009 his relationship with her was stronger. They would go to the cinema once a week and meet at his house when no one was home.
·In November 2009 he was informed she was pregnant and her father took her to her uncle's house in Isfahan in Iran and her father left for Afghanistan.
·In 2010 they married in a Nikah religious ceremony. The imam was present at the ceremony and was legal. His uncle and his sister's husband were there.
·His in-laws are Muslims and therefore as he had an intimate relationship before marriage with his wife, his father-in-law will kill him. The applicant's father-in-law is a farmer. In the Afghan culture if you have a relationship outside marriage you would be hanged. The applicant claims his father-in-law told his daughter that he wanted to kill the applicant when he took her to his uncle's house.
·His wife is sick and unwell and his father does not call the doctor and she has to go to his sister to organise money.
·He claims his father-in-law has friends and acquaintances and would be able to find him if he relocates in Afghanistan.
The Applicant claimed to fear harm from his wife’s family, the general population of Afghanistan due to his long period of residence in a Western country and being targeted for extortion due to his period of living in a wealthy country.
The delegate refused the application for a protection visa on 29 September 2016 because the delegate did not accept the applicant’s claimed fears of harm from his father-in-law were genuine or credible. The delegate found the risk of harm to the applicant from generalised violence in Afghanistan was a risk to the population of Kunduz generally.
Application for review
On 1 November 2016 the applicant lodged an application for review of the delegate’s decision to the Tribunal.
In submissions filed by his previous representative, the applicant contended the issues arising for determination on the review were:
·whether the Applicant faces a real risk of significant harm in and around his hometown [in] [District 1] of the Kunduz Province of Afghanistan due to the heightened danger faced by residents of that district;
·whether the Applicant faces real chance of persecution and/or a further real risk of significant harm in and around his home district of [District 1] of Kunduz Province due to his personal characteristics; and
·whether the Applicant could reasonably and practicably relocate to an area of Afghanistan where objectively there is no real risk of him suffering serious or significant harm.
The applicant submitted that the real risk of significant harm faced by the applicant as a resident of [District 1] will be exacerbated by his personal profile, including:
·the applicant will be a returnee from a Western country;
·the applicant will continue to have significant ties to the West if he is returned due to his mother, two sisters and brother’s ongoing residence in Australia, his long period of residence here and his mother and sisters’ Australian citizenship;
·the applicant’s family’s presence in Australia will be known to the local community in [District 1] due to the actions of his family, for instance his family having sent money to his wife in [District 1];
·the applicant has spent over a decade living in Australia, during which he has become ‘Westernised’ in his religious and political opinions;
·the applicant lived in Iran for approximately a decade before he was resettled in Australia, causing him to adopt an Iranian accent and mannerisms when he speaks Farsi;
·the applicant has ceased to practise Islam;
·the applicant is opposed to the Taliban;
·the applicant as a Tajik is a member of a minority ethnicity in Kunduz Province;
·the applicant suffers from significant mental health issues which will prevent him from functioning, or protecting himself and his family from harm; and
·the applicant has been unable to provide for his wife and child himself due to his lack of work rights or to bring his wife and child to Australia, therefore failing to live up to the expectations of his wife’s family and gender expectations for Afghan males.
It was submitted that the Tribunal should find both that these factors increase the real risk of significant harm faced by the applicant in [District 1], and that where the applicant is targeted for harm on the basis of the above characteristics, that they give rise to a well-founded fear of persecution for Convention reasons.
It was submitted that the applicant’s risk of harm was further exacerbated by the circumstances of his departure from Afghanistan, the period he spent residing in Iran and the fact that he will be returning as a returnee from the West with ongoing associations with Australia. It was contended that he faced a real chance of persecution on the basis of:
·his imputed political opinion, as someone perceived to be opposed to the Taliban, due to the circumstances of his departure and his association with countries who have been fighting the Taliban since he left Afghanistan in the 1990s;
·his membership of a particular social group, comprised of involuntary returnees from the West and/or residents in Taliban controlled districts with close associations to Western countries and/or countries which are considered enemies of the Taliban; and/or
·his membership of a particular social group, as a long-term resident in Iran who speaks Farsi (rather than Dari) and does so with an Iranian accent.
The applicant’s representative cited detailed country information in these submissions which the Tribunal has considered. However, as circumstances in Afghanistan have changed significantly since this time the Tribunal has relied in most instances on more up to date information regarding the circumstances in Afghanistan under Taliban control (including more recent versions of reports cited by the applicant in submissions). These issues are considered further below.
Applicant’s mental health
In support of his application for review, the applicant also provided medical evidence from 2016 and 2017 indicating he was suffering from anxiety and depression and liver disease. Submissions in 2021 also contended that the applicant was suffering from either schizophrenia or a related psychosis.
Before the hearing in April 2024 the applicant submitted additional information including a psychological report from the applicant’s primary treating psychologist and a consultant psychologist dated 26 March 2024. That report indicated the applicant presented with symptoms and behaviours consistent with a principal diagnosis of post-traumatic stress disorder with dissociative symptoms of derealisation, major depressive disorder and generalised anxiety disorder.
