1310495 (Refugee)

[2015] AATA 3349

1310495 (Refugee) [2015] AATA 3349 (28 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1310495

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:28 September 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 September 2015 at 5:02pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Afghanistan, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] July 2013.

3. The applicant appeared before the Tribunal on 22 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    State protection

16. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Relocation

17. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Complementary protection criterion

18. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    State protection

20. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147

    Relocation

21. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Section 499 Ministerial Direction

22. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration and has done so.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. I have before me material including:

    ·Application for protection visa and accompanying statutory declaration dated [in] November 2012;

    ·Copy of entry interview dated [in] September 2012;

    ·Interview with the delegate dated [in] July 2013;

    ·Agent’s submission dated 21 August 2013;

    ·Statutory declaration dated 21 August 2013;

    ·Translated extract of an identity document of the applicant;

    ·Various untranslated BBC articles on the situation in Afghanistan.

24. The applicant’s claims can be summarised as follows.  He is a Hazara Shia born in [Jaghori], Ghazni, Afghanistan in [year].  He lived there until 2010 and then lived in Kabul for two years where he worked as a [occupation] before leaving for Australia.  His mother and [siblings] now reside in Jaghori.

25. Two of the applicant’s uncles (as well as 12 others) were killed by the Taliban in 2007 because they worked for a commander of a police station in [Location 1]. The applicant was on his way to the police station to take food to his relatives and the Taliban were aware of him doing this and released his name to various places in [Location 1] as a person of interest.  It was also wrongly circulated that he worked for the commander.  The Taliban were pursuing him and he was not able to return home.

26. In 2009, the applicant was travelling from [a location] to [Location 1] in a van with 9-10 other passengers when they were stopped by the Taliban.  The Taliban started hurting everyone and asking for taskeras.  He hid his taskera because it showed he was a student and the Taliban are against secular education. Two Hazara passengers were killed by the Taliban because they worked for the government.  The Taliban could not find anything incriminating about him so they let him go.

27. The applicant fears harm as a Hazara Shia and due to his imputed political opinion as the Taliban believe he worked for the police.  In 2012, whilst working in Kabul he received a letter from the Taliban and this led him to flee.  Approximately 90% of the customers at his [business] were government workers and foreigners and the Taliban had accused him of serving non-Muslim people.  On one occasion when visiting a mosque, the Taliban taunted him and asked why he did not follow Sunni traditions insinuating that he was not a real Muslim but an infidel.

    Country of reference

28. The applicant claims to be an Afghani national from Jaghori in Afghanistan.  He speaks Hazaragi and has submitted an extract of an identity document that indicates he was born in Jaghori, Ghazni, Afghanistan.  He has also been consistent in his claims that he is from Afghanistan.  Accordingly, I find (as did the delegate) that Afghanistan is his country of nationality for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.

    Assessment of claims

    Credibility of claims

29. I have considered carefully the applicant’s claims but I do not consider that he has given credible evidence in relation to a number of key matters.  I do so for the following reasons:

    ·The applicant has claimed that he left his voter election card at the police station which was overrun by the Taliban and that as a result they have his name and were able to identify him and he is of adverse interest to them. I do not accept this is a credible claim. The applicant has claimed that his uncles were killed in 2007 (1386 in the Afghan calendar).  The applicant told the Tribunal that he obtained the card from government officials and told them that he was born in [year] and that they got this information from his taskera.  The applicant was only [a minor] at the time and would not have been eligible to vote in Afghanistan.  Country information indicates that the minimum voting age is 18 years.[1]  The applicant told the Tribunal in response to this concern that they did not consider his age and that some people younger than him obtained the voting cards.  I have considered his response but the applicant was well under the minimum voting age and I do not consider it plausible or credible that government officials would have willingly issued him such a card in contravention of the electoral law.  I consider this is a matter that detracts from his credibility.

