2419335 (Refugee) - [2024] ARTA 892

2419335 (REFUGEE) [2024] ARTA 892 (17 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2419335

Tribunal:General Member M McAdam
Place:Sydney
Date:17 December 2024
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that:
· the applicant satisfies s 36(2)(a) of the Migration Act; and
· the grant of the visa is not prevented by s 91WA of the Migration Act.

Statement made on 17 December 2024 at 15:45 pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – race – Hazara – religion – Shia – satisfied as to the applicant’s identity – change of names – return visits to Afghanistan – bogus identity documents – family members resident in Pakistan – social media as evidence – new but neutral claims upon review – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 45A, 65, 91R, 91WA, 116, 359, 367, 499
Migration Regulations 1994, Schedule 2; r 2.08
CASES
AIB16 v MIBP (2017) 254 FCR 457
BGM16 v MIBP (2017) 252 FCR 97
MIMAC v SZRHU (2013) 215 FCR 35

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in relation to the review.
The applicant, who claims to be a citizen of Afghanistan, applied for the visa on 11 June 2014 and the delegate refused to grant the visa on 7 June 2024.
The applicant applied for a Protection (Class XA) visa. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
RELEVANT LAW
The criteria to be satisfied by the applicant are the criteria in the legislation at the time of application.
The criteria for a protection visa were set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualified some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Immigration Background
The applicant arrived by boat at Ashmore Reef [in] November 2012 and was detained in Australia in immigration detention.
He lodged his Protection visa application, the subject this review, on 11 June 2014. At the time the application was considered invalid.
On 28 January 2015 he was granted a four-day Subclass 449 visa and a Bridging visa, and he was released from detention.
On 27 January 2016 the applicant lodged a Safe Haven Enterprise visa (SHEV) application.
On 24 September 2016 the applicant was granted a SHEV.
[In] November 2016 the applicant departed Australia and returned [in] December 2016.
[In] November 2017 the applicant departed Australia and returned [in] February 2018.
The applicant married [Wife A] in New South Wales [in] February 2018. He submitted their NSW Marriage Certificate.
The applicant and his wife had a child, born on [date]. The child’s NSW Birth Certificate was submitted to the Department.
On 15 April 2019 the applicant’s SHEV was cancelled by a delegate of the Department on a ground in s 116(1AA) of the Act, namely that the delegate was not satisfied as to the applicant’s identity and considered that the applicant may be ‘[the applicant’s name]’.
On 18 April 2019 the applicant applied for review of the visa cancellation decision to the AAT.
On 2 September 2020 the applicant’s initial Protection visa application lodged on 11 June 2014 was deemed valid.
On 10 March 2021 the applicant lodged a Partner subclass 801 visa application.
On 28 July 2021 the applicant withdrew his AAT application for review of the decision to refuse to grant him a SHEV.
Current Protection visa application
The following is a summary of the claims and information the applicant provided in his 2014 protection visa application, the subject of this review:
a.He is a citizen of Afghanistan.
b.He was born on [date] in [Village 1], [District 1] in Maydan Wardak province in Afghanistan. He lived there until 2011.
c.From 2011 to October 2012 he lived in Peshawar, Pakistan illegally with his family, until he came to Australia.
d.He had one year of education and worked as an apprentice [occupation 1] in Peshawar.
e.He is of Shia Muslim religion and Hazara ethnicity.
f.His father was a farmer and passed away in 2010. His mother, [and specified family members] live in Karachi, Pakistan.
g.He and his family left Afghanistan because there was a war in his village between the Pashtun Koochis and the Hazaras.
h.He fears he will be harmed in Afghanistan because he is Shia and Hazara, and because he is a minor. He fears the Koochi and the Taleban in Afghanistan.
i.He is not a citizen of Pakistan.
j.His mother told him after he arrived in Australia that the family have moved from Peshawar to Karachi.
The applicant submitted a copy of his Afghan Taskera in the name [Alias A]. The English translation states it was issued [in] October 2008 and that the applicant was [age] years old in 2008.
SHEV Cancellation
In the proceedings for the cancellation of the applicant’s SHEV a Department Delegate provided the applicant with a Notice of Intention to Consider Cancellation of the visa (‘NOICC’). The Notice outlined the following:
You departed Australia [in] November 2016 and re-entered [in] December 2016. During an interview conducted at [the] airport on [arrival in] December 2016 you stated you did not know anyone living in Afghanistan.
A baggage and mobile telephone search were undertaken as part of the interview process. Your mobile phone was seized by an Australian Border Force officer [details deleted]. Evidence was located on your mobile telephone which indicates you were in Afghanistan in early December 2016 attending a wedding.
Also traced on your phone were two social media accounts in another identity; [the applicant’s name variant], a name you have not previously declared to the Department.
[In] July 2017 you submitted a Form 1454 - Request for approval to travel under visa condition 8570 (Restricted Travel). You requested to travel to Karachi in Pakistan with intended travel dates [from] July 2017 to [September] 2017. Your claimed purpose of travel was to get married. You claimed you wanted your marriage to take place as soon as possible as your mother was sick.
On 12 July 2017 the request was refused as the delegate was not satisfied it met the compassionate or compelling circumstances criteria for approval.
[In] October 2017 you submitted a Form 1454 - Request for approval to travel under visa condition 8570 (Restricted Travel). You requested to travel to your family home in the Karachi area of Pakistan with your intended travel dates from [November] 2017 to [February] 2018. Your claimed purpose of travel was to visit your family, especially your mother, as you missed them very much and your mother was sick.
On 14 November 2017 your travel request was approved, with amended travel dates [from] November 2017 to [February] 2018, as the delegate was satisfied you met the compassionate or compelling circumstances criteria. You departed Australia [in] November 2017 and re-entered [in] February 2018.
On 12 March 2018 you submitted a Form 1022 - Notification of changes in circumstances, advising you had married [Wife A] ([DOB 1]). You also enclosed your marriage certificate denoting your date of marriage as [a day in] February 2018 at [Suburb 1], New South Wales.
…
The Department has undertaken an assessment of your claimed identity. The assessment was completed [in] May 2018 and concluded your identity was not supported. The identity officer listed the following points of concern:
In your Safe Haven Enterprise (subclass 790) visa application you claimed you could not return to Afghanistan due to risk of serious harm because of your Hazara ethnicity and Shia religion. You were granted your Safe Haven Enterprise visa on 24 September 2016.
Five weeks after you were granted your visa, you applied to travel offshore. This request was approved on 2 November 2016 and you travelled offshore between [November] 2016 and [December] 2016, citing Pakistan as your destination.
On your return, you were interviewed by an Australian Border Force officer and a baggage search was conducted. During this process you claimed that you did not have any family members, nor did you know anyone in Afghanistan. However, evidence was detected on your phone that you had returned to Afghanistan during your offshore travel.
In addition, also located on your phone were social media accounts in another identity; [the applicant’s name variant]. Many of your ‘Friends’ listed on your social media profile share the family name [variants of the family name] and are primarily located in Afghanistan, Pakistan and Australia.
…
On 12 December 2012, you provided a copy of your Tazkira to the Department. In your arrival interview, dated 18 January 2013, you claimed the original version was lost during your journey to Australia. On 3 March 2016 a certified translation was provided to the Department. According to the translation of this document, it was issued [in] October 2008 when you were [age] years old.
A comparison of the photograph attached to your Tazkira was undertaken with one held in departmental systems from your arrival in November 2012, purportedly taken six years after the Tazkira photo. The images are quite similar and do not display any of the physical changes expected between a boy aged [age] and a young male aged 18. This raises serious concerns regarding the authenticity of the Tazkira document.
…
Information before the Department reveals your mother’s address as [Address 1], Karachi. [Location described]. It is highly unlikely that an unaccompanied, illegal Hazara woman and her children would be able to reside in this urban location outside regular Hazara enclaves without identity documentation or registered status, especially for such a lengthy duration.
On 12 March 2018 you submitted a Form 1022 - Notification of changes in circumstances, advising you had married [Wife A] ([DOB 1]) [in] February 2018. In Form 1022 you stated that at the time of application and decision of your Safe Haven Enterprise visa you had never been married or in a de-facto relationship. Your Safe Haven Enterprise visa was lodged and granted on 29 January 2016 and 04 September 2016 respectively. Financial information indicates that your wife transferred AUD$[amount] to your mother in July 2016. I consider this to be a significant amount of money to transfer between people who are purportedly unknown to each other. This suggests to me that you were in a relationship with [Wife A] at the time your Safe Haven Enterprise visa was lodged and granted.
Education and employment:
You claimed to have undertaken only one year of home schooling from your neighbour in Peshawar, however your signature on arrival – written in English - displays a written ability likely to have been achieved over a longer, more formal period of education.
You claim it only took approximately two years, including English classes, to pass your Higher School Certificate at [School 1]. I am not satisfied that you acquired the skills required to pass the Australian HSC in only two years – skills that generally take Australian students more than 12 years to acquire. It is highly unlikely that an uneducated person whose primary language is not English would be able to commence Year 11 subjects in areas such as maths, science, English with no foundation whatsoever in an educational environment.
Financial Transactions:
In December 2016, [Sister-in-law A] (DOB: [specified]) transferred AUD$[amount] to you in Karachi. Your declared mobile phone number in Pakistan was [number].
In December 2016, [Ms A] (DOB: [specified]) transferred AUD$[amount] to you in Karachi. You declared the same mobile phone number, which suggests that the SIM card was registered to you, as you would likely have had to present some form of identity to collect these funds.
You have transferred money to a number of individuals in Pakistan, including your mother – [Mother A]. Financial data indicates that your mother received eight remittances from Australia (October 2013 to September 2017) through [a named] Exchange, Karachi. This exchange uses Western Union Financial services and it is reasonable to expect that identity documents would be required from her to verify her identity as the correct recipient of the funds. Your mother listed the same phone number for seven of these transactions. The Pakistan regulatory body, Pakistan Telecom Corporation, started a project in 2015 to curb terrorist activities, requiring all mobile cell providers to register SIM cards using biometrics against Pakistani CNIC or identity documents such as the Proof of Registration (PoR) card for refugees. It is highly unlikely that your mother is using a mobile phone in Pakistan without approved identity documents.
…
A delegate may cancel a visa under 116(1AA) if they are not satisfied as to the holder’s identity, in situations where contradictory or conflicting identity information about a visa holder has been provided, and the correct identity information is unknown. Therefore, it appears that there is a ground under section 116(1AA) of the Migration Act 1958 to consider cancelling your Safe Haven Enterprise visa as I, a delegate of the Minister, am not satisfied as to your identity. In particular:
• Despite claiming to not know anyone in Afghanistan there is evidence before the Department that you had returned to Afghanistan during your offshore travel. Furthermore you have a number of ‘friends’ on social media who reside in Afghanistan, in addition to your wife’s family.
• Despite returning to Pakistan on two occasions, you have provided no substantial evidence of your family’s status in that country, claiming only that your mother lives illegally in Pakistan.
• Your family are residing in Karachi, Pakistan. It is strongly suspected that they have been in Pakistan for an extended period of time and hold residence or citizenship in Pakistan. It is likely that you are concealing the status of your extended family in Karachi in order to enhance your protection claims.
• The only identity document you have provided the Department in support of your Afghan heritage is your Tazkira. The person depicted in the photo is unlikely to be you aged [age] years old. Consequently your ethnicity as a Hazara Afghan is questionable.
• Your claims regarding your education appear unlikely. It appears, given your English ability, that you have had a lengthier than formal education.
• It appears you have two separate social media accounts in another identity; [the applicant’s name variant]. This name is inconsistent with your claimed identity of [Alias A].
• The ability to return to Afghanistan by you and your family members, raises serious doubts regarding your claims for protection.

In a response to the NOICC, dated 16 January 2019, the applicant’s Representative submitted the following materials:
-     A written submission by the Representative.
-     The applicant’s [year] NSW HSC Results.
-     A letter from [Wife A].
-     A letter from [Sister-in-law A].
-     A letter from [Person A].
-     A letter from [Person B].
-     The NSW Birth Certificate of the applicant’s daughter.
-     An Expert Opinion on the return of Hazaras to Afghanistan by Professor William Maley, dated 13 November 2018.
-     A chronology of events in Afghanistan from 2015 to date.
