1311769 (Refugee)

[2016] AATA 3874

1311769 (Refugee) [2016] AATA 3874 (29 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1311769

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Mara Moustafine

DATE:29 May 2016

PLACE OF DECISION:  Sydney

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 29 May 2016 at 10:50pm

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. The [applicant] claims to be a [age] years old citizen of Afghanistan, a Shia Muslim of Hazara ethnicity.

2. The applicant fears that if he returns to Afghanistan he will face serious harm from the Taliban because he is a Hazara and Shia and from two Hazara Commanders because he was involved in the 2010 election campaign of a rival candidate.

3. The applicant arrived in Australia by boat [in] July 2012 and applied for a Protection visa [in] December 2012.  A delegate of the Minister for Immigration refused to grant the visa [in] August 2013 and the applicant has applied to this Tribunal for review of that decision, a copy of which he provided to the Tribunal.  A summary of the relevant law is set out at Appendix A. 

4. The applicant appeared before the Tribunal on 21 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.

5. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Afghanistan and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Materials before the Tribunal

6. The Tribunal has had regard to the applicant’s written and oral evidence to the Department and the Tribunal, including as set out in Appendix B.  At the start of the hearing before the Tribunal the applicant affirmed that his evidence to date was true and correct and that he did not wish to change or add anything.

7. The Tribunal has also had regard to a range of independent country information about Afghanistan, including that referred to in the delegate’s decision and provided by the applicant’s representative, as well as recent reports prepared by the Australian Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes.

   Country of reference

8. On the basis of documentary evidence submitted to the Department, the applicant’s oral evidence and, in the absence of evidence to the contrary, the Tribunal is satisfied the applicant is a citizen of Afghanistan. The Tribunal assesses the applicant’s claims against Afghanistan as his country of nationality and receiving country.

   Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Afghanistan?

   Applicant’s claims

9. The following is a summary of the claims and information provided by the applicant in his Protection visa application:

   a.He was born in [village], Jaghori in [year] and completed [school] there, then [undertook occupation] for [number] years in [a workplace] before going to study at [a] University for [number] [years].  His wife was still [in] Herat and living with the applicant’s mother, his siblings and her [sibling]. His father died in February 2011.

   b.During the 2010 parliamentary election (September 2010), the applicant returned to Jaghori and campaigned for [Mr A], a candidate for Ghazni [province]. He was impressed by [Mr A], whom he first met at a meeting in [the village] a month before the election attended by about [number] people.

   c.The applicant’s involvement in campaign activities – putting up posters and persuading people to vote for [Mr A] – brought him to the attention of two local Commanders, [Mr B] and [Mr C], who were also standing for election. There was information that [Mr C] had been working with the Taliban and had a history of atrocities against Hazaras. Both [Mr C] and [Mr B] threatened to kill or harm him if they found out he was working for [Mr A], which the applicant denied.

   d.The outcome of the election was that [Mr A] won [number] votes from the applicant’s area, so he left Jaghori because he knew something would happen to him because of the Commanders looking for him’ and his friend, who fled to [another country]. Back in Herat, the applicant continued to go to university and lived among Sunnis. He has not been back to [the village] since then.

   e.While travelling from Herat to Kabul to find a job in the month of Nowroz (March 2012), the bus was stopped by the Taliban in [location], and the applicant was taken off. He had his computer with him and suspected that someone on the bus had ‘told the Taliban there was someone with a computer on board’. He was handcuffed and taken by car to a house 5 or 10 minutes away. When his computer was searched, the Taliban were concerned about his educational documents and incriminating photographs of the Afghan National Army.

   f.He was kept in the house for a day and a night, but managed to escape while the Taliban were distracted by a fight ‘probably with the foreign forces’. He got to the main road and stopped a taxi, which took him to Kandahar and then to Kabul, from where he left the country 4 to 5 days later, fearing he would be tracked down if he stayed there any longer.

   g.He fears that if he is returned to Afghanistan, he will suffer serious harm from the Taliban or the enemies of the candidate he supported.

   h.While he once wanted to live in Kabul, he does not believe he can live there safely after what happened to him as he can be tracked down wherever he is. He cannot return to his own area because of the problems with the Commanders and the threats made against him. He does not believe he can live in Herat as getting there would be dangerous because the Taliban stop vehicles between Kabul and Herat all the time.