The Tribunal notes the applicant had a history of disengaging with representatives and with the Tribunal review process. He had also disengaged previously with mental health professionals. However, the 2024 report noted a commitment from the applicant to engage with mental health professionals in the future. The psychologists’ report of 2024 noted the applicant would have an impaired ability to engage with the Tribunal in questioning due to his mental health issues including sleep disturbance and chronic stress. The Tribunal was mindful of the issues raised in the report when taking evidence from the applicant at the hearing. Where possible, evidence was provided by his sister (including through a written statement from [Ms A]) and reliance placed on earlier submissions from his then representative.
The Tribunal notes the applicant engaged with the Tribunal answering questions and explaining his background. However, his presentation was consistent with observations in the psychologists’ report where it was noted as follows:
[The applicant] was often observed as notably distressed, dissociated, and fatigued in his affect, and at times would fall asleep during a session. His typical dress was of a casual sense, with a seemingly low-effort, naturally groomed hairstyle, reflecting insignificant concern for personal appearance. He typically maintained minimal eye contact, indicative of avoidance behaviours and psychological distress.
The impact of the applicant’s mental health issues on his claims for protection are considered further below.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant claims to be a citizen of Afghanistan. He provided identity documents supporting his claimed citizenship which was accepted by the department on this application and on his original offshore visa.
While the applicant told the department he had held a refugee card while in Iran, there is no information to suggest that provided a right to enter and reside in Iran on an ongoing basis. At the time of the April hearing, he said his son and sister were in Kabul. This evidence was not consistent with any of those family members having a right to remain in Iran. The Tribunal finds that the applicant is not an Iranian citizen and that he is not entitled to obtain Iranian nationality.
The Tribunal finds that the applicant is a citizen of Afghanistan, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
Analysis, reasons and findings
The applicant has made a number of claims which the Tribunal has considered, both individually and cumulatively. These claims were discussed in general terms with the applicant and his sister at the hearings and were the subject of detailed written submissions from the applicant’s previous representative.
Applicant’s home area
In assessing the applicant’s fear of persecution, the Tribunal must assess the place or places to which the applicant is likely to return. Identifying a home area or region may assist in determining where a person will return or be returned to.
The Tribunal accepts that the applicant lived in Kunduz until leaving for Iran when he was [age] years old. Evidence indicates that family members have remained in both Kunduz and Kabul. His immediate family, his sister and son, are in Kabul. According to DFAT, ‘returnees from Western countries almost exclusively return to Kabul’ and that ‘many returnees choose to remain in Kabul for economic reasons rather than return to their home provinces.’[1]
[1] 2019 DFAT Report; see also Office of the Commission General for Refugees and Stateless Persons (Belgium), COI Focus - Afghanistan: Security Situation in Kabul City', 8 April 2020.
While submissions asserted the applicant’s home area was [District 1], it was submitted he had no contacts there. It was also acknowledged that his only family were in Kabul.
Noting the length of time since the applicant left Afghanistan and the subsequent movement of his family members to Kabul, the Tribunal finds that the applicant is likely to return to Kabul and has proceeded to assess claims on the basis that his home area is Kunduz and his likely place of return in Kabul. Accordingly, Tribunal has considered the information for both Kabul and Kunduz Provinces as well as for Afghanistan more broadly.
While the applicant’s claims have altered somewhat over time, and his current claims for protection centre around his claimed adverse cumulative profile as (in summary):
·a Tajik;
·a returnee from a Western country who left Afghanistan as a teen;
·a person with real or imputed political views opposed to the ruling Taliban;
·a non-practising Muslim;
·a person with significant mental health issues which will prevent him from functioning, or protecting himself and his family from harm; and
·a divorcee who has failed to secure visa passage for his ex-wife and son over a number of years.
Prevailing circumstances in Afghanistan
There have been significant changes in Afghanistan since the applicant left in 1996.[2] The most significant of these for the current application were events in August 2021 when Afghanistan fell to the Taliban. Coalition forces withdrew from Afghanistan on 31 August 2021.[3] In September 2021, the Taliban announced the formation of an ‘interim government’ of the Islamic Emirate of Afghanistan and appointed ‘mostly Pashtun and chiefly long-serving Taliban commanders’ to key government positions.[4] According to DFAT, the Taliban, who had previously presided over a period of considerable hardship for ethnic and religious minorities, promised an ‘inclusive’ government that would be representative of Afghanistan’s ethnicities and claimed to have fulfilled this by appointing a handful of Uzbeks, Tajiks and ‘a single Hazara’ to mostly technical roles.[5]
[2] In addition to the DFAT Reports (2019 and 2022) and material cited in earlier submissions from the applicant, the Tribunal has drawn on country information assessments included in recent Tribunal decisions: 1837641 (Refugee) (4 June 2024) (SM Pennell); 1933200 (Refugee) [2024] AATA 1205 (29 February 2024) (M Wilson); 2202501 (Refugee) (16 June 2022) (M Hardy) where relevant to the claims raised in the current application.
[3]Taliban are back - what next for Afghanistan? - BBC News
[4] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022.
[5] Ibid.