In her submission the Representative outlines the following:
…
Photographs of wedding
[Alias A] instructs that that the photographs of the wedding he is alleged to have attended, do not feature [Alias A]. [Alias A] instructs that the photographs of the wedding in Afghanistan were sent to him by [Wife A] who was in attendance of the wedding in Afghanistan. [Wife A] provides a letter in support of this.
We note that [Alias A] has not been provided nor shown the photos in question and we therefore submit he has been denied any due process.
Nevertheless we submit that the photos on [Alias A’s] phone were sent to him via an online messaging application by [Wife A] and that upon receipt of these photos they were stored to his phone.
We note this is a very common feature of these messaging apps as is referenced by Whatsapp FAQ1 which instructs how to turn this feature off. We note that this therefore means the saving of images to a phones cameral roll or memory is therefore automatic without action preventing it as such.
We also note that [Alias A’s] phone had a feature whereby photos he actually took with his camera are identified as ‘live’ which is a feature automatic on the iphone.2 We submit that on analysis of the photos this ‘live’ label would not be present and therefore not a photo taken by him, but photos stored on his phone.
We submit that this evidence alone is not sufficient to support a finding that [Alias A] travelled to Afghanistan and that furthermore to find adverse to him without putting such material to him to comment is a denial of procedural fairness. We submit that such allegation has been made without substantive basis and is speculative and unfounded.
Social media accounts
Regarding the social media accounts connected to [Alias A’s] phone, [Alias A] instructs that he has two profiles [Account name 1] and [the applicant’s name variant]. We note that neither account uses his actual name, which is very common in social media usage and should be given very little weight.
We note that when making an application for protection there are no questions within the form requesting the details of social media profiles. Nor at interview were such details requested of [Alias A], as such this information was not provided previously to the Department and therefore such assertion as to not having provided the information should be given no weight as he was never asked to provide such information.
It was noted that many of the friends of the account [the applicant’s name variant] share the family name [family name variants] and are primarily located in Afghanistan, Pakistan and Australia. We submit that such inference drawn can be that [Alias A] has contact with people across these countries on social media. We would submit that these profiles are primarily people that are Hazara and indicates that [Alias A] is socially connected to people in his community on the internet.
[Alias A] instructs that his social media profiles are names he likes. For no particular reason, he likes the name [Account name 1] so uses it in the Australian context. [Alias A] instructs that the name ‘[the applicant’s name variant]’ means ‘[religious name 1]’ and so many devout Muslims use this name and for its meaning, he likes it. [Alias A] instructs that the [specified family name] carries a cultural meaning of ‘grandchild of’ an important Hazara leader [specified]. Colloquially the [family name] can mean ‘[a Hazara reference]’ in loose terms which is why it is a common name chosen by Hazara people. [This name] is also a well-known fictional Persian character which also increases its usage.
It is our submission that such assertions are speculative and without any factual basis does not alter the identity finding of [Alias A]. Social media friends are not indicative of travel or places or a real or relative connection, but rather a community which you are connected to online, therefore it is not uncommon for a young Hazara male to be connected to other Hazara people who are predominantly located in Pakistan and Afghanistan or the community which he has settled.
It has not been suggested by the Department that any of these named ‘[family name]’ people on facebook attest to any familial connection to [Alias A], nor share familial traits, as such the only common ground we submit is a shared interest in their shared ethnicity as hazara people and is not consequential to the identity of [Alias A] as previously assessed.
Taskera
It was noted that when a comparison was made between the photo between the Taskera (issued at [age] years old) and the photo on [Alias A’s] file (at 18 years old), he appeared to be the same age. No evidence was provided to support this assertion aside from this inexpert and unqualified, subjective opinion with no critical analysis.
We note that [Alias A] has been through age determination assessments in the past, and such concerns were not raised. It is our submission that when placed side by side, the photos are certainly different, with the face shape of [Alias A] having changed.
To assist the Department we provide additional images of [Alias A] which demonstrates his changing face shape. We observe that there is a more narrowed chin depicted in the Taskera image whereas a more rounded chin is depicted in the Departmental image.
It is our view that [Alias A] had a more oval face with a pronounced narrowed chin at a younger age, as seen in images before [the specified age].
We note that over time, [Alias A’s] face has continued to develop with the less narrowed chin and more rounded face as seen in images as a teenager.
It is our submission that these photos demonstrate that the shape of the [Alias A’s] face has altered over time; at times having a more rounded face, and previous times more of an oval. Further, that [Alias A] has often experienced a fluctuated weight. We submit that the narrowed chin photo of the Taskera is consistent with the photos of the applicant at a younger age. It is our submission that [Alias A’s] face has rounded over time as is evidenced by the present day photo of [Alias A], compared to the Department image below. We note that the age difference between 2012 and 2019, is greater than that of 2008 and 2012 and yet the changes in [Alias A’s] face below is subtle. It is our ultimate submission that the photo attached to the Taskera is of the applicant at the time of issue and without any evidence to the contrary a subjective opinion should carry little weight in drawing a conclusion so significant in nature when previous identity assessments were already made at the time this information was at its most available.
Family location
It was noted that it was “highly unlikely that an unaccompanied, illegal Hazara woman and her children would be able to reside in this urban location outside regular Hazara enclaves without identity documents or registered status for such a lengthy duration.” No evidence or country information was provided to support this assertion. And so again it is treated as a mere subjective opinion which should be afforded little weight.
We note that DFAT reports that there is a significant population of Hazaras in Karachi3. Further that there are plenty of reports that detail Hazara’s moving from cities such as Quetta to Karachi.4 Even more so, there is significant evidence of millions of unregistered illegal immigrants living in Karachi, most of whom are Afghans5. It is our submission that country information conclusively supports the testimony of [Alias A].
We refer to [Alias A’s] Statement of Claims where he states that his mother moved from Peshawar to Karachi with their neighbours. [Alias A] instructs that these neighbours often had [Alias A’s] mother work for them, mending clothes, cooking and cleaning which she had done for a number of years.
[Alias A] instructs that these neighbours had contacts with [his] mothers’ current landlord through community links and gave a good reference for [Alias A’s] mother to move into their house in Karachi to work for them. The landlords of this property only visit this Karachi house for a short-term basis for holidays and wanted someone to live there that they could trust to maintain it and work for them also. [Alias A’s] mother for reduced rent is to maintain and clean the house and assist them with cooking and other such tasks when the family are in Karachi. [Alias A] instructs that this family is relatively wealthy and Pakistani nationals and having links to his mother meant they were kind to make such an arrangement for her. It is for this reason [Alias A’s] mother is living in this area in a housekeeping assistant capacity.
[Alias A] instructs that this house is very close to where his mother can collect the money he sends from Australia. [Alias A] instructs that with the assistance on the Landlord, the money agency allows her to collect the money. [Alias A] instructs that with money and influence anything this possible in Pakistan. [Alias A] also instructs that the mobile number used by his mother was also arranged by the Landlord who wanted to help her.
It is our submission that an unofficial employment situation such as this is consistent with country information.
Relationship Status
It was noted that [Wife A], [Alias A’s] wife, transferred $[amount] to [Alias A’s] mother in July 2016, a few months after [Alias A’s] SHEV application was lodged. It was claimed that this suggests that [Alias A] was in a de facto relationship with [Wife A]. We submit that it does not logically follow that just because [Alias A] knew [Wife A] that they were in a de facto relationship.
[Alias A] instructs that he met [Wife A] at a community event in [Suburb 2] in 2015. [Alias A] instructs that at this time they were both young and so became friends. [Alias A] noted that for cultural reasons they could not commence a relationship and he did not have any money, uncertain visa status and was not old enough for [Wife A’s] family to accept them as together in a relationship.
[Alias A] instructs that he would see [Wife A] on occasion throughout the years, but they were not in a relationship. [Alias A] instructs that [Wife A] did transfer this money to his mother, but it was his money that she transferred with him. [Alias A] instructs that when they went to make the transfer he did not have sufficient ID points to make the transaction, so [Wife A] who was with him at the time, offered to do so in her name.
We note that at no time [Alias A] had purported [Wife A] to be ‘unknown’ to him until 2018. We note that such comments in the notice are indicative of flawed assertions made without any factual basis and should be given little weight.
[Alias A] instructs that they were not in an official relationship until after he went to Pakistan. [Alias A] instructs that culturally his family needed to speak with [Wife A] and her family before any official relationship could begin. [Alias A] instructs that before this time they were boyfriend and girlfriend in secret of [Wife A’s] family and therefore not living together nor in a defacto relationship. For this reason, the dating status of [Alias A] was not pertinent to [Alias A’s] Safe Haven Enterprise Visa application as they were not in an official relationship until after the visa was granted.
Further, it is our submission that the timeline of returning from Pakistan a second time to then be married is indicative of cultural norms requiring the families to speak on a number of occasions before a wedding can take place.
Education and employment
It was noted that [Alias A’s] signature on arrival in Australia displays a written ability likely to have been achieved over a longer, more formal period of education. No evidence was provided to support this assertion aside from an inexpert and unqualified opinion.
It was noted that it only took two years for [Alias A] to pass his Higher School Certificate in English. We submit that it is not unusual for someone with [Alias A’s] circumstances and age to succeed to learn English in two years, particularly as he already had very basic English.
We note that given the age of [Alias A] it is not unreasonable to have picked up a language where he is immersed in the community at a remarkable rate. We note that [Alias A] was living as an unaccompanied minor in housing with support workers and case workers all who spoke English and interacted with [Alias A] on a daily basis. We note the ability for a young person to develop language skills quicker than that of an older person is well documented6. We also note that until coming to Australia [Alias A] had no reason for a signature and so it is not unreasonable given he is in an English context that his signature would be in such. Further, it is not unreasonable that as a basic English standard you would learn to write your name. It is our submission that analysis of the signature of [Alias A] leaves you to draw no conclusion but at a young age he learnt some English and knew how to write his name, which is a very basic education level.
We also note that whilst [Alias A] did obtain his Higher School Certificate, he did so primarily through vocation subjects and he did not receive an ATAR. We note that [Alias A] did not study science as is alleged and again leaves this notice to appear to be erroneously flawed as it is littered with unfounded speculation and inexpert opinion without any supporting material.
The HSC results of [Alias A] is indicative of a person who is has not particularly excelled academically. We also draw your attention to the HSC results in English as a Second Language- [mark]/100 –a Band 2 result. Band 2 is the second lowest band that can be achieved. We note that this is not an assessment against the English comprehension skills of native English speakers, but against others for whom English is also a second language. Despite this, [Alias A] still remains in the lowest performing percentile and therefore has clearly struggled with his studies at school. Further, in General Mathematics, the most simple of the mathematics subjects for the HSC [Alias A] has barely passed with a [mark]/100. It is our submission that these results are indicative of someone who has not had years of education and has struggled to keep up in the Australian schooling system.
Financial transactions
We refer earlier to our discussion in regards to the transfer made by [Wife A].
We refer to the transactions made by [Sister-in-law A] & [Ms A]. We note that [Sister-in-law A] has provided a signed letter in support of [Alias A] and notes that this transaction was made to [Alias A] whilst he was in Pakistan in order to buy her cultural dresses which she cannot obtain here in Australia.
[Alias A] instructs that he was transferred money under the same circumstances for [Ms A]. [Sister-in-law A] is the sister of [Wife A] and [Ms A] a friend of [Wife A] and he was requested to do so by [Wife A], who by that stage was able to be open in her relationship with [Alias A] as he was in Pakistan and their families had spoken.
[Alias A] instructs that he was able to use his Australian Passport in order to collect these funds.
…
Partner Visa application
On February 2024, in relation to his then Partner visa application, the applicant enclosed a written statement as follows:
My name at birth was [the applicant’s name variant], which is why I also used that name on my social media; I was scared to reveal to the department that this was my name. On my arrival I was too young and did not understand that I had to let the officers know that I had a previous name. I was also scared for my family as my mother had already changed my name so I did not want any trouble for them or for myself. I thought that hiding my name would be better for my safety. Regarding the various [family names] contacts on my social media, I don’t know any of them personally nor have I met them. They added me maybe because of the similar surname but I do not know any of them. When my mother decided to send me to Australia by boat, our neighbours suggested my mother to change my name to something else for the safety of me and my family. This is where the name [Alias A] came from. [Alias A] is a made up name by my mother, I was too young to question her about that. I also don’t know how she obtained my tazkira she only informed that our neighbour in Peshawar Pakistan will help her to get the tazkira. When I was in detention centre I talked to my mother and she informed that she was moving to Karachi with the same neighbour because the situation in Peshawar was not safe for them. She also informed me that she will stay with them and help them with housework so they can give her shelter until I could get out of detention and work to support them. The landlord did not help my mother financially they only let her and my siblings stay with them rent-free and in return my mother would do their housework. At the moment my mother still lives there, and I help them financially.
