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 the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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.

On 21 January 2024 the applicants’ Representative submitted a copy of a ‘Summary of Treatment for [the second applicant]’, by [Counsellor A], dated 4 December 2023. In the report refers to [the second applicant] having symptoms of Major Depression, anxiety, PTSD, and stress and that she requires further counselling treatment.
Departmental Interview, 23 January 2024
The following is a summary of the information [the second applicant] provided by video in the Department interview:
a.Her date of birth is [Date]. She has some distant relatives in Australia. She found out about them when she attended a mosque during Ashura.
b.Her [sisters] and mother are in Afghanistan. She has a brother. Another sister and brother were martyred. Her father left the family when the applicant was very young and took another wife and has now passed away.
c.Her mother and elder sister were in [Neighbourhood 1] in Kabul but she has been told they have moved to another place in Kabul, [Neighbourhood 2], next to [Neighbourhood 1]. She cannot spell the names.
d.Her husband told her that his parents are living in [Country 5] at the moment. Before they were in Afghanistan.
e.She has not had contact with her family in Afghanistan because it causes her huge mental health problems.
f.The applicant supports herself and children through welfare payments. Sometimes their Afghan friends help them. A charity organisation helps her son and daughter with their school. A nurse comes to check on them too.
g.After the applicant’s father left her family moved to Mazar-e Sharif and that is when the Taliban attacked. Her brother and sister were killed by shrapnel during one attack.
h.They went to Kabul but her elder brother was unemployed. So the applicant learnt to [do job task 1]. One time as a young girl the applicant went outside without a scarf and the Taliban lashed her on her shoulder. They wanted to put her shoes around her neck and parade her but her mother begged them not to. Because of the trauma her period came early even though she was still very young. Her mother took her to a doctor.
i.When the applicant’s family went to Kabul they left her sister behind in Mazar. Her brother went back to get her to bring her to Kabul. The Taliban were looking for Hazaras. They went to the family’s house but the applicant’s sister could speak Pashto and told them there were no Hazaras there while her brother hid. Her sister looked a little bit different not so like an Hazara. So the Taliban thought she may be Uzbek and let her alone.
j.The Taliban were after Hazaras in Kabul so the family moved to Pakistan. Then during Hamid Karzai’s reign the family moved back to Afghanistan. The applicant [did job task 1] in Pakistan and Afghanistan.
k.The applicant was born in Kabul but her family village was in Parwan.
l.They have applied for protection because they are being targeted in Afghanistan because they are Shia and Hazara. The children, especially the daughters, cannot go to school in Afghanistan. The applicant grew up uneducated and illiterate and she does not want this to happen to her children.
m.The Delegate asked the applicant to provide identity documents from Afghanistan. [The second applicant] has copies of identity document except for [the seventh applicant], and will provide them to the Department with translations.
n.The situation in Afghanistan is getting worse day by day.
o.She is Shia Muslim. She attends a mosque in [Road] during Muharram and when someone passes away and there is a memorial session. She prays at home five times a day. Ramadan will start in March and she will fast then. Her children are also Muslim.
p.She cannot remember when she was last in Afghanistan. She has been sick. They moved to [Country 1] and her husband and children looked after her. She gets confused about the past and feels dizzy. She is still seeing a doctor and psychologist in Australia. She has also been referred to a psychiatrist but has not had the appointment yet because her stress levels are too high. The Delegate asked the applicant to provide updated medical information.
q.The applicant last arrived in Australia in 2021 in the 12^th month. She travelled from [Country 2] with a people smuggler who advised them to say they travelled from Afghanistan and to destroy their passports. The passports were given to them by the smugglers. Her husband arranged this. They left [Country 2] because they were unsure they could stay and were worried they could be sent back to Afghanistan.
r.She has no information about the passports and [Country 3]. She thinks the [Country 3] passports are not genuine because they were made by smugglers.
s.The Delegate put to the applicant that the Department had confirmed with the immigration department of [Country 3] that all the applicants (apart from [the seventh applicant]) are citizens of [Country 3] and their passports are genuine. Therefore they have the right to reside in [Country 3]. She responded that she had never been to [Country 3]. [Country 3] is not a safe country either.
The following is a summary of the information the applicants, [the first applicant], provided by video in the Department interview:
a.He has family in Australia. His brother is here. He has family in Afghanistan. His parents, another brother and sister are there. They are in Kabul. He has family in [Country 1]. His parents and siblings come and go from there. He is not sure which country they are in at the present time.
b.He last arrived in Australia in November 2023. He studied in Kabul as a child but because of the Taliban the family moved to Mazar. They could not stay in Mazar so moved back to Kabul. His father then went to Pakistan. The applicant stayed in Kabul to complete his studies.
c.He started to work in [Country 1] until they started cancelling visas. In 2015 he left [Country 1] before his visa was cancelled. In 2016 he obtained a [Country 2] work permit visa. He worked in [Country 2] and applied for his family to join him. He brought them to [Country 2] in September 2017. After a year his wife had a stroke one morning and was taken to hospital. After that she had some complications. The doctor said she suffered a convulsion. The doctor said she did not get better and suffered from depression and needed to leave [Country 2]. She needed to go back to Afghanistan for a month or two. But in 2019 the situation got worse and there were attacks. So she had to come back because of the kids.
d.In 2020 he tried to find another safe place. He contacted a friend in Afghanistan to find another option or safe place. They knew a person who the applicant contacted who told him for a family it would cost $120,000. The applicant paid $100,000. He made the documents and other requirements. Things were ready but because of Covid they could not go. In December 2021 the agent told them to get ready to leave. He came and took them to the airport. The arrangement was only for his wife and children. In December he managed to send them to Australia. He then had to pay another $20,000 for himself. The agents were not sure they could send anymore from [Country 2] as their operations had been disclosed. He waited for a long time. In late September they told him to get ready to leave in October. His work visa was expiring so he applied to renew it and it was issued for another two years.
e.On 10 October he flew to [Country 4]. He stayed there for 3-4 weeks. They booked him another ticket and asked him to go to the airport. He was told to destroy the passport and boarding pass during the flight. At the Sydney airport he asked for protection and was taken to Villawood IDC.
f.He is Shia and Hazara.
g.He last returned to Afghanistan in about 2019. He thinks his wife last returned there in 2019.
h.He thinks he cannot return to [Country 2] because he does not have a passport.
i.He did not apply for protection in [Country 2] because he knew people who applied a long time ago but they were only given a 3 or 6 month visa and then they were asked to leave [Country 2]. They accept zero refugees in [Country 2].
j.He and his family do not have [Country 3] citizenship. The smuggler made their documents. He and his family have never been to [Country 3]. They have never applied for a passport. They did not sign any documents or forms to obtain a passport. He does not have a copy of the passport.
k.[The seventh applicant] has no passport. He only has a Birth Certificate. He is not a citizen of [Country 3].
l.The Delegate put to the applicant that the Department had confirmed with the Immigration Department of [Country 3] that his wife and children (apart from [the seventh applicant]) are citizens of [Country 3] and their passports are genuine. Given he obtained his passport in the same way this indicates he is a citizen of [Country 3] too. Therefore they all have the right to reside in [Country 3]. The applicant responded that he had never been to [Country 3]. [Country 3] is not a safe country either.
Post-Interview Submissions
On 16 February 2024 the applicants’ Representative submitted the following materials to the department:
-    A written submission from the Representative.
-    A medical report for [the second applicant], prepared by [Dr B], dated 28 January 2024.
-    A Letter from [C], Principal Psychologist, dated 25 January 2024, regarding, [the second applicant]
-    Afghanistan Taskiras for each applicant, except [the seventh applicant].