Although levels of armed violence in Afghanistan dropped immediately after August 2021, compared to previous years of conflict, there has been an increase in security-related incidents since August 2022. DFAT has assessed that whilst Afghanistan’s security situation remains volatile, the country as a whole is relatively ‘less dangerous’, due to the cessation of most armed conflict after the Taliban takeover in August 2021. Nevertheless, DFAT has also noted that Afghanistan ‘remains a dangerous country with ongoing threats of terrorism and kidnapping and other forms of violence.’[6] Crime levels have increased in the face of the deteriorating humanitarian and economic situation, and the security situation is evolving. The Taliban rule has been marked by repression of all forms of opposition, and their implementation of a strict interpretation of sharia law.[7]
[6] Ibid.
[7] DFAT Thematic Report on Political and Security Developments in Afghanistan, 14 January 2022 (DFAT 2022 Thematic Report); EUAA, Afghanistan Country Focus, December 2023.
The UN Special Rapporteur reported in February 2023 that the human rights situation in Afghanistan had worsened since the previous report a year earlier. The report noted serious challenges to the rule of law and credible reports of suppression and extrajudicial executions and torture. The report also raised concerns regarding a climate of impunity and continued failure to hold officials and commanders accountable for serious violations of international human rights and humanitarian law which continued under the Taliban controlled government.[8]
[8] Report of the Special Rapporteur on the Situation of Human Rights in Afghanistan, 9 February 2023.
It was submitted by the applicant that he was at risk due to his Tajik ethnicity, among other reasons, noting the Tajik people are a minority ethnic group in Kunduz Province, representing 22 percent of the population [9] and that the majority of the Kunduz is comprised of Pashtuns – the ethnic group which ‘form[s] the backbone of the Taliban movement’ – followed by Uzbeks.[10] Country information suggests a ‘long standing animosity’ between Pashtuns and other ethnicities in Kunduz Province, particularly between Pashtuns and Tajiks, who form the majority over the Northern Provinces as a whole but are in a minority in Kunduz Province, and who are associated with the Northern Alliance which fought the Taliban.[11] Overall, Tajiks are the second largest ethnic group in Afghanistan, speaking Farsi which is the lingua franca of the country with over 50% of the population speaking Farsi.[12]
[9] Kunduz - Program for Culture and Conflict Studies - Naval Postgraduate School (nps.edu)
[10] Kunduz - Program for Culture and Conflict Studies - Naval Postgraduate School (nps.edu)
[11] Kunduz - Program for Culture and Conflict Studies - Naval Postgraduate School (nps.edu)
[12] Kunduz - Program for Culture and Conflict Studies - Naval Postgraduate School (nps.edu)
With respect to members of minority communities including Tajik people, power struggles have occurred between the Taliban, which generally rules the country according to strict shari’a law, and an offshoot of ISIS/ISIL/Daesh called the Islamic State of Khorasan (ISK), or Islamic State of Khorasan Province (ISKP), which has reportedly launched a recruitment drive amongst Tajik males in the north and east of Afghanistan. It has been reported that: [13]
The ISK is seeking to capitalize on the growing dissatisfaction among ethnic Tajiks, Turkmen, and Uzbeks against Taliban rule in northern Afghanistan. Already in October 2021 there was a report on ISK attempting to find new recruits among the ethnic minority groups of northern Afghanistan near the Tajik border.
[13] Pannier, B., “Northern Afghanistan and the New Threat to Central Asia,” Foreign Policy Research Institute, 13 May 2022,
Similarly, country information suggests that ISKP seeks to recruit ethnic Tajik as well as to incite militant violence against Tajikistan and to discredit the Taliban as a governing body and religious authority in the eyes of potential Tajik supporters.[14] These destabilisation efforts by ISKP have reportedly included firing rockets from Afghanistan into Tajikistan.
[14] “Islamic State in Afghanistan Looks to Recruit Regional Tajiks, Inflict Violence Against Tajikistan,” The Diplomat, 29 April 2022, Islamic State in Afghanistan Looks to Recruit Regional Tajiks, Inflict Violence Against Tajikistan – The Diplomat
Country information reports also indicate that the National Resistance Front (NRF) under the command of ethnic Tajik Ahmad Masud is also fighting to challenge Taliban control of some areas including in Northern Kabul.[15] The US Department of State reports there were credible reports that Taliban security personnel arbitrarily killed civilians in Panjshir and Baghlan provinces, allegedly as collective punishment against communities where the NRF armed opposition group was active.[16] These activities have reportedly resulted in hostilities between state and Tajik militias in a number of locations in Afghanistan including northern Kabul and its environs. Further: [17]
Tajikistan was the only neighboring country to publicly oppose the Taliban’s return to power in Afghanistan in August, calling the militant group a threat to regional stability. There have also been reports that Dushanbe is hosting or in contact with some of the leaders of the National Resistance Front (NRF), an anti-Taliban resistance group that is largely made up of ethnic Tajiks from Afghanistan.
Tajikistan has denied the claim.
Following the Taliban takeover, Tajikistan has conducted military drills near its 1,300-kilometer border with Afghanistan alongside troops from members of the Russia-led Collective Security Organization (CSTO).
The Taliban has stationed an estimated 4,000 fighters along its border with Central Asia. Taliban officials insisted the move would contribute to regional stability. But Afghanistan’s northern neighbors have expressed skepticism.
The Taliban also deployed battalions of suicide bombers known as Lashkar-e Mansoori in Afghanistan’s north eastern provinces of Badakhshan and Takhar, adding to anxieties in Tajikistan.
[15] “Tajikistan On Guard As Situation Across Afghan Border Deteriorates,” Radio Free Europe, 15 May 2022, l“Inside the Taliban’s secret war in the Panjshir Valley,” The Washington Post, 8 June 2022, US Department of State, 2023 Country Reports on Human Rights Practices: Afghanistan.
[17] “Hostilities Grow Between Taliban And Tajikistan Amid Border Closure, Truck Seizures,” Gandhara, 19 May 2022,