I am feeling extremely terrible and ashamed that I have not admitted this before I was young and afraid. During all these time that I did not inform the department was simply out of fear. I was too afraid that if my visa gets cancelled it would greatly impact my wife, children, my mother and my siblings as I am the only provider for all of them. I am worried that if my visa gets cancelled my children’s future will be affected as they both are very attached to me and we love each other dearly. This will affect my children’s education, wellbeing and social life. It will also be extremely hard for my wife as we both love each other sincerely she is also very worried in regards to my visa. I would like to request the immigration to please grant my visa. I am aware that I have made a huge mistake but I can assure you that nothing like this will ever happen again. I promise to be a responsible and decent citizen of this country. Australia is home for me and my family and I would love to continue living here for the rest of my life along my family.
I was born in [Village 1] Maydan Wardak, [District 1] Afghanistan. I am of hazara ethnicity, Muslim Shia. I lived there with my father ([Father A] - deceased) my mother ([Mother A variant] 31/12/1973) [and my siblings, names and dates of birth]. We lived a normal life in [Village 1], my father was a farmer and my mother was a housewife. While growing up in [Village 1] I used to attend school for few hours and then help my father with his farm work by taking him lunch from home and spending time on his farm. After a while my father passed away in 2010 due to heart attack. After his demise we faced many hardships. One day we heard from someone that kuchi people also known as Taliban are heading towards [Village 1] to take over the village. Taliban have had already attacked a few of our hazara/Shia neighbour villages which spread fear all over our village, we feared that they will attack our village as well due to our ethnicity and beliefs. My mother sold the farm and decided to leave [Village 1] to Kabul. I was about [age] years old at that time.
In Kabul it was not safe as well, my mother would not allow me and my siblings to go out of the house as there were people who kidnap children and sell their organs. We stayed in Kabul for few days and escaped to Peshawar Pakistan illegally. On the way we met another Afghan family who let us stay in their house after we arrived. My mother was helping them with house work and I was helping them with [occupation 1 work]. The homeowners’ children used to attend English tuition in neighbour house and I used to go with them. One day my mother told me that the neighbour has suggested her to send me Australia by boat. Our neighbours knew someone who can arrange my journey to Australia, my mother agreed to this and borrowed some money from the neighbour and sent me to [Country 1] with someone I didn’t know.
When we reached [Country 1] after transiting [at location], I was taken in a room where there were many people like me who wanted to come to Australia. Then one night they took all of us in a van towards ocean, we were boarded in speed boats, we travelled about 2 hours and we landed somewhere. They already had 2 cars waiting for us, and then we were taken to a room after spending one night, the next day we were taken to Indonesia by bus. After arriving Indonesia, we were taken to Jakarta then Bogor where there were many Afghans. We were taken to a room and told to stay here until further notice. They provided us food 2 times a day. After a while, they came one night and took us near ocean where we boarded the boats to head towards Australia. After about 1-2 weeks we arrived Ashmore Reef, where Australian Border Protection took us to [a named] Detention Centre. After staying there for a while I was sent to [a named] Detention Centre […]. I stayed there for one month and then got transferred to [another] Detention Centre. After a month I got released from detention we were brought to Sydney.
After arriving to Sydney, my life changed a lot. I attended [a college] for 3 months, and then according to my age I was taken to year 10 high school. I completed my year 12 with a lot of hardships because I found the studies very challenging. I couldn’t continue my studies because I had to work to support my family. I am currently living with my wife [Wife A], my daughter [named] and my son [named]. I am very happy with my life and family.
This is my life story from when I was born until now. Everything I have written here are my words and completely true. I would like to request the department of immigration to please provide me with my partner visa.
Protection Visa Application - Department Interview, March 2024

The following is a summary of the information the applicant provided in his Protection visa application interview with the Department on 13 March 2024:
a.The applicant stated he is [Alias A] born in [specified year] in Maiden Wardak province in Afghanistan. Following his birth his family called him ‘[the applicant’s name variant]’ until he was approximately [age] years of age.
b.The applicant’s mother changed his name to [Alias A] shortly before his family left Afghanistan for Pakistan because his mother’s extended family treated her badly following the death of the applicant’s father. His mother feared he would be harmed by her extended family so she decided to change his name.
c.The applicant was approximately [age] years old when he left Afghanistan for Pakistan.
d.He identified himself as [Alias A] rather than ‘[the applicant’s name variant]’ following his arrival in Australia because his family called him ‘[the name variant]’ following his birth, however, ‘[the applicant’s name variant]’ wasn’t his official birth name. ‘[The name variant]’ was his nickname but people also called him [Alias A] in Afghanistan.
e.The Delegate asked the applicant why he had written in connection with his Partner visa application that his name was [the applicant’s name variant] rather than [Alias A]. He responded that his ‘registered’ name in Afghanistan was not ‘[the applicant’s name variant]’ and [this family name] was connected to his great grandfather. His ‘registered’ name in Afghanistan was [Alias A]. His name is [the applicant’s name variant] but when he was coming to Australia his mother changed his name to [Alias A]. Prior to that people were also calling him [Alias A].
f.The applicant can’t remember if he used the name [the applicant’s name variant] in Pakistan, but maybe he did. He wasn’t in Pakistan for long.
g.The applicant’s mother obtained his Afghan Identity Card with the help of a neighbour in Peshawar, Pakistan. He lived in Pakistan for approximately two years. The Delegate put to the applicant that his Afghan Identity Card was issued in 2011, approximately three years before he arrived in Pakistan. The applicant replied he didn’t know anything about his Afghan Identity Card as it was obtained by his mother.
h.The applicant was scared and young when he arrived in Australia so he didn’t provide his real name at that time but he later provided his real name and apologised to the authorities.
i.The applicant was known as [the applicant’s name variant] on social media; however, his mother became angry when she discovered this. His mother had told him [the applicant’s name variant] was his childhood name but his official name is [Alias A]. He couldn’t inform the Department regarding his alias name as he hadn’t had any opportunity to provide that information sooner.
j.He was scared his visa would be cancelled and he sincerely apologised for not providing that information when he received the NOICC.
k.The applicant’s family are not Pakistan citizens and only his mother held an ‘Afghan card’. The Delegate put to the applicant that he had previously stated that his mother provided him with an Afghan Identity Card, however, he didn’t know how she obtained that document and the Card was issued in the name of [Alias A] so why did he believe his Afghan Identity Card was a genuine document obtained from the Afghan authorities. The applicant replied that his mother obtained his Afghan Identity Card from a neighbour who assured her that the document was a genuine document.
l.The Delegate put to the applicant that he had previously stated he did not personally know any of his social media contacts [with his family name] including [Brother A] in Karachi. The applied responded that [Brother A] is his brother. The Delegate asked the applicant if [Father A variant] on his Face Book account was his father. The applicant replied that his brother had created a social media account for his deceased father in the name of [Father A variant].
m.The Delegate put to the applicant that his brothers-in-law had used the [same family name]. The applicant responded that he didn’t know this.
n.The applicant studied English for approximately nine months in Peshawar, Pakistan. In Afghanistan he studied with a teacher but not at a formal school. He has also studied English in Australia for six months and completed his secondary education in Australia. He studied English for approximately nine months in Pakistan and he had also practiced English with his friends during his immigration detention in Australia. He completed school in Australia because the Hazara community are passionate about education and he was given the opportunity to access education in Australia so he was eager to learn.
o.The Delegate asked the applicant if he feared any harm in Pakistan. The applicant stated he fears persecution in Pakistan as a Shi’a Hazara from Afghanistan. Pashtuns target Shi’a Hazaras in Pakistan and many Afghans had been deported from Pakistan to Afghanistan. His life would be in danger if he returns to Karachi as he would be easily recognised as a member of the Shi’a Hazara community because of his distinctive facial features. He also cannot return to Karachi because he doesn’t have any Pakistani identity documents.
Post-Interview Submission
On 13 April 2024 the applicant’s Representative provided the following information to the Delegate:
- A Pakistan government Proof of Registration, Afghan Citizen, ID Card for the applicant’s mother [Mother A], issued [in] July 2021, with expiry date [in] June 2023.
- A Pakistan government Proof of Registration, Afghan Citizen, ID Card for the applicant’s brother [brother A], issued [in] July 2021, with expiry date [in] June 2023.
On 22 April 2024 the applicant’s Representative submitted the following further documents to the Delegate:
-    A written submission by the Representative.
-    An Afghan ID Card for the applicant’s uncle, [Uncle A], issued by the General Consulate of Afghanistan in [City 1] [in] March 2018. The card notes that it “is only valid in Afghanistan Missions’.
-    A written statement by the applicant’s mother.
-    Country information about Afghanistan.
In the applicant’s mother’s statement she writes (as translated):
I am [Mother A variant]. I am [Alias A’s] mother. When my son was born, we named him [the applicant’s name variant]. Everyone in the family calls him by that name. [The family name] was his grandfather’s family name.
When my husband died, life in [Village 1 vsriant] changed for me and my children a lot. My in-laws had very bad behaviour with me. They would hurt me physically (beating) and mentally. They would threaten me saying that they would take my children from me and would return me to my father’s home. I think that they wanted to take my children, especially my elder child [Alias A], from me because after my husband, he could demand his share from the household and farm. Therefore, one day, I decided to leave everything behind and run away from there.
I decided to change his name from [the applicant’s name variant] to [Alias A] because I was afraid that my in-laws would find us and take him away from me. It was the reason for changing my son’s name. I have never shared this story with my children because I did not want them to have hatred in relation to anyone. I was unaware that [Alias A] also made his Facebook account by the name [the applicant’s name variant], and when I found out, I immediately stopped/prevented him from doing so. I do not want anyone to look for my children. The ignorance that my son has showed with regard to his name on Facebook will not be repeated. I do not know where my in-laws are now, whether they are alive or not; and we presently do not talk about them. [Alias A] was [age] years old when I obtained his tazkira with the help of my neighbour.
My son has committed no crime and sin. He has only come to visit me twice, that is it. I would like to request the Australian Department of Immigration to kindly issue my son’s visa.
In the Representative’s submission she outlines the following:
…
The Applicant is a Shi’a Muslim and member of the Hazara ethnic minority in Afghanistan.
The Applicant is not a Pakistani citizen and has no right to enter and reside there. His family live in Pakistan as Afghan refugees. The documents provided alongside this submission are extremely compelling, objective evidence of this, including:
• Afghan Citizen in Pakistan Proof of Registration card for the Applicant’s mother
• Afghan Citizen in Pakistan Proof of Registration card for the Applicant’s brother
• Afghan Citizen identity card issued in [City 1] for the Applicant’s uncle [Uncle A].
Name of the Applicant
The Applicant’s name is [Alias A], and this is the name by which he has been known for the formative years of his life, including all of his years in Australia.
We note that at the Interview dated 19 March 2024, the Applicant was prompted to explain his other name, [the applicant’s name variant], and the family name [specified]; and was asked whether these were names that he identified with.
The Applicant has explained the providence of the names [the applicant’s name variant] and [family name]. He has done so in several submissions and statements to the Department with respect to the partner visa application on foot. His mother has also explained the providence of both names in a statement also provided to the Department with respect to that visa application, date of translation 1 March 2024.
His evidence has been that the names [the applicant’s name variant] and [the family name] are names that have also been attributed to him throughout his life. ‘[The applicant’s name variant]’ is not his ‘real name’, rather [the applicant’s name variant] was a name he has been called, particularly when he was younger, and his late father’s family know him by this name; and [the family name] is an ancestral name, traced to a family member in his paternal line (at Interview described as belonging to a great grandfather of the Applicant’s father) from his family’s village.