In her submission the Representative sets out the following in relation to the applicant’s rights and situation in [Country 2] and [Country 3] (references omitted):
[The first applicant] – No evidence of right to enter and reside in [Country 3]
The adverse information put to [the first applicant] was “[g]iven that [the first applicant] obtained his passport at the same time and in the same manner as [the second to sixth applicants], this indicates to the Department that he is also a citizen of [Country 3].”
This is an assumption only and is not sufficient to establish a right to enter and reside in another country. As per Departmental policy, it is “necessary for the decision maker to identify sufficient evidence to establish that the right to enter and reside is one that exists and is ‘lawfully’ given.” There has been no evidence put to [the first applicant] that he had a genuine [Country 3] passport or lawfully obtained [Country 3] citizenship. The reference 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 time or manner in which he obtained the passport referred to in the adverse information.
[The first applicant] has explained that he was given a [Country 3] passport by people smugglers, whom he had paid to help his family. [The 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 applicant] therefore believes that the 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].
[The first applicant]’s statements are credible. Reports on international crime have found that the use of fraudulent travel documents is common in people smuggling operations. For example, a report by the United Nations Office of Drugs and Crime (UNODC) notes that fraudulent travel and identity documents are often used in smuggling migrants, particularly by air, out of Southwest Asia, which includes Afghanistan. Likewise, another report from UNODC noted that “[f]raudulent travel or identity documents play an important role in facilitating smuggling of migrants and trafficking in persons. Most cases of smuggling by air involve the use of fraudulent documents.”
[The first applicant] – No current right to enter and reside in [Country 2]
[The first applicant] instructs that he previously had a work-related visa to reside in [Country 2]. He instructs that when he last exited [Country 2], he stated that he would not return and did not obtain a Re-entry or Special Re-entry Permit.
Information from the Immigration Services Agency of [Country 2] states that:
“If a foreign national residing in [Country 2] leaves [Country 2] without receiving a re-entry permit (including a special re-entry permit), the foreign national's status of residence and period of stay will be cancelled. If you wish to re-enter [Country 2], you will need to obtain a new visa before entering [Country 2], apply for landing, and undergo landing examination procedures to receive a landing permit."
Therefore, [the first applicant]'s does not have a current right' to enter and reside in [Country 2] because his visa has expired.
[The second applicant] and the four elder children — no right to enter and reside in [Country 3]
The Department has alleged that [the second applicant] and her four elder children, [the third to sixth applicants], had genuine [Country 3] passports and [Country 3] citizenship. The applicants maintain that they have no knowledge of obtaining [Country 3] citizenship and believe that the passports they were given by the people smugglers were not genuine or lawfully obtained. The applicants instruct that they have never been to [Country 3], never applied for [Country 3] citizenship and never undertaken any oath or pledge to [Country 3]. During the interview, [the first applicant] stated that he paid the smugglers a total of roughly $120,000 USD to make all the arrangements for the family.
In assessing whether an applicant has a right within the meaning of s 36(3) of the Act, the Court in DED16 v Minister for Home Affairs [2019] FCAFC 18 noted that "[e]vidence of the source of the right will be probative of the existence of the right."' Likewise, Departmental policy notes that evidence of the source of the right may be relevant in making a finding of fact that such a right exists.' In this case, the Department has not provided any information regarding how the applicants allegedly obtained [Country 3] citizenship or the type of citizenship they allegedly hold.
To lawfully obtain [Country 3] citizenship under Citizenship Act, [Act Number] ([Country 3]), requires that an application is made, an oath of allegiance or a solemn affirmation is made, the Commission assesses the application, and the requisite fee is paid. Under the Citizenship Act, [Act Number] ([Country 3]), citizenship may be obtained by naturalisation, which requires that the applicant has lived in [Country 3] for a continuous period of 10 years.' Alternatively, an application under Part 3A - Dual Citizenship, provides for citizenship by investment under the Capital Investment Program, the Contribution Program, the Development Support Program or the Real Estate Option Program. These programs have significant fees attached. The selling price for the Development Support Program is $180,000USD for a married couple with two minor children.' The citizenship fee for the Capital Investment Immigration Plan is $260, 000USD for an applicant, spouse and a minor child, plus an additional $19, 250USD for each additional minor child.' For all types of citizenship, the main applicant must make the prescribed oath of allegiance or solemn affirmation.
In light of the processes to lawfully obtain [Country 3] citizenship, summarised above, it is unclear how the applicants could have complied with these requirements and lawfully obtained any type of citizenship of [Country 3]. As such, their statements that they believe the passports given to them by people smugglers were not genuine or lawfully obtained is credible.
The Citizenship's Office and Commission of the Government of [Country 3] has itself noted that people have fraudulently obtained [Country 3] citizenship and has taken action to revoke citizenships. It notes that "[d]ue 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” and noted there is “more suspicion of revocations.”
[The second, fourth and sixth applicants] –risk of persecution or significant harm in [Country 3]
[The second applicant] fears that she and her daughters will face persecution in [Country 3] due to their gender.
Country information indicates that women and girls in [Country 3] are reported to face high levels of gender-based violence. Baseline research by the [Country 3] Women’s Centre found that the combined national prevalence of non-partner physical and/or sexual abuse of women since the age over 15 was [approx 50] per cent, and almost 1 in3women reported that they were sexually abused before the age of 15 years. This prevalence of sexual abuse against girls under 15 years of age is reportedly one of the highest in the world. In August 2021, the [Country 3] police force’s [Unit 1] noted that “[f]or every five reports received each week by the unit, up to two were related to domestic violence and sexual abuse.” There have been cases of kidnappings of women and girls, including a 21 year old man kidnapping an eight year old girl.
Access to formal protections for women and girls appears significantly limited, with findings that “[almost 100%] of women and children experiencing violence in [Country 3] do not access the formal justice system.” The most recent United States’ Human Rights Report, states “[t]he government did not effectively enforce rape and domestic violence laws.”
The above country information supports a finding that there is a real chance that [the second applicant] and her daughters, aged seven and 15, would face serious harm, including risk of sexual assault, and would not be able to access protection from the [Country 3] authorities.
They cannot relocate to a different part of [Country 3] to avoid persecution, because the risk exists throughout [Country 3], given the country and population is small. Additionally, the risk of harm increases in rural areas. As noted in the United States’ Human Rights Report, that most cases of gender-based violence, “including rape, were not reported to authorities because women, particularly in rural areas, were unaware of their rights or feared further abuse.” This report also noted that access to basic services, namely menstrual health care, for girls was culturally constrained in most rural areas.
Risk of being returned from [Country 3] to Afghanistan
The applicants have a well-founded fear that if they were to try to exercise the alleged right to enter and reside in [Country 3], they would be returned to Afghanistan, because they do not know how the [Country 3] passports were obtained and do not believe they have lawfully obtained [Country 3] citizenship.
In order to exercise the alleged right, the applicants would need to apply for new [Country 3] passports, as they were instructed by the people smugglers to destroy the passports that they had given them. In order to apply for passports, the applicants would have to provide evidence of citizenship and complete a form. The applicants do not have citizenship certificates and do not know which type of citizenship they allegedly hold. It is foreseeable that in the process of trying to obtain passports, any fraudulent or otherwise unlawful actions of the people smugglers will be brought to the attention of the [Country 3] authorities.
Accordingly, there is a real chance that the [Country 3] Citizenship Commission will consider revoking their alleged citizenship. Under the Citizenship Act, [Act Number] (Republic of [Country 3]), the Citizenship Commission has the power to revoke citizenship if the citizenship was granted in a fraudulent manner or granted contrary to the provisions of the Act or Constitution. As noted above, the Citizenship Commission has exercised this power in around 30 cases.
As the applicants are nationals of Afghanistan, they have a well-founded fear that [Country 3] would revoke the alleged citizenship and they would be returned to their country of nationality.
Note on Taskiras provided
We wish to note the following instructions and comments in relation to the taskiras provided in response to the request of the Department of Home Affairs under s 56 of the Act.