10. In his pre-hearing submission the representative submitted that the applicant was at risk of persecution for reasons of his Hazara ethnicity, Shia religion, imputed political opinion as an educated individual who had been directly involved in political activity through his support of [Mr A]’s candidacy; and as a failed asylum seeker. The submission elaborated on these issues, with excerpts of country information regarding the lack of state protection, including targeted violence against Hazara Shias, the increasing ISIS presence in Afghanistan and the continued and increased presence of the Taliban in Herat. A translation of a letter distributed by ISIS in West Kabul and Ghazni headed "Islamic State Method" was also attached.

11. The representative also provided the following additional information:

    a.Despite the very poor security situation, his wife was obliged to return to Jaghori in early 2015 to assist her ill mother and has remained living there in virtual seclusion due to the increased levels of sectarian violence. She is trying to return to Herat, but is unable to travel because of the high incidence of sectarian attacks on the roads in the region.

    b.Despite the passage of time since his overt political activity, the applicant remains at risk of violent attack due to his support for [Mr A] as "memories are long" in Afghanistan and a desire for retribution against political adversaries does not diminish with time or absence.

    c.Communication between the Taliban and their affiliates is efficient, and he remained at risk even while living away from Jaghori in Herat, in an area populated mostly by Tajiks where he pretended to be a Sunni Muslim.

    d.After being deported to Afghanistan from [overseas], the friend with whom he campaigned during the election was abducted and murdered by the Taliban, as a direct result of his prior political activity and the fact that he had sought asylum in a western country. 

12. Key relevant points from the applicant’s hearing before the Tribunal were as follows:

    a.He left his home [village] [in] 2007 to study in Herat.  After his political troubles with the local Commanders over the 2010 election, his whole family moved to Herat and were still there, living on money he left them before coming to Australia. He supports them from his work as [occupation] in Australia. His [sibling] works in a [workplace]. They are unhappy because they are living among Sunni Tajiks with no guardian.  The family still has a house in [the village], which a family from another area lives in and looks after. His wife, whose family are also from [the village], returned there from Herat six months ago because her mother was sick.

    b.The two Hazara Commanders, [Mr C] and [Mr B], threatened him because of his campaigning activities in Jaghori during the September 2010 election in support of [Mr A]. It was the first time the applicant was involved in a political campaign. [Mr C], previously [an official] of Jaghori, was elected but [Mr B] was not. Asked if the Commanders belonged to any political party, the applicant said no – they were uneducated warlords with direct connections with the Jihadists in Kabul. They were ‘not serious’ but had influence in the district because of their fighting and weapons.

    c.The Commanders’ threats to kill the applicant if [Mr A] won votes in [the village] were made through people who worked for them. The applicant left [the village] before the election took place and hid in the mountains for 24 hours. He later learned that [Mr A] got around [number] votes in the area. The applicant read to the Tribunal a letter from [Mr A], stating that the applicant had been threatened by two ex-Jihadi [commanders] and had profound influence over the district police because of his ‘active support during the election campaign.’

    d.After the election, the applicant lived ‘in hiding’ in Herat with his family but attended university. [Mr A] sometimes called him to ask about his security and said he would help him, including with safety and security. He also suggested that the applicant make applications for government jobs and said he would refer him to appropriate persons.

    e.The applicant went to Kabul to look for work about 10 days before coming to Australia in July 2012. However, after his encounter with the Taliban, he did not pursue this, as [Mr A] told him he would not take responsibility for his security.

