1311557 (Refugee)

[2015] AATA 3669

1311557 (Refugee) [2015] AATA 3669 (2 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1311557

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:2 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 02 November 2015 at 5:57pm

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] September 2012 and the delegate refused to grant the visa [in] August 2013.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 425(2)(a) of the Act.

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.

20. 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

21. 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

22. I have before me material including:

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

    ·Copies of the applicant’s taskera;

    ·Copy of bio data interview;

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

    ·Interview with the delegate dated [in] September 2012;

    ·Agent’s submissions dated [in] March 2014.

23. The applicant’s claims can be summarised as follows.  He is Sunni [tribe] Pashtun who was born in [a village in] Paktia province, [Afghanistan].  He lived in a refugee camp in [Pakistan for a number of years] before returning to his village.  He is wife and [children] still live in the village.  His father is dead and he is the oldest sibling.  He was self-employed as a [profession].  He fled Afghanistan in February 2012 and lived illegally in Pakistan for approximately 10 days before travelling to [another country].

24. In late January 2012, a teacher of English of Afghan nationality who had previously lived in Pakistan approached the applicant and asked if he could use two spare rooms in the applicant’s house for teaching English.  The teacher said he would teach the applicant’s brothers and pay the applicant 2000 Afghani per month.  [In] February 2012, the teacher commenced teaching about [number of] students between the two rooms.  [In] February 2012 four Taliban came to the applicant’s house when he was at his uncle’s.  The Taliban searched the house for the applicant and said he needed to be killed as infidel subjects were being taught to children. The applicant stayed at his uncle’s house and [in] February 2012, he left his village secretly at 9am in the morning.  A friend of his uncle drove him to Pakistan which was only 30 minutes away. When the applicant called home from [another country] in March 2012, his aunt told him the Taliban had come to his house to search for him about two weeks after he left.  They took a photo of him from his wall to give to other Taliban members.  He does not know what happened to the teacher and believes it is likely he fled.

    Country of reference

25. The applicant claims to be an Afghani national from Paktia in Afghanistan.  The applicant has not provided an original of his taskera and there is evidence that other detainees had alleged that the applicant is from [a location in] Pakistan and was using a fake document to cover his identity.  However, he speaks Pashtu which is one of the major languages of Afghanistan[1] and has also been consistent (in his bio data interview, his entry interview, protection visa application and in his interview with the delegate) in his claims that he is from Afghanistan.  Paktia is predominately Pashtun[2] and [his] tribe[3] is predominant in the north of the Province.[4]  At the interview with the delegate, he was able to provide details about his village including its location and surrounds which were credible and consistent with country information. 

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

    [2] Institute for the Study of War, Regional Command East,

    [3] [Information deleted]

    [4] Afghanistan Information Management Services (AIMS), "Map of Afghanistan Administrative Divisions: Afghanistan Tribal Map: Ghilzais, Pashtuns, etc.", Program for Culture and Conflict Studies, Naval Postgraduate School, 01 January 2007, CIS18340.

26. Taking into account all the evidence I find (as did the delegate) that the applicant is from [a village] and Afghanistan is his country of nationality for the purposes of the Convention.

    Assessment of claims

27. The applicant has given consistent, plausible and rather detailed information concerning the renting out of rooms in his home for the teaching of the English and the subsequent Taliban adverse interest in him for so doing.  His claims are generally in accord with country information set out below.  I accept (as did the delegate) that the applicant rented out his front rooms where English classes were conducted in early February 2012.  I accept that the Taliban became aware of these classes and came to the applicant’s house and spoke to his brother and threatened to harm him.  I accept that the applicant remained in hiding at his uncle’s house and that he departed the village in late February 2012.  I accept that the Taliban came to the applicant’s home two weeks after he departed and took a photo of him off the wall.

28. In 2013, the UNHCR reported that insurgents continued to carry out direct attacks on schools, teachers and students and that such attacks were on the increase.[5]  The United States Department of State has reported:

    Violent attacks against schoolchildren, particularly girls, also hindered access to education. Violence impeded access to education in various sections of the country, particularly in areas controlled by the Taliban. The Taliban and other extremists threatened and attacked school officials, teachers, and students, particularly girls, and burned both boys’ and girls’ schools.[6]

    [5] United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 6 August 2013.

    [6] United States Department of State, Country Reports on Human Rights Practices for 2014 Afghanistan.