The Applicant instructs that, as a child, he identified with (or, more correctly, his parents identified him as) both the name [the applicant’s name variant] and also the name [Alias A]. At the Interview, it was suggested that the evidence given by the Applicant at the Interview was contrary to the previous evidence given by the Applicant. We respectfully disagree with this characterisation. The Applicant has provided explanations to clarify that these names have been used contemporaneously.
In our submission, the Applicant has provided a reasonable explanation of his names, both at the Interview and in submissions, and has been at pains to correct the record in his recent engagements with the Department as to this name. He has expressed remorse that he did not raise the names earlier or provide them to the Department, though we note the very young age at which the Applicant arrived in Australia, without any guardian. We note too that his knowledge of his name, as for all of us, relies on his mother’s explanation. In a sense, our names are all ‘made up’ by our parents.
His instructions are that the name [the applicant’s name variant] is a childhood name given to him at birth, and still occasionally used in a familial context. His instructions are that [this family name] is an ancestral name from his paternal lineage, related to his home village of [Village 1 variant] in the [District 1] of Maiden Wardak Province.
Country information supports this contention and indicates that it is not uncommon for Afghans to use different names in different circumstances.
It was suggested at the Interview that the [specified family name] originated from a well-established family named [this family name] in Pakistan. The concerns raised in the Interview further suggested that the Applicant was not an Afghan of Hazara ethnicity but was a member of a well-established Pakistani family [with this name]. It is our submission that the [family name] has its origins in Afghanistan and has links to the Hazara ethnicity. Country information indicates that there are prominent members of the Afghan Hazara community with the variations of [this family name].
It is our submission that naming conventions used in other cultures such as in Afghanistan are different to western approaches. During the Interview, concerns were continuously raised with reference to the Applicant’s ‘real name’. However, what constitutes ‘real’ is ambiguous, and the concerns raised on this premise do not consider the variations of how this concept of ‘real’ can be interpreted, particularly in a different cultural context.
At the Interview, the Applicant continued to clarify that whilst [the applicant’s name variant] was the name given to him informally or unofficially at birth, this name has not been officially recorded. Country information exemplifies the historical and systemic issues that Afghans, especially those of Hazara ethnicity, face in obtaining official documentation that conclusively establishes their identity. A report published by the US Embassy in Kabul found that there are socio-cultural differences in Afghanistan such that traditional naming conventions used in Afghanistan are ‘a concern in determining identity’, and that ‘identity is not a settled concept.’ Further, unlike well-established democracies in the West (such as Australia), other states around the world (such as Afghanistan) often have not been able to produce and maintain systemic records of their citizens.
The reason that the Applicant and his mother began using the name [Alias A] over [the applicant’s name variant] have also been explained. The Applicant’s mother experienced significant domestic violence from her late husband’s family in Afghanistan, and this formed part of the reason she fled that country, and sought to shield her eldest son from the perpetrators of that violence by changing his name. In this context, without knowing until recently the reasons for this, it is understandable that the Applicant adopted his earlier name on social media in an attempt to connect to any extended family members, particularly noting his isolating experience as an unaccompanied minor in Australia. It remains the Applicant’s instructions that while he knows or knew some of the profiles with the [same family name] on Facebook with which he has been connected (such as his brothers-in-law, referred to below), not all of the Facebook profiles featuring the [family name] he has been ‘friends’ with over the years have been known to him.
It was put to the Applicant that his brothers-in-law’s use of the [family name] on social media also supports the finding that he is from Pakistan. In fact, this goes further to supporting the Applicant’s claim to be from Afghanistan. As noted, the [family name] is an ancestral name linking the Applicant to his father’s ancestors in the village. The Applicant explains that some of his wife’s family are from the same area in Afghanistan. Given that [this] ancestral name is common in that village, it is highly possible that the Applicant and his wife’s family share an ancestor. We sought instructions from the Applicant’s wife in this regard, and she added that her family are deeply conservative and she was required to marry within the Hazara ethnicity and from her ancestral/tribal area.
Country information recognises Afghan relationships and marriage as being largely endogamous. The Applicant’s marriage to his wife is reflected by this, as her family mandated that she marry within the Hazara ethnicity and from her ancestral area. This notion is customary in Afghanistan as relationships between a husband and wife are commonly arranged between families to ensure marriage within their tribe or ethnic group, with parallel and cross-cousin marriages preferred.
Taskera
At the Interview, the Department raised concerns regarding the authenticity of the Applicant’s Taskera. We note that the Applicant explained his Taskera was obtained when he was a child, by his mother, who obtained it with the assistance of their neighbour.
In the Interview, the Applicant described to the best of his recollection, or the recollection of her mother, that the neighbour stated that the Taskera was legitimate, by the fact that two photographs were taken of the Applicant as part of the application process and his mother believes that the document is genuine. The Applicant reiterated that, due to his young age, dependence on his mother and also the situation of his mother – which we now know was a widowed woman who fled domestic violence from her in-laws in Afghanistan and sought safe haven with her young children in a neighbouring country – he did not ask any further questions and accepted her explanation.
We note that the Applicant was not present at the time that the Taskera was obtained, and he cannot be sure of the exact process or procedure beyond his mother’s explanation.
We note that it is possible that the Taskera is genuine, and that the Applicant is confused about the year which his family fled Afghanistan, which could have been earlier than 2011. We note that pinpointing a calendar year, in a Western calendar, requiring the Applicant to cast his memory back to a time of displacement during his childhood, it is understandable that he may be unable to specify the correct year.
The Applicant instructs that the Taskera is not a bogus document, to the best of his knowledge, and he is solely reliant on the provision of documents from his family. It is reasonable that, given the Applicant’s age and his age when the Taskera was obtained, he cannot recall when this was, in a calendar date. In these circumstances, if this is determined to not be a genuine document, we submit that this constitutes a reasonable explanation. It was not the intention of the Applicant to deliberately provide a document that is not genuine and the details on the Taskera do correctly reflect the Applicant’s name, providence and other biographical information.
Family in Pakistan and irrefutable documentary evidence
At the Interview, the Applicant was prompted to state the legal status of his family members who are living in Pakistan and whether they had been issued with any documents by the Pakistani authorities. The Applicant stated that his mother and siblings resided in Karachi, that they are Afghan citizens, and that they are not Pakistani citizens. Prior to providing this submission, we provided the Department with photo identity documents that are irrefutable proof of a person’s status as an Afghan citizen living in Pakistan, for the Applicant’s mother and brother. With this submission we again enclose these cards, including images of the back of the cards.
These Proof of Registration (PoR) Cards are extremely compelling and objective evidence that signify a legal recognition of the Applicant’s family being Afghan citizens who reside in Pakistan and hold refugee status. The PoR Cards are recognised by the Australian Government as being a product of the tripartite agreement between Pakistan, Afghanistan and the UNHCR, and identify cardholders as Afghan refugees who are eligible for protection and support through the UNHCR under Pakistani refugee laws. 7 DFAT notes that those who hold a PoR Card are entitled to stay temporarily in Pakistan, enjoy freedom of movement, and have access to public health and education. They are permitted to rent property, open bank accounts, and register births.8 The PoR Cards provided in our submission were issued [in] July 2021 as part of the Documentation Renewal and Information Verification Exercise (DRIVE), which was coordinated by Pakistan’s National Database and Registration Authority (NADRA) and Commissionerate for Afghan Refugees (CAR) and supported by the UNHCR. These PoR Cards are a multi-biometric identity smartcard which required eligible cardholders to undergo a verification interview and biometric screening. The PoR Cards are issued with enhanced security features and have significant technological advancements, with the UNHCR stating in its Situation Report that:
The cards share the same technological foundation as is used by the Government of Pakistan for its national identity cards (CNIC) for nationals, and are capable of enhancing the swift and secure access of refugees to identity verification and service provision.
In providing these PoR Cards, it is our submission that the Applicant has provided irrefutable evidence in support of his claim that he is an Afghan refugee with no legally enforceable right to reside in Pakistan, and that the Applicant’s family are legally registered and recognised Afghan refugees with a right to temporarily reside in Pakistan. The Applicant instructs that he does not have any documentation or legal right that entitles him to enter or reside in Pakistan.
Reliance on social media as evidence
It was suggested to the Applicant that the profile images attributable to his brother’s Facebook account are in some way evidence of his brother’s wealth and therefore status as a Pakistani national. We refute this suggestion, and submit that it is not a legally reasonable conclusion to draw on the evidence. First, social media is – famously – an online space where people choose to represent themselves in ways that can be highly curated and not reflective of reality. Second, we disagree that the images of the Applicant’s brother are in some way proof that he is not an undocumented Afghan Hazara living in Karachi. We submit that the Facebook images are, in and of themselves, completely insufficient to draw any conclusions as to the person’s wealth or other demographic data. We ask that the Department put these photos to the Applicant for comment that purportedly suggest wealth. The three photos provided to the Applicant after the Interview, simply depict a young man wearing sunglasses standing in front of a tree (two of these photos are the same) and a third picture, highly edited, of a young man with a digital camera completely obscuring his face wearing a leather jacket.
We note that social media accounts are commonly not linked to living or real people. Indeed, Meta has noted that the percentage of profiles that are likely fake is between 4-5%, which equates to between 103.6 million - 129.5 million accounts.
We note that at the Interview, concerns were raised in relation to the Applicant’s father, and it was suggested that the Applicant’s father is still alive, supported by the existence of a Facebook profile bearing his name. We note the provision of a screenshot of that profile following the interview (Figure 1 above). The Applicant responded to this assertion immediately at the Interview and explained that his brother, [Brother A], created this Facebook profile in memoriam of their late father, and used a photograph of their uncle. Along with this submission, the Applicant has provided an Identification Card issued to his uncle, [Uncle A], by the Ministry of Foreign Affairs General Consulate of Afghanistan (Figure 2 above). This proof of identity document verifies the face and identity of the Applicant’s uncle. It is our submission that the facial comparison of the two photographs irrefutably confirms the Applicant’s testimony that the individual depicted in the social media profile is not of his deceased father but a photograph of his uncle. The identity card submitted is irrefutable evidence that the Applicant’s uncle is also an Afghan national from Maidan Wardak province. The Applicant’s brother is deeply regretful for the unintended consequence of his online activity.
Balance of the evidence
In our submission, the weight of the evidence is in the Applicant’s favour, and it is open to a decision maker to find that the Applicant’s claimed identity and nationality is as [Alias A], an Afghan Hazara.
The PoR cards presented by the Applicant are compelling, independent documentary evidence that supports a finding that the Applicant and his family are Afghan Hazara.
It was suggested at the Interview that the Applicant does not look Hazara. We disagree with this statement. We also note that the Applicant spoke fluently in Hazaraghi for the duration of the Interview.
It was suggested at the Interview that the Applicant’s ability to complete his high school education in Australia is evidence that he must be Pakistani and had more schooling than claimed. Again, we reiterate our point at the Interview that the Australian schooling system is designed to allow recent arrivals to participate, for example, by offering English as a second language. To illustrate this point, we note research conducted by UTS that examined the performance of refugee students and noted their resilience, and the pathway between intensive English courses and mainstream classes. This research supports the Applicant’s claim with respect to his performance at school.
It was suggested after the Interview in an email dated 19 March 2024 that the Applicant travelled to Afghanistan. Outside of photographs on his phone, which the Applicant maintains he did not personally take, we reiterate our call for any actual evidence of this assertion. Under the procedural fairness provisions of the Act, the content of this adverse information should be put to the Applicant for comment. In our submission, to make such a finding, based on photographs without any examination of the metadata of those photographs, and therefore proof that the Applicant himself took them, would constitute a grave jurisdictional error as such a finding is simply not open on the evidence. We have drawn to the Department’s attention that messaging applications often had the default set to save photographs to the camera roll or photo library on the device. Further, it is not logical to make a finding that the Applicant does not fear harm in Afghanistan based on the fact that allegedly he went there, when the photos which initiated the search at the airport were photos of graphic violence befalling citizens (Hazara people) of Afghanistan. Further, the Applicant has explained the provenance of wedding photos on his phone. We again call on the Department to provide metadata or persuasive evidence that the Applicant himself was in or took those photographs.
Country information
In our submission, it is undeniably clear that Hazaras face persecution in Afghanistan. We enclose a timeline and general country information as attachments A and B to this submission to support this.
