1311130 (Refugee)

[2016] AATA 3206

1311130 (Refugee) [2016] AATA 3206 (22 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1311130

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:22 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2016 at 4:11pm

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 January 2016 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.

    Complementary protection criterion

16. 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’).

17. ‘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.

18. 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.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. I have before me material including:

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

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

    ·Agent’s submission dated [in] November 2013.

21. The applicant’s claims can be summarised as follows.  He is a Hazara Shia born in [his birth village], [birth town], [District 1], Afghanistan in [year].  He lived there until [year] when he and his family moved to Kabul.  In [year] he went to live in [Country 1] as his parents were worried he would be forcibly recruited into the army as there were lots of young able-bodied men being approached and taken.  In [year] he went to live in [City 1], [in Country 2].  He lived in Kabul in 2003 and worked as a taxi driver before returning to live in [Country 2].  His [family members] still live in [Country 2].  He has work experience in manufacturing [and selling various products].

22. The applicant and his family fled [District 1] for Kabul in [year] due to attacks from Kuchi nomads on Hazaras in his region.  In 2003, he returned to Kabul and made a living by driving a taxi before returning to [City 1] due to stories of taxi drivers being abducted and explosions around Kabul.   In January 2012, he left [City 1] to travel to Australia as the security situation for Hazaras was deteriorating.  The applicant fears the Taliban and Al Qaida due to his ethnicity and religion and also fears harm as a failed asylum seeker.

    Country of reference

23. The applicant claims to be an Afghani national.  He speaks Hazaragi and has provided a copy of his taskera.  He has 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

24. I accept that the applicant was born in [District 1], Maidan Wardak province and that he lived there for the first few years of his life and that this is the area that his family originates from.  I accept that his family owned land there and I consider this to be a home area of his in Afghanistan.  However, the applicant has also provided considerable evidence of his time and connection to Kabul.  He lived there from the age of [age range] years of age and in 2003 when he returned to Afghanistan it was to Kabul to live and work.  The applicant commented in relation to this issue that if there was a place in Kabul or [District 1] he would not go [City 1].  I have taken into account that the applicant has not lived in Kabul since 2003 but given his high level of connection to Kabul as a resident over a long period of time, I consider this area also constitutes a home area for him and accordingly I have assessed his claims against this home area.

25. The applicant has been consistent about his family departing [District 1] in approximately [year] due to problems with Kuchis and I accept that this occurred particularly in the light of country information referred to in the delegate’s decision concerning the long running land dispute between Kuchis and Hazaras in the area.  I also accept due to the consistency of the claim that the applicant left Afghanistan in approximately [year] due to a fear that as young abled bodied male he would be conscripted into the army.  The applicant told the Tribunal that he did not have that fear now but he was afraid of the Taliban in Kabul.  The applicant told the Tribunal that when his family moved from [District 1] to Kabul that after 8pm there were patrols taking people out of their homes; however this was a very long time ago and the applicant did not claim that his he or his family were subject to this treatment and I do not accept that there is a real chance or risk of this happening to him now or in the reasonably foreseeable future.  I accept due to the consistency of the claim that the applicant returned to live in Kabul in 2003 and that he secured employment as a taxi driver carrying passengers around [a specified location].  I also accept that the applicant was concerned about the security situation for Hazaras and taxi drivers and decided to return to [Country 2] though he told the Tribunal that had not suffered any personal threat in that period.

26. I have considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and Kabul and the overall current security situation in Afghanistan and Kabul.  In making my findings, I have given considerable weight to reports by the Australian Department of Foreign Affairs and Trade (DFAT) as these are authoritative, recent and the Department has been specifically charged with the provision of this advice to the Australian government.  In its September 2015 report, DFAT 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.  They assess that Hazaras travelling by road between Kabul and the Hazarajat face a risk that is greater than other ethnic groups though it is unclear whether this is due to ethnic targeting or as a result of the high numbers of Hazaras travelling on this route.  They state though that kidnappings of Hazaras are relatively rare in a country-wide context.[1]   This overall view of the level of general threat posed to the Hazara community is supported by Professor Amin Saikal of ANU. ^[2] 

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

    [2] 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.

27. 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.[3]

    …

    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[4] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.[5]

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

    [4] 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,

28. DFAT stated in September 2015 that the government maintains effective, but not absolute control in major urban areas, particular Kabul.[6]  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.[7]

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

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

29. 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.[8]  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 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 would be best described as remote, and not a real chance or real risk.  Furthermore, on the available country information, I consider the risk of getting harmed in an attack by insurgents is one faced by the population generally and not the applicant personally: s.36(2B)(c) of the Act.

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

1. Considering the country information as a whole, 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 the Taliban, other 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.

