2202501 (Refugee)

[2022] AATA 2515

2202501 (Refugee) [2022] AATA 2515 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Clare Hughes

CASE NUMBER:  2202501

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Luke Hardy

DATE:16 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 16 June 2022 at 1:27pm

CATCHWORDS

REFUFEE – protection visa – Afghanistan – race – ethnic Tajik – imputed political opinion – links to the US military – particular social group – returnee from the West – attacks by extremist Islamic groups – fear of killing – fear of kidnapping – Taliban takeover of the country – hostilities with Tajik militias – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, [named], is an ethnic Tajik citizen of Afghanistan.

3. [The applicant] lodged a protection visa application on 29 July 2020. The delegate refused to grant the visa on 3 September 2020. [The applicant] then sought merits review by the tribunal, differently constituted.

4. The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court and has been constituted to me.

5. [The applicant], who is in immigration detention, appeared before the Tribunal by video link on 31 May 2022 to give evidence and present arguments. An interpreter in the Dari-English medium stood by but was generally not required.

6. [The applicant’s] representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

9. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).

10. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

11. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

13. The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

14. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

    Claims to the Department of Home Affairs (the Department)

15. A helpful summary of [the applicant’s] claims to the Department is located in the delegate’s decision dated 3 September 2020:

    The applicant’s claims for protection and the evidence he provided in support of his claims are contained in [file number]. The applicant’s written claims for protection are summarised below:

    ·He fears that if he is returned to Afghanistan he would be seriously or significantly harmed, tortured, kidnapped or killed due to his actual and imputed political opinion as someone who is linked to the US military.

    ·He also fears harm due to his membership of a particular social group, due to the problems his family has had in Afghanistan and for other reasons.

    The applicant attended a PV interview on 13 August 2020. During the PV interview the applicant provided the following information and additional claims which had not been previously mentioned in his PV application. These will be discussed in more detail within ‘Findings of Fact’ further below.

    ·He was born in [his home town in] Parwan, Afghanistan. He is of Tajik ethnicity and a Sunni Muslim. When he was [age range] years old he relocated to Peshawar, Pakistan, with his family due to conflict in Afghanistan. He and his family relocated back to Kabul, Afghanistan, in 2004.

    ·While completing his final years of [education] in Kabul, around 2002 to 2004 (sic), approximately 10 or 11 years ago (sic), he worked part-time as [an occupation 1] for his uncle’s [company] in Kabul. This [company] sub-contracted for the US military and the applicant was involved in organising the orders.

    ·Through family members, on his uncle’s side, he indirectly received messages from the Taliban to leave this job and cease assisting the US military in Kabul. On one occasion unknown people fired upon him with a machine gun. As a result of these threats his family sent him to study [in] [Country 1] for approximately three and a half to four years. The applicant was unsure of the year he went to study in [Country 1], initially stating 2008 and then changing this to approximately 2005 or 2006. While studying in [Country 1] he would travel back to Kabul each year on holiday.

    ·While he was studying in [Country 1], and also when he returned permanently to Kabul to get married in 2009, his family received threats, including threat letters, from close relatives and others who had invested in his father’s business. These close relatives/investors believed that the applicant’s father owed them large amounts of money. Some of these people also had links to the Taliban.

    ·As a result of these threats the applicant’s parents and siblings were forced to depart Afghanistan in approximately 2011 and then resided in [Country 2] and [Country 3]. His father currently resides in [Country 4] and his mother passed away approximately six months ago after [an accident] in Kabul. The applicant is suspicious regarding his mother’s death and believes the aforementioned people threw her from the building. He currently has [specified siblings] residing in Afghanistan, [others] residing in [Country 2], [others] residing in Kabul and [another] in [Country 3].

    ·He is also at risk on return to Afghanistan because his father was previously involved with the government and invested lots of money into the elections.

    ·He fears being killed by the Taliban on return to Afghanistan due to his previous work at his uncle’s [company], which sub-contracted to the US military. He also fears being killed by close relatives/investors with links to the Taliban, who are owed money by his father. In addition, he also fears harm from unknown political figures due to his father’s previous involvement with the government.