    ·The applicant claimed that five years after the deaths of his uncles, the Taliban stopped a truck driver travelling to Kabul and asked questions about him and ordered the driver to leave a letter at a hotel in Kabul near where the applicant lived.  He has claimed that the letter contained all the details about him allegedly working for the police at the police checkpoint and that he worked at a [business] servicing non-Muslims and foreign workers.  I do not consider it credible or plausible that the Taliban would have had such an adverse interest in the applicant that they would have pursued him in this way.  Five years had passed since his uncles were killed at the checkpoint and the applicant was just [a minor] at the time.  The applicant was not actually employed by the government or the police.  He told the Tribunal that his uncles were not actual police members but worked there assisting the checkpoint and that they were just two of 12 persons killed in the Taliban attack.  Whilst the applicant worked at a private [business] that served many foreigners and government workers, his role was merely as a [occupation] and his evidence did not indicate that any negative action was taken against the [business], the owner or any of the other staff by the Taliban or any other insurgents.  Country information is that it is not likely that the Taliban would make it a priority or have the capacity to track down low profile persons in Kabul.[2]  In all these circumstances, I consider it farfetched and implausible that the Taliban would have made such an effort or had the capacity to threaten the applicant who had such a very low profile and I do not accept that he was of any adverse interest to the Taliban or other insurgent groups as he has claimed.  I consider these are matters that detract from his credibility

    [1] Agence France-Presse, Young Afghan voters dismayed by old faces and warlords, 9 October 2013,

    [2] Danish Immigration Service, Afghanistan Country of Origin Information for Use in the Asylum Determination Process, pp7-8 May 2012.

30. I accept that the applicant’s uncles worked at the checkpoint and were killed in a Taliban attack with 10 others in 2007 and I accept that the applicant had contact with them and would bring them food.  I do not accept that he had voting card and I do not accept that such a card was found by the Taliban and that they had or have an adverse interest in him as a result.  I do not accept that the Taliban released his name to various places in [Location 1] as a person of interest and it was also wrongly circulated that worked for the commander. I do not accept that he received a threatening letter from the Taliban as claimed in Kabul or that he was of any particular adverse interest for his work in the [business].

1. The applicant has claimed that when he visited a mosque in [a location] in Kabul where he lived and worked, he was subject to comments both inside and outside the mosque from Pashtuns, Sunnis and Taliban questioning why he did not follow Sunni traditions in prayer and insinuating that he was not a real Muslim and that he was an infidel.  He said he went to a Sunni mosque because there was no Shia mosque near where he was working.  I do not accept these claims.  Country information indicates that [the location] has a substantial Hazara Shia population[3] and that there are many Shia mosques in Kabul[4] and I do not consider it credible that the applicant, a Shia, would not have been able to attend a Shia mosque and that he would have attended a Sunni mosque instead.  I therefore do not accept that he was subject to any adverse comments from the Taliban, Pashtuns or Sunnis or anyone else in Kabul as he has claimed.

   [3] N. Noorzai, A coalition of opposition groups, Afghanistan 1992-2001, 15 September 2008, Karimi M A 2011, The West Side Story: Urban Communication and the Social Exclusion of the Hazara People in West Kabul, Masters Dissertation submitted to the University of Ottawa, pp.20, 95.

   [4] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

2. In making these findings, I have taken into account the Tribunal’s Guidelines on the Assessment of Credibility and the principles contained therein. However these do not overcome the fundamental and highly significant concerns that I have about his credibility set out above.

3. The applicant has been generally consistent concerning his claim to have been aboard a van in 2009 that was stopped by the Taliban.  I accept that in 2009, the applicant was travelling from [a location] to [Location 1] in a van with 9-10 other passengers when they were stopped by the Taliban.  I accept that the Taliban started hurting everyone and asked for taskeras.  I accept that he hid his taskera and that two Hazara passengers were killed by the Taliban because they worked for the government.  I accept that the Taliban could not find anything incriminating about him so they let him go.  The applicant’s claims are generally consistent with the country information on the treatment of Hazaras on the roads in Afghanistan.  As he was let go, I do not consider this incident means he is of any ongoing adverse to the Taliban or anybody else.

   Hazara Shia claims

4. I have considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and the overall current security situation.  I have considered whether the applicant has a well-founded fear of persecution in if he returns to Afghanistan on the basis of the general security situation in Afghanistan and the situation for Hazara Shias.  I have also considered the associated imputed political opinion pro government and anti-Taliban arising from his race and religion. The applicant has claimed that the Hazara Shia face persecution and significant harm at the hands of the Taliban and ISIS.

5. In making my findings, I have given considerable weight to a number of reports by the Australian Department of Foreign Affairs and Trade (DFAT) as these are authoritative, very recent and the Department has been specifically charged with the provision of this advice to the Australian government.