29. The Australian Department of Foreign Affairs (DFAT) has also recently reported that schools remain vulnerable to attack from insurgents and that the Taliban continue to threaten schools, particularly girl’s schools.[7]

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

30. The Afghanistan Analysts Network released a paper in August 2011 that quoted a Taliban commander as saying:

    Everyone can get education everywhere if is committed to the cause (of education). There are private schools and private language centres. Taleban are not against education or English language. They don’t attack English language centres.[8]

    [8] Giustozzi, A & Franco, C 2011, The Battle for the Schools: The Taleban and State Education, August, Afghanistan Analysts Network, p.20,

31. However, in the same report, another Taliban commander commented:

    The Taleban do not like schools for the government institutions offer English and other current subjects. They fear that these subjects would weaken their faith. Islam only permits religious education.[9]

    [9] Giustozzi, A & Franco, C 2011, The Battle for the Schools: The Taleban and State Education, August, Afghanistan Analysts Network, p.6,

32. The UNHCR consider that persons associated with, or perceived as supportive of the government and international community and forces and individuals perceived as contravening the Taliban’s interpretation of Islamic principles, norms and values may be at risk of account of their imputed political opinion and religion.[10] 

    [10] United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 6 August 2013.

33. DFAT have recently reported that the security situation across country deteriorated significantly over the last 12-18 months as insurgents have intensified their efforts and the international military contingent gradually withdrew. They reported that there was a significant rise in casualties in 2014 that reflects an increase in the frequency and intensity of ground engagements across Afghanistan.  They reported that insurgent groups contest many areas of the country and the situation is fluid.[11]

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

34. The Department of Immigration and Border Protection’s Country of Origin Information Section has recently provided the following update on the security situation in Paktia:

    For most of September 2015, parts of Paktia province recorded more than 20 security incidents each week placing Paktia among the most violent provinces in Afghanistan during that month. In mid-July 2015, the ANA were reported to have completed a month long clearance operation in the districts of Chamkani and Jani Khall in eastern Paktia. Afghan military claimed that the operation had killed more than 130 Taliban fighters and re-captured police checkpoints lost to the Taliban in earlier fighting.  Also in eastern Paktia, the Taliban had threatened to capture Samakni district after a month of heavy fighting between Taliban and local security forces. In western Paktia in Zurmat district, a dozen civilians were wounded in a bomb blast in a bazar and clashes were reported between militants and security forces along the Gardez-Zurmat highway that runs through Zurmat. Earlier in June 2015, ANA clearance operations in Zurmat were reported to have left six militants dead. In the same month in Dandpatan district to the east, ANA clearance operations left 16 militants dead.[12]

    [12] Department of Immigration and Border Protection Country of Origin Information Section,  Afghan Security Brief July-October 2015.

1. The European Asylum Support Office reported in January 2015:

   The province of Paktya is among the volatile provinces in Afghanistan, where anti‑government armed insurgent groups, including the Taliban insurgents and insurgents from the Haqqani network, are operating in a number of its districts.[13]

   [13] European Asylum Support Office, EASO Country of Origin Information Report Afghanistan Security Situation, January 2015.

2. Considering the applicant’s individual circumstances and the country information overall, I find that in his home area the applicant now and in the reasonably foreseeable future faces a real chance of persecution from the Taliban for reasons of religion and imputed (pro-Western) political opinion.

   State protection

3. DFAT have recently commented:

   5.1 The ongoing insurgency across the country means that the government struggles to exercise effective control over many parts of the country, particularly areas outside major urban centres. 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. Despite these challenges, DFAT assesses that the government maintains effective, but not absolute, control in major urban centres, particularly Kabul. While violent attacks still occur and there are major concerns over the capacity of law enforcement and judicial systems, security in these urban centres is typically better than in rural areas.[14]

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

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

   Relocation

5. DFAT have 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.[15]

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

6. 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.[16]  The primary targets for insurgent attacks are government institutions, political figures, ANDSF, personnel from the Resolute Support mission, other security services, and international organisations.  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 harmed in such a circumstance would be best described as remote, and not a real chance.

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

7. I do not accept that the applicant faces a real chance of serious harm in Kabul from the Taliban or other insurgent groups given the country information and his individual circumstances.  Country information compiled by the Danish Immigration Service indicates that it was not likely that the Taliban would make it a priority or have the capacity to track down low profile persons in the city.[17]  Kabul has a population of over four million.  It is now over 3.5 years since the applicant fled his home area.  The applicant has not claimed any other issues with the Taliban other than the one incident where he agreed to classes to be run from his home which indicates that he would only have a low profile.