We note that the place of birth for [the fourth applicant] is recorded as “Parwan”. This is incorrect. [The fourth applicant] was born in [Country 1]. We note that [the second applicant]’s taskira records her place of birth as “Parwan”. This is incorrect. [The second applicant] instructs that she was born in Kabul, but her family originated from Parwan. We note that country information indicates that the place of birth on a taskira is not always the place that the holder was born, but may instead be the place where their spouse or other male relatives were born.
In relation to the taskira for [the second applicant], we note that the marital status was recorded as “Single”. This is incorrect. [The second applicant] has been married to [the first applicant] since 2004.
[The second applicant’s] date of birth is recorded as [Date, Year 1], but we understand that it was been recorded as [Date, Year 2] on her passport. We are instructed that the date of birth on the taskira is correct.
We note that the language recorded on their taskiras is “Dari.” Dari is a variety of Persian that is mutually intelligible with Hazaragi. Hazaragi is generally considered as a dialect of Dari, although it is recognised as a separate language in Australia. Persian languages or dialects are marginalised by authorities in Afghanistan.

On 25 March 2024 the Delegate wrote to [the first applicant] inviting him to comment upon the following information:
Under subsection 36(3) of the Migration Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or
herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
[Country 3] passport
There is information before the Department which indicates you utilised your [Country 3] passport (Travel document ID [1]) to board flight [Flight number] in [Country 4]. The Department also has information confirming that your wife and four of your children hold [Country 3] passports and their passport numbers are as follows:
- [the sixth applicant] ([Date of birth]) – [ID 2]
- [the fifth applicant] ([Date of birth]) - [ID 3]
- [the second applicant] ([Date of birth]) – [ID 4]
- [the third applicant] ([Date of birth]) – [ID 5]
- [the fourth applicant] ([Date of birth]) – [ID 6]
Information before the Department also indicates that [the second to sixth applicants’] passports
were validly issued and they are citizens of [Country 3].
Given the sequence of the above passport numbers and the fact that you obtained these passports at in the same manner, at the same time, indicates that your passport was validly issued and you are also a citizen of [Country 3].
This information is relevant under s57 as a reason or part of the reason to refuse your application because it appears that because you have a right to reside in [Country 3] and you have not taken steps to avail yourself of this right, you do not meet the requirements of 36(3). I am inviting you to provide comment on this.
If the above information leads me to believe that you have not taken all possible steps to avail yourself of the right to enter and reside in [Country 3], I may find that Australia does not have protection obligations in respect of you and this visa application may be refused.
On 25 March 2024 the delegate wrote to the child, [the seventh applicant], inviting him to comment upon the following information:
There is information before the Department which indicates that your mother is a citizen of
[Country 3]. As your mother had acquired [Country 3] citizenship at the time of your birth, country
information indicates that you automatically acquired citizenship of [Country 3] pursuant to
Section [Number] of the Constitution of [Country 3]. This information is relevant under
s57 as a reason or part of the reason to refuse your application because it appears that because you have a right to reside in [Country 3] and you have not taken steps to avail yourself
of this right, you do not meet the requirements of 36(3). I am inviting you to provide comment
on this.
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
The Delegate assessed that the applicants met the definition of a refugee in respect of their country of nationality Afghanistan. However the Delegate found that the applicants were also citizens of [Country 3] and were excluded from Australia’s protection obligations by s 36(3) of the Act.
Information to the Tribunal
Pre-Hearing Submission
On 12 August 2024 the applicant’s representative submitted the following further materials to the Tribunal:
-A written submission by the Representative.
-Copies of the applicants’ statement previously submitted to the Department.
-Medical information regarding [the second applicant].
-Letters confirming school attendance of the minor applicants.
Tribunal Hearing
The applicants appeared before the Tribunal on 14 August 2024 to give evidence and present arguments. The Tribunal received oral evidence from [the first to fourth applicants]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The following is a summary of the information provided by [the first applicant] at the hearing.
a.The applicant paid $US 100,000 then a later payment of $US 20,000 for the [Country 3] passports. He gave this payment in cash to an agent in a shop in Kabul.
b.He has not approached the [Country 3] authorities to ask for replacement passports because he considered this pointless. He believes the passports he and his family destroyed were false. They also do not have the requisite proof of citizenship needed to obtain replacement passports.
c.Through his representative they have contacted the [Country 3] authorities to enquire about their citizenship status. They have not received any response. His representative has also submitted an FOI request to the [Country 3] citizenship office but has received no response.
d.While he was working in [Countries 1 and 2] he would return to Kabul in Afghanistan from time to time.
e.The applicants’ parents and siblings were living in Afghanistan but have now moved to [Country 5]. He has not spoken to them for some time. They plan to go to [Country 1] he thinks. They have lived and worked in [Country 1] before, in the [specified] industry. The applicant’s family is financially comfortable but they are not wealthy.
f.The applicant paid for the [Country 3] passports from his savings. He had worked for almost 13 years in [Country 1] and five years in [Country 2]. His father also sold his land in west Kabul for $15,000 to contribute to the cost.
g.The applicant would feel unsafe if he lived in [Country 3]. He doesn’t know the people there and he will be a newcomer and a foreigner. [Country 3] is very poor. If he is there, gets a place and lives like a foreigner others might think he is a tourist and rich. They might attack him, his children and his house. He won’t have anyone to support or protect him there. That is the reason he has taken on this suffering and came to Australia.
The following is a summary of the information provided by [the second applicant] at the hearing:
a.The applicant is fearful of going to [Country 3], especially for her young daughters. It is a very dangerous place for women and young women. It is poverty ridden. If a woman gets raped no one cares. The schools there are not good for children and are not safe for girls.
b.The applicant was only able to complete two years of school before the Taliban first took over Afghanistan and she and her family had to flee to Pakistan. She is illiterate. She wants to study and improve her English but does not have permission to study in Australia. She would also like to work, perhaps in a shop as she does not have professional qualifications.
c.Her mental condition is not good and is getting worse. She is fearful what will happen if they lived in [Country 3].
d.Her youngest child [the seventh applicant] has a speech impediment and sees a speech pathologist. He is [Age] years old and does not talk. Her daughter [the fourth applicant] has women’s health problems with her period and her body is also developing sugar in the blood. So every two weeks the applicant takes [the fourth applicant] to [Hospital]. Her son [the fifth applicant] has a liver problem. Both [the fourth and fifth applicants] are under the care of a counsellor at the hospital.
e.She does not know if the family will have any problems in [Country 3] because of religion. She only knows that [Country 3] is unsafe for women and is poor and corrupt. In [Country 3] the schools are not good and they do not have the medical facilities and treatment she and her children need. She is trying to make a good future for her children here. In [Country 3] their future will be dark.
The following is a summary of the information provided by [the fourth applicant] at the hearing.
a.She is going to school in Sydney. She enjoys all her classes. She would like to continue studying at university or TAFE after her school is complete and to have a professional career.
b.She does not know anything about [Country 3] except that it is not safe for women and girls.
c.Her friends are mostly from Afghan and south Asian background here because of where she lives. She does not know anyone from [Country 3 region].
The following is a summary of the information provided by [the third applicant] at the hearing.
a.He does not know much about [Country 3]. He has heard it is not safe especially for women. He thinks he and his family may have difficulties there because of their culture and religion and that they may face discrimination.
Post-Hearing Submission
On 21 August 2024 the applicants’ Representative wrote to the Tribunal stating the following:
… the review applicants consent to the Tribunal making enquiries regarding the alleged [Country 3] citizenship.
…
[The first applicant] is attempting to renounce the alleged citizenship because he had no knowledge of and never intended to obtain such citizenship. [The first applicant] again confirms that he never undertook any oath or affirmation, or completed an application form himself.
On 11 September 2024 the applicants’ Representative submitted the following documents to the Tribunal:
-A written submission by the Representative.
-A letter from [Dr E] regarding the applicants.