On the situation of returnees from the West, Landinfo reported in 2022, that there is little information regarding the situation in Afghanistan for returnees perceived as westernised as there had been no forced returns from Western countries since the Taliban takeover.[18]

[18] Landinfo, Afghanistan: Departures and returns after Taliban’s takeover of power. 29 September 2022.

The European Union Agency for Asylum (EUAA) reported in December 2023 that senior Taliban officials called upon Afghans to stay in Afghanistan and have created obstacles for people wanting to leave and that there is no information available of individuals being deported or returned from the European Union since the Taliban takeover. Western states have halted deportations to Afghanistan and the International Organisation for Migration (IOM) has suspended activities facilitating or accompanying returns to Afghanistan. Regarding the treatment of ‘westernised’ Afghans, the Taliban have stated an aim to ‘purify’ Afghan society and eject foreign influence from the country.[19] The Taliban have issued instructions against trimming beards or wearing Western-style clothing and there have been reports of actions including arrest and beatings for people perceived as transgressing religious, social or cultural norms, including by adopting Western clothing or lifestyle choices.[20]

[19] EUAA, Afghanistan Country Focus, December 2023; Country of Origin Information: Afghanistan - Country Focus (europa.eu)

[20] UK Home Office, Country policy and information note: fear of the Taliban, Afghanistan, April 2022 Updated 29 April 2022 at 6.10.