6. In its September 2015 report, DFAT have stated that they are not aware of any credible evidence that everyday Shia Muslims are systematically targeted on the basis of their religious affiliation and that they assessed that Sunni-Shia sectarian violence is infrequent, although occasional violence does occur.  They also stated that Hazaras had made significant gains (albeit from a small base) since the Taliban were removed from power in 2001.  They stated that while conditions for Hazaras had greatly improved since 2001, they still face some societal discrimination.  They stated that they had no evidence to suggest that Hazaras are systematically targeted in insurgent attacks on the basis of their ethnicity alone and that with the exception of kidnappings, Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan.[5]   This view of the level of general threat posed to the Hazara community is supported by Professor Amin Saikal of ANU. ^[6] 

   [5] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

   [6] Saikal, Amin 2012, ‘Afghanistan: The Status of the Shi'ite Hazara Minority’, Journal of Muslim Minority Affairs, March, Vol.32, No.1, pp.80-87.

7. DFAT have also reported that the number of active ISIS (Daesh) militants remain low and that they assessed that ISIS currently has limited capacity and influence in Afghanistan and that civilians in Afghanistan face a low risk of violence from groups affiliated with ISIS compared to the risk of violence generally in the country.[7]

   [7] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

8. DFAT have earlier commented:

   4.11 At least 11 Pashtun-majority districts of Ghazni Province are not considered to be safe. The threat level in these districts is high due to the presence of Taliban and other insurgent groups. However, the threat level in Hazara-majority districts of Ghazni, including Nawur, Malistan and Jaghori remains low. Security is provided by the Afghan National Police (ANP), without any Afghan National Army (ANA) deployments to these districts. DFAT assesses that there is a low risk of violence for Hazaras in these particular areas.

   4.12 There have been incidents of conflict between Hazara factions in Ghazni, primarily revenge attacks. However, the Government had asserted effective control over the main Hazara districts of the Province in recent years, including by preventing the dissemination of weapons, the confiscation of weapons, and the detention of individuals responsible for violent crime. 

   4.13 The comparatively good security environment in Ghazni’s Hazara districts means that government officials and the international community have relative freedom of movement in these areas. These districts therefore enjoy relatively good access to services and a permanent presence of government officials—including from the Departments of Rural Rehabilitation and Development, and Education. However, security on roads linking Hazara-majority districts of Ghazni to Kabul and other parts of Afghanistan is less safe.[8]

   [8] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

9. DFAT have commented that the key Hazara districts of Ghazni Province (Nawur, Malistan and Jaghori) continue to experience relatively low levels of violence.  No recent reports have been found of Taliban or other insurgent incursions into Jaghori.  Based on country information and the applicant’s individual circumstances, I therefore do not accept that the applicant in his home area of Jaghori faces a real chance of persecution, now or in the reasonably foreseeable future from the Taliban, ISIS or any other insurgent group on account of being a Hazara Shia or any imputed political opinion. 

   Road travel

10. In October 2012 DFAT commented that there is a need of residents to travel outside areas such as Jaghori to access health services.  Although the government and international community have been committed to improving health service delivery, relatively simple procedures still require patients across the country to travel to provincial capitals or to Kabul. In terms of employment in Ghazni, DFAT noted:

    … close to 80 per cent of employment is reliant on small-scale agriculture. We do not have detailed information on employment in Jaghori specifically, but seeking employment and improved economic opportunities remains a key motivator for the many Afghans moving every day from rural areas to provincial centres, to Kabul, and abroad.[9]

    [9] Department of Foreign Affairs and Trade 2012, Security Situation for Hazaras in Afghanistan, 31 October

11. It is clear that the applicant would need to travel on the road from Kabul to return to his home area of  Jaghori. The applicant has work skills in agriculture but his more recent skills have been working as a [occupation] in Kabul and in Australia as [occupations].  I find that it is likely that he will have to travel outside Jaghori on a more than infrequent basis to find work to help support himself.  Ghazni City is the closest provincial capital and it would also on occasions have to be visited to obtain necessary medical care for himself given the DFAT information set out above concerning the lack of medical care in district areas and that relatively simple procedures still require patients across the country to travel to provincial capitals or to Kabul at significant expense.

12. The Department’s March 2015 Country of Origin Information Service report summarises the differing views regarding the safety of road travel for Hazaras:

    Most security concerns for Hazaras in the Hazara districts of Ghazni relate to travel outside the district, as most roads travel through Pashtun districts where insurgents are active. There are conflicting views among external sources consulted by the RRT on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. In 2014-5 there have been three reported incidents involving Taliban attacks on Hazaras travelling into Jaghori from Kabul …

    There are conflicting views among external sources consulted on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. Advice by DFAT, Qayoom Suroush of Afghanistan Analysts Network and the Afghanistan Development Association indicates that there is no evidence of ethnic targeting on roads in Ghazni.  In contrast, Thomas Ruttig, Professor Alessandro Monsutti, Professor William Maley and a Ghazni based NGO, the Ghazni Rural Support Program, maintain that travel for Hazaras is dangerous on roads passing through Pashtun districts [10]

    [10] ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.46-47.