-A report by a Speech Pathologist regarding [the seventh applicant].
-A report dated 9 September 2024 by a Psychologist regarding [the second applicant].
-A copy of an email dated 26 March 2024 to the [Country 3] Citizenship Office and Commission from the Representative, regarding the applicants’ Right to Information Request to the Commission on 7 February 2024 and the lack of response from the Commission.
-A copy of an email dated 9 January 2023 to the [Country 3] High Commission in Canberra from the Representative, requesting information about the citizenship status of the applicants.
In the Representative’s submission she highlights the following:
-[The second applicant] did not provide a written statement to the [Country 3] authorities that she wished to become a [Country 3] citizen. This information supports the submission that [the second applicant] did not obtain [Country 3] citizenship lawfully.
-No response to enquiries has been received from the [Country 3] Citizenship Office and Commission or from the [Country 3] High Commission.
-The applicants would be readily identifiable in [Country 3] because they are neither [Ethnicity 1] or [Ethnicity 2]. The applicants have no knowledge of language, culture or customs in [Country 3]. As Shia Muslims the applicants are a different religious faith from 93% of the [Country 3] population who are Christian.
-Four of the applicants have high and ongoing medical treatment needs.
-The applicants would be considered as ‘foreigners’ in [Country 3] and therefore at greater risk of crimes such as robbery, assault and sexual assault, according to the New Zealand Government’s Travel Safety report, as supported by the UK and Australian government’s similar travel advice.
-[The second, fourth and sixth applicants] are at increased risk of gender-based violence in [Country 3], because inequality and difference intersect with and increase the risk of violence against women and girls.
-[The second applicant] is at particular risk because of her mental health condition. Her psychologist is of the opinion that if she had a stressful encounter, she would most likely not be able to protect herself, but rather freeze both mentally and physically. As a result of her mental health condition sexual harassment, robbery or societal discrimination would amount to serious harm to her.
-[The fourth applicant’s] mental health concerns and her young age should be taken into consideration in the assessment of harm she would face in [Country 3].
-[The seventh applicant] would be at risk of discrimination, including to his right to education, in [Country 3] because of his learning disabilities.
-[Section] of the Citizenship Act, [Act Number] ([Country 3]) provides that a citizen who is of full age and full capacity may renounce their citizenship, provided they hold some other nationality.
On 13 September 2024 the applicants’ Representative submitted the following documents to the Tribunal:
-A copy of a signed and stamped letter from the Secretary General, Citizenship Office, [Country 3] Government, dated [September] 2024 confirming that the Citizenship Commission at its meeting [in] August 2024 granted approval for the renunciation of [the second applicant]’s [Country 3] Citizenship. The [Country 3] passport office was informed and her [Country 3] passport was cancelled.
-A copy of a signed and stamped letter from the Secretary General, Citizenship Office, [Country 3] Government, dated [September] 2024 confirming that the Citizenship Commission at its meeting [in] August 2024 granted approval for the renunciation of [the first applicant]’s [Country 3] Citizenship. The [Country 3] passport office was informed and his [Country 3] passport was cancelled.
Country Information
Afghanistan
DFAT’s Thematic Report on Political and Security Development ins Afghanistan (August 2021 to January 2022), published on 14 January 2022, contains the following:
Hazara
The Hazara are an ethnic group of distinctive East Asian appearance, native to the Hazarajat region of Afghanistan. Their language, Hazaragi, is a variety of Persian that is mutually intelligible with Dari. The Hazara are one of Afghanistan’s fourteen recognised ethnic groups, estimated at around 10-20 per cent of Afghanistan’s population. The majority of Hazara are Shi’a. The takeover of Kabul and most of Afghanistan by the predominantly Sunni and Pashtun Taliban in 1996 marked a period of considerable repression and hardship for the Hazara nationwide: the worst single recorded massacre in the country’s recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazara. Many Hazara fled Afghanistan during this period to escape Taliban oppression.
The Hazara made significant social, political, and economic gains in Afghanistan after the fall of the Taliban in 2001, albeit from a low base. The return of the Taliban in 2021 was met with great fear by the Hazara community. The Hazara community regards the Taliban’s promises of amnesty and inclusivity with scepticism. One member of the Hazara community has been appointed to a relatively minor position in the interim Taliban ministry (Dr Mohammad Hassan Gheyasi, who was appointed Deputy Minister of Public Health), but Hazaras are not otherwise represented in the interim Taliban government.
Two of ISKP’s mass-casualty terror attacks, along with smaller attacks since mid-August 2021, have directly targeted Shi’ite mosques chiefly used by Hazaras. After the Kandahar attack of 15 October 2021, ISKP issued a statement saying it would target Shi’a in their homes and centres ‘in every way, from slaughtering their necks to scattering their limbs… and the news of [ISIS’s] attacks…in the temples of the [Shi’a] and their gatherings is not hidden from anyone, from Baghdad to Khorasan.’ Sources report that the Taliban referred to the largely Shi’a victims of the Kunduz bombing of 8 October 2021 as having been ‘martyred’, indicating possible support for Hazara victims ordinarily derided by the Taliban as ‘infidels’ (and therefore incapable of martyrdom). While the Taliban may be attempting to disrupt ISKP and prevent its attacks on Hazaras, this, along with the Taliban’s professed amnesty, does not indicate that it has put aside its historical antipathy towards Hazaras. Since its takeover in August 2021, the Taliban has summarily executed Hazaras who were former members of the security forces. Furthermore, hundreds of Hazara families have been forcibly evicted from their homes in central Afghanistan. The Taliban claims these evictions are ‘property disputes,’ but NGOs have described them as a form of ethnic cleansing (although one source suggests these evictions may be the result of local score-settling, rather than ethnically-based).
DFAT assesses that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. While the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISKP terror attacks and Taliban violence, including hundreds of evictions.
…
Shi’a
The overwhelming majority of Afghan Shi’a are Hazara, although a small number of Hazara are Sunni. There are also some Shi’a from other ethnic groups, including some Pashtun, Tajiks and Turkic peoples. The Taliban, ISKP, Al-Qa’ida and most other terrorist/insurgent forces in Afghanistan are Sunni. While Sunni and Shi’a Muslims have lived side-by-side for much of Afghanistan’s history, religious hardliners such as the Taliban typically do not consider Shi’a to be true Muslims.
DFAT assesses that Shi’a face a high risk of being targeted by ISKP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.
…
Women
During the late 1990s when the Taliban held power in Afghanistan for the first time, they imposed their interpretation of Sharia (Islamic law) upon the country, with a particularly negative impact on women. Women and girls were largely barred from public life without the accompaniment of a male relative, and were excluded from schools and universities entirely. Following 2001, the position of women improved markedly. During the time of the Islamic Republic of Afghanistan Government (2001-21), women made significant progress in education, employment and political representation. In 2003, fewer than 10 per cent of girls were enrolled in primary schools. By 2017, that number had grown to 33 per cent, while female
enrolment in secondary education grew from 6 per cent in 2003 to 39 per cent in 2017. Women’s life expectancy also grew from 56 years in 2001 to 66 in 2017, and their mortality during childbirth declined by two thirds. In 2020, 21 per cent of Afghan civil servants were women, and 27 per cent of Afghan members of parliament were women. However, these benefits chiefly accrued to urban rather than rural women.
Violence against women, particularly domestic violence, is widespread in Afghanistan. While a law to eliminate violence against women (EVAW) was finally confirmed in 2018, nine years after it was first decreed by the then-President, implementation by the justice sector remained elusive, demonstrating the background cultural resistance in Afghanistan to women’s rights. So-called ‘honour killings’ occur frequently in Afghanistan, particularly in rural areas, where judicial authorities often condone them.
