CAT/C/60/D/681/2015
detention.2 On 12 April 2010, he underwent an entry interview conducted by an official of
the Department of Immigration and Border Protection. On 23 May 2010, the complainant
made a request for a refugee status assessment.
2.2
On 14 September 2010, an official of the Ministry found that the complainant was
not a refugee and was therefore not a person to whom Australia owed protection. In
accordance with the applicable appeals process, the complainant applied on 22 September
2010 for an independent merits review. 3 On 30 November 2011, an independent merits
reviewer conducted an assessment of the complainant’s claims. On 6 December 2011, the
reviewer confirmed the primary decision of the Ministry official, finding that the
complainant was not entitled to protection.
2.3
The complainant appealed the decision of the reviewer before the Federal
Magistrates Court of Australia (renamed the Federal Circuit Court in April 2013). On 1
June 2012, the Court found that the reviewer had failed to afford the complainant
procedural fairness in not seeking his views on the file and thus the complainant was
entitled to a new review of his application.
2.4
On 13 August 2012, the complainant was notified by an official of the Department
of Immigration and Border Protection that amendments to the migration legislation of 24
March 2012 allowed the complainant to claim “complementary protection”. 4 The
complainant was advised that as the independent review of his case was finalized before 24
March 2012, the reviewer had not considered his claims against the new “complementary
protection” criteria. The official advised the complainant that he did not satisfy the criteria
in the Minister’s guidelines for the consideration of post-review protection claims and that
he was therefore not being referred to the Minister for a new assessment as to whether it
was in the public interest to allow the complainant to apply for a protection visa.
2.5
On 22 October 2012, an independent merits reviewer conducted a second review of
the complainant’s protection claims. On 25 October 2012, the reviewer found that the
complainant was not entitled to protection under either the Convention relating to the Status
of Refugees or under the complementary protection obligations.
2.6
On 23 January 2013, the complainant again appealed the decision of the independent
merits reviewer before the Federal Magistrates Court. On 13 February 2013, the
complainant submitted a ministerial intervention request that the Minister exercise his
discretion to grant him a protection visa. It was found that the complainant had not met the
conditions of the Minister’s guidelines and his request was rejected. On 27 June 2013, the
Federal Circuit Court dismissed the complainant’s appeal of 23 January 2013. No further
appeal was available.
2.7
The complainant submits that he fears the Taliban due to his ethnicity and religion.
He also submits that the Taliban accused him of working for a foreign Government and
suspected him of being implicated in the preparation of a suicide bombing, which was
revealed on 19 July 2008, when two alleged suicide bombers were arrested in front of the
complainant’s shop in Sayed Kaka Market near Radio Dekkaka. The complainant claims
that 10 days after the incident, he received a telephone call from the Taliban. Five days later,
another person telephoned the complainant and requested him to go to the mosque in the
Andar district in Ghazni Province, but he refused. A few days after the threatening phone
call, he and his father were stopped at Maidan-e-hairdar Abad by four armed men who
attacked and kidnapped them. They were put in a small cellar about 4m x 4m with three
2
3
4
2
On Christmas Island.
Persons arriving through excised offshore places in Australia undergo a non-statutory status
determination process known as a refugee status assessment, but do not have access to the Refugee
Review Tribunal and only very limited access to the Australian courts. Apparently, asylum seekers
arriving in excised zones still cannot submit an application for a protection visa, except at the
Minister’s discretion, and lack access to the refugee status determination process that applies on the
mainland.
Complementary protection is the term used to describe a category of protection for people who are
not refugees, as defined in the Convention relating to the Status of Refugees, but who also cannot be
returned to their home country, because there is a real risk that they would suffer certain types of
irreparable harm that would engage the country’s international non-refoulement obligations.