The federal government faces a potential high court challenge to its plans to forcibly send an Afghan Hazara asylum seeker back to Afghanistan, despite the fall of the country to the Taliban and the systematic persecution of the Hazara ethnic minority.
Late on Friday, the full bench of the federal court allowed an appeal from the government, which is seeking to remove the man from Australia and return him to Afghanistan. The decision is likely to be appealed to the high court, which may or may not choose to hear it.
The decision made by the Immigration Assessment Authority (IAA) in 2017 that the man, while he faced risk of harm in his home country, could safely be sent back to live in the capital, Kabul, was successfully appealed last year.
The man, given the pseudonym EGZ17 before the court, is an ethnic Hazara and a Shia Muslim, and sought protection in Australia claiming he faces harm in Afghanistan.
Barrister Jay Williams, appearing for EGZ17, argued the IAA’s decision was now “legally unreasonable” given that when the Taliban seized control of Kabul and the functions of government, the Republic of Afghanistan was replaced by the self-proclaimed Islamic Emirate of Afghanistan.
He argued that the IAA assessment had been made against a country that no longer exists, and therefore “suffered from an absence of jurisdictional fact and fell into jurisdictional error”.
Judge Alexander Street agreed, and the appeal was successful.
But the minister for immigration, Alex Hawke, appealed to the full bench of the court, arguing the initial decision by the IAA should be upheld, regardless of the changed circumstances in Afghanistan and the illegality of the Taliban coup.
Lawyers for the government argued “a change in governance of a country, even if secured through activity which does not conform to the laws of the country, does not inexorably lead to a conclusion that the country has ceased to exist”.
Late on Friday, the government’s appeal was allowed by the full bench of the federal court.
The federal court heard EGZ17 “faces a real risk of serious and significant harm … including death, torture, cruel, inhuman and degrading treatment at the hands of the Taliban and other extremist groups on the basis of his religion, ethnicity, political opinion and membership of a social group, as a Hazara, a Shia Muslim and as a returnee asylum seeker from Australia”.
Australia has previously forcibly removed a number of Hazara Afghans prior to the fall of Kabul, including some who faced serious hostilities, with one reportedly kidnapped and tortured by the Taliban before escaping.
But this is the first time the government has indicated it would remove a Hazara since the fall of Kabul. The Guardian understands the man’s removal is not imminent, but the government is keen to press its right to send Afghans back to the country if, in its judgment, the security situation has improved.
Immediately after the fall of the Kabul, the immigration minister said “no Afghan visa holder currently in Australia will be asked to return to Afghanistan while the security situation there remains dire”.
But that moratorium is only temporary, and it does not apply to Afghans in Australia who do not hold a visa. The Guardian is aware of dozens of Afghan nationals whose place in Australia remains uncertain, making EGZ17’s case a critical test.
The Taliban has a history of violently repressing the Hazara ethnic minority, with that danger exacerbated by the fall of Kabul and their rise to power.
The Department of Foreign Affairs and Trade outlined the dangers the Hazara ethnic minority face in its Thematic Report on the Political and Security Developments in Afghanistan, released in January.
“Dfat assesses that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and [terrorist group the] Islamic State in Khorasan Province, on the basis of their ethnicity and sectarian affiliation,” the report said.
After the fall of Kabul, the Action for Afghanistan advocacy group published an open letter urging the government, among other actions, to “grant amnesty to all nationals of Afghanistan currently in Australia who fear returning to Afghanistan”.
The return of Taliban rule had “instilled fear and insecurity”, the group said.
“Afghanistan’s historically persecuted Hazara ethnic group, who faced widespread killings and genocide the last time the Taliban were in power, are now more acutely at risk. The Hazara community has never known safety while the Taliban have reigned.”
Afghan-Australian Arif Hussein, a senior lawyer at the Refugee Advice and Casework Service, told the Guardian he believed it was “unconscionable for the Australian government to return people to Afghanistan, especially the long-persecuted Hazara”.
“In recent months, one million people have fled Afghanistan, fleeing insecurity, famine and Taliban violence specifically targeting ethnic minorities,” Hussein said.
“The UN has described it as the world’s largest humanitarian crisis. It is not safe in Afghanistan for anybody, but it is especially not safe for Hazaras.”
Hussein said Australia had a moral obligation to the people of Afghanistan, after its long-running involvement in the war there and withdrawal last year.
A Senate inquiry has described Australia’s withdrawal as “dishonourable”, saying the country had left Afghan allies “standing in harm’s way”. Australia has committed 15,000 places within its existing humanitarian intake for Afghan nationals over the next four years, but no additional places.
“Australia can do more to bring people to safety from Afghanistan, to grant permanent visas to Afghans who are living in Australia on temporary visas, and, at the very least, not return anybody or attempt to return anybody to Afghanistan,” Hussein said.
“It’s unconscionable to send people back.”
