2419085 (Refugee)

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

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

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

The decision under review was remitted.