16. The delegate made his decision a year before international peacekeeping forces withdrew from Afghanistan, its elected government disbanded and went into exile and the Taliban quickly filled the power vacuum assuming control of the entire country for the first time since around 2002.

    Submission to the Tribunal

17. [The applicant’s] adviser lodged with the Tribunal a detailed submission, dated 24 May 2022, comprising factual claims, updated country background, legal arguments and a discussion of [the applicant’s] immigration history and criminal record in Australia. The submission explains how [the applicant’s] PV application was preceded the cancellation of his permanent resident visa due to his having provided incorrect information about his criminal record in the course of applying for a resident return visa. As this is not a decision relating to the visa cancelation or [the applicant’s] character, I have selected what I consider to be the most relevant part of the submission, given the dramatic change of circumstances in Afghanistan since 2021 (along with the adviser’s footnotes and source references):

    … This matter now comes before the Tribunal at a crucial time. [the applicant’s] claims for protection have certainly developed and changed throughout the course of his protracted and complex immigration history in Australia, most recently being since the Taliban’s takeover of Afghanistan in August 2021. Given the drastic change in circumstances that have occurred in Afghanistan since the delegate’s 2020 decision, we welcome the Tribunal to now make a finding that Australia owes [the applicant] protection obligations under ss 36(2)(a) or 36(2)(aa) in the alternative ...

    It is submitted that there is a real and substantial risk that [the applicant] would suffer persecution within the meaning of s 5J(4) of the Act now and in the reasonably foreseeable future in Afghanistan. In this regard, [the applicant] fears that, if he is returned to Afghanistan, he will suffer the most serious forms of harm, including threats to his life or liberty, death, and significant physical harassment and ill-treatment from the Taliban– for the following essential and significant reasons, either cumulatively or separately:

    • his Tajik ethnicity;

    • His actual and imputed political opinion on account of:

    o his ties with his father and uncle’s business ventures;

    o his own involvement with an NGO in Kabul and employment at [a named employer];

    • His membership of the particular social groups, being a “returnee from the West”, or someone who has spent a significant period of time in a Western county;

    Without conceding the strength of his claims for s 36(2)(a), it is further submitted in addition and in the alternative that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Afghanistan, there is a real risk that [the applicant] is at a more than remote risk of suffering the following instances of significant harm:2

    • arbitrary deprivation of life;

    • torture;

    • cruel or inhuman treatment or punishment and degrading treatment or punishment;

    at the hands of the Taliban or other Islamic extremist groups operating throughout Afghanistan, such as the Islamic State in Khorasan Province (‘ISKP’). According to the January 2022 DFAT Thematic Report on Afghanistan, there have been multiple mass-casualty terrorist attacks since the Taliban takeover, mostly committed by ISKP, and particularly in Kabul3.

    For the reasons below, we further submit that there is a more than remote risk (that is, a real risk/chance4) of persecution now or in the reasonably foreseeable future, and in the alternative, significant harm, for [the applicant] in all parts of Afghanistan, including his home city of Kabul. However, we also submit in addition and in the alternative:

    • for the purposes of [the applicant’s] claims to meet the refugee protection criteria in s 36(2)(a) that, in any respect, any proposed relocation would not be reasonable in all of his personal circumstances for s 5J(3); and

    • for the purposes of [the applicant’s] claims to meet the complementary protection criteria in s 36(2)(aa) that, in any respect, any proposed relocation to another part of the country would not be reasonable in the sense of practicable in all of [the applicant’s] personal circumstances for s 36(2B)(a), including [the applicant’s] mental health concerns and lack of family and support network outside of Kabul …

    We submit that there are a number of risk factors which individually and cumulatively increase [the applicant’s] ‘risk profile’, thereby increasing the chance of [the applicant] suffering harm now or in the reasonably foreseeable future, as a consequence of his removal to Afghanistan. A non-exhaustive list of risk factors includes:

    i. It is submitted that in all of [the applicant’s] circumstances, he is likely to be identified as a person who supports the West and would therefore be of interest to the Taliban and/or ISKP and other extremist Islamic militant groups and criminal gangs if he were returned to Afghanistan. [The applicant] would be imputed with such a political opinion due to the length of time he has spent in Australia, alongside his previous work with the US military and with an NGO in Kabul.