Our instructions are that there is no other receiving country for which to raise claims. Despite this, we want to note the following country information for Pakistan. Country information in the 2022 DFAT Report has assessed the risks of persecution and violence faced by Hazaras in Pakistan as high due to their distinctive appearance and broader social segregation. The Report cites evidence that:
Militant groups including, LeJ and IS consider the Hazaras ‘infidels’ who are ‘worthy of killing’. A 2019 report by the NCHR said at least 2,000 Hazaras had been killed by militants in Pakistan since 1999 ‘in various incidents including bomb blast, suicide attacks and target killings’. No one has been held accountable for these attacks. Hazara political and religious leaders have been targeted for assassination. In April 2019, a bombing in Hazarganji market killed 24 people, many of them Hazaras. In January 2021, IS militants killed 11 Hazara miners in Mach. While there have been no attacks outside Balochistan since 2014, Hazaras have previously been targeted in Karachi, Peshawar and elsewhere. Militant groups retain the intent and capacity to attack Hazaras throughout Pakistan.
As the Applicant is a practicing Shi’a Muslim, the Applicant is at heightened risk of being targeted. Persecution on this basis is well-documented in Pakistani country information. As noted in a report published by the Coalition for Religious Equality and Inclusive Development:
The hate talk against Shia Hazara includes derogatory terms using animal names (culturally it is derogatory to call someone a dog or pig) and abusive words. Whenever there is mention of a woman, it has abusive sexual connotations. There is a huge trend of takfir, a practice of calling another sect heretic, in which Sunni extremist groups raise slogans against Shias and called them Kafir (infidel). Hazaras are also referred to as Kafir, which was recently visible in the anti-Hazara protest led by Pashtuns against the lynching of Noor [Bilal Noorzai, attacked and killed in Hazara Town in May 2020], where they were also called “the most cursed creature.
As a returnee from the West, the Applicant would be strongly associated with the Western countries in which he has resided and is likely to be targeted by active terrorist groups. Smartraveller advises that travel to Pakistan overall should be reconsidered as there are serious and potentially life-threatening risks due to the volatile security situation and threat of terrorism, kidnapping, violent crime, and the risk of civil unrest. In specific areas of Pakistan, particularly in areas bordering with Afghanistan, the Australian Government has issued a ‘Level 4 Do not travel’ and classified risks to health and safety as extreme.
This country information indicates that terrorist groups hostile to foreign interests operate in Pakistan. The threat of attack remains very high. Reporting continues to identify the potential for attacks in Islamabad, including at major hotels. Terrorists may also target places frequented by foreigners, transport infrastructure, including trains and airports, and places of worship. This is supported by ‘do not travel’ advise issued by other Western countries such as the US and the UK.
Delegate’s Decision

The Delegate was not satisfied as to the applicant’s claimed identity.
The Delegate found that the applicant originated from an established family named [specified] in Karachi, Pakistan. The Delegate accepted that the applicant’s family may have historical links to the Hazara community but did not accept that they live as part of the Afghan Hazara refugee community in Karachi. The Delegate found that the applicant was a citizen of Pakistan who left Pakistan using his own genuine Pakistani passport. The Delegate was satisfied the applicant is not a dual national who has a legal right to return to Afghanistan because Pakistan does not allow dual citizenship with Afghanistan.
The Delegate did not accept that the applicant is an Afghan citizen who originates from Maiden Wardak province in Afghanistan.
The Delegate did not accept that the applicant has typical Asiatic facial features which will easily identify him as a member of the Hazara community in Karachi. The Delegate did not accept that the applicant’s physical appearance necessarily meant he would be identified and targeted by militants or the Pashtun community in Karachi.
The Delegate found that the applicant will have a relatively low profile figure upon his return to Karachi in Pakistan. The Delegate was not satisfied that the applicant would face a real chance of harm of any kind in Karachi for reason of having sought asylum in a western country, and/or for being a failed asylum seeker, and/or for having returned from a western country.
The Delegate was not satisfied that the applicant had a well-founded fear of persecution in Pakistan, or that he was owed complementary protection.
Information to the Tribunal
Pre-Hearing Submission
On 25 September 2024 the applicant’s Representative submitted the following materials to the Tribunal:
-    A further written statement from the applicant.
-    Written submissions from the Representative.
-    A character reference from [Mr A], [Leader] of the [Community Organisation 1], dated 18 September 2024. [Mr A] writes that the applicant is a member of his community.
-    A character reference from [Mr B], Head of the [Community Organisation 2], based in [Suburb 3], dated 21 September 2024. [Mr B] writes that the applicant is from the Hazara community of Afghanistan.
-    The Pakistan Afghan Citizen Proof of Registration Card for [Sister A], daughter of [Father A], issued [in] July 2021, with expiry [in] June 2023. The card describes [Sister A's] place of birth as Maydan Shahr in Wardak Province.
-    The Pakistan Afghan Citizen Proof of Registration Card for [Sibling A], [child] of [Father A], issued [in] July 2021, with expiry [in] June 2023. The card describes [Sibling A’s] place of birth as Maydan Shahr in Wardak Province.
-    The Pakistan Afghan Citizen Proof of Registration Card for [Sister B], daughter of [Father A], issued [in] July 2021, with expiry [in] June 2023. The card describes [Sister B’s] place of birth as Maydan Shahr in Wardak Province.
In the applicant’s statement he writes the following:
I fear harm if I were forced to return to Afghanistan. I fear this harm from the Taliban on the basis of my Hazara ethnicity, Shi’a religion, and due to my connections with the West, having lived in Australia for the formative years of my life.
I am not a citizen of any country other than Afghanistan, and the Department’s finding that I am a Pakistani citizen is an error.
Biographical information
My name is [Alias A].
I was born in [Village 1] in the [District 1] of Maydan Wardak Province in [year]. I do not know the exact date as we do not keep records like this in Afghanistan.
I am a member of the Hazara ethnic minority. I am Shi’a Muslim.
My father worked as a farmer and passed away when I was a child from a heart attack.
I [have] [specified siblings named]. My siblings live with my mother in Karachi as unlawful refugees. I do not have the right to reside in Pakistan, and nor do they.
I am an Afghan citizen and do not have the right to enter or reside in any other country. My mother and siblings are Afghan citizens, and they do not have the right to enter or reside in any other country.
I have provided the Department of Home Affairs with UNHCR Proof of Registration Cards that have been issued to my mother and brother. These cards are a legal recognition of my family being Afghan citizens who reside in Pakistan and hold refugee status. I have also recently obtained copies of the Proof of Registration Cards issued to my other siblings, [named], and have provided them to the Tribunal.
Fears in Afghanistan
I am a member of the Hazara ethnic minority which has been historically discriminated against and continues to be persecuted in Afghanistan.
After my father passed away, my mother experienced violence from my paternal family. I did not know this until recently and I believe that my mother did not tell me in order to protect me as I was very young.
Around this time, there was escalation of violence from the Kochis (also known as the Taliban) who have historically persecuted the Hazara minority and constantly attacked our village due to it being a Hazara area.
Due to these things, my mother was very worried about being a single woman with [young] children and who did not have any male protection. As the majority of my village fled, my mother decided it was best for us to leave as well so she moved my siblings and I to Pakistan from Afghanistan.
I lived in Pakistan as a refugee with my mother and siblings where I was helping a neighbour with [occupation 1 work].
I arrived in Australia as an unaccompanied child by boat in November 2012.
I did not have any identity documents other than a copy of my Taskera which I provided to the Department prior to my Entry Interview. I accidentally lost my original Taskera on my journey to Australia.
I also fear harm as a person who has spent the majority of my life living as a person seeking asylum in a Western country. I have adapted to life in Australia and would be considered very Western. My values and ideals are totally opposite to the Taliban.
Education
Prior to arriving in Australia, I did not attend any formal education. I learned basic English from my neighbour in Pakistan who was also Hazara.
When I was living in Afghanistan, I went to a small village school that other boys in the village went to learn from a village elder who taught life skills. I attended this for approximately one year.
I achieved my English qualification in 2013, and I completed my secondary education at [School 1] and attained my Higher School Certificate in [year].
Education is highly valued in the Hazara community, and we are very passionate about our studies, as, in Afghanistan, we are oppressed and deprived from it. Hazaras view education as a tool of empowerment for an otherwise discriminated against minority. When I arrived in Australia, I was determined to take advantage of every opportunity to learn, improve and accomplish things that I had never been offered the opportunity to do so before.
I explained this to the Department in my Interview when it was suggested that, despite my lack of formal education in Afghanistan, my educational achievements which I am very proud of, namely my completion of Year 12 in [year] and my English qualification in 2013, were something that would have taken an average Australian student 12 years of schooling. I did these things on my own. My results also show that I did well in some subjects, and less well in others.
Identity
My name, [Alias A], is my legal and officially recorded name. This name is reflected on all of my Australian government issued identity documents as well as is the name on my Taskera.
I have informally and unofficially identified with, and been identified as, [the applicant’s name variant]. The origin of this name has been explained to the Department in several submissions and statements, and most recently in my Interview on 19 March 2024 and post-interview submission dated 22 April 2024.
As a child, I was informally and unofficially identified by my parents as both [the applicant’s name variant] and [Alias A] contemporaneously. [The applicant’s name variant] has never been formally recorded on any official records. The name [the applicant’s name variant] was a childhood nickname that is still occasionally used in a familial context.
I have also identified with and been identified by the family name [specified]. [This family name] has ancestral significance and can be traced through my paternal lineage. [The family name] has links to the Hazara ethnicity in Afghanistan.
On social media, I have used the name [the applicant’s name variant], because [this name variant] is the name my parents referred to me as a child, and [the family name] is an ancestral name from my paternal lineage. This name has sentimental significance to me as it is a way that I connect to my identity, village, and extended family. I have used this name on my social media platforms, after years of isolation as an unaccompanied minor in Australia, to see if there were other family members I could connect to.
As I have only recently learned of the abuse my mother suffered from my paternal family after my father’s death, I have only recently come to understand the reason why my mother favoured the name [Alias A] over [the applicant’s name variant] on my official documents. She tells me that she was also very anxious that my paternal family, whom she was escaping and trying to protect us from, would be able to locate me in Pakistan as this was the name they knew me by.
Hazara ethnicity and Shi’a faith
I am of Hazara ethnicity and a practicing Shi’a. I strongly identify with my Hazara ethnicity and culture, and with my Shi’a faith.
I speak Hazaragi fluently. My wife, an Australian citizen, is also Hazara, and we often speak in Hazaragi to each other and to our families. We are also teaching our children Hazaragi to ensure they are raised with a meaningful connection to our culture.
As I have explained to the Department, my wife’s family is deeply conservative, and she was required to marry within the Hazara ethnicity and to someone from her ancestral/tribal area.
I have strong community links to the Hazara diaspora in Australia and regularly attend events held by the local mosque at the [Community Organisation 2] in [Suburb 3].
I am a member of the [Community Organisation 2] and have provided the Tribunal with support letters from Hazara community leaders, [Mr A] dated 18 September 2024 and [Mr B] dated 21 September 2024, who have attested to my Hazara ethnicity and involvement in the Hazara community since living in Australia.
Identity documents
When I was a child, I got a Taskera. I initially thought that this was arranged by my father, but as I was a child at the time, my mother has since clarified the circumstances in which it was acquired.
My father had wanted to register my name and obtain a Taskera and so we began the process at a government office in [District 1]. I have a vague memory of going there with him. There was a long line of other farmers from around the district who went to get a Taskera, so, as part of the process, we were told to register our names to receive a token and then told to return to the office once it was our turn in a few months. Unfortunately, my father had passed away before it was time for us to return to the government office and we did not complete the process for my Taskera to be issued at that time.
My mother has explained that, after getting to Pakistan, she sought assistance from a trusted neighbour to finalise an application for my Taskera, using the token, and then the Taskera was issued to me. I rely on my mother’s explanation and depend on her memory and judgment.
As I was a child at the time, in the context of being displaced and having lost my father, I did not ask any further questions and accepted my mother’s direction and explanation. I do not clearly remember the process of obtaining my Taskera and my reliance was on my mother, who, in turn, relied on the assistance of a neighbour, to obtain it.