13. DFAT has made the following comments about road security:

    4.22 Afghanistan’s road network, particularly in the mountainous central highlands, is generally poor. Travel in winter is even more difficult and roads at higher altitudes can be cut by snowfalls for long periods during winter. Speeding and unsafe driving further aggravates the problem—the majority of deaths on Afghan roads are caused by traffic accidents.

    4.23 Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly those roads that pass through areas contested by insurgents. Taliban and criminal elements target the national highway and secondary roads, setting up arbitrary armed checkpoints. Official ANP and ANA checkpoints designed to secure the road are sometimes operated by poorly-trained officers known to use violence to extort bribes. More broadly, criminals and insurgents on roads target all ethnic groups, sometimes including kidnapping for ransom. It is often difficult to separate criminality (such as extortion) from insurgent activity.

    4.24 Individuals working for, supporting or associated with the Government and the international community are at high risk of violence perpetrated by insurgents on roads in Afghanistan. Carrying documentation that would indicate employment or another connection with the Government is dangerous. Because Hazaras are perceived to be affiliated with either the Government or international community, those Hazaras travelling these routes who work for the Government or international community frequently take precautions to ensure that, if they are stopped, they could not be identified as such.

    4.25 Hazara MPs and several credible civil society contacts have told DFAT that ‘dozens’ of Hazaras were killed on roads to and from Hazarajat in 2013. However, DFAT has no reliable evidence to indicate that insurgents disproportionately target Hazaras on roads in Afghanistan. Hazaras are often the main travellers on roads to Hazarajat, so higher numbers of victims could also reflect the higher volume of traffic.

    …

    4.32 There are two well-established routes from Kabul to Ghazni city. One is short and insecure, via Maidan Wardak. The other passes through parts of Parwan Province on the Bamiyan–Charikar Highway. This is more secure, but long and arduous.

    4.33 There are three routes from Ghazni city to the Hazara-majority Jaghori district. The most frequently used road passes through Nawur district, and is considered secure. The second route through Qarabagh district is considered less secure. A third through Muqur is insecure due to a Taliban presence, with occasional checkpoints and security incidents. DFAT understands that local residents with ties to the province and knowledge of the area—including Hazaras—are generally able to travel between Ghazni City and Hazara districts without incident and thousands of vehicles use these roads daily.[11]

    [11] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

14. The Department’s Country of Origin Information Service (COIS) report from March 2015 on ‘Afghanistan: Hazara Issues Paper’, refers to reports of the Taliban ‘block[ing] all routes to Malestan, Jaghori, Nawur and Ajrestan’ in or around September 2014.[12]  Similarly, Tolo News recently reported in April 2015 on residents from these districts being stranded in Ghazni City for the past month, unable to return to their home areas ‘due to high security threats on the roads in the area’.[13] 

    [12] ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.46-47.

    [13] ‘Insurgent Risks Leave Ghazni Villagers Stranded In City, Tolo News, 21 April 2015, available at >

    Reports also indicate that travel along key roads is dangerous, as militant groups, including the Taliban, regularly set up checkpoints and have killed and harmed those who work for or support the Afghan government and international community, including Hazaras.[14]  In recent years there have been regular reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads, and the security of roads in the region has become volatile and increasingly dangerous.  In March 2013 the director of the Ghazni Rural Support Programme advised the Tribunal that:

    … all residents of Jaghori, Malestan, Qarabagh and other Hazara-Populated districts of Ghazni, like all other Hazara-populated districts of other provinces, are entirely dependent on highways and other roads crossing the Taliban controlled/dominated districts and areas of Ghazni; like Gilan, Moqor, Qarabagh in Ghazni province, and other districts in Wardak province, to the East, and to the West on Kabul-Kandhar highway.  These areas are Taliban-dominated, if not entirely controlled, areas …

    The Afghan Security Forces (ASF) including the Afghan National Army (ANA) and the Afghan National Police (ANP) has failed to provide security for these travellers.  Based on numerous accounts by the travellers and also by some reporters, in many instances the insurgents have established their checkpoints just a few hundred meters from the ASF security check points, and have searched vehicles for hours with no interruption form the ASF.  It is said that in many places, particularly in the remote areas whether the ASF is existent or if non-existent Taliban operate with total freedom. The ASF in many places can barely defend their own posts. They do not walk away from their own checkpoints unless accompanied by the larger group of forces, which rarely comes across.