Since its takeover in August 2021, the Taliban has made promises with regard to inclusivity and
women’s rights. At its first press conference, the spokesperson for the Taliban claimed: ‘Our sisters, our men have the same rights; they will be able to benefit from their rights.’ However, many sources regard this promise as having been made for the benefit of the international community. The spokesperson further qualified that such rights exist ‘within the framework of Sharia law’, which is subject to the Taliban’s conservative view of Islam and the role of women within it. In December 2021, the Taliban issued a decree barring forced marriage in Afghanistan, and stating that women should not be considered “property”. However, it remains to be seen to what extent the decree will be implemented.
Many sources regard the Taliban as having already broken its promises, and that it is in the process of returning women to the position they were in between 1996 and 2001. While the Taliban has promised an ‘inclusive’ government, none of the almost 90 government appointments made so far includes a single woman. The Taliban has delivered mixed messages about women in the workplace and in education. For example, Amnesty International reports that on 24 August 2021, Taliban spokesperson Zabihullah Mujahid told reporters women should refrain from showing up to work until ‘proper systems’ were put in place. A few days later, another Taliban spokesperson tweeted that women working in the health sector were to report to duty.
In November 2021, the Ministry for the Promotion of Virtue and the Prevention of Vice issued guidelines requiring female reporters to wear hijab and calling on TV stations to stop broadcasting soap operas featuring women. In December, the same ministry said women should not travel unaccompanied for more than 72 kilometres without being accompanied by a male family member and that vehicle owners should refuse to carry women not wearing headscarves. The UN reports that unaccompanied women are being denied access to taxis and other ‘public transport’ in Kabul. In December 2021, a women’s protest in Kabul was disrupted by Taliban fighters firing guns in the air. There have also been reports of female judges and lawyers receiving death threats from convicts freed by the Taliban, leading many of these women to flee the country. The current situation has added increasing pressure on women-headed households, particularly where these women are unable to move freely or are not permitted to work.
While the Taliban have permitted girls to attend primary schools, secondary schools for girls have been closed and women are not permitted to attend public universities. Some women continue to attend private universities, while girls’ high schools remained open in a number of provinces as at December 2021. Sources suggest that the mixed messages and inconsistent policies are a result of the organisation trying to balance internal factions while attempting to placate the international community to achieve regime recognition. One result of this balancing act is that the Taliban makes promises with regard to women that leaders know are very unlikely to be fulfilled; for example, promising that women can attend public universities if they are fully sex-segregated when there are insufficient facilities and female teachers.
Despite the mixed messages in some areas, other changes by the Taliban are less ambiguous.
According to Human Rights Watch, the Taliban has banned women’s sport; dismantled the system to protect women from violence, including at home; closed shelters for women and girls fleeing violence, which Afghan activists had fought for years to put in place; and dismantled the specialised courts and prosecution units that had been set up to enforce the EVAW law. Furthermore, the Taliban has abolished the Ministry of Women’s Affairs, and handed that ministry’s headquarters over to the new Ministry for the Promotion of Virtue and the Prevention of Vice, whose predecessor was responsible for much punitive violence between 1996 and 2001, particularly towards women.
DFAT assesses that women in Afghanistan, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. DFAT assesses that Afghan women continue to face a high risk of gender-based violence, including sexual assault and domestic violence, while Afghan girls face a high risk of being forced into early or involuntary marriage. DFAT further assesses that women face a high risk of harassment and violence from the Taliban if they depart from traditional female roles. While the Taliban has been relatively restrained as of late 2021 - for example permitting women to protest in the street on some occasions (while resorting to violence on other occasions) - there is a risk such comparative restraint could end at any time. DFAT assesses that the situation of women in Afghanistan, with regards to access to employment, education and healthcare services, is precarious; such access that exists may be altered or withdrawn by the Taliban with little warning or reason given.
Children
According to UNICEF, as at September 2021, 9.7 million Afghan children were in need of
humanitarian assistance. Half of all children aged under five (3.2 million children) are at risk of acute malnutrition.
Child abuse is a common problem throughout Afghanistan, and may include general neglect, physical abuse, sexual abuse, abandonment, and confined forced labour to pay off family debts. Sexual abuse of children is pervasive – NGOs have reported that extended family members often abuse girls, while men more frequently abuse boys outside their families. There have been credible reports of religious figures sexually abusing children of both sexes, and of police beating and sexually abusing children who complained of sexual abuse. In 2019, an NGO in Logar province reportedly discovered the abuse of over 500 boys from six schools by a paedophile ring. According to the NGO, several families killed their sons after their faces were revealed on social media. The US Department of State 2020 report on human rights practices in Afghanistan states that the Taliban and other actors have recruited children as soldiers and
suicide bombers.
The practice of bacha bazi (dancing boys) involves young boys dancing in female attire for audiences of adult males, after which sexual abuse (including gang rape) often occurs. Many of the boys are reportedly either kidnapped or sold by their impoverished families. Bacha bazi is not widely seen as homosexual behaviour, but rather as a cultural practice. The Taliban reputedly opposes the practice and outlawed it during its previous regime, however the practice reportedly returned following the US-led coalition presence in Afghanistan.

The 2023 US DOS ‘Country Reports in Human Rights: Afghanistan’ includes the following:
There was significant deterioration in women’s rights during the year due to edicts that further restricted access to education and employment, with a net result that women were increasingly confined to domestic roles. No decree or directive pertaining to women and girls’ education, or work, was reversed or softened.
…
Significant human rights issues included credible reports of: killings; severe physical abuse; harsh and life-threatening prison conditions; unjust detentions and abductions, including disappearances; serious problems with independence of the judiciary; political prisoners or detainees; arbitrary or unlawful interference with privacy; punishment of family members for alleged offenses of a relative; serious abuses in a conflict, including widespread civilian deaths or harm, disappearances and abductions, and severe physical abuse; unlawful recruitment or use of children in armed conflict by the Taliban; serious restrictions on freedom of expression and media freedom, including detentions of and violence against journalists, and censorship; serious restrictions on internet freedom; substantial interference with freedom of peaceful assembly and freedom of association; restrictions on religious freedom; restrictions on freedom of movement and residence and on the right to leave the country; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious corruption; serious restrictions on and harassment of domestic and international human rights organizations; extensive gender-based violence, including domestic and intimate partner violence, sexual violence, child, early, and forced marriage, and other harmful practices; substantial barriers to accessing sexual and reproductive health services; crimes involving violence or threats of violence targeting members of ethnic and religious minority groups (Hazara, Sikh, Shia, Salafi, Ahmadi, Hindu, and Christian groups); trafficking in persons, including forced labor; existence and enforcement of laws criminalizing consensual same-sex sexual conduct; crimes involving violence against lesbian, gay, bisexual, transgender, queer, or intersex persons; significant restrictions on workers’ freedom of association; and the existence of the worst forms of child labor.
There was widespread disregard for the rule of law and official impunity for those responsible for human rights abuses. The Taliban and ISIS-K reportedly engaged in child recruitment and used child soldiers younger than 12 during the year. Armed groups threatened, robbed, kidnapped, and attacked foreigners, medical and nongovernmental organization workers, and other civilians.
…
The law criminalized rape against both women and men, but the Taliban’s deconstruction of the justice system severely eroded enforcement of these laws. The Taliban maintained no support system for survivors of rape and provided only limited protection services.
On May 14, Hasht-e-Sobh news agency reported that women prisoners in Taliban prisons in Jawzjan, Faryab, and Samangan provinces suffered from humiliation, insults, physical abuse, and sexual assault. According to the report, 10 women employees were present in the prisons during the daytime performing tasks such as physical searches, cleaning, and general prison duties. Only male guards were on duty during the night, which led to instances of sexual assault against women prisoners. Out of the 90 women imprisoned in Jawzjan, Faryab, and Samangan, 16 of them reportedly became pregnant because of repeated rape and were forced to undergo abortions in local hospitals. The Taliban reportedly ordered these women’s pregnancies terminated during the third and fifth months. At least four women inmates in Samangan reportedly fell seriously ill as a direct consequence of repeated sexual assaults by Taliban members and were ultimately executed by the Taliban.
