As the Taliban overran Afghanistan, Australia told asylum seekers they should expect to return
Even as the Taliban swept across Afghanistan, overrunning cities and ultimately seizing the capital, the Australian government was telling some Afghan asylum seekers they should leave Australia and return to a country plunging back into civil war.
As late as 28 July this year, with the Taliban brutally ascendant across Afghanistan and days from capturing the capital Kabul, Afghan nationals were told by the Department of Home Affairs they were “expected to depart Australia”.
After the subsequent rapid fall of Afghanistan to the Taliban, the Australian government announced “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 appears it does not apply to Afghans in Australia who do not hold a visa.
Many of those are members of Afghanistan’s most vulnerable ethnic and religious minorities, who face persecution with the Taliban’s return to power.
One man facing potential removal to Afghanistan was captured and tortured by the Taliban, and forced to watch militants behead his father. The Australian government has consistently maintained – over a number years – that he could safely be returned to Afghanistan where he could live in Kabul. That city is now in the hands of the Taliban.
The Guardian has been made aware of dozens of Afghan nationals whose place in Australia remains uncertain, and for whom the trauma of watching their homeland descend into civil war is compounded by the fact they might be returned to it.
These are three of those stories.
‘A harsh outcome’
MKM* came to Australia by boat in 2010. An ethnic Tajik, he fled Taliban persecution after militants kidnapped him and his father, accusing them of working for a foreign government and of foiling a Taliban bombing plot. They were kidnapped by four men in a market and interrogated and tortured for five months, before MKM’s father was beheaded in front of him.
MKM escaped several weeks later when he was sent to Kabul. But his claim for refugee protection was rejected by Australian authorities, who said his fear of the Taliban was “manifestly unfounded” and that he could return to Afghanistan and live in Kabul, where there was more security. This is despite the government officials accepting MKM had been kidnapped, interrogated and tortured by the Taliban, and had watched his father’s murder.
On appeal, the federal court found there was no error of law in the government’s decision that MKM could be forcibly sent back. But the court appeared disquieted that this was legal.
“It is difficult not to find some considerable sympathy for [MKM],” justice Michael Wigney said in dismissing the appeal.
“He has been found to have suffered greatly at the hands of the Taliban in Afghanistan. He was himself tortured. He witnessed the beheading of his father and other brutality by the Taliban. Nevertheless, he has been assessed … as not being someone to whom Australia owes protection. This is essentially because both the officer and the reviewer consider that it is safe for [MKM] to return to Kabul.”
Wigney said MKM will “most likely be returned to Afghanistan” and that this was “a harsh outcome”.
“It must be one that is difficult for him (and perhaps many others) to comprehend. Nonetheless, whatever one may think of the outcome, and whatever sympathy may be felt … the review has not been shown to have involved any legal error.”
The UN’s committee against torture wrote to Australia in 2017 insisting Australia “has an obligation … to refrain from forcibly returning [MKM] to Afghanistan”.
MKM appealed to the immigration minister to allow him to apply for a visa to stay in Australia.
On 25 February this year, with the timeline for the US-led coalition’s withdrawal from Afghanistan set and amid warnings from the Afghan government that “violence will spike”, Australia’s home affairs department wrote to MKM saying his request for ministerial intervention had been dismissed by the department without referring it to the minister’s office.
He is living in Australia without a visa.
‘He is expected to depart Australia’
Fahim* has, similarly, been in Australia for more than a decade. He is a member of Afghanistan’s Hazara ethnic minority, who have faced systemic persecution for decades, most acutely at the hands of the Taliban. His claim for protection, however, has been denied, with the government arguing he could relocate to Kabul and be safe in the city’s western suburbs.
The 50-year-old has suffered illhealth throughout his time in Australia, including a critical heart condition that required surgery in September last year. Fahim suffered a heart attack but a Sydney hospital was unable to operate because he held no visa and therefore no right to access medicare, until the NSW health minister personally intervened days later.
He has since recovered, but is still living – technically unlawfully – in the community without a visa. He has been without a visa since 2018.
Lawyers acting for Fahim have appealed to the immigration minister to grant him the right to apply for a visa.
By July of this year, Afghanistan was descending into civil war. Its militants were accused by Amnesty International of war crimes against Hazaras, including “massacring civilians” in the town of Spin Boldak.