    f.In the course of an extended discussion of the incident in which the applicant was the only passenger taken off the bus with his computer and belongings, the Tribunal asked him several times to focus on his own experience, rather than providing generalised information.

    g.The applicant suggested that he might have been taken because the Commanders provided information about him to the Taliban, and referenced newspaper reports about the Taliban kidnapping Hazaras on information provided by other Hazaras. Alternatively, he suggested that people at his university may have informed on him, saying he had once been traveling in a vehicle from which the Taliban took two non-Hazara students, having recognised by their [pants] and [shirts] that they were students, ‘a crime’ for the Taliban. Asked whether the Taliban said this was the reason they took the young men, the applicant said no, but that it was well known that ordinary people wore traditional clothes, while government employees, police, the army and students wore pants and shirts. It was ‘obvious and clear to everyone’ that this was how the Taliban recognised them and captured them.

    h.He thought the reason the Taliban took him was because he was a Hazara. As for why he was the only Hazara taken, the applicant said the other Hazaras on the bus had beards and were hard to recognise, whereas he was clean-shaven and dressed as a student in pants and a shirt. He volunteered that Hazaras coming from Iran were so afraid of the Taliban that they usually did not travel for a month or two to grow their beards long and put on turbans and long dress to avoid danger; but he was easily recognised as a Hazara as he did not have a beard. When the Tribunal expressed surprise that the applicant did not take precautions to make himself less visible to the Taliban, given his previous experience when the Taliban took the two students because of their dress, he responded that he was very fearful of the Taliban because of this and usually sat at the back of the bus, carrying medications and covering himself with piece of cloth to show he was weak.

    i.When the Tribunal pointed out the inconsistency with his earlier evidence that he was clean-shaven and did not cover up, the applicant did not respond directly but said that, while Hazaras sometimes took measures like wearing long beards and putting cloths in the hope that this might save them, if the Taliban had information from spies at bus stations or other places, they would take them anyway – it was all a matter of chance and luck and depended on whether the army and police were around or far away. After returning from after a short break in the hearing, the applicant volunteered that he was 100% sure that someone from the bus had given information about him to the Taliban as they came directly to him and said ‘you are a Hazara, you have to get down’.

    j.The Taliban took him by car to a house one kilometre away. There, they searched his computer and accused him of working for the government and for ‘heathens,’ being a student and threatened to kill him. He told them the computer did not belong to him and he was delivering it to someone. However, they found on it photos of his marriage, showing non-traditional dress; photos of him [at] a picnic; and copies of his educational documents. He thought the only way out for him was to escape and the next day seized the opportunity to do so during a clash between the Taliban and foreign forces, while the old man guarding him was busy with a meeting.

    k.The applicant got a taxi to Qandahar, then continued on to Kabul as [Mr A] had promised to help him with a job and security. However, when [Mr A] told him he could not provide security, the applicant knew he had to leave Afghanistan and go anywhere. He got a passport and arranged to go to Australia as he heard it was good for refugees. He had money hidden in his underwear – which the Taliban don’t touch – and from friends.

    l.The applicant is afraid to return to Afghanistan because people who had returned, including from Australia, had been kidnapped and killed. The Taliban had his documents on his computer and knew all about him, including that he was in Australia. As the Taliban knew when people returned from Australia and were very anti-Australian, they would find him and cut him to pieces if he returned. Asked how the Taliban knew he was in Australia, the applicant said the Commanders knew about this because they had access to social media and could find him on Facebook under his own name; although he admitted that he did not have ‘100% evidence’ that they would do so.

    m.As there was another election coming in Afghanistan, the Commanders might ask about his whereabouts, as he was involved in the 2010 campaign against them. [Mr B], who was from [the village], would probably be a candidate for that area and could ask his family about the applicant, whom he regarded as his enemy. The applicant had learned from friends on Facebook that [Mr B] was supporting the Taliban against ISIS and people believed the Commanders were spies for the Taliban. He was also afraid of [Mr C] because he is in Kabul.