Many of these women were reportedly incarcerated in the Taliban women’s prisons in the north for reasons such as moral corruption, theft, and fleeing from their homes. Over the past year, the Taliban had reportedly discreetly brought 48 women to the Faryab, Samangan, and Jawzjan hospitals to receive treatment for severe bleeding because of physical abuse and sexual assault. On July 3, media outlets reported that a girl, age 16, who was forced to marry a member of the Taliban in Ghor Province committed suicide on July 1. She reportedly became depressed because of her forced marriage and the requirement that she stay at home after the Taliban banned girls’ education.
Domestic violence was viewed in the country as a “family matter.” Institutional responses to domestic violence were not available, and patriarchal norms, corruption, and family or tribal pressure persisted. Women survivors faced stringent or violent societal reprisal, ranging from imprisonment to targeted killings.
The Republic law criminalized forced gynecological exams, which acted as “virginity tests,” except when conducted pursuant to a court order. Awareness and enforcement of the restrictions on forced gynecological exams remained limited. There was insufficient information to determine whether the forced gynecological exams continued.
Taliban members stated survivors of abuses should resolve issues within their family unit. Taliban “police” held women in detention centers after they reported gender-based violence.
Other Forms of Gender-based Violence or Harassment: Under the 2004 constitution, the law criminalized forced, underage, and baad marriages (the practice of settling disputes in which the culprit’s family trades a girl to the victim’s family) and interference with a woman’s right to choose her spouse. The Taliban criminalized forced but the practice of exchanging brides between families was not criminalized and remained widespread. “Honor killings” reportedly occurred throughout the year.
A Taliban decree provided women the following protections: women had the right to consent to marriage and could not be forced; a widow had inheritance rights in relation to the property of her husband, children, father, and relatives; widows had the right to receive a dowry from a new husband; women in a polygamous marriage were afforded rights in accordance with sharia; and the Supreme Court had to ensure courts considered appeals from women to the courts. There were reports that judges and so-called provincial governors ignored this decree and facilitated forced marriages.
Discrimination: The Taliban’s edicts formalized discrimination and exclusion of women and girls from most aspects of society and at a nationwide level.
Women did not have equal legal rights, compared to men, to inherit assets as a surviving spouse, and daughters did not have equal rights, compared to sons, to inherit assets from their parents. By law women could not unilaterally divorce their husbands but had to obtain their husband’s consent, but men could unilaterally divorce their wives.
The Taliban regulated dress codes for women journalists and banned women from acting in films. Taliban edicts stated women were not allowed to travel further than 50 miles unless accompanied by a mahram.
In December 2022, the Taliban issued an edict prohibiting women’s attendance at both public and private universities. The so-called minister of higher education explained the restrictions as being required by Islam due to the use of women’s dormitories, failure of women to observe the Islamic veil, continued interactions between men and women on campus, and women studying subjects not appropriate for women’s dignity.
On January 28, Reuters reported the Ministry of Higher Education ordered private universities not to allow women students to sit university entrance exams the following month, underscoring the Taliban’s policy to restrict women from tertiary education. A letter from the ministry was addressed to institutions in the northern provinces, including Kabul, where exams were due to take place from the end of February. The letter stated that those institutions that did not observe the rules would face legal action.
On May 3, the Ministry of Public Health announced that only men would be able to register for the supplementary “exit exam” mandated by the Taliban as a prerequisite for medical graduates to pursue their four-year specialized studies. The ministry also published the list of specialist vacancies in public hospitals, showing none for women doctors.
On April 30, media outlets reported the Department of Information and Culture in Ghazni Province had prevented media outlets in the province from broadcasting commercial announcements recorded with women’s voices. The Taliban in Ghazni Province also prevented radio hosts from making telephone calls to women during programs.
On July 24, media outlets reported that the Taliban in Ghazni Province banned women’s participation in the Shia religious mourning ceremony.
The so-called minister for the promotion of virtue and prevention of vice announced on August 26 that women could no longer visit the popular Band-e-Amir National Park in central Bamiyan Province, claiming that women visiting the park did not adhere to the “proper” way of wearing the hijab and that “going for sightseeing is not obligatory” for Muslims.
On August 31, the Ministry of Information and Culture told Rashatoudi news agency that the Taliban’s restrictions on women’s work were due to Islamic law and local traditions, adding that after the return of the Taliban the “attitude toward women has improved and the Taliban are providing security for women and allowing women to pursue entrepreneurship.”
On September 26, UN Under-Secretary-General Bahous said restrictions on women were being enforced more frequently and with more severity, including by male family members, and were accompanied by increases in child marriage and child labor. As a result, she said, 90 percent of young women respondents to a survey reported bad or very bad mental health, and suicide and suicidal thoughts had increased dramatically.
Reproductive Rights: There were no reports of involuntary sterilization on the part of the Taliban.
Women faced nearly insurmountable barriers to receiving health care due to Taliban restrictions on work, travel, and male-female interactions. According to a study conducted by Human Rights Watch, male doctors were afraid to treat female patients because of restrictions imposed by the Taliban on interactions between men and women. In addition, the Taliban prohibited male doctors from treating female patients unless they were accompanied by a mahram. Women could see female doctors, but it was difficult to find them. The Taliban permitted women to working as health practitioners, but many women were reportedly afraid to work due to Taliban restrictions on women in the workplace. The ever-smaller number of qualified women health practitioners steeply increased the risk of poor health outcomes for women.
There were reports of women facing difficulties entering health clinics when they were not accompanied by a mahram.
Having a child out of wedlock was a crime, but the punishment was unclear. Mothers faced severe social stigma for having a child out of wedlock, even when the pregnancy was a result of rape. The law classified abortion or ending a pregnancy as a crime punishable by three months to one year’s imprisonment.
The law required women to obtain their husband’s consent to use contraception. Persons with disabilities faced increased barriers to reproductive health resources because of decreased access to transportation, education, and social support.
Families and individuals in cities generally had better access to information than did those living in rural areas. According to the United Nations, the rate of contraceptive use among married women was 35 percent for those living in urban areas, compared with 19 percent in rural areas.
On January 30, the Kandahar provincial office of the Taliban’s so-called Ministry of Propagation of Virtue and the Prevention of Vice (Amr-e Ba Maroof) instructed the local health department to require all of the province’s 1,400 women healthcare workers to report to work with a mahram and starting on January 30 to forbid women workers from entering clinics or hospitals without a mahram.
…
Religion and ethnicity in the country were often closely linked. The population included a wide range of distinct ethnic groups. The Hazara, the third largest ethnic group in the country and predominantly Shiite Muslims, bore the brunt of systemic discrimination by the Taliban. Societal discrimination against Hazaras existed in the form of extortion through illegal taxation, forced recruitment, forced labor, physical abuse, property confiscation, and detention. There were many reports Taliban fighters, ISIS-K members, and other unknown actors targeted and killed members of the Hazara community, although ISIS-K attacks reportedly decreased during the year.
…
Education for boys was compulsory through ninth grade, generally ages seven to 15, although schools generally permitted families to enroll their children, girl or boy, at age six. Primary education was required for girls through sixth grade, generally ages seven to 12, although media reported the Taliban restricting girls from attending primary school once they showed subjective signs of having begun puberty, regardless of age. According to a Taliban edict, girls were prohibited from going to school beyond the sixth grade, effectively excluding 1.1 million girls from further education. The Taliban permitted girls to attend Taliban-approved madrassahs without age limit.
Local sources from Kabul, Bamiyan, and Ghazni provinces said the Taliban issued and closed all education centers for secondary school-age girls, including private English language centers and university entrance exam preparation courses. Private education centers had been operating in the districts despite existing bans on secondary and higher education for girls.