While country information suggests that a lack of returnees from Europe (or the West generally) makes it difficult to confidently determine how such individuals may be treated by the Taliban or other groups on return to Afghanistan, previous failed asylum seekers returned from Europe were said to have faced suspicion and questions as to what extent they had been ‘contaminated’ by Western ways.[21] This suggests an ongoing risk of such treatment is likely.

[21] EUAA, Afghanistan Country Focus, December 2023; Country of Origin Information: Afghanistan - Country Focus (europa.eu)

With respect to returnees including those who have sought asylum in the West, the Office of the Commission General for Refugees and Stateless Persons Belgium (CEDOCA) reported in December 2023 that:

According to [the Dutch Country Report on Afghanistan], it is not clear whether factors such as whether or not the person has left Afghanistan illegally, the ethnicity of the person returning, any residence in Europe or another Western country or in one of the neighbouring countries (such as Iran and Pakistan) play a role in whether or not problems would be experienced when returning to Afghanistan or would manifest in a difference in treatment when returning to Afghanistan.
One source, cited in the 2023 Dutch Country Report on Afghanistan, stated that there was no reliable information available on the treatment by the Taliban of people voluntarily returning to Afghanistan. The information on this is described as limited and anecdotal. Other sources cited in this report state that they are not aware of any problems or difficulties with the de facto authorities in returning registered or undocumented refugees from neighbouring countries. According to another source cited in this report, there is always a chance, but not necessarily in each individual case, of problems in returning for people who left as economic refugees. Prominent individuals with certain profiles (such as former ANDSF personnel, for example) or people who already had certain problems before leaving Afghanistan could face retaliation upon their return. The source did not speak of any consistently occurring problems, but did state that such problems can never be ruled out. The same source claimed that no information was available on the treatment by the de facto Taliban authorities of people who are forced to return from a European or Western country, as there are hardly any such cases known.
According to a Freedom House report published in January 2023, in terms of the profile of human rights defenders, the Taliban would consider certain factors such as having received a Western education, having worked for a Western organisation, wearing Western-style clothing and speaking English as indicators of association with the “enemy”.[22]
[22] Office of the Commission General for Refugees and Stateless Persons (Belgium), CEDOCA, Migration movements of Afghans since the Taliban takeover of power, 14 December 2023; see also . EASO Afghanistan Country Focus, Country of Origin Report January 2022; EASO Country of Origin Information Report: Afghanistan Security situation (January 2022) - Afghanistan | ReliefWeb at 2.11 and at pp 15, 23.

The International Office of Migration (IOM) has reportedly suspended assistance for voluntary returns to Afghanistan because in their assessment there is ‘no safe environment for return’. IOM also anticipated the conditions that led to this assessment will remain unchanged for the foreseeable future and will likely deteriorate further due to the multi-layered crisis in Afghanistan. Other sources told the CEDOCA that people who oppose the Taliban are considered ‘instruments of Western influence’ and will be seen as a problem upon return to Afghanistan. Afghans who sought asylum in Western countries are perceived by the Taliban to have discredited them.[23]

[23] Ibid.

With respect to attitudes to mental health and access to services in Afghanistan, information regarding services under the Taliban controlled government are limited. However, historically, country information suggests that mental health services are lacking and there are ‘critical gaps in the availability and quality of psychosocial support and mental health services in Kabul and other cities, while in rural areas they are virtually non-existent.’ According to Human Rights Watch, Afghanistan lacks trained personnel in all areas of mental healthcare and ‘[t]he stigma associated socially with psychosocial disabilities (mental health conditions) is also a significant barrier for people seeking support.’[24]

The applicant’s circumstances and claims

[24] HRW, ‘“Disability is not a weakness”’ (page 19), April 2020; UK Home Office, Country Policy and Information Note Afghanistan: Medical treatment and healthcare, Version 2 October 2021.

The Tribunal accepts the following aspects of the applicant’s profile:

·The applicant was born a Sunni Muslim in [District 1], Kunduz Province, Afghanistan;
·He no longer practices as a Muslim;
·He is of Tajik ethnicity;
·He speaks Farsi which is the ‘lingua franca’ or Afghanistan and Dari but does not read or write in either language;
·The applicant is divorced and has a son living in Kabul, Afghanistan;
·The applicant has a history of significant mental health issues including PTSD, depression and anxiety. He is undergoing treatment for those conditions; and
·The applicant has lived outside Afghanistan since he was [age] years old and would be considered a returnee from a Western country, if returned to Afghanistan.

