2419085 (Refugee) - [2024] AATA 4106

2419085 (Refugee) [2024] AATA 4106 (25 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ann Emmanuel
CASE NUMBER:  2419085
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Melissa McAdam
DATE:25 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(iii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 25 September 2024 at 12:15pm
CATCHWORDS
REFUGEE – protection visa – Afghanistan – ethnicity and religion – Hazara Shia – fear of harm from Taliban and other militant groups – gender – wife and daughters – gender-based violence and education – temporary visas for third country expired – passports from third country provided by people smugglers – third country passports destroyed – third country citizenship laws – actions taken against fraudulently obtained citizenship – parents’ citizenship now renounced, and right to regain citizenship not a current right to enter and reside – members of family unit wife and children, the youngest born in Australia – children’s education and wife’s and children’s physical and mental health – discrimination, harassment and attacks, violence against women, limitations on women’s movements and employment and girls’ education, and health care – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 36(2)(a), (b)(i), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIMAC v SZRHU [2013] FCAFC 91
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 June 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Afghanistan, applied for the visas on 12 December 2023.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 4106
Decision Date: 25 September 2024

CaseChat Overview and Summary

This matter concerned a protection visa application made by an Afghan family, comprising parents and their minor children, one of whom was born in Australia. The applicants, who are of Hazara ethnicity and Shia Muslim faith, claimed they would face persecution and harm if returned to Afghanistan due to their ethnicity and religion, citing threats from the Taliban and other militant groups. They also raised concerns about gender-based violence and limitations on women's and girls' rights and education in Afghanistan. The family had previously held temporary visas for a third country, which had expired, and had travelled to Australia using passports provided by people smugglers, which they believed were fraudulently obtained.

The primary legal issues before the court were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) (the Act) by establishing a well-founded fear of persecution or harm in Afghanistan, and alternatively, whether they met the complementary protection criterion under section 36(2)(aa) of the Act. A significant aspect of the determination involved assessing the applicants' claims regarding their alleged citizenship of a third country, the lawfulness of how these passports were obtained, and whether they possessed a current right to enter and reside in that third country, as required by section 36(3) of the Act. The court also considered the impact of the parents' alleged renunciation of their parents' citizenship and their right to regain it.

The court considered the applicants' detailed claims of past persecution and ongoing fear of harm in Afghanistan, particularly focusing on the risks faced by Hazara Shia Muslims. It examined evidence regarding the Taliban's historical and current targeting of this ethnic and religious group, including threats to life, property, and freedom of movement. The court also took into account the specific vulnerabilities of the female applicants and the youngest child, including concerns about gender-based violence, limitations on education and employment for women and girls, and the general safety of healthcare. The court's reasoning involved assessing the credibility of the applicants' claims in light of available country information and the specific circumstances surrounding their departure from Afghanistan and subsequent travel.

The decision under review was remitted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The [Country 3] Government Citizenship’s Office and Commission website homepage highlights the following under the heading “Revocations”:Due to the previous illegal and unreasonable activities by individuals, the current established Commission has revoked around almost 30 citizenships that were granted contrary to the Provisions of the Citizenship Act [Act Number] and the national Constitution. While there is more suspicion of revocations, the Citizenship Office/Commission ensures that all applicants must apply in a proper process and in accordance with the provisions of the Citizenship Act and Constitution.[7]CONSIDERATION OF CLAIMS AND EVIDENCE[7] [URL]Country of NationalityAfghanistan The Department has records of the Afghanistan passports belonging to the first six applicants. Their Afghanistan nationality has also been confirmed by the authorities in [Country 1]. The youngest child, [the seventh applicant], was born in Australia to Afghan citizen parents and is therefore also a national of Afghanistan. The Tribunal is satisfied that the applicants are citizens of Afghanistan. [Country 3] There is evidence that the applicants are, or were, also citizens of [Country 3] and that the applicant parents and four eldest children obtained this citizenship in 2021 and used [Country 3] passports to travel to Australia, and that the youngest child [the seventh applicant] is a [Country 3] citizen by birth. Under s 5 of the Migration Act nationality of [Country 3] is to be determined solely by refence to the law of [Country 3]. In this case that is the [Country 3] Constitution and the Citizenship Act [[Act Number]]. [The first applicant] claims that he paid an agent to obtain the [Country 3] passports for himself, his wife and his four eldest children. He claims that he believes the passports were fraudulent or unlawfully obtained and that they do not represent lawful [Country 3] citizenship. As put to the applicants the [Country 3] authorities previously confirmed that [the second applicant] and the four eldest children are citizens of [Country 3] and hold valid [Country 3] passports. Part 3A of [Country 3]’s Citizenship Act allows for citizenship ‘by investment’ and includes citizenship by an investor under the Development Support program (Section 13B(2)(c)). In practice this involves applying, paying the requisite fee, and submitting supporting documents. It does not require any presence or domicile in [Country 3] or any connection to [Country 3]. According to the available country information, as set out above, it is advertised as one of the easiest ways to obtain a second citizenship and was reportedly popular because initially [Country 3] passport holders had visa-free access to Europe. According to the available media reports a number of Afghan nationals have acquired [Country 3] citizenship in this manner since 2018. The European Commission has subsequently suspended [Country 3]’s visa-free access to Europe a result of the ease in which other foreign nationals could obtain [Country 3] citizenship.