On June 6, sources confirmed that the Ministry of Education had directed all provincial education departments to notify international NGOs to suspend education activities in all provinces. The directive gave international NGOs a one-month grace period to wrap up operations and indicated a new directive would be forthcoming. As of September 9, the ministry had not issued a new directive.
Child Abuse: The law criminalized child abuse and neglect, but the Taliban did not take actions consistent with the law. Between January 1 and March 31, the United Nations verified 315 grave violations against 165 children. Killing and maiming remained the most prevalent violations committed against children, representing 85 percent of all verified violations. Many of the casualties resulted from attacks on civilians and explosive remnants of war.
Children were frequently jailed alongside adults. The Taliban allowed a limited continued operation of shelters for boys and girls who were survivors or at risk of abuse or trafficking in persons.
Child, Early, and Forced Marriage: The legal minimum age for marriage was 16 for girls, or 15 with the approval of their father or a judge. The legal minimum age for marriage for boys was 18.
A Taliban decree banned the forced marriage of women. Despite this ban, child, early, and forced marriage was common across the country. In a June report, UNICEF expressed concern regarding the increase in child marriage and reported that due to the extremely difficult economic situation in the country, many families were forced to make “disappointing decisions” such as sending children to work and marrying off underage girls. UNICEF estimated that 28 percent of women in the country between the ages of 15 and 49 were married before the age of 18 and noted that teenage girls who were not allowed to go to school were more threatened by the “risk of child marriage.” Societal pressures and the Taliban practice of arranging marriages for widows also forced women into unwanted marriages.
Sexual Exploitation of Children: The Taliban publicly stated that bacha bazi was against Islamic law, but multiple human rights groups reported the practice’s prevalence in many parts of the country.
…
Persons with disabilities could not access education, health services, public buildings, and transportation on an equal basis with others. Persons with disabilities faced barriers such as limited access to educational opportunities, inability to access government buildings, difficulty in acquiring official identification required for many services, lack of economic opportunities, and social exclusion due to stigma. In May, the UN Office for the Coordination of Humanitarian Affairs in Afghanistan stated that persons with disabilities in the country were disproportionately affected by the humanitarian crisis.
The so-called Ministry of Martyrs and Disabled Affairs cited unemployment and lack of income as a serious concern among the persons with disabilities in the country. The Taliban reportedly only provided services to its former fighters with disabilities resulting from the war with the United States and NATO, and persons born with disabilities or those who were not Taliban did not receive support.
The UNHCR’s February 2023 ‘Guidance Note on the International Protection Needs of People Fleeing Afghanistan – Update 1’, contains the following:
The Taliban de facto authorities are reported to have committed serious human rights violations, including extrajudicial killings, arbitrary arrest and detention, torture and other forms of ill-treatment. In addition, the de facto authorities have imposed restrictions on the rights of Afghans to freedom of opinion, freedom of speech, and freedom of assembly, in violation of Afghanistan’s obligations under international human rights law. There has been widespread condemnation of the growing curtailment by the de facto authorities of the human rights of Afghan women and girls.
…
In light of the wide range of increasingly restrictive measures imposed by the de facto authorities on women and girls in Afghanistan in violation of their human rights, UNHCR considers Afghan women and girls are likely to be in need of international refugee protection under the 1951 Refugee Convention. In December 2022 the UN Secretary-General observed that women’s rights in Afghanistan remain “severely curtailed”. In September 2022, the UN Special Rapporteur on the situation of human rights in Afghanistan expressed “grave concern about the staggering regression in women and girls’ enjoyment of civil, political, economic, social and cultural rights since the Taliban took power. In no other country have women and girls so rapidly disappeared from all spheres of public life, nor are they as disadvantaged in every aspect of their lives.”
Restrictions on the rights of women and girls in Afghanistan include limitations on their freedom of movement, notably due to the requirement for women travelling further than 78 kilometres to be accompanied by a mahram and to wear the hijab outside their homes. Restrictions on women’s freedom of movement have a direct impact on other human rights, including access to health care, with reports of women being unable to travel to clinics even for emergency medical care when they cannot arrange to be accompanied by a mahram, or being turned away or denied treatment by health care centres when they are not accompanied by a mahram. Women’s right to access to healthcare has been further impacted by the fact that only female doctors are allowed to treat female patients.
Despite an announcement by the de facto authorities that secondary schools for girls would open on 23 March 2022, the schools were ordered to close hours after opening across the country. There are reportedly a few private secondary schools for girls open in some provinces; however, public schools remained closed as of December 2022 and the vast majority of girls are unable to attend secondary school. In December 2022 the de facto authorities announced furthermore that women would no longer be allowed to attend university.
UNAMA noted in July 2022, “The steps taken by the de facto authorities to date […] have significantly restricted women’s participation in the workforce”. UN News reported in August 2022 that women were “mostly restricted from working outside the home”. On 24 December 2022, the de facto authorities announced that women could no longer work for NGOs.
The de facto authorities have imposed limitations on women’s freedom of expression, with the de facto authorities having harassed and physically attacked women who participated in peaceful protests. In addition, the Special Rapporteur on the Situation of Human Rights in Afghanistan noted in September 2022 that the impact of the restrictions imposed by the de facto authorities on the media “has been far worse for women”. According to Reporters Without Borders, 84 per cent of female journalists have lost their jobs since the takeover by the Taliban on 15 August 2021. Women human rights defenders are reported to be at particular risk of violence and intimidation.
Women and girls in Afghanistan also face restrictions on their right to access to justice, including in relation to gender-based violence. In October 2021, the Global Protection Cluster estimated that about 90 percent of al women in Afghanistan have experienced gender-based violence, the majority through intimate partner violence.
In addition, while in December 2021 the de facto authorities issued a decree forbidding forced marriage, there has been a sharp rise in the rate of forced and child marriage across Afghanistan due to poverty and a worsening humanitarian and economic situation, combined with the lack of other opportunities for girls as a result of the restrictions of women’s rights.

In May 2023 regional media reported on a Commission of Inquiry into [Country 3]’s Citizenship Commission:
[Country 3]’s Justice Minister [Mr F] has appointed a Commission of Inquiry (COI) to investigate allegations of corruption within the country’s Citizenship Commission. ... The inquiry will investigate allegations of fake citizenship certificates currently in circulation and that diplomatic passports have been issued in exchange for large sums of money that were not received by the government. … The COI will investigate these allegations and related programmes to get to the bottom of the scandal.[6]
[6] [Reference]
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 Nationality
Afghanistan
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.
An application for [Country 3] citizenship by investment by an adult can include their spouse and children. If the primary applicant is granted citizenship then the spouse and children are granted citizenship also. The fees historically began at approximately $US 100,000 with an extra fee for additional dependents. The fees have increased each year and are now reportedly $US 185,000 for a family of four.[8]
[8] See [References]
[The first applicant] has confirmed that he paid $US 120,000 in total to an agent in 2021 to obtain the [Country 3] passports. The [Country 3] authorities confirmed that the passports held by [the second applicant] and the four eldest children were genuine and that they were each considered citizens of [Country 3]. The [Country 3] authorities have not provided any further details about how and when these applicants obtained [Country 3] citizenship. However the available evidence strongly indicates that it was via [Country 3]’s Citizenship by Investment program. Given the manner [the first applicant] obtained the passports it is also more than likely that [the first applicant] similarly obtained [Country 3] citizenship as the primary applicant for [Country 3] citizenship.
It therefore appears that the applicant parents and the four eldest children became [Country 3] citizens in 2021 by virtue of the investment program.
Under Article 11 of [Country 3]’s Constitution a person born to a [Country 3] citizen parent is also a citizen of [Country 3]. Therefore the youngest child [the seventh applicant] would technically also have [Country 3] citizenship, from birth.