    n.Asked if anything happened to his wife in [the village], the applicant said no, because she was living in hiding and the Taliban did not take revenge against women whom they regarded as weak.

    o.He could not return to Herat because the road to Herat was very dangerous. The Taliban had kidnapped more that 200 Hazaras, including females, and it was especially dangerous for young men. Although it was possible to fly to Herat from Kabul, he had previously lived as a Sunni and, if it were discovered that he was a Hazara Shia, it would be dangerous for him. He lived in Herat for 4-5 years without his family and close to 2 years with them. His marriage in Herat in 2011 was certified by a mullah but not registered.

    p.Asked if he could live in Kabul, given that he had travelled there to look for a job with the government, the applicant said finding a job in Kabul was not a problem. The problem was safety and security, especially as [Mr C]’s men were there and would kill him.

    q.The Tribunal discussed with the applicant country information which it would need to consider, including from DFAT, regarding the situation of Hazaras and Shias in Afghanistan, the general security situation and security on the roads.

13. In his oral submission, the representative highlighted aspects of the applicant’s claims and elaborated on country information in his submission, in particular the targeting of Hazaras for their ethnicity, the rise of the Taliban and IS and deteriorating security in Afghanistan.   

    Consideration of applicant’s claims

    On the basis of his consistent evidence and fluency in the Hazaragi language, the Tribunal accepts that the applicant is a Hazara Shia from [his village], in the Jaghori district of Ghazni province and that from 2007 he studied and lived in Herat.

14. The applicant’s claims for protection centre on his assertion that he was threatened by two Hazara Commanders with links to the Taliban over his involvement in the campaign of a rival candidate during the 2010 election; and that he escaped from Taliban captivity after being taken off a bus with his laptop, which is now in their hands, containing incriminating documents and photographs. He also fears harm as a Hazara Shia and a failed asylum seeker.

    Applicant’s experiences in Afghanistan prior to his departure in 2012

15. The Tribunal accepts that, as an educated student, back in [his village] during his university vacation, the applicant may have helped in the 2010 election campaign of [Mr A], a [candidate] for Ghazni. The Tribunal is prepared to accept that during the campaign he may have had some altercations with supporters of two Commanders also competing for election.

16. However, in light of his lack of prior political involvement and awareness, including about [Mr C]’s long association with [a particular group][1]; low profile campaigning role and his inconsistent evidence as to whether he left [his village] before or after the election (paragraphs 9.d and 12.c), the Tribunal is not satisfied that the applicant was threatened or targeted by the Commanders, had to flee from them to Herat or would be of any interest to them should he return to Afghanistan in the future, as claimed. The Tribunal does not attach weight to the alleged letter from [Mr A] (paragraph 12c), which refers to the applicant being threatened by two [Commanders], given the applicant’s own evidence (paragraph 12.b), borne out by country information[2], that only [Mr C] won a seat in the election.

    [1] [Information deleted]. 

    [2] [Information deleted].

17. The Tribunal finds contrived the applicant’s account of his being the only Hazara taken off the bus by the Taliban on the way to Kabul in 2012, then escaping from them the following day while they were distracted by fighting with foreign forces. As discussed with the applicant at hearing, the Tribunal finds it implausible that he would take no protective measures, such as growing a beard or wearing traditional clothes, but would travel clean shaven and dressed in shirt and trousers like a student, given that he had previously witnessed two students being taken from a vehicle in which he was travelling by the Taliban because of their attire; and his claim that it was ‘obvious and clear to everyone’ that this was what the Taliban did (paragraph 12.g).