    ii. As a returnee from the West, [the applicant] will also be identified as a person with wealth and may be targeted for harm by criminal gangs;

    iii. [The applicant] is Tajik and, in our submission, available country information corroborates [the applicant’s] claim that he will be at risk of harm on this basis, as a result of Tajiks being imputed with an anti-Taliban opinion;

    iv. It is submitted that the there is a real and substantial risk that [the applicant] will come to the attention of the authorities upon arrival in Afghanistan and be targeted for treatment amounting to serious and/or significant harm, for reasons including the fact that he will be returned from Australia involuntarily as a failed asylum seeker with a criminal record.

    v. Moreover, [the applicant] would be returning at a time when hundreds of thousands of Afghans have fled their home country to seek asylum since the fall of Kabul on 13 August 2021. Questions would undoubtedly be raised about a man who has suddenly returned into this volatile environment. While [the applicant] could of course attempt to keep a low profile, an option that in earlier circumstances might have been possible, however “considering the circumstances of thousands of Afghans being granted US visas and others fleeing that the applicant was going in the opposite direction would be difficult if not impossible to hide.”

    As such, we submit that [the applicant’s] return would be known to the local community, including the Taliban and those who have sought to harm him in the past, and there would be a real chance and risk that he would be targeted for harm due to a perception that he is a western-sympathiser or an opponent of the Taliban.

    In all of his circumstances, he will likely be deemed a person who opposes the Taliban in Afghanistan. As such, we submit that [the applicant’s] cumulative profile puts [the applicant] at significant risk of being targeted and subjected to harm in Afghanistan.

    [The applicant’s] fear of serious or significant harm is informed by his and his family’s past experiences, including receiving threats of harm from the Taliban, the suspicious death of his mother in 2019, and the flight of his father to [Country 4] to seek asylum four years ago. However, his fears of harm in Afghanistan in the reasonably foreseeable future have been exacerbated by the recent events in his home country.

    Recent country information, including the DFAT Thematic Report of January 2022, is highly consistent with [the applicant’s] claims and indicates that the risk of [the applicant] suffering the above types of harm now or in the reasonably foreseeable future, or as a necessary and foreseeable consequence of his removal to Afghanistan, could not be described as being remote, far-fetched or fanciful.6 We also refer the Tribunal to the country information detailed within these submissions. On this basis it is submitted that there is a real chance now or in the reasonably foreseeable future, and in the alternative a real risk as a necessary and foreseeable consequence of his removal to Afghanistan, that he would suffer this harm. Furthermore, when considered cumulatively, [the applicant] presents a profile that country information clearly establishes is one which is vulnerable to harm.

    Accordingly, we submit that based on the country information available and [the applicant’s] evidence that he meets s 36(2)(a), and in the alternative, s 36(2)(aa) ...

    _______________

    …

    2 as exhaustively defined in s 36(2A)

    3 DFAT Thematic Report - AFGHANISTAN - Political and Security Developments Aug 21 to Jan 22, 14 January 2022, paragraphs [2.20-2.22]

    4 We note that in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 the Full Federal Court held that the ‘real risk’ component of the test in s 36(2)(aa) imposes the same standard as the ‘real chance’ test for the purposes of s 36(2)(a) and its assessment of well-founded fear under the Refugee Convention definition.

    5 Member Dragovic, 1912576 (Refugee) [2021] AATA 3083 (4 June 2021), available at:

    6 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per McHugh J at 429

    …

18. The submission emphasises the following argument, which I have taken into consideration, particularly given, as mentioned above, the dramatic change of circumstances in Afghanistan since 2021:

    We note that the delegate in refusing to grant [the applicant] a protection visa application expressed some credibility concerns. Without negating the importance of a careful analysis of the consistency of a person’s statements and evidence, we ask the Tribunal to consider the totality of [the applicant’s] circumstances and protection claims with reference to the most recent country information regarding persons in similar circumstances in Afghanistan. Furthermore, we note that even if the Tribunal disbelieves the review applicant’s claims for protection, they must still consider whether, on any other basis asserted, a well-founded fear of persecution exists.