Decision

Reasons for decision

On 28 March 2024 the applicants’ Representative provided a written response to the delegate, setting out the following:… the applicants instruct that they do not believe they have lawfully obtained [Country 3] citizenship and do not believe they have a right to enter and reside within that country, within the meaning of s 36(3) of the Migration Act 1958 (Cth). 1. Information put to … [the first applicant] regarding [Country 3] passport The Invitation to Comment addressed to [the first applicant] states that the Department has information which indicates that he utilised a [Country 3] passport to board a flight from [Country 4]. A copy of the passport has not been provided. There is no information that indicates that any relevant [Country 3] authorities have confirmed that [the first applicant] held a genuine passport or lawfully obtained [Country 3] citizenship. The reference in the Invitation to [the first applicant] obtaining his passport “at the same time and in the same manner” as his family is unclear as there has been no information put to [the first applicant] as to the manner in which he allegedly obtained the passport referred to in the Invitation. As [the first applicant] has previously explained, he was given a [Country 3] passport by people smugglers, whom he had paid to help his family to try to find safety. During the interview, [the first applicant] explained that he paid the smugglers a total of roughly $120, 000USD to make all the arrangements for the family. [The first applicant] states that he and his family have never been to [Country 3], never signed any application form to apply for citizenship and never undertaken an oath or citizenship ceremony. [The first applicant] therefore believes that the travel document he was given was not genuine or not lawfully obtained by the people smugglers, and he believes that he is not a citizen of [Country 3]. There is no information put to [the first applicant] to indicate that he lawfully obtained a genuine [Country 3] passport or that he has lawfully obtained [Country 3] citizenship.2. Information regarding [Country 3] citizenship put to [the seventh applicant] The Invitation to Comment addressed to [the seventh applicant] states that the Department has information that indicates that his mother, [the second applicant], was a citizen of [Country 3] at the time of his birth and country information indicates that he would therefore have acquired [Country 3] citizenship at birth. [The second applicant] has previously explained that she has no knowledge of obtaining [Country 3] citizenship and believes that the passports she was given by the people smugglers was not genuine or lawfully obtained. She instructs that she has never been to [Country 3], never applied for [Country 3] citizenship and never undertaken any oath or pledge to [Country 3]. There has been no information put to the applicants that suggests otherwise. The Department has not provided any information regarding how [the second applicant] allegedly obtained [Country 3] citizenship or the type of citizenship she allegedly holds. I refer to the submissions previously provided to the Department dated 16 February 2024, which details the requirements under the *Citizenship Act, [Act Number] (Republic of [Country 3]) to lawfully obtain [Country 3] citizenship and country information which supports [the second applicant’s] evidence.Delegate’s Decision

