In theory, the rules of the 1951 Refugee Convention are straightforward. Its core requirement is an obligation on signatory countries, like Australia, not to return a person to a place of persecution. So a person who is found to be a refugee will be allowed to stay in Australia, at least temporarily. The flip-side of this obligation is that a non-refugee should be removed from Australia and returned to his or her homeland. Otherwise the Refugee Convention loses meaning: a convention that does not discriminate between refugees and non-refugees will become little more than a back door for migration.

This is the logic that underlies the federal government’s plans to return Afghan nationals to Afghanistan once their three year temporary protection visas (TPVs) expire. The argument runs like this: the Taliban regime that persecuted them and from which they sought protection is no longer in power, therefore they are no longer refugees, and therefore they should return home.

But such simplistic reasoning does not bear up to scrutiny, especially when it is juxtaposed against the messy and chaotic reality of contemporary Afghanistan.

Firstly, the fall of the Taliban does not mean that all the Afghans who are in Australia on TPVs are no longer refugees. These are matters which must be carefully assessed on an individual basis. We know from media reports that the Taliban is still active in many parts of the country and that there is no effective national police or security force in Afghanistan to defend people from Taliban attacks. If the Afghan authorities cannot protect an individual from persecution by non-state actors (like the Taliban) then that person remains a refugee and should not be returned to their homeland.

Secondly, some Afghans faced persecution not just by the Taliban, but by other forces and groups. This is particularly true for members of the Hazara ethnic minority, who are Shia Muslims in a predominantly Sunni society. The persecution of the Hazara in Afghanistan has a long history and certainly pre-dates the Taliban; the fact that the Taliban has fallen is no guarantee that the Hazara will not face continuing persecution on the basis of their ethnicity and religious belief. The same may be said of women: while Afghan girls are now allowed back in school and the worst excesses of the Taliban’s dress and behavioural codes have been ended, persecution on the basis of gender remains a real fear for many Afghan women and girls.

Thirdly, it is important to distinguish between whether or not an individual is a refugee and whether or not it is safe for that person to return home. According to the 1951 Convention, a refugee is a person who has a well founded fear of persecution on the basis of their race, nationality, religious belief, political views or membership of a particular social group. A general and pervasive threat posed by such things as land-mines, unexploded ordinance, armed criminal gangs, lawlessness, political upheaval and drought does not amount to persecution but it does make life unsafe. So an Afghan national may be returning to a drought-stricken mountain village where the fields are full of land-mines and the surrounding roads are patrolled by gunmen extorting money but he or she is not necessarily a refugee for the purposes of the Convention. Nor is a person a necessarily refugee if he or she is unwittingly caught up in a battle between rival warlords who are fighting for control over territory or for a bigger share of the opium trade.

This is particularly important in the Australian context where we have an all or nothing refugee determination system. An applicant either meets or does not meet the Convention definition of a refugee - and if a person does not then he or she must be removed from Australia. In most comparable jurisdictions there is a fallback humanitarian category (often referred to as subsidiary protection) that allows a person to stay for other than convention reasons. In the UK it is called humanitarian protection; in Germany it is known as duldung (tolerance) and in the USA as temporary protected status. The lawless tribal gun-culture of Afghanistan might provide the kind of circumstance where such a status might be invoked.

Australia is also a signatory to the Convention Against Torture and the International Convention on Civil and Political Rights and as such has undertaken to protect individuals who may face torture, death or cruel or degrading treatment on return to their homeland. Unfortunately, these obligations are not enshrined in law in Australia or incorporated in any systematic way into our refugee determination system and so they offer little protection for people - like Afghans on expiring TPVs or those in detention found not to be refugees - who might fall under their provisions. In Australia ministerial discretion under section 417 of the Migration Act provides the only safety net for the protection of non-refugees who nevertheless face risks on return to their homeland. Recent questions about the use of ministerial discretion only serve to highlight this gap in Australia’s protection mechanisms.

The Australian government has made clear that it wants to send home as many people as it can, as quickly as it can and it has hastened to declare post-Taliban Afghanistan ‘safe’ for returns. (We can only anticipate the same eagerness to make a similar declaration in respect of Iraq.) Yet the Department of Foreign Affairs has issued a travel advisory that warns Australians to defer all travel to Afghanistan. The advice describes the security situation in the country as ‘hazardous’ and warns against any travel outside the capital Kabul because ‘warlords control many areas and overland travel can be very dangerous’. It notes ‘a significant security risk’ posed by ‘some Taliban and al-Qaeda fighters’ in parts of the country and warns that ‘banditry in rural areas by armed groups is common’.

It is appropriate that the federal government should offer support and encouragement to those refugees who wish to return to Afghanistan and rebuild their lives. It could examine creative ideas like the ‘explore and prepare’ package offered to Afghan refugees in the UK, which assists an individual to return to Afghanistan for up to one year to assess the situation there and prepare for the return of the rest of the family. To force people back to the chaotic conditions prevailing in contemporary Afghanistan verges on the obscene.