    We submit that even if the Tribunal is unable to accept [the applicant’s] original claims as presented in his Protection (subclass 866) visa application of 29 June 2020, given the change in circumstances in his home country since this application was lodged, it is still open to the Tribunal to find that a well-founded fear of persecution exists now and into the reasonably foreseeable future.

    Evidence to the Tribunal

1. Discussion during the Tribunal hearing was mainly devoted to assessing the circumstances of Tajiks as a “race” or cognisable group in Afghanistan since the Taliban resurgence in 2021, with a particular focus on the protection prospects for Tajiks returning there from countries abroad such as Australia.

2. [The applicant] told me that his widowed father was [an occupation 2] who previously worked for, or with, UNHCR and other organisations amongst the Afghan refugee population Pakistan. He said his father currently resides temporarily in [Country 4] as a prima facie refugee who is currently being presented by UNHCR for refugee or humanitarian resettlement in a third country.

3. [The applicant] said that he has not been able to maintain contact with his uncle who formerly ran the [company] in [a named location] in eastern Kabul.

4. [The applicant] told me that his and his uncle’s families habitually resided in northern Kabul where there was somewhat if a concentration of ethnic Tajik Afghans. He identified northern Kabul as being more or less the only part of Afghanistan in which he had any kind of social network or with which he was familiar.

5. [The applicant] indicated that in order to enter Afghanistan he would have to arrive at Kabul airport and that northern Kabul would normally be the place to which he would return, were it not for armed Tajik resistance to Taliban rule in that region, particularly in and around the Panjshir Valley. The following 8 June 2022 Washington Post report[1] discusses the situation in and around northern Kabul:

   [1] “Inside the Taliban’s secret war in the Panjshir Valley,” The Washington Post, 8 June 2022,

   Taliban forces have been locked for months in a shadowy on-again, off-again battle with opposition fighters based in the Panjshir Valley. Just a few hours’ drive north of Kabul, the province has long been an anti-Taliban stronghold and remains the only significant pocket of resistance to the group since the fall of Kabul last August.

   The Washington Post secured a rare visit to the mountains and villages where the fight is playing out, getting a glimpse of a conflict that the Taliban has gone to great lengths to conceal.

   Taliban officials flatly deny there is any violence in the area, even though thousands of the group’s forces are visible across the valley. “Everything here is fine,” insisted Nasrullah Malikzada, the Taliban’s local information director in Panjshir. “There is no fighting at all.”

   Yet residents say assaults on Taliban positions are a regular occurrence, and dozens of people have been killed, with some civilians imprisoned in sweeping arrests. Those residents spoke on the condition of anonymity or used only one name for fear of reprisals.

   The clashes in Panjshir are unlikely to pose an imminent threat to the Taliban’s control of the province or the country, but the violent resistance here punctures key narratives propping up the movement’s claim to legitimacy: that its rule has brought peace to Afghanistan and that its fighters are capable of maintaining security.

   When the Taliban swept into Kabul in summer 2021 and the Afghan military melted away, a small band of fighters in the Panjshir held out for weeks. The Taliban claimed to have taken full control of the valley in September, but spokesmen for the National Resistance Front say they never surrendered.

   Panjshir has a long history of resistance: It was the one province Taliban fighters were never able to pacify after taking Kabul for the first time in 1996. The current anti-Taliban movement is led by Ahmad Massoud — the son of legendary resistance leader Ahmed Shah Massoud, who was assassinated by al-Qaeda two days before the Sept. 11, 2001, attacks on the United States — and former vice president Amrullah Saleh. Both men fled Afghanistan in late 2021, but they continue to direct operations from exile and are believed to command thousands of fighters.