1. The Tribunal is also concerned that the applicant shifted his evidence several times on this issue. First, when the above-mentioned implausibility was brought to his attention, he said that this was why he usually sat at the back of the bus, covered his face with a cloth and feigned illness (paragraph 12.h); then when the inconsistency between this and his earlier evidence was pointed out, he shifted again to say that such protective measures would not help someone who spies had identified and that it was all a matter of chance and depended on whether the army and police were around (paragraph 12.i).

2. Further, the Tribunal found much of the applicant’s evidence as to why he was captured by the Taliban speculative and based on generalised information, rather than grounded in his personal experience. He attributed it in his written statement to the Taliban being tipped off by someone on the bus that he was travelling with a computer (paragraph 9.d); but at hearing speculated variously that it may have been a tip off by the two Commanders or someone at his university (paragraph 12.g). Only after he returned from a break, did he say he was 100% sure that someone from the bus had given unspecified information about him to the Taliban, who came to him directly saying he had to get off because he was a Hazara (paragraph 12.i).

3. Also speculative was the applicant’s claim that the Taliban would know he was in Australia because the Commanders could find him on Facebook; although he later added that he did not have ‘100% evidence’ that they would do so (paragraph 12.l).

4. In view of the above, the Tribunal is not satisfied that the applicant has been truthful about his experiences in Afghanistan before his departure in 2012. The Tribunal does not accept that the applicant was threatened or targeted by the Hazara Commanders because of his involvement in the campaign of a rival in the 2010 parliamentary election; or that he had to flee from them to Herat as a result. Nor is the Tribunal satisfied that in 2012 the Taliban took the applicant off a bus on which he was travelling to Kabul and seized his computer, nor that he escaped from their captivity, prompting him to leave Afghanistan for Australia, as claimed.

5. In the Tribunal’s view, the applicant was not being targeted, either by the Hazara Commanders or by the Taliban, at the time he left for Australia. The Tribunal does not accept that he is of any current adverse interest to the Taliban, the Hazara Commanders or anyone else because of any of his activities prior to his departure from Afghanistan in 2012; nor that he is at risk of serious or significant harm from these parties for these reasons should he return to Afghanistan in the reasonably foreseeable future.

   Applicant’s Fear of Harm on Return to Afghanistan

   The Tribunal has considered whether the applicant has a well-founded fear of persecution if he returns to Afghanistan on the basis of his race and religion as a Hazara Shia and in the face of the deteriorating security situation in Afghanistan, as posited by the applicant’s representative.

   Security situation in Afghanistan

6. According to DFAT’s most recent report Hazaras in Afghanistan:

   There are many areas of Afghanistan that are contested by insurgent forces, and no part of the country can be considered free from conflict-related violence. While the government retains control over much of the country, particularly in the provincial and district centres, some districts are openly contested, with varying levels of control exercised by the government and insurgents[3].

   [3] DFAT 2016, Thematic Report: Hazaras in Afghanistan, 8 February

7. In its most recent Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan the UNHCR observed that:

   The security situation deteriorated markedly in 2015 as the Taliban and other AGEs [anti-government elements] conducted aggressive campaigns and increasingly advanced towards major population centres. At the end of 2015, the Taliban reportedly held more territory than in any year since 2001… A proliferation of AGEs with various goals and agendas, including notably the emerging threat from ISIS-affiliated groups [and the re-emergence of Al-Qaeda], combined with intra-insurgent violence has further complicated the security situation…
   … According to analysts, the ANSF [Afghan National Security Forces] have proved generally adept in defending provincial capitals and major urban centres, with the chief exception of the brief capture by the Taliban of Kunduz in September 2015. However, the ANSF suffered a substantial increase in casualties in 2015 and have typically been forced into reactive positions as a resurgent Taliban launched multi-pronged offensives and strengthened their control in rural areas across the country during the 2015 fighting season.