To the best of my knowledge, and to the best of my mother’s recollection, the provision of my Taskera was through legitimate channels and is an authentic and genuine document. The details on my Taskera do nonetheless correctly reflect my name, place of birth and other biographical information.
Social media
At my protection visa Interview, it was suggested that my father is still alive and that this was raised on the existence of a Facebook profile. I responded to this immediately at the Interview and addressed it in a post-interview submission, and have explained that my brother, [Brother A], created the Facebook profile in memoriam of our late father and used a photograph of our uncle. I have also provided the Department with a comparison of the Facebook profile’s display picture with a copy of our uncle’s Identification Card to support this explanation.
I felt very upset to be told that I was lying about my father’s death.
Since I have been in Australia, I have travelled overseas twice, once in November 2016 and once in November 2017. Both times were to Karachi, Pakistan to visit my sick mother and reunite with my younger siblings.
In 2016, I travelled to Pakistan to visit my sick mother. Whilst I was there, my mother’s brother, [Uncle A], who lives in [Country 2] was also there to see her. My mother tells me that during this visit, she had requested that he give her his Identification Card in the event that they were found by the Pakistani authorities to be living in Pakistan as undocumented Afghans to prove that they were being supported by my uncle who lives and works in [Country 2] as a labourer. When it was suggested that the profile picture of the Facebook profile created in memoriam by my brother was of my father, I instantly identified it as being a photo of my uncle, [Uncle A]. Following my Interview, I spoke with my mother who was able to send me a copy of his ID Card to provide to the Department in post-interview submissions.
Upon my return to Australia in December 2016, I was stopped by the Australian Border Force who searched and seized my personal belongings. I was told that there was evidence in my phone that indicated I had travelled to Afghanistan in early December to attend a wedding. This was also raised in the Notice of Intention to Consider Cancellation I received in 2019 and put to me to comment in the Interview. At every opportunity, I have been very clear that I have not, will not, and cannot travel to Afghanistan.
Since the Department refusal, I have received other identity cards from my family members including for my sisters and [brother].
It has been difficult to get details and documents from my mother, I don’t like to tell her everything about what is happening with my visa because I know that will make her very stressed. When I talk with her I pretend to always be happy, I show her my kids, and I try not to make her worried.
Tribunal Hearing
The applicant appeared before the Tribunal on 30 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Wife A]. 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 applicant at the hearing:
a.The applicant clarified that his mother and siblings are registered refugees in Pakistan however they are still liable to deportation. This is what he meant when he described them as ‘unlawful’ in his recent written statement.
b.The applicant’s name at birth was [the applicant’s name variant]. His first name was [Alias A variant] then it was changed to [the applicant’s name variant]. [The applicant’s name variant] is a religious name given at birth and it means [religious name 1].
c.The applicant does not know if he had a family name. The Tribunal asked the applicant if ‘[the family name]’ is the applicant’s maternal or paternal grandparent’s name. He responded that [this name] is a name from three or four generations back.
d.The name the applicant uses now is [Alias A]. He does not use the name [the applicant’s name variant]. He acknowledged that he did use the name [the applicant’s name variant] on his Face Book account.
e.His father’s full name is [Father A]. His mother’s full name is [Mother A variant]. [Name] is his family name.
f.He does not know how old his mother was when she gave birth to him. He cannot give a rough estimate of her age. The Tribunal put to the applicant that he had previously provided his mother’s year of birth and his own year of birth so he should be able to calculate her age when he was born. The applicant responded that is what she told him. He doesn’t know her age when he was born because he was small then. He no longer remembers his mother’s year of birth. The Tribunal asked him how he provided her year of birth in his visa application and he responded that she provided it to him.
g.The applicant and his siblings have the same father. His mother never remarried. He does not know why there is a large age gap between him and his siblings. He was [in family position] so he does not know.
h.The Tribunal asked the applicant if anyone amongst his family and extended family has an Afghanistan passport. The applicant responded no because his family is in Pakistan. The Tribunal asked him the question again and he responded he has no relatives in Afghanistan. The Tribunal asked him again and he responded maybe.
i.The applicant and his wife are not cousins. They met at a Nowruz festival one Summer. He did not know her before this and she did not know him.
j.The applicant’s wife and her family are from the applicant’s village in Afghanistan. The applicant’s village in Afghanistan is small with about 100 people living there.
k.The applicant lived in his village until he moved. He cannot remember how old he was when he moved. He was probably [age rage]. The Tribunal put to the applicant that he had previously mentioned he was [age]. The applicant responded that he really can’t remember.
l.The applicant did not know his wife’s family when he lived in the village. Although there were only about 100 people in the village he was young. He does not know if any of his relatives lived in the village. As a kid of [age range] years how could he know.
m.The Tribunal asked the applicant if he knows whether he has any relatives. He queried where. The Tribunal clarified anywhere. The applicant then responded he has relatives here and in Afghanistan. Here he has extended family members and friends. The Tribunal asked him about how many of his relatives live here. He responded that families from [Village 1], his village, live here. The Tribunal asked him the question again and he responded 20 to 30 families.
n.The Tribunal asked the applicant which of his relatives live in Afghanistan. He responded that his father’s [siblings] live there. The Tribunal asked him where in Afghanistan they live and he responded he does not know. He is not in contact with them. The Tribunal asked the applicant if anyone amongst his family know where they are and he responded no.
o.The Tribunal asked the applicant who [Mr A] is and he responded he is the head of the [Community Organisation 1] in Australia. The Tribunal asked the applicant if [Mr A] had ever lived in [Village 1] and he responded maybe. The Tribunal queried the applicant’s response and he added that [Mr A] is from [Village 1] so the applicant assumes he lived there.
p.The Tribunal asked the applicant what [this] Community organisation does. The applicant responded it is a small community and they gather and do religious events and community gatherings. The Tribunal asked the applicant if the people in [this] community organisation ever talk about their village [Village 1] and the applicant responded no. The Tribunal tried to check the applicant’s answer with him and he responded they talk in general about Afghanistan. The Tribunal asked the applicant to confirm that the people in the organisation do not talk about their village and he then responded in general they talk but not in detail. The Tribunal asked him if he meant they do talk about their village and he responded that the community is from [Village 1] and talk about it but they mainly talk about here. The Tribunal asked the applicant what they say about their village in [Village 1] and he responded that they talk about the families living in [Village 1] and try to help them. The Tribunal put to the applicant that it is difficult to understand why there would be no talk about the applicant’s uncle and aunt and where they may be in Afghanistan. The applicant responded that he didn’t know himself. The Tribunal asked the applicant if they may be in [Village 1] and he responded maybe they are.
q.The Tribunal asked the applicant when he married and he responded in 2018. He married in Australia in [Suburb 1]. He and his wife had a small ceremony. He has photos of the ceremony and will submit these to the Tribunal.
r.The Tribunal asked the applicant where his wife travelled to in 2017-2018. The applicant responded that his wife travelled to Afghanistan in 2016 for her brother’s wedding in Kabul. At the time the applicant was in Sydney.
s.The Tribunal asked the applicant who the people were in photographs he submitted in his Partner visa application. The applicant responded that they are his wife relatives. None of his relatives appear in any of the photographs.
t.The Tribunal asked is any of the applicant’s relatives attended his wedding in Australia. The applicant responded that he has no family in Australia. The Tribunal asked him about his relatives’ attendance and he responded that he does not know any of his relatives in Australia. The Tribunal queried how he would not know them if they are in the [Community Organisation 1]. The applicant responded they are not close family, from his father’s side or mother’s side. But they are in [Community Organisation 1] yes.
u.The applicant now thinks that he left Afghanistan when he was around [age] years of age. He remembers a little about his life in Afghanistan. His village was small and at the entrance was a small shop. Downwards there was a small bridge. The land is surrounded by mountains. There is a mosque and a school in the village. The applicant attended the school when he was young. He started attending it when he was [age] years old and stopped about one year before he and his family moved out of the village. The Tribunal asked him if had therefore attended school for three years and he responded yes.
v.He also helped his father by taking him his lunch after school.
w.He and other children would gather around farms and steal apples and go to the mountains.
x.There was a small river with fish about 10 to 15 minutes from the village. It was called [name]. The closest town to the village was [Village 2]. The main road was between [a major town] and [Village 2]
y.The applicant has never had a Pakistan passport. He was given a Pakistan passport by the smuggler but it was not in his name. He paid the smugglers and gave them two photos and they organised it.
z.The applicant’s mother obtained a Pakistan PoR Card because she had no documents. She went to the UNHCR in Karachi and they provided her with the document. She showed her Afghan Taskera to the UNHCR to get the PoR. His mother has an Afghan Taskera. The applicant will submit of copy of this to the Tribunal.
aa.The applicant’s mother’s PoR has not been renewed. Last week they said they went to the UNHCR but the UNHCR did not extend the family’s registration.
bb.The applicant’s brother [Brother A] does not go to school or work in Pakistan. None of the family work in Pakistan because they do not have documents. The applicant financially supports them from Australia.
cc.The Tribunal asked the applicant where his sister [Sister B] is living. He responded that [Sister B] lives in Karachi with the applicant’s mother. The Tribunal asked if [Sister B] was living in her mother’s home. The applicant then stated that [Sister B] recently married so she is now living with her husband not her mother. The Tribunal asked where they lived and the applicant then responded that [Sister B] lives in [Country 3]. Her husband is a citizen of [that country]. He is also Hazara, originating from [Village 1]. The applicant does not know him. His name is [specified]. The applicant does not know his family name. The Tribunal asked the applicant if his sister is related to her husband. The applicant responded they are related as an extended family. They married 5 to 6 months or a year ago. The Tribunal asked the applicant what Travel Document [Sister B] used to travel to [Country 3]. The applicant responded a passport of Afghanistan. The Tribunal reminded the applicant that he had previously stated none of his family had an Afghanistan passport. The applicant responded sorry he was tired and misunderstood. The Tribunal asked the applicant if any of his other relatives possessed an Afghan passport and he responded not that he knows of. The applicant will submit a copy of his sister’s Afghan passport to the Tribunal.
dd.The applicant’s sister [Sister A] lives with their mother. The children in Pakistan do not attend school because they do not have documents. [One brother] does not do much during the day.
ee.[Uncle A] is the applicant’s mother’s brother. He lives in [Country 2] and works in a [business]. The Tribunal asked the applicant what travel document [Uncle A] used to enter [Country 2]. The applicant responded he was not sure and maybe it was an Afghanistan passport. The applicant will submit a copy of [Uncle A’s] passport to the Tribunal.
ff.The Tribunal asked the applicant if [Uncle A] had ever lived in Karachi. The applicant responded that in 2016 [Uncle A] went there too because the applicant’s mother was unwell. The Tribunal asked the applicant if [Uncle A] had ever lived in Karachi and the applicant responded yes. The Tribunal asked when and the applicant responded that he never asked [Uncle A]. The Tribunal asked the applicant if he had any idea when [Uncle A] had lived in Karachi and he responded maybe in 2014 or 2015. The Tribunal asked him if he knew where in Karachi [Uncle A] had lived and the applicant responded he had no idea. The Tribunal put to the applicant the AusTrak information that indicated [Uncle A] had lived in the same building as the applicant’s mother. The applicant responded that mostly Hazaras lived in that building. Further down is a town called Hussain where Hazaras live.
gg.The Tribunal asked the applicant when his mother moved to Karachi. He responded that when he was in camp in [Australia] she told him Peshawar was not good and she would move to Karachi. This was maybe in early 2013. [Uncle A] was not living there then. The Tribunal asked the applicant if [Uncle A] lived in Karachi after his mother moved there and he responded that he did not know because he was in camp. His mother lived in Karachi with a neighbour from Peshawar.
hh.[Ms B] is a neighbour of the applicant’s mother in Karachi.
ii.When the applicant returned to Pakistan in late 2016 and late 2017 he stayed at his mother’s home in Karachi. It is a two bedroom apartment with two bathrooms and one kitchen. Another family also lived there but have now moved out. The applicant’s mother and her children were all sleeping in the one bedroom.