   A commander of approximately 100 fighters in Panjshir said the opposition is mostly armed with weapons shipped into Afghanistan across its borders with Uzbekistan and Tajikistan. But the munitions, including heavy weapons such as rocket launchers, are not enough.

   “We are supported by several countries, but we need more,” he said, speaking on the condition of anonymity for security reasons.

   Taliban leaders have sought to contain news from Panjshir by limiting access to the valley and issuing sweeping denials when confronted with reports of fighting.

   “Of course no one knows what is happening here,” a 62-year-old shopkeeper named Gulzar told The Post on the recent visit to the valley. “No one is allowed to come here; I don’t even know how you got here,” he said, cautiously watching pickup trucks and armored vehicles packed with Taliban fighters race up and down the hillside.

6. As the 24 May 2022 submission discusses (with credible citations), recent months in Afghanistan have seen a new power struggle between the Taliban, which generally rules the country according to strict shari’a law, and an offshoot of ISIS/ISIL/Daesh called the Islamic State of Khorasan (ISK), or Islamic State of Khorasan Province (ISKP), which has notably launched an assertive recruitment drive amongst Tajik males in the north and east of Afghanistan, as these three reports discuss:

   The ISK is seeking to capitalize on the growing dissatisfaction among ethnic Tajiks, Turkmen, and Uzbeks against Taliban rule in northern Afghanistan. Already in October 2021 there was a report on ISK attempting to find new recruits among the ethnic minority groups of northern Afghanistan near the Tajik border. [2]

   ___

   ISKP’s expanded media campaign seeks to recruit ethnic Tajik and nationals as well as incite militant violence against Tajikistan. It is also purposed to discredit the Taliban as a governing body and discredit it as a religious authority in the eyes of potential Tajik supporters.[3]

   ___

   On May 7, the Islamic State-Khorasan (IS-K) group fired rockets from Afghanistan into Tajikistan. The Taliban says it controls northern Afghanistan, but IS-K is not the only armed group battling the Taliban in this area. Not far from the Tajik border, the National Resistance Front under the command of ethnic Tajik Ahmad Masud is also fighting to wrest control of areas from the Taliban ...[4]

   [2] Pannier, B., “Northern Afghanistan and the New Threat to Central Asia,” Foreign Policy Research Institute, 13 May 2022,

   [3] “Islamic State in Afghanistan Looks to Recruit Regional Tajiks, Inflict Violence Against Tajikistan,” The Diplomat, 29 April 2022, Islamic State in Afghanistan Looks to Recruit Regional Tajiks, Inflict Violence Against Tajikistan – The Diplomat

   [4] “Tajikistan On Guard As Situation Across Afghan Border Deteriorates,” Radio Free Europe, 15 May 2022,

7. All this appears to be at least part of the reason for hostilities between state and Tajik militias in a number of locations in Afghanistan including northern Kabul and its environs. A logical extrapolation from this is that as a Tajik male, [the applicant] faces some prospect of being imputed by Taliban supporters to be pro-ISK and, in the event of refusing to join ISK, of being imputed by the latter to be pro-Taliban, the potential risk in both instances being of serious or significant harm.

8. In a recent development, [5]

   Tajikistan was the only neighboring country to publicly oppose the Taliban’s return to power in Afghanistan in August, calling the militant group a threat to regional stability. There have also been reports that Dushanbe is hosting or in contact with some of the leaders of the National Resistance Front (NRF), an anti-Taliban resistance group that is largely made up of ethnic Tajiks from Afghanistan.

   Tajikistan has denied the claim.

   Following the Taliban takeover, Tajikistan has conducted military drills near its 1,300-kilometer border with Afghanistan alongside troops from members of the Russia-led Collective Security Organization (CSTO).

   The Taliban has stationed an estimated 4,000 fighters along its border with Central Asia. Taliban officials insisted the move would contribute to regional stability. But Afghanistan’s northern neighbors have expressed skepticism.

   The Taliban also deployed battalions of suicide bombers known as Lashkar-e Mansoori in Afghanistan’s northeastern provinces of Badakhshan and Takhar, adding to anxieties in Tajikistan.