    In such areas the Taliban insurgents have their checkpoints.  They stop all cars, and pull off the passengers … It implies that the Taliban have publicly announced that all those people who work with the Afghan government, the international forces, and with national and international NGOs are ‘enemy’ of the Islamic “Emirates”, and thus are to be targeted and prosecuted anywhere they are found/captured … The only roads that are secure are the roads inside Jaghori and other districts where the entire population of the district is Hazara.  But since people are totally dependent on procuring their daily needs, (including food and fuel) they need to travel to Ghazni city, to Kandahar and to other places outside their districts.  The same applies to students who have to travel to Kabul and Ghazni for taking exams and attending universities. Number of students have been killed and beheaded on their way to Kabul.  So even if inside Jaghori is secure it does not help the people, and does not make any difference on the safety of Hazaras. [15]

    [14] See ‘DFAT Report 1450 – RRT Information Request: AFG41196’, Department of Foreign Affairs and Trade, 5 November 2012; ‘Country Information Report No. 11/56 – CIS Request No.AFG12298: Road security in Ghazni’, DIAC Country Information Service, 21 September 2011; Ruttig, T, ‘Comments provided by Thomas Ruttig on travel between Kabul and Ghazni for Hazaras’, 25 May 2012; Maley, W, ‘On the Position of the Hazara Minority in Afghanistan’, 9 September 2012; ‘Kabul-Kandahar highway is a symbol of what's gone wrong in Afghanistan’, The Telegraph, 9 September 2012, available at Zeerak, M, ‘Email to RRT, Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013.

    [15] M. E. Zeerak, ‘Email to RRT: Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013, CIS28576. 

15. Though there is conflicting information on whether Hazaras are targeted for reasons of their race and religion whilst travelling on roads in Afghanistan, there have been a number of reliably-reported incidents in which Hazaras have been targeted.

16. 31 Hazaras travelling by bus on the highway from Kandahar to Kabul were abducted in Zabul Province on 23 February 2015.  The armed men who carried out the abductions stopped the vehicles in which people were travelling and checked their identity cards before abducting the Hazara passengers.[16]  The Taliban denied involvement in the kidnapping and, as referred to above, there have been suggestions that Islamic State was responsible.[17]  Reports suggest that traffic on the highway from Kabul to Kandahar has decreased by a half as a result of this and other incidents.[18]  Further, on 15 March 2015 ten Hazaras were kidnapped in the Qarabagh district while travelling from Kabul to Jaghori in two cars. (Nine of the ten have since been released).  Reports suggest that this was not an isolated incident.[19]  There was a report that another six Hazara passengers had been abducted by the Taliban on their way from Herat to Farah on 16 March 2015 but other reports do not mention that the passengers who were abducted were Hazaras.  Four of those abducted were reportedly soldiers in the Afghan National Army and four of the kidnapped passengers were subsequently released in an army rescue operation.[20]

    [16] ‘Fear stalks Afghan minorities after rare attacks’, News24 -South Africa, 17 March 2015, CXBD6A0DE3141; ‘Drivers explain how Hazara passengers were kidnapped in Afghan south’, Tolo TV, 24 February 2015, CXBD6A0DE1909.

    [17] ‘Taliban deny hand in abduction of 30 Hazara men in Zabul; Khalili says they are safe’, Afghan Zariza, 7 March 2015, CXBD6A0DE2428; Frud Bezhan, ‘Mass Abduction Of Hazaras In Afghanistan Raises Fears Of Islamic State’, Radio Free Europe/Radio Liberty (RFE/RL), 25 February 2015, CXBD6A0DE1904; Ali M. Latifi and Shashank Bengali, ‘Afghan officials acknowledge Islamic State presence in their country’, Los Angeles Times, 17 March 2015, CXBD6A0DE3139.

    [18] ‘9 Newly Abducted Hazara Passengers Released’, Tolo News, 15 March 2015, CXBD6A0DE2979; ‘Protests in Ghazni Over 31 Hazara Hostages’, Tolo News, 17 March 2015, CXBD6A0DE3146; ‘Traffic on Kabul-Herat highway down by a half’, Pajhwok Afghan News -Afghanistan, 18 March 2015, CXBD6A0DE3132.

    [19] ‘Gunmen free 9 kidnapped passengers in Ghazni’, Pajhwok Afghan News -Afghanistan, 15 March 2015, CXBD6A0DE2899; ‘9 abducted civilians freed by kidnappers in Ghazni’, Khaama Press, 15 March 2015, CXBD6A0DE2889;

    [20] ‘Another 6 Hazara Passengers Abducted from Herat-Farah Highway’, Tolo News, 17 March 2015, CXBD6A0DE3029; ‘Masked gunmen kidnapped 6 people on Farah-Herat Highway’, Khaama Press, 17 March 2015, CXBD6A0DE3031; ‘Kidnapped passengers rescued in ANA operation’, Pajhwok Afghan News -Afghanistan, 17 March 2015, CXBD6A0DE3032.

1. As referred to in the COIS Afghanistan: Road Security Guide (issued 23 December 2014), in November 2014 COIS sought advice from a Kabul-based analyst/researcher with the Afghanistan Analysts Network, Abdul Qayoom Suroush, on road security with specific reference to travel from Kabul to Jaghori.  In his response he noted that he came from Qarabagh district himself and he said that he did not think that the two longer and more circuitous routes identified by COIS (Route 2 through Wardak to Behsud and then south and Route 3 through Parwan to Bamian and then south) were being used regularly.  He said that the shortest route through Qarabagh was also the most insecure.  He said that the route through Muqur (and then via Angori to Jaghori) had more robbers than Taliban and was not recommended for use.  Like DFAT he said that the most secure route was that from Ghazni City through Nawur (identified as Route 1a by COIS) although this route was rough and took hours longer to reach Jaghori.[21]

   [21] Email from Abdul Qayoom Suroush, ‘Re: DIBP request to Qayoom Suroush for comments on road security for Hazaras in Ghazni province’, 9 November 2014, CIS2F827D91516.

2. DFAT have recently commented that whilst no ethnic group is immune from kidnapping that they assessed that Hazaras travelling by road between Kabul and the Hazarajat face a risk that is greater than other ethnic group.  They said it was unclear this is due to ethnic targeting or is a result of the high numbers of Hazaras travelling on this route.  They assess that if a bus with a mixture of ethnic groups on board is stopped in these areas, ethnic Hazaras (and other non-Pashtuns) are more likely to be subject to kidnapping and violence than Pashtun passengers.  They noted, however, that kidnappings of Hazaras are relatively rare in a country-wide context.[22]

   [22] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

3. In my view, the applicant is at an elevated risk of being targeted in on the roads outside Jaghori because he is a Hazara Shia.   Considering the country information as a whole and the applicant’s individual circumstances, I find that he faces a real chance of serious harm amounting to persecution in the reasonably foreseeable future at the hands of the Taliban and other insurgent groups on the roads to and around his home area of Jaghori as a Hazara Shia.   

4. Considering the country information as a whole and the applicant’s individual circumstances, I find that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm on the roads to and around his home area of Jaghori on this basis.

   State protection

5. DFAT have commented:

   5.1 The ongoing insurgency, particularly in the south and east of Afghanistan means that the Government struggles to exercise effective control over parts of the country. As a result, the Government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in those areas.

   5.2 Despite these challenges, DFAT assesses that the Government maintains effective control over major urban areas—particularly Kabul, all provincial capitals including Herat, Mazar-e-Sharif and Kandahar and the majority of district centres.

   5.3 Many Afghans, including Hazaras, have expressed their concern about security in Afghanistan post-2014. In the absence of effective state protection outside of major urban areas, DFAT assesses that many local communities, including Hazaras, maintain their own militias to protect themselves from criminals and insurgents.[23]

   [23] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

6. More recently DFAT repeated the advice set out in 5.1 directly above.[24]

   [24] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

7. Given this authoritative information, I find that the applicant would not be able to access state protection in accordance with the principles in MIMA v Respondents S152/2003.

   Relocation and Kabul

8. A Hazara Issues Paper issued by the Department of Immigration in March 2015 stated:

   Hazaras in Kabul have not been systematically targeted by insurgent attacks or other ethnic groups since 2001 because of their ethnicity or religion, apart from one deadly attack aimed on a Shia mosque in 2011 where many of the victims were Hazaras.[25]

   …

   Although the reports note a high level of attacks in and around Kabul, most target government and international personnel and no reports suggest that Hazaras and Shias are being disproportionately targeted by these attacks.