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Protection visa application The applicants are a family. The first named applicant and the second named applicant are the parents of the other applicants who are minor children. The following is a summary of the claims and information the applicants provided in their Protection visa application:a.[The first applicant] was born in [Year]. [The second applicant] was born in [Year]. [The third applicant] was born in [Year]. [The fourth applicant] was born in [Year]. [The fifth applicant] was born in [Year]. [The sixth applicant] was born in [Year]. [The seventh applicant] was born in Australia in [Year]. [The seventh applicant]’s NSW Birth Certificate was provided.b.The applicants are Shia Muslims of Hazara ethnicity and are nationals of Afghanistan.c.[The second applicant]’s parents, [sisters] and [brothers] are still alive. [The first applicant]’s parents, [sisters] and [brother] are still alive.d.[The second applicant] and the four children arrived at Sydney Airport [in] December 2021 and were placed in immigration detention at the Villawood IDC. In December 2022 they were transferred to community detention. [The first applicant] arrived in Australia in November 2023 and he was placed in immigration detention in Villawood IDC.e.[The second applicant] has very limited literacy skills and has difficulty with memory. f.The applicants believe they will be killed, attacked, or otherwise harmed if they had to return to Afghanistan because of their Hazara ethnicity and Shia religion. The Taliban wanted to erase Hazara people from Afghanistan when they took over in the past and they want to do it again now.g.The applicants are at risk of harm from the Taliban, as well as other militant groups in Afghanistan. The Taliban will target them because of their ethnicity, religion and gender. For example, the Taliban break into Hazara people's houses and do things such as kidnap people and search houses. h.[The second applicant] and [the first applicant] did not send their children to school in Afghanistan because the Taliban and other groups would target the schools and hospitals that Hazara people went to.i.When the Taliban were taking over the police could not even protect themselves, let alone other people. Now the Taliban has taken over. They will not protect the applicants. The applicants are at risk of harm from the Taliban because they are Hazara and Shia Muslims.j.They are at risk of persecution in all parts of Afghanistan. When [the second applicant] was younger the Taliban first took over. Her family tried to relocate but the Taliban targeted Hazara people. Two of [the second applicant]’s siblings were killed when they were trying to flee. All of Afghanistan is unsafe for Hazara people.k.When she was younger [the second applicant] lived with her mother and siblings in Mazar Sharif. There were other Hazara people living there. They had to flee because the Taliban were taking over. They went from house to house looking for Hazara people and there were bombings in [the second applicant]’s area.l.The Taliban interrogated one of [the second applicant]’s sisters but she was able to speak Pashto instead of Hazaragi and they let her go.m.[The second applicant]’s family tried to flee. They travelled in a truck with other people trying to get Kabul. The Taliban bombed people who were trying to flee. A bomb landed near the truck and people were killed by the explosion, including two of [the second applicant]’s siblings. The rest of the family managed to get to Kabul. They stayed in Kabul for a few months and then fled to Pakistan and lived there for a few years. She does not know the dates. [The second applicant] [did a job task] to try to make some money.n.After the Taliban were overthrown [the second applicant]’s family returned to Afghanistan. For a while [the second applicant] [did a job task] there to earn money. Things were still difficult because of their ethnicity and religion. o.In recent times, before the Taliban took over again, [the first applicant] and his family were threatened and robbed on more than one occasion. [The first applicant] reported at least one of the robberies to police. They said they would investigate but nothing happened.p.Even before the Taliban completely took over [the second applicant] and [the first applicant] could not send their children to school because it was not safe. They were afraid the children might be kidnapped or harmed in some way because the places that Hazara people went, like schools and hospitals, were often targeted.q.Before she married [the second applicant] lived in Afghanistan with her mother and siblings. Her father left them when she was young and she thinks he remarried.r.[The second applicant] and [the first applicant] married in around October 2004. After they married [the second applicant] lived in Kabul. [The first applicant] had a visa for [Country 1] and he worked in [Country 1] most of the time. He would visit the family in Afghanistan. [The first applicant] later obtained visas for [the second applicant] to travel to [Country 1]. She went there to visit [the first applicant] while he was there and also during her pregnancies.s.[The first applicant] had to leave [Country 1] because the government was cancelling visas for Shia people. [The second applicant] and the children were in Afghanistan at this time.t.Since they arrived in Australia [the first applicant] has explained to [the second applicant] that they had also been in [Country 2] and previously had visas for [Country 2]. [The second applicant] does not remember this properly. She has a lot of trouble with memory since this time. [The first applicant] has explained to her that they travelled to [Country 2] to live with him. [The second applicant] fell ill while she was there. She has a lot of difficulties with her memory ever since. She does not really remember falling ill or what happened afterwards. Her family have told her that they went to doctors who said she should leave [Country 2].u.The family were in [Country 2] before coming to Australia. The people smugglers had told them to say that they had travelled from Afghanistan, not [Country 2], because otherwise they would be sent back. [The second applicant] does not really remember this, it is more like a dream. Since her husband has come to Australia he has explained and confirmed what happened.v.[The second applicant] went to school in Afghanistan for a couple of years.w.The Department thinks the applicants are citizens of [Country 3]. [The second applicant] believes that the people who arranged for them to travel out of Afghanistan arranged [Country 3] passports for them. She does not think the passports are genuine. She and her children cannot go to [Country 3]. She understands that it is very unsafe for women and girls in [Country 3]. She fears that she and her daughters would face harm in [Country 3]. She does not know how she could survive there.x.The applicants are a relatively well-off Hazara family. [The first applicant] believes the Taliban and others will target the applicants to take whatever they have and then kill them.y.