[Country 3]’s Citizenship Act contains requirements that must be fulfilled to lawfully obtain citizenship by investment in section 13B. If these requirements are not fulfilled the citizenship application ‘must’ be refused. The requirements include that the primary applicant formally swears an oath of allegiance in front of an authorised person, section 13B(3)(e). Section 13B(6) requires that a spouse included in a Citizenship application under Section 13B(5) must provide a written statement that she or he wishes to become a citizen of [Country 3]. If such a statement is not included in the application then the spouse “must not become a citizen”.
[The first applicant] has given consistent evidence that he has not made the required oath of allegiance. [The second applicant] has similarly provided evidence that she has never made a written statement expressing her desire to be a [Country 3] citizen. She has also been consistent regarding her belief that her [Country 3] passport was not genuine.
The available country information highlights that the Citizenship by Contribution provisions are considered a money-making scheme to bring in revenue for the [Country 3] government. The scheme is administered by third party commercial operators in a number of external countries. Other country information indicates there is a level of corruption and lack of stringency and oversight in how the citizenship application processes are managed. In such an environment it is plausible that the requirements in s 13B(3)(e) and s 13B(6) may have been overlooked or not enforced during the application process for the applicants.
Given the above and in the absence of any information to contradict the applicants the Tribunal gives them the benefit of the doubt that [the first applicant] did not swear the required oath of allegiance and [the second applicant] did not provide the required written statement, in contravention of the requirements under the applicable law.
It therefore may be that if the circumstances surrounding the grant of [Country 3] citizenship to [the first * applicant] and [the second applicant] are investigated by the [Country 3] authorities it will be determined that the grants were in breach of the law and therefore not valid.
In any event both [the second and first applicants] claim to have formally renounced their [Country 3] citizenship. [Section] of [Country 3]’s Citizenship Act provides for renunciation. It permits renunciation for persons “of age” who hold another nationality or citizenship.
[The second applicant] and [the first applicant] have provided official evidence that their renunciations have been accepted by the [Country 3] government. The [Country 3] government has declared them no longer citizens of [Country 3] and has cancelled their [Country 3] passports. The Tribunal therefore accepts that they have formally renounced their [Country 3] citizenship.
As a result [the first and second applicants] now do not have [Country 3] citizenship. The Tribunal is therefore satisfied that [the second and first applicants] are not nationals of [Country 3].
There is no indication in [Country 3]’s citizenship laws that renunciation by a parent has any affect upon a minor child’s citizenship status. There has been no evidence that the children have renounced their [Country 3] citizenship. Under [Section] of [Country 3]’s Citizenship Act a person needs to be “of age” to do so. The children are minors so do not meet this requirement.
Fear of Harm
The applicants claim to fear serious harm in Afghanistan for reason of their Shia religion and Hazara race. [The second, fourth and sixth applicants] additionally claim to fear serious harm in Afghanistan for reason of their gender as women and girls.
The Tribunal accepts that the applicants are Shia Hazaras.
The available country information repeatedly highlights that since the takeover of Afghanistan by the Taleban in 2021 Shia Hazaras and women and girls have become increasingly vulnerable to a range of severe harms in Afghanistan. The reports refer to the targeting of Shia Hazaras by both the Taleban and the ISIS-K/ISKP. They describe the situation for women and girls as one of ‘gender apartheid’ in which denial of rights and violence, including sexual violence, occurs largely unchecked.
The available information, as set out above, clearly indicates that there is a very real chance the applicants will be targeted for serious harm if they return to Afghanistan. The Tribunal is satisfied that the real chance of serious harm exists in all areas of Afghanistan and that there is no effective protection available to the applicants.
The Tribunal is satisfied that the essential and significant reasons for the real chance of serious harm to the applicants is a combination of their religion as Shia Muslims and their race as ethnic Hazaras. The Tribunal is also satisfied that an additional essential and significant reason for the real chance of serious harm to [the second, fourth and sixth applicants], is their membership of a particular social group, namely women and girls in Afghanistan.
The Tribunal is satisfied that the serious harm involves systematic and discriminatory conduct in that it will be done to the applicants selectively and intentionally.
The Tribunal is therefore satisfied that each of the applicants have a well-founded fear of persecution in Afghanistan as defined in s 5J of the Act.
Section 36(3)
Subsection 36(3) of the Act has the effect that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not 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) exclusion will not apply. The conditions prescribed in s 36(4), (5) or (5A) will be met where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.
The Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91, has held that the term ‘right’ in s36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise any particular correlative duty upon the state in question. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s 36(4), (5) or (5A).
The applicants have connections with other countries namely [Counties 1 to 3].
[Country 1]
[The first applicant] previously held temporary visas to live and work in [Country 1] and obtained temporary visas for his family to travel to and visit him in [Country 1] in the past.
[The first applicant] no longer has a visa to [Country 1]. He has not held a visa for [Country 1] since 2015. Similarly, none of the other applicants hold a visa for [Country 1].
The Tribunal is therefore satisfied that [the first applicant] and the other applicants therefore have no current right to enter and reside in [Country 1].
Given the above the Tribunal finds that s 36(3) does not apply in relation to [Country 1] to exclude the applicants from Australia’s protection obligations
[Country 2]
[The first applicant] obtained temporary visas to live and work in [Country 2], between 2015 and 2023. His last visa was valid until 2026. However because he exited [Country 2] without obtaining a re-entry permit his residence and stay period would be cancelled under [Country 2]’s laws. [The first applicant] will therefore not be able to re-enter [Country 2] without obtaining a new visa and fulfilling other entry requirements. [The first applicant] therefore has no current right to enter and reside in [Country 2].
The other applicants do not possess any visa or permit to enter and reside in [Country 2]. The Tribunal is satisfied they also do not have a current right to enter and reside in [Country 2].
Given the above the Tribunal finds that s 36(3) does not apply in relation to [Country 2] to exclude the applicants from Australia’s protection obligations.
[Country 3]
[The first and second applicants] have renounced their citizenship of [Country 3].
The Tribunal noes that s 5J(6) of the Act relates only to the assessment of a well-founded fear of persecution, not to the assessment of a right to enter and reside under s 36(3). In any event the Tribunal considers that the applicants genuinely held fears for their safety and futures if they were forced to go to [Country 3] and that this precipitated their renunciations.
[Section] of [Country 3]’s Citizenship Act allows for the regaining of citizenship for people who renounce [Country 3] citizenship. This requires an application in a prescribed manner which is then considered by the Citizenship Commission which determines whether or not to grant citizenship.
Therefore there is a process available to [the first and second applicant] to regain their [Country 3] citizenship. There are possible steps they could take, however the Tribunal is not satisfied that these relate to a current right to enter and reside in [Country 3]. Given the requirements set out in [Section] there is no certainty about the outcome. The Citizenship Committee has the discretionary power to deny such an application. [The first and second applicants] may not be able to fulfil the requirements for citizenship, particularly if they involve a fee, and may not be able to satisfy the Citizenship Committee that they should regain citizenship. The processes would also take time. In view of these circumstances the Tribunal is not satisfied that [the first and second applicants] have a current right to enter and reside in [Country 3].
Given the above the Tribunal finds that s 36(3) does not apply in relation to [Country 3] to exclude [the second and first applicants] from Australia’s protection obligations.
On the basis of the above findings the Tribunal is satisfied that [the first and second applicants] are each persons in respect of whom Australia has protection obligations. Therefore they each satisfy the criterion set out in s 36(2)(a).
The applicant children
The applicant children have not renounced their [Country 3] citizenship. However some uncertainty does arise as to whether or not they can maintain their citizenship status and obtain new [Country 3] passports in view of the legal breaches, identified above, in the grants of citizenship to their parents.
In any event the children are minors and are members of their parents’ family unit. They therefore satisfy s 36(2)(b)(i) of the Act. As such, it follows that they will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visas are met.
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.
Melissa McAdam
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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