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

8. 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.  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]

   [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.

9. Having regard to the country information concerning the overall situation for 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 religion or an imputed political opinion or for membership of a particular social groups consisting of failed returned asylum seekers from the West from the Taliban or anybody else. 

10. DFAT have recently commented:

    2.14 Although there are no reliable statistics, unemployment is widespread in Kabul and underemployment is also common. The influx of IDPs and returnees to the city has put pressure on the local labour market. The decrease in the international presence and the tight budgetary situation of the Afghan government have further reduced the availability of quality employment opportunities.

    …

    2.20 The health care system in Afghanistan has improved greatly since 2001. Basic public health care is free, but medicines are not, which excludes the poor from treatment for common illnesses. Medical facilities in the public system, while still basic, tend to be better in Kabul than in other areas of Afghanistan, particularly remote rural areas. Better quality services are provided by private practices, but many residents cannot access these services because of their high cost.

    …

    2.22 Access to electricity is highly variable, even in formal areas of the city. Electricity ‘load shedding’ is common, causing blackouts (including scheduled blackouts) that can last up to 15 hours. For many residents of Kabul’s informal areas, electricity is supplied by a community generator for which a fee is charged by the operator, a relatively expensive form of supply. According to the World Bank and the United Nations High Commissioner for Refugees (UNHCR), although most established residents have access to some electricity, up to 84 per cent of IDPs lack access to any electricity.

    2.23 Most informal and illegal areas do not have reliable access to municipal water supply, relying instead on wells and water deliveries. Sanitation in these areas is poor. Waste collection is better in informal areas than illegal areas. Many communities burn their waste which contributes to high levels of air pollution.

    …

    3.6 Large urban areas in Afghanistan are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas. As Afghanistan’s largest urban centre, Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan.

    …

    3.8 Traditional extended family and tribal community structures are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence. People tend to move and settle in large groups, often with several other families, for this reason. As a consequence, large groups of people can arrive in a particular area, resulting in rapid population growth and a strain on infrastructure and services.

    …

    3.10 Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city. Given the growth of Kabul’s population since 2001, many individuals may have members of their extended family in Kabul who can assist with their relocation. Ethnic-based violence in Kabul is rare.

    3.11 DFAT assesses that, notwithstanding road safety concerns and the security situation in Kabul, there are generally options available for members of most ethnic and religious minorities to relocate from other parts of Afghanistan to relative safety in Kabul. This relocation is more likely to be successful where the individual travels as part of a larger group, or has established networks that can assist with the provision of basic necessities.

    ...

    3.12 In practice, DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation. This is compounded by Kabul’s relatively high cost of living, particularly for housing.

    3.13 Internal relocation to urban areas is generally more successful for single men of working age, provided they are able to make use of family or tribal networks. Unaccompanied women and children are least likely to be able to successfully relocate to urban areas, particularly if these networks are lacking.[20]

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

11. I have had regard to the information in this most recent DFAT report that suggests generally there are options available for members of most ethnic and religious minorities to be able to relocate from other parts of Afghanistan to relative safety in Kabul. I have taken into account that the applicant speaks both Dari and Pashto and has work skills as a [profession].  However, there are a number of factors that in my opinion outweigh this evidence and make it unreasonable for the applicant to relocate to Kabul to avoid the real chance of persecution in his home area.  These are:

    • The applicant has no family members living in Kabul and has not lived there previously.  DFAT have emphasised family and tribal networks as being important factors for successful relocation. 
    • There is a huge underclass in Kabul that does not have access to clean water or electricity and rents are very high.  DFAT have also referred to unemployment being widespread in Kabul and underemployment common.  The applicant has limited work skills and education.
    • The applicant has a wife and [children] to support which would make relocation significantly more difficult.
    • Notwithstanding, Kabul is safer than other parts of the country there is evidence of a number of insurgent attacks that target government institutions, political figures and Afghan National Security Forces, other security services and international organisations.  Though this is not sufficient in itself to establish a real chance that the applicant would face serious harm, the existence of these attacks and the danger that the applicant may be caught up in them contributes to the unreasonableness of relocation.

12. I therefore do not consider it reasonable for the applicant to relocate to Kabul and factors set out above (e.g. lack of family networks, widespread unemployment limiting the ability to meet his basic needs and the general lack of security) would also be applicable to other areas.  I therefore consider his fear of persecution is well-founded.

    Third Country Protection

13. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.

    Conclusions

14. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

15. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    David Corrigan
    Member