While the Tribunal is unable to accept some of the applicant’s core claims, the Tribunal is satisfied that the cumulative aspects of his profile which the Tribunal does accept, represent a real chance risk of serious harm to the applicant on return to Afghanistan for the reasons detailed below.
While the applicant initially claimed to fear harm from his wife’s family members due to having entered into a sexual relationship with her prior to marriage, these claims were not pressed in submissions and the Tribunal notes the timeline of the applicant’s claimed marriage (being after he obtained his dependant visa and after his son was born) were not accepted by the delegate in the context of the Cancellation Decision or the delegate’s decision on the protection visa application. The cancellation decision was affirmed on review.
The applicant originally submitted a Nikah dated from 2008. This was prior to his departure from Iran and prior to the birth of his son. While the applicant later sought to suggest that date was incorrect due to an error by the Embassy, the Tribunal found the account in his application and his responses at the hearing to be implausible and does not accept those claims. The Tribunal finds the applicant’s marriage date was from 2008 as originally claimed in his Nikah and that he does not face a risk of harm from his ex-wife’s family due to the circumstances of his marriage, including any allegations of ‘zina’.
The Tribunal notes the applicant is now divorced and accepts this may have been due to the pressures of a delay in obtaining visas for his wife and son. While the applicant’s sister’s statement claimed the applicant would be at risk from his ex-father-in-law in [District 1] due to anger over the delays in obtaining a visa, given concerns regarding the credibility of the applicant’s claims made arising from his marriage, the Tribunal does not accept he faces a risk on this basis. There was no evidence provided to support claims of threats from his ex-wife’s family members. The Tribunal notes in this regard that his son resides with the applicant’s sister and the applicant claimed not to be in contact with his wife or her family members. Further, the Tribunal did not consider the claim that the family thought the applicant held citizenship in Australia and had lied about it to be consistent with a claim he would be attacked on that basis if he were forced to return to Afghanistan (in which circumstances it would be clear he did not hold a visa or other status to remain in Australia). The Tribunal does not accept the applicant faces any real chance or real risk of serious or significant harm from his ex-wife’s family members on return to Afghanistan now or in the reasonably foreseeable future.
The Tribunal accepts on the information before it that the applicant is suffering from post-traumatic stress disorder with dissociative symptoms of derealisation, major depressive disorder and generalised anxiety disorder. It does not accept he suffers from Schizophrenia or other unspecified psychotic conditions as there is no medical evidence offered to support such a contention.
The applicant’s current mental health challenges were central to the concerns raised on his behalf at the hearing on remittal. In his sister’s statement she notes:
If my brother returns to [District 1], he will be unknown to people in the area, therefore they will assume he has come from a Western Country and therefore has a lot of money. I think they will try to harass, physically assault, or seriously injure him in order to steal from him.
Returnees from Western countries has been an issue in [District 1] for a long time but since the Taliban took over, many people are living in poverty and therefore some will resort to crime in order to survive. My brother will be seen as an easy target.
My brother is likely to become very angry in response, particularly as his mental health will be significantly impacted as a result of being returned to Afghanistan. In his agitated state, I fear he will try to fight back and may result in being seriously injured or killed.
My brother is likely to get the attention of the Taliban as he will be identified as a returnee whom they would not be familiar with. I fear the Taliban will take him in for interrogation to find out about his activities abroad, his beliefs and whether he has converted to Christianity.
In response to being arbitrarily detained, my brother is likely to react very strongly and become aggressive which will place him at greater risk of harm from the Taliban. Further, in his highly stressed state, he may display behaviours which are perceived to be abnormal, such as speaking or mumbling to himself. They are unlikely to understand why he is acting in this way and misinterpret his behaviour including as disrespect for their authority. I fear that during an interrogation, he could be physically assaulted, tortured, or even killed.
Noting the concerns and observations contained in the most recent psychologists’ reports and the Tribunal’s observations of the applicant at the hearing, the Tribunal considers [Ms A]’s concerns are well-founded. The applicant struggled to answer questions coherently and has previously disengaged from his representatives and the review process. While he expressed a view that his medication and treatment is helping to ‘calm’ him, the Tribunal accepts his sister’s evidence that his compliance with treatment still requires family supervision and intervention. The Tribunal accepts that this support would be more limited in Afghanistan and restricted to his sister, who it was submitted has health issues of her own.