On 26 November 2024 the applicant’s Representative wrote by email to the Tribunal with the additional comment:
For completeness, with respect to s367A of the Migration Act, we submit that the Applicant has provided a reasonable explanation for providing new evidence before the Tribunal. The Applicant has experienced a lengthy and prolonged refugee status determination process since arriving in Australia as an unaccompanied young person, and was subject to a number of changing processing frameworks over the years. His fear of deportation to Afghanistan, and belief that he could not waiver from the narrative provided by his mother and the smugglers after arrival, coupled with his refugee background as a Hazara from Afghanistan and the trauma he has experienced since childhood, has been a barrier to him effectively engaging and being forthcoming with evidence. In these circumstances, given the Applicant has now provided full and frank disclosures, his most recent evidence ought to be favoured with respect to the review and seen as credible.
Country Information
DFAT’s January 2022 ‘Thematic Report Afghanistan’ contains the following:
… On 15 August 2021, Kabul fell to the Taliban. The Taliban occupied government offices, leading to some migration out of the country (though less than originally feared), despite their promise of an ‘amnesty’ for all Afghans. In early September 2021, the Taliban announced the formation of an ‘interim government’ and declared once again an ‘Islamic Emirate of Afghanistan’.
…
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.
The June 2019 DFAT ‘Country Information Report on Afghanistan’ states:
The Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan. Hazaras living in rural Afghanistan tend to speak Hazaragi, a dialect of Persian that is mutually intelligible with Dari (Afghan Persian), one of Afghanistan’s two official languages and the most commonly used. Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian. Most Hazara are Shi’a.
…
Islamic State in Khorasan Province (ISKP)
Islamic State in Khorasan Province (ISKP) is the Afghanistan offshoot of Daesh (also known as
Islamic State or IS). It is strongly opposed to Shi’a Muslims and the West. Sources report that ISKP grew in strength in 2021, including through recruitment of disaffected Taliban members, as well as fighters released from prisons. According to reporting by the European Asylum Support Office in September 2021, the core ISKP group in Kunar and Nangarhar provinces retains around 2,000 fighters, mainly Afghan and Pakistani nationals, with smaller autonomous groups elsewhere in Afghanistan. A Taliban campaign in 2019 reduced their numbers by the thousands and removed their territorial control of a few districts in eastern Afghanistan. ISKP has claimed responsibility for the bombing at Kabul’s Hamid Kharzai airport on 26 August 2021; the suicide bomb attack on a Shi’a mosque in Kunduz province on 8 October 2021, which killed more than 70 people, chiefly Hazaras; and another suicide bombing of a Shi’a mosque in Kandahar province, the Taliban’s ‘home’ province, which killed 63 people on 15 October 2021, as well as the hospital bombing in Kabul on 2 November 2021 which killed 25. ISKP has also reportedly been responsible for dozens of smaller attacks since August 2021.
Sources report the ISKP and the Taliban have been in conflict for some time, while also locked in a fight with their mutual foes, the Afghan and US Governments. With the removal of these two targets, ISKP is now fighting the Taliban regime exclusively in Afghanistan, and the Taliban regards it as a clear threat. NGO sources report that ISKP targeted the funeral of the mother of the Taliban’s chief spokesperson in Kabul in October 2021. ISKP derides the Taliban as ‘apostates’ and mocks its members as puppets of the Americans.
DFAT assesses that the security situation in Afghanistan remains dangerous. The cessation of
conflict between the Taliban and the former administration has made many parts of the country, especially rural areas, effectively free from armed conflict; however, the situation is highly volatile. The ability of the Taliban to control violent actors is not currently clear. This applies particularly to ISKP but also its related entity, Tehrik-e-Taliban Pakistan, which targets Pakistan. There is significant potential for violence across the country, especially in the eastern provinces where ISKP is strongest.
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Hazara
The Hazara are one of Afghanistan’s fourteen recognised ethnic groups. Their name is Persian for ‘one thousand’, and relates to a legend that the Hazara descended from 1,000 troops that accompanied Genghis Khan during the Mongol conquest of Eurasia.The Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan. Hazaras living in rural Afghanistan tend to speak Hazaragi, a dialect of Persian that is mutually intelligible with Dari (Afghan Persian), one of Afghanistan’s two official languages and the most commonly used. Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian. Most Hazara are Shi’a.
Afghanistan’s Hazara population has long faced social, economic, and political discrimination, although the extent of this discrimination has varied over time. 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.
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DFAT assesses that Hazara residing within the Hazarajat (particularly within Bamiyan province) face a lower risk of experiencing conflict-related violence than are those residing in other parts of the country, particularly those residing in Kabul. Those residing in the Hazarajat are also at a lower risk of experiencing societal discrimination in relation to employment opportunities than those residing elsewhere due to their being in the ethnic majority. While Hazara are able to secure employment within government and with the international community, their ability to obtain senior positions within government is limited due to their ethnicity. This represents a moderate risk of societal discrimination. Because Hazara are widely perceived to be supporters of the government, the risk profile described in People associated with the government or international community is applicable to them. Because the overwhelming majority of Hazara are Shi’a (or are widely perceived to be), the risk profile described in Shi’a is applicable to them.
Religion
Virtually all Afghans (approximately 99 per cent) identify as Muslim. Around 85 per cent of the Muslim community is Sunni, and around 14 per cent Shi’a. The remaining one per cent of the population consists of residual communities of other faiths, including Christians, Sikhs, Hindus and Baha’i. The populations of these non-Muslim communities have shrunk considerably in recent decades, with most leaving Afghanistan. Those who remain face considerable societal discrimination, which may include violence, in addition to the economic and security challenges experienced by other Afghans.
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There has been a significant increase in the number of attacks by AGEs against places of worship, religious leaders, and worshippers since the beginning of 2016. In a November 2017 special report, UNAMA documented 51 such incidents, resulting in 273 deaths and 577 injuries- nearly double the number of civilian casualties recorded in such attacks during the entire previous seven-year period from 2009 to 2015. This trend continued throughout 2018, when UNAMA reported a further 22 attacks causing 156 deaths and 297 injuries. Deliberate attacks targeting the Shi’a community and mainly claimed by ISKP have caused the majority of casualties.
In addition to large-scale attacks on places of worship, AGEs have also targeted religious leaders and facilities (both Sunni and Shi’a) for violence and harassment. UNAMA reported 13 incidents of targeted killings against religious scholars and leaders in 2018 resulting in 15 deaths and 20 injuries, and 27 incidents causing 28 deaths and 23 injuries in 2016-17. UNAMA reported that the Taliban were responsible for the majority of the 2016-17 targeted killings, which focused on religious leaders due to their ability to change public attitude through their messages or their perceived support of the government rather than for any religious reason. UNAMA also reported in November 2017 a trend of AGEs (primarily the Taliban) using the abduction of religious leaders or scholars as a tactic of intimidation, warning, or method to coerce support, documenting eight such incidents in 2016-17 resulting in two deaths and two injuries. In one incident, the Taliban abducted and tortured a religious scholar in Nangarhar province whose sons were ANDSF members, releasing him after payment of a ransom. UNAMA did not report any such incidents in 2018.
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, and authorities generally conflate Hazara and Shi’a in official statements. This can be misleading: for example, the government considered two recent Ministers to be Hazara, despite the fact that they were ethnically Bayat (Turkic Shi’a) and Tajik respectively.
The Constitution and legislation recognise some separate legal rights for Shi’a. Article 131 of the Constitution provides that Afghanistan’s courts shall apply Shi’a jurisprudence in certain civil cases where all parties are Shi’a. A 2009 Shi’a Personal Status Law recognises different practices on issues such as marriage, divorce and inheritance among the Shi’a community.
In-country sources report that there has not traditionally been a significant sectarian divide between Sunni and Shi’a: conflict between communities has instead tended to be along either ethnic or political lines. Between 1 January 2009 and 31 December 2015, UNAMA documented five incidents against Shia, although the perpetrators and motives behind most incidents were not clearly determined and there were no clear public claims of responsibility. A Pakistan-based jihadist organisation claimed the only attack on Shi’a that caused mass casualties prior to 2016: a December 2011 suicide bombing attack on a Shi’a mosque in Kabul that killed 56 civilians and injured 195.
Since mid-2016, however, militants have conducted an ongoing series of major attacks against Shi’a targets, including political demonstrations and religious gatherings. ISKP has claimed responsibility for many of the attacks. In carrying out the attacks, militants have used suicide bombers and both body-borne and remote-controlled IEDs. The first such attack occurred in Kabul in July 2016, when two suicide bombers targeted a peaceful political demonstration, killing at least 85 demonstrators and injuring 413 others. In claiming responsibility for the attack, ISKP emphasised that it was religiously motivated. UNAMA documented a further four incidents targeting Shi’a mosques and community gatherings in 2016, killing a further 77 civilians and injuring 205. Two of the four attacks took place in Kabul city, one in Balkh district, Balkh province, and one in Herat city.
The number and scale of attacks on Shi’a increased throughout 2017: UNAMA documented eight religiously motivated attacks against Shi’a places of worship and/or worshippers in 2017, resulting in 161 deaths and 252 injuries. ISKP claimed responsibility for six of these attacks (and almost all of the casualties), four of which took place in Kabul city and two in Herat city. The remaining two attacks took place in Herat city, resulted in one civilian death and five injuries, and were attributed to the Taliban. ISKP also claimed responsibility for two further attacks in December 2017 targeting Shi’a outside of places of worship or groups of worshippers. The attacks were carried out against a library in a predominantly ethnic Hazara neighbourhood in Herat city and a Shi’a cultural centre during a political gathering in Kabul city, and resulted in a combined total of 46 civilian deaths and 87 injuries.
UNAMA documented a further 19 incidents of attacks against Shi’a in 2018, resulting in 223 deaths and 524 injuries. ISKP claimed responsibility for seven of the attacks, resulting in 212 deaths and 449 injuries. While the majority of attacks against Shi’a in 2016 and 2017 occurred in places of worship, UNAMA documented only two such attacks in 2018, resulting in 35 deaths and 103 injuries. The majority of attacks on Shi’a in 2018 occurred instead in other civilian areas, including in Shi’a majority or ethnic Hazara neighbourhoods. In one such attack in Kabul city in April, a suicide attacker detonated a body-borne IED outside the entrance of a taskira (see National Identity Cards (Taskira/ Tazkira)) distribution centre in a Hazara populated area where a large crowd of local residents were gathered to collect their taskiras as part of the voter registration process. The attack killed 60 civilians and injured 138. In claiming responsibility, ISKP explicitly cited a sectarian motive. Although UNAMA did not provide specific locations for many of the attacks, DFAT understands that most took place in Kabul city.
DFAT assesses that Shi’a face a high risk of being targeted by ISKP and other militant groups for attack based on 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.
In February 2020, United Nations Assistance Mission in Afghanistan (UNAMA) stated they were ‘gravely concerned about the safety and security of the Hazara minority group and the negative impact on their freedoms of religion and movement and their quality of life’.[1]
[1] 'Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)', United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, p. 47.
In its February 2023 Guidance Note UNHCR identified ‘members of minority religious groups and members of minority ethnic groups, including the Hazaras’ amongst other profiles with increased refugee protection needs compared to the situation prior to the events of 15 August 2021. The UNHCR cited numerous sources in support of the view that attacks against Hazaras, frequently claimed by ISKP, and the historical persecution of Hazaras and other minorities, ‘appear to be systematic in nature and reflect elements of an organisational policy, thus bearing hallmarks of international crimes, including crimes against humanity.’ It was further reported that ‘Hazara in Afghanistan, as a religious and ethnic minority, are at serious risk of genocide at the hands of the Taliban and [ISKP].’ The Guidance Note further states:
Calls on decision-makers to give due weight to the uncertainty and unpredictability inherent in the modalities adopted by the de facto authorities for issuing decrees, coupled with the ongoing uncertainties regarding the applicability of Afghanistan’s previous legal framework. UNHCR considers that these circumstances render it particularly difficult to evaluate a future risk of persecution based on the currently available information on the human rights situation in Afghanistan, and in particular to conclude with the requisite level of confidence that an Afghan asylum applicant would not face a real risk of persecution upon return to the country of origin.[2]
CONSIDERATION OF CLAIMS AND EVIDENCE
[2] UNHCR, Guidance Note on Afghanistan – Update 1, February 2023
Identity

There is a significant amount of evidence before the Tribunal regarding the applicant’s identity. The applicant provided a great deal of this evidence as to aspects of his identity and his and his wife’s biographical background, albeit in an internally contradictory manner. He provided lengthy and detailed written and oral statements from himself and his wife as well as copies of claimed official documents in support of his claimed identity and family details. These contained a substantial layer of shifting detail.