   In 2014, analysis of attacks in Kabul by insurgents[26] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.[27]

   [25] Department of Immigration, Afghanistan: Hazaras Issues Paper, March 2015.

   [26] see European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January,

9. DFAT also specifically reported in relation to Kabul in September 2015:

   2.29 Insurgents regularly conduct high-profile attacks in Kabul. DFAT assesses that the primary targets for insurgent attacks are government institutions, political figures, Afghan National Defence and Security Forces (ANDSF), personnel from the Resolute Support mission (the NATO-led mission that replaced the International Security Assistance Force or ISAF on 1 January 2015), other security services, and international organisations. Such attacks often cause significant casualties amongst civilian bystanders in addition to those being targeted. Kabul has seen a marked increase in the number of incidents in 2015 compared to the corresponding period in 2014. According to a Resolute Support mission report for January-April 2015, insurgent attacks in Kabul have increased by around 60 per cent compared with the same period in 2014.

   2.30 Representative examples include the series of bombings against employees (including prosecutors and judges) of the Ministry of Justice in May 2015, which killed at least 11 people and injured dozens more; an attack on the Park Palace guesthouse in May 2015 that killed five people, including foreigners; and a car bomb attack near the Ministry of Finance in Kabul which killed eight people and wounded 37 more. Kabul International Airport has been attacked on a number of occasions, with a rocket attack in 2014 landing on the runway apron. Attacks also occur in the vicinity of the airport, including in May 2015 when a European Union vehicle was hit by a vehicle-borne improvised explosive device, killing at least three people and injuring 18 others. On 22 June 2015, the National Parliament building in Kabul was attacked by the Taliban. A suicide vehicle detonated outside the building, followed by gunfire. Twelve people were reportedly killed, including six Taliban gunmen and the suicide bomber, with at least 21 more people injured in the attack. In August 2015, a series of attacks resulted in an estimated 355 civilian casualties (deaths and injuries), the largest number of civilian casualties in a single day since data collection started in 2009.

   2.31 The ANDSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANDSF are quick to respond to insurgent attacks when they occur. Nonetheless, violent attacks within the city are common.[28]

   [28] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

10. Professor Alessandro Monsutti stated in January 2012 that insecurity in Kabul is the result of indiscriminate attacks and Hazaras are not less safe than any other ethnic group.[29]

    [29] Monsutti, A 2012, Comments by Professor Alessandro Monsutti on Hazaras in Afghanistan Provided to the Independent Protection Assessment Office on January 2012

11. I have taken into account the reports of regular insurgency attacks on Kabul taken place but these need to be seen in the context that Kabul has a population of four million and that the government maintains effective control of Kabul and has a range of counter-measures in place to prevent and respond to insurgent attacks.[30]  I have taken into account that the primary targets for insurgent attacks are government institutions, political figures, military, other security services and international organisations and that such attacks often cause significant casualties amongst civilian bystanders.  I have taken into account that that there are attacks on foreigners in Kabul and  that the applicant may once again work in a [business] which serves foreigners and government employees, however this would not involve directly work for the government and/or international community and I am of the view that the available country information considered as a whole indicates that the chance or risk of the applicant being seriously or significantly harmed in such a circumstance or due to any perceived association with the government or international community would be best described as remote, and not a real chance or real risk.

    [30] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

12. I accept that there have been some incidents where Hazara Shias have been targeted, and where ethnicity and religion would appear to be a factor and that ISIS have started operating in Afghanistan.  However, I do not accept that all Hazara Shias in Kabul face a real chance of persecution or significant harm now or in the reasonably foreseeable future from these Sunni groups or anyone else.  I accept that the applicant is a Shia and will attend mosque and religious events; however, given the country information viewed overall, I find that the chance or risk he will be seriously harmed or significantly harmed is remote.

13. The independent country information indicates that there are no laws or Government policies that discriminate against Shias and that broadly speaking, there is little community prejudice (i.e. societal discrimination) that would limit opportunities for Shias in daily life on the basis of their Shia religion.[31] The country information further indicates that though there is societal discrimination on the basis of ethnicity it is most commonly manifested in forms of nepotism within ethnic and religious communities and that positive societal discrimination in favour of family, tribal or ethnic group members is common.[32]  DFAT have also commented that ethnic based violence in Kabul is rare.[33]  The applicant was able to find accommodation in Kabul and find work in Kabul through his mother’s extended family and though he stated at the hearing that he did not know whether his relatives are still there, there is no evidence before the Tribunal that they are not and that they could not assist him again with employment and other assistance.  The applicant has work experience in Kabul as a [occupation] and has no immediate family to support in Kabul and I find he would be able to employ these skills to obtain work to support himself.  I note that DFAT have commented that men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, provided that they are able to make use of family or tribal networks.[34]  I find that the chance that he will suffer discrimination or treatment amounting to either serious harm or significant harm is remote.