[The first applicant] and the sons are at risk because they are males and the Taliban has killed Hazara men and boys in the past. [The second applicant] and the daughters are not safe because of their gender. For example, the Taliban restricts rights to education and work for women and girls and it is not safe to for them to move around by themselves.z.[The first applicant] was born in Parwan. Sometime later, his family moved to Kabul. He lived there with his parents and siblings. They were in Kabul when the Taliban took over in the 1990s. The Taliban were targeting Hazara people. [The first applicant] and his family moved to Mazar Sharif for a short time but were not able to live there either and they managed to get back to Kabul.aa.They were not safe in Kabul. They had to keep a low profile to try to avoid being harmed. It was not safe to travel around. [The first applicant] could not return to the school that he used to attend, [High School], because it was not safe and the teachers and students had abandoned it. So he went to a community college to try to continue his education. [The first applicant]’s father had to go to Pakistan because if the Taliban caught him they would probably have killed him. His father came back to Afghanistan after the collapse of the Taliban regime.bb.In around [Year] [the first applicant] obtained a work permit for [Country 1] and started working there. He worked in [Country 1] until around 2015. He would travel between Afghanistan and [Country 1] during this period. He obtained residency visas for the family for [Country 1]. He would bring his family to [Country 1] to stay with him at times and for [the second applicant]’s pregnancies.cc.In around 2015, [Country 1] were cancelling a lot of visas held by Shia people. [The first applicant]’s visa was going to expire in a month or so when he found out about this. He did not want his visa cancelled so he sold off his business things and left before his visa could be cancelled.dd.After this [the first applicant] managed to get some shorter-term visas for his family to travel to [Country 1] at various times in the following years. They do not currently have visas for [Country 1].ee.In around 2015 [the first applicant] managed to get a short-term visitor visa to [Country 2]. In around September 2016 [the first applicant] managed to get a work permit/visa for [Country 2] and started working there. He made short trips back to Afghanistan to visit the family. In 2017 he managed to get dependent visas for the family to go to [Country 2] and stay with him. They received visas for about one year at a time which they had to renew in [Country 2].ff.[The second applicant] suffered from a brain shock while they were in [Country 2]. [The first applicant] thinks this was in around 2018. This affected her memory and now she forgets things. They went to doctors to try to manage her condition. The doctors eventually suggested that [the second applicant] should leave [Country 2] because she was depressed in [Country 2]. [The first applicant] thinks this was in around 2020.gg.[The first applicant] started making arrangements for the applicants to find a safe, permanent place to live away from Afghanistan. They could not return to Afghanistan because the Taliban were coming back into power and they would be targeting Hazara people. [The first applicant] was worried that the applicants could not live in [Country 2] because his wife had been very unwell there. [The first applicant] was also worried that if something happened to him, such as if he lost work or became sick, his family would not get another visa for [Country 2] because he was the main visa holder. If that happened, they would have to return to Afghanistan and it was not safe there.hh.A friend put [the first applicant] in contact with people who were people smugglers who could help him. [The first applicant] paid money to them to help the applicants. They gave the applicants new passports and made arrangements for them.ii.In March 2021 [the first applicant] brought his family back to [Country 2]. They stayed there for several months because they could not travel due to COVID-19.jj.In around December 2021 the people smugglers managed to arrange for the applicants to leave [Country 2] and go to Australia. The people smugglers told them that they should say they had come from Kabul in late 2021 and not straight from [Country 2] because that would help once they got to Australia.kk.[The first applicant] had to stay in [Country 2] to clear their rental house, leave his job and to pay the people smugglers the remainder of the money he owed them. He was hoping to get a chance to leave in March 2023 and be reunited with his family but the people smugglers told him that he had to wait in [Country 2]. He did not hear from them for several months. Then they contacted him and said they would take him out of [Country 2] to Australia but he had to wait.ll.[The first applicant]’s permit for [Country 2] was going to expire while he was there so he had to renew the permit. He received a visa for 3 years. He believes this visa expires in 2026. He does not have a valid passport to travel anymore. He could not renew the permit for his family because they needed to be in [Country 2] to make the application for renewal.mm.In around October 2023 the people smugglers asked [the first applicant] for money to book a flight to [Country 4]. They arranged for places for him to stay in [Country 4] for several weeks. Then they booked a flight from [Country 4] to Australia for him. They told him to destroy the passport they had given him or there would be big problems when he arrived in Australia. He did what they told him to do while he was on the plane. He arrived in Australia in November 2023.nn.When [the first applicant] was in [Country 1] he worked for a business called [Business 1]. His occupation was [Occupation 1] until around [Year]. Then his occupation was [Occupation 2].oo.When he was in [Country 2] [the first applicant] worked for a business called [Business 2]. His duties were [job tasks 2].pp.[The first applicant] attended school from around [Year] to [Year]. From [Year] to [Year] he went to school at [High School], in West Kabul, Afghanistan. After the Taliban took over, the school was not safe and it was abandoned. So during this time, he went to a community school. From around [Year] to the end of [Year] he started to study [subject] in the community school. [Around the time the Taliban collapsed], he went to [Institute]. He completed a qualification in [Subject] for [specialisation] around the end of [Year].qq.The people who arranged for the family to travel out of Afghanistan took the family’s Afghan passports and documents because they said they needed the exact details to make new passports and arrangements. Then they gave the applicants the [Country 3] passports. [The first applicant] believed that the passports were not genuine. He does not believe that the applicants have [Country 3] citizenship. He has never been to [Country 3]. He has never signed any forms to apply for citizenship. He has never taken any oath or undergone any citizenship ceremony.