As put to the applicant much of his and his wife’s evidence regarding identity and biographical background ran counter to a substantive amount of evidence from other sources.
Ultimately, in his last written statement submitted on 20 November 2024 the applicant has admitted that much of his earlier evidence regarding his identity and family details was incorrect or incomplete. He confirms that he is [the applicant’s name] and that he and his family use the [the specified family name] based upon an ancestral relative’s name. He stated that his mother told him to assume the name [Alias A] for his travel to Australia. He further stated that his father is alive and not deceased as previously claimed. He confirmed that his family and his wife’s family are related and known to each other in their village in Afghanistan.
The Tribunal accepts that this new information and the admissions by the applicant are correct, for the following reasons.
Firstly it is of no advantage to the applicant to falsely ‘admit’ this information. Secondly, he and his Representative are aware that his admissions may disadvantage him in that they have the potential to raise problems for him in the processing of his visa application, and in the assessment of his overall credibility. Therefore it is unlikely he would admit to information with potential to cause him disadvantage. Thirdly, his admissions are well supported by the available evidence from other sources and are readily likely.
The Tribunal is therefore satisfied that the applicant is [the applicant’s name] born in or around [year], and that he is known by this name to his family, friends and associates in both Afghanistan and Pakistan and to close family and associates in Australia. The Tribunal is satisfied he is Shia and Hazara and was born in the Hazara village of [Village 1] in Afghanistan. The Tribunal accepts that the applicant assumed another name ‘[Alias A] during his journey to Australia and maintained this name to Australian authorities and others while he has been in Australia.
The Tribunal is also satisfied that the applicant is a citizen of Afghanistan and is not a citizen of Pakistan. The Tribunal bases this finding upon the applicant’s detailed oral evidence about his village during his childhood in Afghanistan and the numerous identity documents, including recently issued Afghanistan passports that his immediate family possess, and which have been used for international travel to [specified countries]. The applicant’s mother and siblings also possess Afghan Refugee Identity documents issued in Pakistan. They would not have these if they were citizens of Pakistan. Further, there is no direct evidence before the Tribunal that the applicant possesses Pakistan nationality.
The Tribunal therefore assesses the applicant’s claims against Afghanistan as his country of nationality and receiving country.
Section 367A
Section 367A of the Act states:
How ART is to deal with new claims or evidence in review of reviewable protection decisions
(1)  This section applies if, in relation to an application for review of a reviewable protection decision (the primary decision), the applicant:
(a)  raises a claim that was not raised before the primary decision was made; or
(b)  presents evidence in the application that was not presented before the primary decision was made.
(2)  In making a decision on the application, the ART is to draw an inference unfavourable to the credibility of the claim or evidence if the ART is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The Tribunal considers that the admissions made by the applicant in his last written statement contain a mix of new information presented after the primary decision and information disclosed prior to the primary decision.
The admissions regarding his true name and his assumption of a different name were previously disclosed to the Department in oral and written statements, prior to the primary decision. The applicant did backtrack from and vary these statements from time to time however he did make them. They therefore do not amount to “a claim that was not raised before the primary decision was made” or evidence “that was not presented before the primary decision was made”.
The clearly new information provided by the applicant, namely that his father is alive and that he and his wife’s families are related and known to each other, do not amount to claims but are evidence.
The applicant states that he did not disclose the information about his father being alive at an earlier time because he was young and so angry at his father for abandoning the family and treating his mother violently that he preferred to think his father did not exist.
This explanation does not justify the withholding of information but it is a reasonable explanation for the applicant’s prior failure to reveal his father is alive. In any event the disclosure now does not enhance the applicant’s protection claims. It is relatively neutral information in relation to the assessment of the applicant’s fears in Afghanistan, discussed further below. Further, for the Tribunal to find it is not credible that the applicant’s father is alive, simply because the applicant has only lately made this admission, would be counter to the actual evidence before the Tribunal.
Similar concerns arise in applying s 367A to the applicant’s admission that he and his wife’s families are related and known to each other. This is neutral information in relation to the assessment of the applicant’s protection claims. On his behalf the applicant’s Representative provided an explanation for the applicant’s new information, attributing his failure to raise it prior to the primary decision by reference to barriers he faced in effectively engaging and being forthcoming with evidence. Again the Tribunal considers this no justification for the applicant’s failure to disclose but does consider it a reasonable explanation, though barely so. In any event the admission is a credible one supported by the available evidence from a number of sources.
The Tribunal therefore is satisfied that the applicant has reasonable explanations for not making his new admissions prior to the primary decision.
In view of the above the Tribunal is satisfied that s 367A(2) does not require the Tribunal to draw an inference unfavourable to the credibility of the applicant’s recent admissions.
Section 91WA
Under s 65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s 91WA. Section 91WA(1) requires the Minister to refuse to grant a protection visa to an applicant who provides a ‘bogus document’ as evidence of their identity, nationality or citizenship, or has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, that requirement will not apply if the applicant has a reasonable explanation for the provision, destruction or disposal, and either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s 91WA(2).
The Full Federal Court has held that s 91WA(1)(a) is directed to the provision of bogus documents during or in connection with an application for a protection visa: BGM16 v MIBP (2017) 252 FCR 97 at [8], [81].
Bogus document, in relation to a person, means a document that the Minister (or the Tribunal) reasonably suspects is a document that purports to have been, but was not, issued in respect of the person; or is counterfeit or has been altered by a person who does not have authority to do so; or was obtained because of a false or misleading statement, whether or not made knowingly: s 5(1).
The Federal Court has held that a reasonable explanation for the provision of a bogus document connotes an explanation that is not fanciful, that is believable in the circumstances, which has sufficient rational connection to how and why the bogus document was provided, and which is accepted as genuine: AIB16 v MIBP (2017) 254 FCR 457 at [91]–[92].
The applicant has admitted the that the Afghan Taskera he submitted to the Department with his Protection visa application in the name of ‘[Alias A]’ is a fake document. The Tribunal accepts that the Taskera is bogus in light of the applicant’s admission but also because it is not in the applicant’s correct name.
A Taskera is Afghanistan’s official National Identity Document. The Tribunal therefore finds that the applicant did provide a ‘bogus document’ as evidence of his identity and nationality, as per s 91WA(1)(a).
The applicant claimed that he provided this document because his mother had obtained it for him and told him to use it and told him that he should not use his real identity. He was still a child at the time and did as she requested. Later he felt unable to depart from this presentation due to his fear of the consequences, including potentially being denied protection in Australia.
As previously mentioned the Tribunal does not consider his explanation amounts to a justification for providing the bogus document. However in view of the applicant’s young age initially and his fears about being denied protection the Tribunal considers it a reasonable explanation for his actions. The Tribunal notes it is an explanation that is believable in the circumstances and has sufficient rational connection to the applicant’s provision of the bogus document. The Tribunal therefore accepts the applicant satisfies the s 91WA(2)(a) requirement.
The Tribunal has subsequently submitted a Taskera in his real name issued by the Ministry in Kabul. The Tribunal therefore accepts the applicant satisfies the s 91WA(2)(b)(i) requirement.
In view of the above the Tribunal is satisfied that s 91WA does not prevent the grant of a Protection visa to the applicant.
Fear of Harm in Afghanistan
The applicant claims to fear serious harm in Afghanistan for reason of his race and religion because he is Shia and Hazara.
Both DFAT and the UNHCR have highlighted the real chance of harm to Shia Hazara communities in Afghanistan since the Taliban regained control of the country. DFAT refers to targeting continuing under the Taliban regime due to its historical antipathy for Hazaras. The additional threat and attacks upon Shia Hazaras by the ISKP are referenced in most available recent reporting, with violent targeting of Shia Hazaras at their places of worship and education as well as their religious and political gatherings.
The Tribunal is satisfied that, as a person who is part of the Shia Hazara community, there is a real chance that the applicant may become the victim of targeting by the ISKP on return to Afghanistan. The Tribunal is satisfied he may be killed or seriously physically injured during attacks upon Shia gatherings in the reasonably foreseeable future. The Tribunal is also satisfied that there is a real chance the applicant may become victim to the general enmity some in the Taleban bear for Hazaras, given his vulnerability upon return to Afghanistan as a person who has not lived there since childhood.
The Tribunal is satisfied that the essential and significant reasons for the serious harm feared by the applicant is the combination of the applicant’s race as an Hazara and his religion as a Shia Muslim. The Tribunal considers the harm he is at risk of involves systematic and discriminatory conduct in that it will be done to the applicant intentionally and selectively.
The available country information refers to the ISKP having a presence in most parts of Afghanistan and conducting attacks upon Shias and Hazaras in a number of provinces within Afghanistan. The Taleban also have control of the country. The Tribunal is therefore satisfied that there is no part of Afghanistan the applicant could relocate to, to avoid the threat of harm.
As per the above country information the Tribunal notes that the ruling Taliban regime has been incapable of preventing ISKP attacks upon Shia Hazaras. Further, they themselves have been involved in causing serious harm to the Shia Hazara community. The Tribunal is therefore not satisfied that there is effective protection available to the applicant from the serious harm he fears in Afghanistan.

100. In the Tribunal’s view the applicant’s admissions regarding his name, and that his family and his wife’s family are related and known to each other, and that his father is alive, do not impact upon the applicant’s fears of harm in Afghanistan. His name and his family’s interaction with his wife’s family are of no consequence in the evaluation of his fear in Afghanistan. Further, regardless of whether or not the applicant has a father the threat to the applicant as a Shia Hazara from the ISKP and the Taleban remains at the level of a real chance of serious harm. Even if the applicant would be in Afghanistan with his father and have his father’s support there, the socio-environmental context underlying the threat does not change.
101. On the basis of the above reasoning the Tribunal is satisfied the applicant has a well-founded fear of persecution in Afghanistan for reason of his race and religion.
Section 36

Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply. Sections 36(4), (5) and (5A) apply where the applicant has a well-founded fear of being persecuted or a real risk of suffering significant harm in the third country, or a well-founded fear of being returned to another country where they will be persecuted or there would be a real risk of them suffering significant harm.

103. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(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 to 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 given 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).
Pakistan

105. The applicant’s parents and some of his siblings are living in Pakistan. The Tribunal accepts they are there as registered refugees from Afghanistan and that they do not have Pakistan citizenship.
106. The applicant also lived with his family in Pakistan in 2011 and 2012. He was [a child] at this time.
107. The Tribunal notes that the applicant’s family’s Afghan Proof of Registration cards were issued in Pakistan in 2021, well after the applicant’s departure from Pakistan.
108. There is no evidence that the applicant possesses a Proof of Registration Card in Pakistan or that he is registered as a refugee there. Nor is there is any evidence or clear indication that the applicant has a current right to enter and reside in Pakistan.
109. The available country information does not indicate that an Afghan person can obtain refugee registration in Pakistan merely through the fact of the existing registration of a family member.[3] There are also reports that since the Taliban regained control over Afghanistan newly arriving Afghan refugees are unable to register in Pakistan and are there without legal status or protection.[4]
[3] See for example Information Regarding (PCM) Center - UNHCR Pakistan;
[4] See for example “They Left Us Without Any Support”: Afghans in Pakistan Waiting for Solutions - Refugees International.
110. The applicant has previously entered Pakistan using an Australian Travel Document in 2017-2018. Australian Travel Documents are valid for one or two years[5] so the applicant’s Australian Travel Document has expired. In any event there is no indication that possession of an Australian Travel Document gives a person a right to enter and reside in Pakistan.
[5] See for example: Non-citizen travel documents | Australian Passport Office
111. In view of the above the Tribunal is not satisfied that the applicant has any current right to enter and reside in Pakistan or any other third country. The Tribunal therefore finds that s 36(3) does not apply in the circumstances of this case.
Conclusion
112. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
113. The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that:
· the applicant satisfies s 36(2)(a) of the Migration Act; and
· the grant of the visa is not prevented by s 91WA of the Migration Act.

Date of hearing: 30 September 2024
Representative for the Applicant: Ms Isobel McGarity