8. The UNHCR notes that the conflict in Afghanistan is increasingly affecting all parts of the country and that the nature of the conflict has changed since the withdrawal of the international troops in 2014, with increased attacks by AGEs, including suicide attacks and targeted and deliberate killings and abductions of local civilian leaders, as well as a general campaign of intimidation aimed at controlling communities in rural areas. AGEs continue to carry out high profile attacks in Kabul and other cities, and to expand their reach in rural or less populated areas[4].

   [4] UNHCR, 2016, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 19 April

9. Among the AGEs operating in Afghanistan are the Taliban, the Haqqani Network, Hezb-e Islami Afghanistan (led by Gulbuddin Hekmatyar), the Islamic Movement of Uzbekistan and various other armed militias.[5] Foreign fighters associated with Al Qaeda are present in the north and east.[6] Daesh (IS) is exerting influence in some parts of Afghanistan and a number of disaffected Taliban insurgents are reported to have identified with IS. According to one source, IS flags have been hoisted in Ghazni and Nimroz provinces; large numbers of Taliban fighters have switched their allegiance to IS; and there are reported strongholds of support for IS across a number of provinces.[7] As well, there are a number of local militias, aligned to local warlords who are not necessarily opposed to the government but act to protect their own interests.[8]

   [5] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January; Department of Foreign Affairs and Trade, 2015, DFAT Country Information Report Afghanistan,18 September

   [6] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January

   [7] Roul, A, 2015, ‘Wilayat Kurusan’: Islamic State Consolidates Position in AfPak Region, The Jamestown Terrorism Monitor, 3 April

   [8] DFAT, 2015, DFAT Country Information Report Afghanistan, 18 September

10. The most common targets for insurgents in Afghanistan are government and security institutions, political figures, foreign missions, international organisations and recently in Kabul, foreign civilians.[9]  DFAT has noted that, while attacks may be directed at specific targets, the method of attack can be indiscriminate and result in a high number of civilian casualties.[10]  Attacks in Kabul have increased. Most recently, in April 2016, a bomb attack targeting the National Security Directorate killed at least 40 people and injured more than 300 and a second bomb attack, also targeting the security forces killed dozens of people and injured hundreds more.[11]

    [9] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January

    [10] DFAT, 2015, DFAT Country Information Report Afghanistan, 18 September

    [11] Smith J and Shalizi H, ‘Dozens killed in Taliban attack on Afghan capital Kabul’, The Age, 20 April 2016

11. The UNHCR also noted that the increased violence needs to be considered in the context of a deteriorating economic situation, endemic corruption, limited government authority, continuing weaknesses in the rule of law, an underperforming judicial system, high crime levels, widespread human rights violations and a general climate of impunity. 

    Current situation for Hazaras in Afghanistan

12. It is generally accepted by independent sources that, since the removal of the Taliban from power in 2001, Hazaras no longer face systemic official and societal discrimination and violence, as they did under the Taliban regime. However, while conditions for Hazaras have improved greatly, DFAT assesses that they still face societal discrimination, partly as a result of earlier practices of official discrimination; and the historical enmity between Afghanistan’s Pashtun and Hazara communities contributes to the Hazara community’s perceptions of ongoing discrimination and targeted violence[12].

    [12] DFAT 2016, Thematic Report: Hazaras in Afghanistan, 8 February

13. UNHCR has also noted that, while Hazaras were reported to have made significant economic and political advances since the 2001 fall of the Taliban regime, Hazaras have been reported to face continuing societal discrimination, as well as to be targeted for extortion through illegal taxation, forced recruitment and forced labour, and physical abuse and more recently there has reportedly been a significant increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban and other AGEs[13].

    [13] UNHCR, 2016, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 19 April

14. DFAT has noted that, while no ethnic group is immune from kidnappings:

    Hazaras travelling by road between Kabul and the Hazarajat face a greater risk than other ethnic groups. It is unclear whether this is due to ethnic targeting or is a result of the high numbers of Hazaras travelling on this route.… DFAT assesses 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 selected for kidnapping or violence than are Pashtun passengers. While ethnicity may not be a primary motivation for an abduction incident, it may have an influence on the selection of victims[14].