    [31] Department of Foreign Affairs and Trade, DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 26 March 2014.

    [32] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

    [33] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

    [34] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

14. I do not accept that the applicant faces a real chance or real risk of serious harm or significant harm in Kabul on account his membership of a particular social group of failed returned asylum seekers from the West.  There is no recent information before me that returnees or failed asylum seekers or those who have spent time outside Afghanistan have been seriously or significantly harmed in Kabul.[35]  DFAT have stated that because of Kabul’s size and diversity returnees are unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion.[36]   Whilst DFAT say there are aware of occasional reports of returnees from western countries alleging that they have been kidnapped or otherwise targeted on the basis of having spent time in a western country they assess that in general returnees from western countries are not specifically targeted on the basis of their being failed asylum seekers.[37]

    [35] For example, Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015 and United States Department of State, Country Reports on Human Rights Practices for 2014, Afghanistan do not refer to this happening in Kabul. 

    [36] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

    [37] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

15. Having regard to the country information concerning the overall situation for Hazara Shias and failed returned asylum seekers from western countries and the country information that indicates that the Government maintains effective control of Kabul and the applicant’s individual circumstances, I do not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future in Kabul on account of being a Hazara Shia or an imputed political opinion or for membership of a particular social groups consisting of failed returned asylum seekers from the West or his family from the Taliban, ISIS, other insurgent groups, Sunnis, the state or anybody else. 

16. Having regard to the country information concerning the overall situation for Hazara Shias and failed returned asylum seekers from western countries and the country information that indicates that the Government maintains effective control of Kabul and the applicant’s individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm in Kabul on these bases.

17. I have considered carefully and taken into account all the information contained in the agent’s submissions and in DFAT’s recent report on Conditions in Kabul[38] which suggests that relocation to Kabul may be unreasonable including the information that unemployment is widespread and underemployment is common, it has a relatively high cost of living particularly for housing and that it is one of the poor cities in the world.  I have taken into account that there are difficulties with utilities and that insurgents regularly conduct high-profile attacks and that there are occasional attacks on religious facilities.  Basic public health care is free though medicines are not.  However, there are a number of factors that outweigh these and lead me to conclude that relocation in the applicant’s individual circumstances is reasonable.  These are:

    ·The applicant has previous experience of living in Kabul and did so for a substantial period.  He was able to find accommodation and employment there.  He has completed Year [grade] and been able to work as a [occupation] to support himself.  The applicant has stated that he does not know whether his mother’s extended family members still reside in Kabul but he has remained in contact with his family since coming to Australia and his mother has not indicated that they have moved.  DFAT have noted that many individuals may have members of their extended family who can assist their relocation. The applicant was able to obtain a job in a [business] through a member of his mother’s extended family which supports that he has family networks there that can again assist with reintegration.  DFAT have commented that internal relocation to urban areas is more successful for single men of working age, provided they are able to make use of family or tribal networks.  The applicant is a single male of working age and the country information and his individual circumstances suggest that he would be able to successfully reintegrate. 

    ·DFAT have commented that Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city and that returnees are unlikely to be discriminated against or subjected to violence on account of their ethnicity or religion.  They have commented that that there are many Shia mosques in the city.  This information suggests that there is a large Hazara Shia community which the applicant can reintegrate into.  DFAT have also commented that notwithstanding the security situation, there are generally options available for members of most ethnic and religious minorities to relocate from parts of Afghanistan to relative safety in Kabul. 

    ·The applicant has is a young adult male who has not indicated that he has any particular health concerns. 

    [38] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

18. Considering all of the individual circumstances and the country information, the Tribunal finds that it would be reasonable for the applicant to relocate to Kabul to avoid the localised threat of serious harm that he faces on the roads outside Jaghori.  His fear of persecution is not well founded.

19. Considering the independent country information and the applicant’s individual circumstances, the Tribunal finds that it would be reasonable for the applicant to relocate to an area of the country (Kabul) where there would not be a real risk that he will suffer significant harm and that 36(2B)(a) applies in his case.

    Conclusions

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    David Corrigan
    Member

    
    
    

(CISNET CX298127).