While the Tribunal accepts the applicant’s mental health would suffer on return to Afghanistan and medical support would be limited, the Tribunal does not accept he faces a real chance of serious harm on the basis of being a person who is suffering from mental health issues alone. While the country information suggests mental health issues are stigmatised in Afghanistan and supports are limited, the Tribunal does not accept that country information a claim that the applicant would be seriously harmed for reasons of his mental health. Rather the Tribunal accepts that the applicant’s mental health issues and in particular the outward manifestations of his depression, anxiety and PTSD would make him more likely to come to the adverse attention of Taliban authorities or others including extremist groups that may object to his secular or Western lifestyle choices and behaviours. The Tribunal considers that his likely responses to circumstances of questioning, detention or confrontation with Taliban authorities or religious extremists, would heighten the risk the applicant would be seriously harmed.
The Tribunal does not accept that the applicant is an atheist or that he would be regarded as having ‘converted’ from Islam to atheism. While these were claims made on the applicant’s behalf in submissions from his representative, the applicant did not articulate any belief system or non-religious convictions consistent with a person who identifies as or would be imputed to be an atheist. He did not demonstrate any past practice or future intention to promote or espouse beliefs inconsistent with the teachings of Islam. However, the Tribunal accepts that the applicant does not practice as a Muslim and is disaffected with the Muslim religion and that he would conduct himself on return to Afghanistan in a manner consistent with his current lack of religious practice or observation.
Based on country information and in light of the current circumstances in Afghanistan, discussed further below, the Tribunal accepts that the applicant’s secular lifestyle choices and non-adherence to the Muslim faith is genuine and would add to an adverse profile in Afghanistan. The Tribunal does not accept he faces a real chance of harm on this basis alone but does accept it contributes to an overall adverse profile placing him at risk of harm.
The Tribunal also accepts that the applicant’s Tajik ethnicity contributes to an adverse profile on return, noting country information suggesting both that Tajik men of fighting age may be recruited by anti-Taliban forces and because the Taliban regards members of the Tajik community as a risk for the same reasons.
Further, and as noted above, country information regarding the situation of returnees from the West in Afghanistan is uncertain. Noting the length of time the applicant has been absent from Afghanistan, since he was [age] years old, the Tribunal accepts he would be identified as a returnee from the West and considers that his mental health issues make it more challenging for him to regulate his responses to social situations in a manner which might be regarded as appropriate or conforming with accepted social or religious norms in particularly noting the application of Sharia law throughout Afghanistan under the Taliban government. The Tribunal considers there is a risk associated with such identification that the applicant would have actual or imputed political beliefs which are anti-Taliban or pro-Western. The Tribunal notes this risk also includes harm from ISIL-KP who despite a decrease in activity due to Taliban enforcement activities, continue to execute attacks including on those identified as being associated with the West.[25]
[25] Australian recounts deadly IS attack on tour group in Afghanistan | SBS News; Instability in Afghanistan | Global Conflict Tracker (cfr.org)
As the country information above makes clear, there is a lack of information regarding the risks for returning failed asylum seekers form Western countries, because since the Taliban takeover there have been so few returning from the West. The UNHCR’s most recent Guidance Note on Afghanistan stated that the UNHCR:
Calls on decision-makers to give due weight to the uncertainty and unpredictability inherent in the modalities adopted by the de facto authorities for issuing decrees, coupled with the ongoing uncertainties regarding the applicability of Afghanistan’s previous legal framework. UNHCR considers that these circumstances render it particularly difficult to evaluate a future risk of persecution based on the currently available information on the human rights situation in Afghanistan, and in particular to conclude with the requisite level of confidence that an Afghan asylum applicant would not face a real risk of persecution upon return to the country of origin.[26]
[26] UNHCR, Guidance Note on Afghanistan – Update 1, February 2023
As noted above, the Tribunal considers that there is a real chance the applicant’s mental health would be impacted on return to Afghanistan and that this would place him at an elevated risk of persecution as a returnee from the West noting that it may impede his capacity to function and reintegrate in Afghanistan in a manner which may otherwise reduce the risk of identification and persecution by agents of harm.
Noting the concerns raised by the UNHCR and having regard to the cumulative aspects of the applicant’s profile, the Tribunal is unable to reach the required level of confidence that the applicant would not face a real risk of persecution on return to Afghanistan for reasons of his real or imputed political opinion as a returnee from the West, religion as a non-practicing Muslim and ethnicity as Tajik and having regard to his personal profile, including his mental health issues.
PROTECTION ASSESSMENT
Having considered the applicant’s claims individually and cumulatively, the Tribunal has considered what will happen if the applicant were to return to Afghanistan, now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant’s home area is Kunduz Province. However, the Tribunal notes he has no family with whom he is in contact with in Kunduz and that his only close contacts, his sister and son, live in Kabul. Given this and the fact the applicant left Afghanistan as a minor, the Tribunal finds he would return to and settle in Kabul on return to Afghanistan. For the reasons noted below, the Tribunal considers he is at risk in either location and throughout Afghanistan.