    [14] ibid.

15. There have been a series of reported incidents of Hazaras being kidnapped since late 2014, including the February 2015 kidnapping of 31 people, almost all Hazaras, while travelling on two buses from Herat to Kabul in Zabul province; and incidents of Hazaras being kidnapped in Ghazni Province in the second half of 2015, coinciding with a further deterioration of the general security situation across Afghanistan in this period. In its mid-year report on the protection of civilians in conflict UNAMA found that the primary motivations for these abductions included holding hostages for ransom, prisoner exchanges, and a perception that the abductees have links with the government or the international community[15].

    [15] DFAT 2016, Thematic Report: Hazaras in Afghanistan, 8 February

16. The UNHCR has noted that ethnic divisions remain strong in Afghanistan and that ethnicity and religion are often inextricably linked, particularly in the case of Hazaras who are Shia; that it is therefore not always possible to distinguish between ethnicity or religion as the motivating factor behind specific incidents or tensions; and that political allegiances and imputed political opinions are often also linked to ethnicity.[16]

    [16] UNHCR, 2016, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 19 April

17. According to the DFAT’s recent report, ‘Hazaras are widely perceived to be affiliated with both the government and the international community’. This arises from a perception of Hazaras having disproportionately benefitted from the ousting of the Taliban regime, or the perception of links with the international community and the fact that many of them travel abroad to seek employment or educational opportunities, to Iran, Pakistan, Europe or other western countries[17].

    Failed asylum seekers

    [17] DFAT 2016, Thematic Report: Hazaras in Afghanistan, 8 February

18. In addition to the fact that Hazaras are perceived as being associated with and supportive of the government and the international community, the UNHCR has also noted that AGEs target persons who are perceived to have adopted Western values or appearance, due to their imputed support of the government and the international community. UNHCR makes reference to reports about Hazaras returned from Australia who were tortured or killed on the grounds that they had become foreigners or spies.[18]

    [18]  UNHCR, 2016, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 19 April

19. The applicant has identified his home village as [name] in Jaghori, a Hazara district of Ghazni province, where his wife is now living with her mother and his own family owns a house. While Jaghori itself is relatively secure, the surrounding Pashtun-majority districts are not safe due to the presence of the Taliban and other insurgent groups. The US State Department Country Report on Terrorism 2014, described Ghazni as one of the most violent provinces in Afghanistan in terms of attacks on defence forces, international forces and civilians. Insurgent attacks, community violence and kidnappings for ransom are common throughout large parts of the province.

20. According to DFAT’s latest report:

    While limited credible information is available, the security situation in Ghazni appears to have deteriorated since the beginning of 2014 — coinciding with the decline in security more generally across Afghanistan—including in some of the majority-Hazara areas such as Jaghori district. Credible sources have reported that the Hazara-dominated Ajristan district is extremely unsafe. Roads linking Hazara-dominated areas in Ghazni with Kabul also suffer from a high level of insecurity[19].

    [19] DFAT Thematic Report, Hazaras in Afghanistan, 8 February 2016

21. A recent paper by the Department of Immigration’s Country of Origin Information Service (COIS) refers to reports of the Taliban ‘block[ing] all routes to Malestan, Jaghori, Nawur and Ajrestan’ in or around September 2014.[20]  Similarly, Tolo News 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’.[21] 

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

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

    While the applicant may be able to live safely in Jaghori, It is clear that he would need to travel by road from Kabul to return there. It is also likely that he would need to travel in and out of the area, including to Herat, where his mother and siblings live, for employment as in the past, to purchase supplies, access health care or for other reasons. In light of the country information above, particularly regarding the high level of insecurity in Ghazni and the heightened risk to Hazaras of being kidnapped by insurgents whilst travelling on the roads, the Tribunal finds that there is a more than remote chance that the applicant will be subject to serious harm in the form of kidnapping and possible killing if he returns to Jaghori and that this harm will be because of his race, religion or imputed political opinion.