Against this backdrop, Australia’s home affairs department wrote to Fahim’s lawyer on 28 July. The Taliban had begun its sweep across Afghanistan, seizing provincial capitals, and started its march towards Kabul. It captured the presidential palace about a fortnight later.
“The department has assessed [Fahim’s] case and found it does not meet the … guidelines for referral to the minister,” the department wrote.
“As [Fahim] has no other immigration matters ongoing, he is expected to depart Australia.”
‘The applicant faces a real chance of being killed’
Mohsin* was forced to flee Afghanistan nearly a decade ago: his work as a teacher at a girl’s school in Ghazni province was anathema to the Taliban’s regressive and oppressive view of the world.
That he was Hazara, and a Shia Muslim, only compounded his risk. At one point, he was forced to hide his identity documents when two Taliban at a roadblock became suspicious. He fled the country soon after.
Mohsin told Australia’s immigration assessment authority in 2016 that he would not be safe in Afghanistan because of his ethnicity, his religion and his profession.
But a delegate for the immigration minister said that Mohsin could be returned to the country if he chose to stop teaching, and stayed away from his home district.
“I accept that the applicant faces a real chance of being killed by the Taliban in the area of Qarabagh and his home area of Ghuioor, in Jaghori District. However … having considered the circumstances of the applicant and available country information I have concluded that the applicant would not face a real chance of persecution in the Afghan city of Kabul.”
Mohsin could be sent back to Afghanistan. He has appealed that ruling – citing Afghanistan’s deteriorating security situation – through the courts.
On 19 August 2021, five days after the Taliban seized control of the presidential palace in Kabul, Mohsin was issued a bridging visa that was valid until February.
Mohsin told Guardian Australia that a decade of “limbo” and the uncertainty of not knowing whether he would be sent back had harmed his mental health, leading to deep and prolonged depressions and severe anxiety.
“Hazara are not safe in Afghanistan – even newborn babies, school children and pregnant women,” he said. “How can a person like me be alive in Afghanistan as I live 10 years in western country, which is a serious crime according to the Taliban terrorists?”
He said Kabul was not safe for Hazaras, and if he were sent back “undoubtedly I will be killed by the Taliban terrorist group due to my race, my faith and living in Australia”.
Mohsin’s current visa does not allow him to work, and he lives a life on the margins, dependent on goodwill and assistance, with the additional burden of not knowing if he will be granted another visa once his expires.
“Afghanistan is on the brink of a humanitarian crisis. I am too much worried, like thousands of other people from Afghanistan, about the safety of my family. I feel helpless and powerless that I don’t have the right to work to help my family who are at risk.”
‘Their hearts are just bleeding’
A spokesperson for the home affairs department reiterated the immigration minister Alex Hawke’s commit
ment that “no Afghan visa holder currently in Australia will be asked to return to Afghanistan while it remains unsafe for them to return”.
The spokesperson also said Australia was “committed to its international obligations” in providing protection to those who need it.
“Australia does not return individuals to situations where they face persecution or a real risk of torture, cruel, inhuman or degrading treatment or punishment, arbitrary deprivation of life or the application of the death penalty.”
Thirteen Afghan nationals have been forcibly returned to Afghanistan in the past decade, but none since 2017, department figures released under freedom of information show. There are currently 53 Afghan nationals in immigration detention onshore.
“Removal of non-citizens who are liable and available for removal from Australia must be removed as soon as practicable, as legislated under the Migration Act,” the spokesperson said.
A question from the Guardian specifically on the situation of Afghan nationals in Australia who do not hold a visa was not answered.
Michaela Byers, a lawyer who represents a number of Afghan nationals, says the fall of their country to Taliban rule has left them despairing.
“My Afghan clients are not sleeping, they are crying, they cannot concentrate. They are calling everyone they can think of to get their families out of Afghanistan, and they are so distressed when I tell them it is too late.”
Dr John Sweeney, a refugee advocate, told the Guardian that for asylum seekers living in the community without a visa everyday life was “extraordinarily stressful”.
“They are extremely nervous about any authority. They are frightened that when they walk out onto the street, someone will ask them for identification, ask what sort of visa they are on: the start of some process that will lead them to being placed in detention, or being deported.”
Sweeney said “for very many, especially the Afghans right now, their hearts are just bleeding”.
“Their families are stuck back there, and they can’t do anything to help them. It just tears them apart, and they are told ‘because you came here by boat, you will never be allowed to settle’.”
* Names have been changed to protect identities.