2308809 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse the applicant, an Afghan citizen, a Protection visa under the *Migration Act 1958* (Cth). The applicant, who arrived in Australia in 2009, had his initial humanitarian visa cancelled in 2014 on the basis that he was married at the time of his arrival, a fact he had not disclosed. Following the affirmation of this cancellation by the Migration Review Tribunal, the applicant applied for a Protection visa. This application was refused, and a subsequent review application to the Tribunal was dismissed due to the applicant's failure to appear at a hearing. The Federal Circuit and Family Court of Australia subsequently remitted the application to the Tribunal for determination according to law.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa, specifically whether he was a person in respect of whom Australia had protection obligations under the Refugees Convention. This required the Tribunal to consider, both individually and cumulatively, the applicant's claims of fear of persecution, including his ethnicity (Tajik), his claimed non-practicing Muslim faith, his political opinion (real or imputed anti-Taliban sentiment), and his status as a returnee from the West, taking into account his mental health issues. The Tribunal was also required to assess the applicant's likely place of return within Afghanistan and whether any risk of harm in that location was general to the population or specific to him, and whether internal relocation would be reasonable.

The Tribunal reasoned that while the applicant's home area was Kunduz, his immediate family, including his son and sister, resided in Kabul. Drawing on Department of Foreign Affairs and Trade (DFAT) country information, the Tribunal noted that returnees from Western countries almost exclusively return to Kabul, often for economic reasons, and that many choose to remain there rather than return to their home provinces. Consequently, the Tribunal assessed the applicant's claims on the basis that Kabul would be his likely place of return. The Tribunal considered the applicant's claims individually and cumulatively, in accordance with Ministerial Direction No. 84 and relevant guidelines, and found that the applicant was a person in respect of whom Australia had protection obligations.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth).