CAT/C/60/D/681/2015 grounds to believe that the complainant would face a personal and real risk of torture if returned to Afghanistan. 4.6 It transpires from the documents on file that in the context of the refugee status assessment, the Department of Immigration and Border Protection accepted, despite some credibility concerns, that “the Taliban believed that the author was responsible for a failed attack by two suicide bombers near his shop, that the author and his father were kidnapped and tortured by the Taliban over several months, that the author witnessed his father’s beheading, that he escaped from the Taliban and consequently had a subjective fear of returning to Afghanistan after having escaped”. However, the Department concluded that the author would not be persecuted because of his Tajik ethnicity and that he could reasonably relocate to another area within Afghanistan, including Kabul, and that accordingly, the author did not have a genuine fear of harm. The Department found that the author’s fear of persecution, as defined under the Convention relating to the Status of Refugees, was not well founded. 4.7 The complainant’s claims were assessed under the complementary protection provisions of the Migration Act during the independent merits review and subsequent domestic procedures. The reviewer had several concerns about the credibility of the author’s claims. He concluded that the author did not face a real risk of persecution from the Taliban in Afghanistan and rejected the author’s claims concerning the suicide bomber attack and the author’s subsequent capture by the Taliban. 4.8 Following the decision of the Federal Magistrates’ Court, the first independent merits review was quashed for procedural error in not affording the complainant procedural fairness.16 In the second independent merits review, the reviewer considered the author’s ability to give evidence and considered also the evidence from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors that the author was suffering from post-traumatic stress disorder. Although the reviewer determined that the author was able to give meaningful evidence, he stated that inconsistent evidence or the late introduction of significant new claims might reflect on the credibility of the complainant’s statements. The reviewer found that the complainant would not face a real risk of persecution or ill-treatment if removed to Afghanistan. He did not accept that the author was targeted by the Taliban as a collaborator with the authorities or foreign forces, and considered that the author was not of ongoing interest to the Taliban. Nor did he accept that the author would be targeted upon his return to Afghanistan for being a former asylum seeker in Australia. 4.9 On 27 March 2014, the Federal Circuit Court of Australia dismissed the complainant’s application for judicial review, since the reviewer had applied the complementary protection tests to the facts he found and had therefore been procedurally fair. 4.10 On 6 August 2014, the Federal Court of Australia dismissed the author’s appeal of the decision of the Federal Circuit Court. The author appealed to the Federal Court claiming that the primary judge had erred when finding that the reviewer had applied the right test to assess whether he met the complementary protection criteria. The reviewer had accepted that the Taliban had mistreated the author, but had rejected his claim that he had been targeted by the Taliban. Accordingly, the reviewer had concluded that the author would not be of significant interest to the Taliban if returned to Afghanistan and there was no real risk he would suffer significant harm. The Federal Court concluded that there was no merit in the author’s submission that the reviewer had erred by transposing findings of fact made in relation to the criteria in the Convention relating to the Status of Refugees to his consideration of the complementary protection criteria. It also noted that the author had failed to demonstrate any error on the part of either the primary judge or of the reviewer and dismissed the appeal. However, the Court also observed that: “It is difficult not to find some considerable sympathy for the appellant. He has been found to have suffered greatly at the hands of the Taliban in Afghanistan. He was himself tortured. He witnessed the 16 The author was allegedly not allowed to comment on all the background documents relevant to the recommendation. 5