2. 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.[9]  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.[10]  DFAT have also commented that ethnic based violence in Kabul is rare.[11] 

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

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

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

3. 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 there are many Shia mosques in the city.[12]  This information suggests that there is a large Hazara Shia community which the applicant can reintegrate into.  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.[13]  I accept that the applicant had an uncle in Kabul but that he has not had contact with him since 2003 and that he lacks family or tribal networks there.  However, the applicant is a male of working age and has a range of employment experiences that will be assist him in being able to find work including in [his various previous occupations], taxi driving and in being the co-owner of a retail [product] business.  If he were to obtain work as a taxi driver, recent country information before the Tribunal (including the DFAT reports) does not indicate that taxi drivers or Hazara Shia taxi drivers are being specifically targeted by the Taliban or others in Kabul.   

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

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

4. 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[14] including the information that unemployment is widespread and underemployment is common in Kabul and that it has a relatively high cost of living particularly for housing and that it is one of the poorest cities in the world.  DFAT state that basic public health care is free though medicines are not which excludes the poor for treatment for common illnesses.  They also state that medical facilities in the public system whilst basic tend to be better in Kabul than in other areas of Afghanistan.  I accept that the applicant will face difficulties obtaining work, medicines or more than basic health care and access to proper utilities such as electricity, water and sanitation.  However, the country information concerning Afghanistan is that it is an extremely poor country[15] and that large parts of Kabul are extremely poor.[16]  The country information, viewed as a whole, does not indicate that any of the problems he faces will be due any systematic and discriminatory conduct by any actor as required by s.91R(1)(c) of the Act but will rather be due to his individual circumstances and the poor economic situation, government services and infrastructure that belie the city and the nation.  Furthermore, the country information viewed as a whole, indicates that he does not face a real risk of being arbitrarily deprived of his life, having the death penalty carried out on him or being subjected to torture.  It does not establish that the problems he faces would be as a result of any intentional act or omission so as to constitute either cruel or inhuman treatment or punishment or degrading treatment or punishment.  Furthermore, considering the country information and his individual circumstances, I find that the problems he faces upon return do not constitute significant harm under s.36(2B)(c) of the Act as they are faced by the population of the country generally and not him personally

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

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

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

5. 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 groups of failed asylum seekers or failed Hazara Shia asylum seekers or of returnees.  I have considered the reports submitted by the agents but there is no recent information before me that returnees or failed asylum seekers or those who have spent time outside Afghanistan or left the country illegally have been seriously or significantly harmed in Kabul.[17]  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.[18]  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.[19]   I accept that the applicant has lived the majority of his life in [Country 2] and [Country 1], however he did live in Afghanistan until the age of [age] years and for a period in 2003 and would have a substantial degree of familiarity with life there.

   [17] 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. 

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

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

6. I have considered the guidance as provided by the High Court in the case of MIBP v SZSCA [2014] HCA 45 (SZSCA). This case is relevant as it discusses the reasonableness of expecting the applicant to remain in Kabul, with the majority of the Court determining that the same considerations as are relevant to relocation apply when the Tribunal identifies an area where the visa applicant may be safe, so long as he or she remains there.  The applicant’s personal circumstances can be distinguished to the circumstances of the applicant in SZSCA, in that in the SZSCA case the applicant had some claim to be a truck driver, which potentially could require the applicant in that case to be required to drive outside of Kabul.  I accept that the applicant’s family owned land in [District 1].  However, the applicant’s family has not lived there for [many] years and the applicant told the Tribunal that he did know anything about the situation of the land other than being told in [Country 1] 20 years ago by persons from [District 1] that the house had been destroyed.  Given the very long passage of time it is very likely that the land has been taken over by others and the applicant himself would not have ownership of the land given he left [District 1] as a small boy and I consider it very unlikely that he would be able to reclaim the family land.  I do not consider that the applicant would travel to [District 1] to attempt to reclaim the land or that it would be unreasonable in all the circumstances to expect him not to.  I accept that the applicant worked as a taxi driver in Kabul in the past, however his evidence (as per the agent’s submission) has been that this was in and around [a specified location].  Kabul has better economic opportunities than the rest of the country[20] and the applicant (who has a range of work experiences) has not claimed that he would face better employment opportunities outside Kabul.  The applicant agreed at the hearing that Kabul had the most economic opportunities.  The applicant has no family in the rest of the country.  The applicant said that Kabul is a small place and it was dangerous to get stuff in; however I note that it is a capital city with a large population and I do not accept that the applicant himself would have to travel outside it to get goods into it.  In all these circumstances, I find it is reasonable that the applicant remain in Kabul to re-establish his life and to seek employment.

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

7. Having regard 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 (even when considered cumulatively) 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 particular social groups consisting of “failed Hazara Shia asylum seekers”, “returnees” or “failed asylum seekers” at the hands of the Taliban, Al-Qaeda, other insurgent groups, Kuchis, the state or anybody else. 

8. Having regard cumulatively to the country information concerning the overall situation for Hazara Shias and failed 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.

   Conclusions

9. 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).

10. 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).

11. 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

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

    David Corrigan
    Member