While the Tribunal does not accept some aspects of the applicant’s claims, based on the evidence and country information, the Tribunal finds that there is a real chance that the applicant would be subjected to harm now and in the reasonably foreseeable future on return to Afghanistan on the basis of his real or imputed political beliefs as an opponent of the Taliban and supporter of the West, member of a particular social group of returnees from the West, his religion as a non-practicing or secular Muslim and his ethnicity as a Tajik.
The Tribunal finds that there is a real chance, that is, one that is not remote or far-fetched, that if the applicant returns now or in the reasonably foreseeable future to Afghanistan, he will face serious harm amounting to persecution from the Taliban government or ISIL-KP for these reasons. The Tribunal accepts that the applicant’s mental health issues and lack of family support in Afghanistan would increase the likelihood of him being subjected to serious harm in Kunduz province or in Kabul.
For the reasons outlined above and having regard to the country information concerning the situation for persons with the applicant’s profile, the Tribunal accepts that should the applicant return to Afghanistan, now or in the foreseeable future, there is a real chance he will face serious harm from Taliban authorities or ISIL-KP, in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment and denial of capacity to earn a livelihood where it would threaten the capacity to subsist: s 91R(1)(b). The Tribunal finds that the harm faced amounts to serious harm including mistreatment, harassment or torture by the Taliban or ISIL-KP.
Having regard to the applicant’s cumulative adverse profile, the Tribunal finds the applicant’s real or imputed political opinion, religion, ethnicity and membership of a particular social group are the essential and significant reason for the persecution which the applicant fears, as required by s 91R(1)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for those reasons.
The Tribunal notes that individuals seeking protection are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm.[27] In this case, the Tribunal is satisfied that the modification would require the applicant to alter his personal history, religious beliefs, ethnicity and/or political opinions which cannot be expected of him.
[27] Appellant S395/2002 v MIMA (2003) 216 CLR 473
Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution.[28] Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection.[29] In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards.[30]
[28] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23].
[29] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28].
[30] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29].
Since the Taliban administration has effective control of most of Afghanistan and is one of the agents responsible for the persecution that the applicant fears, the Tribunal is not satisfied that the Afghan state will take reasonable measures to protect him by reference to international standards.
For the same reasons, the Tribunal is not satisfied that there is any part of Afghanistan in which he would be safe from the persecution. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country.[31] Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in their country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.[32]
[31] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1.
[32] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
In light of developments in Afghanistan, the Tribunal is not satisfied that there is any part of Afghanistan in which he would be safe from the persecution that he fears. The Tribunal does not regard that such areas offer protection now or in the reasonably foreseeable future, having regard to uncertainty associated with the Taliban agenda with respect to returnees and the Taliban’s level of control of Afghanistan, particular with respect to extremist groups and Taliban targeting of ethnic groups believed to be associated with opposition to the Taliban. Further the Tribunal regards that the risks of identification as a secular Muslim, returnee from the West and a person who would be imputed to be anti-Taliban or pro-Western for those reasons or due to his ethnicity exists throughout Afghanistan.
Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of Art 1A(2). In considering whether he comes within the definition of a refugee contained in the Convention, the Tribunal accepts that the applicant is outside the country of his nationality or former country of habitual residence and unable or, owing to the fear of persecution, is unwilling to return to it.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
Third country protection
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply. Sections 36(4), (5) and (5A) apply where the applicant has a well-founded fear of being persecuted or a real risk of suffering significant harm in the third country, or a well-founded fear of being returned to another country where they will be persecuted or there would be a real risk of them suffering significant harm.

As noted above, the delegate accepted that the applicant was an Afghan citizen and that he did not have a right of return with respect to Iran where he claimed to have previously held a permit as a refugee. There is no information before the Tribunal that would lead it to depart from those findings.
The Tribunal finds the applicant does not have a right to enter and reside in any third country.
For the reasons given above, the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
There is no evidence before the Tribunal that any other exclusions apply to the applicant.
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 the Refugees Convention. Therefore, the applicant satisfies the criterion set out in 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.
Simone Burford
Senior Member

[2024] AATA 3926

15 July 2024

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