    State protection

22. According to the most recent DFAT report:

    The ongoing insurgency and deteriorating security situation across the country mean that the government does not exercise uniformly effective control over all parts of the country. Government control tends to be better in major urban centres; insurgents operate more freely in rural and remote areas. As a result, the government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in some (particularly rural) areas of the country.[22]

    [22] DFAT 2016, Thematic Report: Hazaras in Afghanistan, 8 February.

23. Given this authoritative information, the Tribunal is not satisfied that the applicant would be able to access effective state protection in his home area of Jaghori.

    Relocation

24. In view of its finding above, the Tribunal has considered whether the applicant could live safely in a different part of Afghanistan and whether it would be reasonable for him to relocate.

25. Country information, including the latest DFAT report, indicates that large urban areas in Afghanistan with mixed ethnic and religious communities offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas.

26. Before coming to Australia, the applicant lived for over five years in Herat city, a Tajik-dominated enclave with a sizeable Hazara minority in a Pashtun-majority province. His mother and siblings are still living there. However, in light of the overall deterioration of the security situation in Herat in recent years, due to a rise in AGEs and heightened criminality, murder, kidnapping and robberies; as well as danger on the roads between Kabul and Herat, which pass through areas under Taliban and AGE control[23], the Tribunal does not consider that relocation to Herat would be a reasonable option for the applicant.

    [23] European Asylum Support Office (EASO), Country of Origin Information Report Afghanistan

27. The Tribunal has also considered whether Kabul, with a Hazara population of around two million and relatively good economic opportunities,[24] might be a viable option for the applicant. The notes the applicant’s evidence that he was on his way to find a job in Kabul, when he was allegedly captured by the Taliban in 2012 and he does not consider finding a job in Kabul a problem (paragraphs 12.e and 12.p).

    [24] ibid.

28. The UNHCR considers relocation is reasonable only where an individual has access to a traditional support network of members of his or her (extended) family or members of his or her larger ethnic community in the area of prospective relocation, who have been assessed to be willing and able to provide genuine support to the applicant in practice.[25] DFAT has also indicated that ‘internal relocation is generally more successful for single men of working age, provided they are able to make use of family or tribal networks.[26]

    [25] UNHCR, 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 6 August

    [26] ibid.

29. The Tribunal notes that the applicant has no family or established networks that can assist him with the provision of basic necessities in Kabul; and has a wife in Jaghori and mother and siblings in Herat whom he has been supporting with remittances from Australia. Under these circumstances, and in view of the poor security situation in Kabul, the Tribunal considers it unreasonable for the applicant to relocate to Kabul in order to avoid the real chance of persecution in his home area.   

    Third Country Protection

30. There is no evidence before the Tribunal 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 the Tribunal finds that this section does not apply in his case.

    CONCLUSIONS

31. 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

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

    Mara Moustafine
    Member

    
    

    APPENDIX A: RELEVANT LAW

1. 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.

2. 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).

3. 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.

   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’).

4. 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.

   Credibility

   APPENDIX B: MATERIALS BEFORE THE TRIBUNAL

5. The Tribunal has had regard to the following materials:

   ·     The applicant’s Protection visa application dated [in] December 2012 and accompanying papers, including the applicant’s statement dated [in] November 2012;

   ·     The applicant’s entry interview record;

   ·     The recording of the applicant’s Department interview held [in] May 2013;

   ·     The application for review and accompanying papers submitted on 16 August 2013, including a copy of the delegate’s decision record dated [in] August 2013;

   ·     A pre-hearing submission from the applicant’s representatives dated 13 July 2015;

   ·     The oral evidence of the applicant at the Tribunal hearing on 21 July 2015.

   
   

Security Situation Update, January 2016.