   [5] “Hostilities Grow Between Taliban And Tajikistan Amid Border Closure, Truck Seizures,” Gandhara, 19 May 2022,

9. This information about the ongoing conflict between the Taliban and ISK-recruited Tajiks, and a potential conflict between the Taliban and Tajikistan, appears to me to be particularly relevant to the present matter given [the applicant’s] gender and age, and hence his profile as a potentially recruitable Tajik.

10. Meanwhile, DFAT reporting appears unable to keep up with unfolding events, given that the most recent DFAT Country Information Report: Afghanistan is dated 2019 and latest relevant DFAT Thematic Report on Political and Security Developments in Afghanistan available to the Tribunal only covers the period August 2021 to January 2022. In that report, DFAT claims that the armed conflict just north of Kabul has ended, a position darwn into serious question by the mor recent Washington Post article. Even so, DFAT appears to advise caution and forward-thinking in respect of ethnic Tajik asylum seekers claiming protection on “race” grounds:

    DFAT assesses that people from these ethnic groups may face some risks of harassment from the Taliban if they are associated with any military threat, should it emerge.

    Findings in relation to s.36(2)(a) of the Act

11. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7]

    [6] MIMA v Rajalingam (1999) 93 FCR 220.

    [7] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

12. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[8] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[9]

    [8] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [9] Sun v MIBP [2016] FCAFC 52 at [69].

13. [The applicant’s] claims relate squarely to the s.5J(1)(a) criteria of “race,” “membership of a particular social group” and, at least imputed, “political opinion.”

14. I find that in the event of return or removal to Afghanistan, [the applicant] will attract arguably disproportionate attention on arrival there due to his Tajik ethnicity. It consider there to be a real chance that he will be subjected to some heightened scrutiny even before he leaves Kabul airport. If he is traced to northern Kabul, as he well might be, official attention towards him is likely to be prejudicial, particularly if he expresses a desire to return to where he previously lived. In reaching this conclusion, I give some weight to the DFAT reporting above, at least insofar as it says that, as a Tajik, [the applicant] may face some risks of harassment from the Taliban if associated by the latter with any military threat, should it emerge.” Just such a military threat involving ethnic Tajiks is underway in Afghanistan as we speak. Meanwhile I note that, whereas according to DFAT, road travel is generally open in Afghanistan, more recent reporting indicates that that did not long remain the case, particularly with regard to the region from which [the applicant] originates.

15. Leaving aside the details of claims he has made in the past about working for his uncle, I find that [the applicant] has a strong case for protection on the basis that his ethnicity, age and gender giving rise to a real chance of his being perceived by the Taliban and pro-Taliban persons or parties in Afghanistan to be a potential ISK recruit or sympathiser. At the same time, it appears well outside the realm of mere speculation that he will be put under pressure to support or join ISK whether he likes to or not and, whereas he has claimed no interest in supporting ISK, neutrality has reportedly never been a viable option in traditionally partisan Afghanistan.

16. In these circumstances, I cannot rule out the risk of [the applicant] being subjected to serious harm is real. Even if he does not choose a side, he faces a real chance of being imputed by one side to be loyal to the other, and is therefore vulnerable to partisan coercion, threats and physical mistreatment either way.

17. In view of his ethnicity and concomitant history of generally limited geographical range, I am not satisfied that [the applicant] could relocate safely to any region where he has not traditionally resided.

18. In view of the Taliban’s evident conflict with ethnic Tajiks, mainly but not exclusively played out in armed confrontation with ISK and other forces, I am not satisfied that he can avail himself of effective state protection in Afghanistan from physical harassment, violence or worse.

19. On the evidence before me, I am satisfied that [the applicant] faces a real chance of being persecuted in Afghanistan in the reasonably foreseeable future for reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted in Afghanistan is well founded. He is a refugee.

20. For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Section 36(3)

21. I find that [the applicant] is a national of Afghanistan only.

22. On the evidence before me, I am satisfied that [the applicant] is not caught by s.36(3) of the Act in that there are no “possible steps to avail himself … of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which [he] is a national.”

    DECISION

23. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Luke Hardy
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …