1313239 (Refugee)

[2015] AATA 3277

1313239 (Refugee) [2015] AATA 3277 (30 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1313239

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Magda Wysocka

DATE AND TIME OF

ORAL DECISION AND REASONS:          30 July 2015 at 4:39 pm

DATE OF WRITTEN RECORD:                7 August 2015

PLACE OF DECISION:  Melbourne

Statement made on 07 August 2015 at 5:48pm

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 August 2013 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. At the hearing on 31 July 2015 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. 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] August 2013. A copy of that decision was provided with the application for review.

4. In brief, the applicant’s claims are that he is a Hazara Shia Muslim originally from [Behsud] district, Maidan Wardak province in Afghanistan. He and his family left his village in 1997 due to threats from Taliban and Kuchi nomads seeking to confiscate Hazaras’ land. The applicant has resided in Quetta, Pakistan since 1997 until 2011 when he left to travel to Australia. The applicant fears harm from the Taliban and Kuchi nomads if he returns to Afghanistan due to his Hazara ethnicity, Shia religion and his imputed political opinion arising from various factors including having lived outside of Afghanistan for several years, learning English and being seen as a pro-western supporter.

5. The departmental delegate accepted that the applicant faced a real chance of serious harm in his home area but found that it would be reasonable to expect him to relocate to Kabul.

6. The applicant appeared before the tribunal on 30 July 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his migration agent and the hearing was conducted with the assistance of a Hazaragi/English interpreter. The tribunal has considered his evidence at that hearing in the making of this decision. The tribunal has also considered submissions from his representatives.

7. The criteria for a protection visa are set out in s.36 of the Migration Act and Schedule 2 to the Migration Regulations. An applicant for a protection visa must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds or if the applicant is the member of the same family unit as a person who holds a protection visa.

8. Section 36(2)(a) of the Migration Act provides that a criterion for a protection visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Convention relating to the Status of Refugees. 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...

9. As mentioned earlier if a person is found not to meet the refugee criterion, they may meet the criteria for the grant of a protection visa if there are substantial grounds for believing that there is a real risk that he or she will suffer significant harm.

10. In accordance with a ministerial direction, the tribunal is also required to take into account policy guidelines prepared by the Department of Immigration and any country information assessment prepared by the Department of Foreign Affairs and Trade for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

11. The issue in this particular case is whether the applicant is owed protection obligations by Australia. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration

12. The tribunal accepts uncontested evidence before it that the applicant is a national of Afghanistan and has therefore assessed is claims against Afghanistan as the country of reference.

13. The applicant gave consistent, credible and honest evidence to the tribunal, although his evidence was somewhat limited by his lack of direct experience having lived in Afghanistan. As a result, the tribunal finds the applicant to be a credible witness and notes the delegate also made the same finding.

14. The tribunal therefore accepts the applicant’s consistent and credible evidence that he is a Hazara Shia from [Behsud] district in Maidan Wardak province. It accepts his claims that his family fled his home area in approximately 1997, when he was [a child], due to general insecurity and threats caused by Taliban and Kuchi nomads, as was the case for many Hazaras and Afghans fleeing Afghanistan at that time.

15. The tribunal accepts the applicant’s credible and consistent evidence that he resided in Quetta since 1997 until leaving Pakistan and that apart from one sibling in [another country], his family continues to reside there. The tribunal further accepts the applicant’s consistent evidence regarding his education and employment history and that he is single but engaged to be married.

16. The tribunal accepts that the applicant returned to Afghanistan for one month in 2007 to obtain a taskera, during which time he resided in Kabul with his [aunt]. Given the applicant’s consistent evidence on this matter and the tribunal’s findings on his general credibility, the tribunal is willing to accept his evidence that his [aunt] has since passed away and that her husband and daughter have since moved to [another country]. The tribunal accepts that the applicant has not travelled to Afghanistan since 2007 and that he has no remaining relatives in Afghanistan.

17. The tribunal has considered the applicant’s circumstances and country information on the situation in the applicant’s home area of Behsud district, Maidan Wardak province including the country information upon which the delegate relied on in making his finding that the applicant faced a real chance of serious harm in his home area.That information indicates that Wardak province has increasingly come under Taliban control in the past several years and refers to Taliban attacks in that province including against Hazaras. Numerous independent reports also refer to conflicts over land between Kuchi nomads and Hazaras in Behsud district and in Wardak province generally. A number of reports claim that the Taliban have been aiding Kuchi nomads in attacks on Hazara villages.

18. The departmental delegate was of the view that the applicant may stand out from the local Hazara population in his home area due to his accent and having a knowledge of English. The tribunal is inclined to agree with this view. Having regard to the above country information that has been described and the applicant’s personal circumstances as a Hazara Shia who would be returning to his home village after living in a foreign country for a significant period of time and with no family ties or networks in his home area, the tribunal finds that there is a real chance that the applicant may face serious harm at the hands of Taliban or Kuchi nomads due to his Hazara race, Shia Muslim religion and imputed political opinion.

19. DFAT advises that the Afghan government struggles to exercise effective control over parts of the country due to the ongoing insurgency. The UNHCR has recommended that state protection is on the whole not available in Afghanistan against harm from non-state actors. As a result, the tribunal finds that the applicant would be unable to access effective state protection from the serious harm he would face from the Taliban and other groups.

20. The tribunal has considered whether the applicant can reasonably relocate to another area of Afghanistan.  The tribunal considers Kabul as the only realistic option. As discussed with the applicant at hearing reports indicate that there is an increasingly large community of Hazaras in Kabul,[1] with relatively few reported incidents of Hazaras being targeted in that.  The tribunal put to him that the overall socio-economic situation for Hazaras in Afghanistan has significantly improved, and that many Hazaras have been able ‘embrace and create’ work and business opportunities in Kabul.  The tribunal also put to him that DFAT advises that internal relocation to urban areas is more likely to be successful for single men of working age.

    [1]     ‘Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan’, DFAT, 26 March 2014 at 19.

21. However, reports on the economic situation for Hazaras in Kabul are mixed. As his representative pointed out, those reports indicate that the experiences of individual Hazaras differ greatly and that not all Hazaras have benefited from the increased economic opportunities. DFAT has also referred to unemployment being widespread in Kabul and underemployment being common.

22. Both DFAT and UNHCR advise that traditional extended family and tribal community structures are fundamentally important for successful relocation. Both those organisations stress that internally displaced Afghans rely on these networks for their safety and economic survival, including on their access to accommodation and an adequate level of subsistence.  DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation.  They assess that this is also exacerbated by Kabul’s relatively high cost of living in particular the cost of housing. It is noted that returnees generally have lower household incomes and higher rates of unemployment than established community members. 

23. Although DFAT has assessed that men of working age are more likely to be able to return and reintegrate successfully, the UNHCR has highlighted the importance of employment skills.

24. While the tribunal notes that the applicant is a single man of working age, albeit engaged, it has also had regard to the fact that he has a limited education, limited employment skills and no family contacts or networks in Kabul. The tribunal has also had regard to the fact that the applicant has spent the vast majority of his life, including all of his adult life, outside of Afghanistan which would also greatly limit his social links and networks. Given the applicant’s personal circumstances and lack of social and family links, the tribunal does not consider it reasonable for him to relocate to Kabul.

25. The tribunal is therefore satisfied that the applicant’s fear of persecution in Afghanistan is well-founded.

26. 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

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

    Magda Wysocka
    Member