1313580 (Refugee)

[2015] AATA 3156

1313580 (Refugee) [2015] AATA 3156 (16 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1313580

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Filip Gelev

DATE:16 July 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 16 July 2015 at 12:01pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

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

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

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

    Complementary protection criterion

15. 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’).

16. ‘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.

17. 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

18. 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. The Tribunal has considered the most recent DFAT Country Information Report on Afghanistan (dated 26 March 2014), the DFAT Thematic Information Report – Conditions in Kabul (3 October 2014) and the DFAT Thematic Information Report – Hazaras in Afghanistan and Pakistan (26 March 2014).

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issues in this case are as follows:

    a)    Whether the applicant is an Afghan national, a Hazara Shi’a Muslim from the Qarabagh district of Ghazni Province;

    b)    If so, whether the independent information indicates there is a real chance his Hazara ethnicity and Shia religion, and residence in Australia, would cause him to suffer serious harm amounting to persecution at the hands of the Taliban or some other insurgent group, if he returned to his home area now or in the reasonably foreseeable future; and

    c)    If so, whether or not it would be safe and reasonable for him to relocate to Kabul to avoid that persecution.

20. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of nationality

21. Having regard to the copies of the applicant’s national ID (Taskera) card provided to the Department of Immigration, the applicant’s ability to speak the Hazaragi language fluently and his written and oral evidence, the Tribunal accepts the applicant’s identity as claimed in the sense that he was born in Afghanistan and therefore he is a national of Afghanistan.

22. Based on the above, the Tribunal finds that the country of reference for the assessment of refugee claims in this case is Afghanistan.

23. On the evidence before it, the Tribunal finds the applicant does not have a present right to enter and reside in any other country than Afghanistan. The applicant resided in Iran illegally in 2003 and 2006, but both times he was deported back to Afghanistan. The Tribunal accepts that he does not have the right to enter and reside in Iran.

24. The applicant moved with his family to Pakistan in 2000. The evidence before the Tribunal indicates that he was there illegally. He does not have the right to enter and reside in Pakistan.

25. The Tribunal therefore finds the applicant is not prevented from protection in Australia by s.36(3) of the Act.

    Applicant’s claims

26. The applicant has consistently maintained since his arrival that he is a Hazara Shi’a and he provided persuasive evidence to the Department about his home area in Qarabagh district, even though he has not lived in Afghanistan since approximately 2000.

27. In addition, as noted, he provided a copy of his Afghan national ID card (taskera), which supports his identity and place of origin in Qarabagh, and, while it has not been independently verified, in the circumstances, the Tribunal is prepared to afford him the benefit of the doubt and accept that the taskera is a copy of a genuine document. He has consistently spoken in the Hazaragi language and the Tribunal observed him to have the typical Asiatic physical features of the Hazara people. For these reasons, on the evidence before it, the Tribunal accepts that:

    (a)He was born and raised in [a] village, in the Qarabagh district of Ghazni province around[year];

    (b)He is Hazara by ethnicity and a Shi’a Muslim;

    (c)He is married and has a wife and [children] in Pakistan;

    (d)Since about 2000 he has been living outside Afghanistan (including two trips of about one year each to Iran in 2003 and 2006);

    (e)He has never resided in Kabul and has no relatives or known connections in Kabul;

    (f)He has little education, no formal qualifications and has not undertaken any vocational training, but has experience as a [occupation] in Pakistan and [occupation] in Iran.

28. The Tribunal acknowledges that the evidence before it does not indicate that the applicant has been subjected to adverse treatment in Afghanistan in the past that would constitute persecution.  Nevertheless, the courts have made it clear that ‘proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution.’[1] The legal test is a forward looking one. The relevant question for the Tribunal is whether there is a real chance of persecution upon the applicant’s return to his country of nationality, now or in the reasonably foreseeable future.

    [1]     See Abebe v The Commonwealth (1999) 197 CLR 510 at [192] per Gummow and Hayne JJ.

29. He claims he would be subjected to serious harm by the Taliban or some other Sunni extremist groups because of his race and religion, and his residence in Australia.

30. In considering this issue, the Tribunal has had regard to a range of independent information about a number of different matters relating to the prevailing security and human rights conditions in Afghanistan, including information about the current and prospective security conditions in Qarabagh and surrounding districts of Ghazni province; the recent situation for Hazara Shi’as in Qarabagh, and the surrounding districts of Ghazni province and Kabul; the presence of the Taliban and other armed militants in and around Qarabagh, and throughout Afghanistan and in Kabul; the security conditions on the roads in and out of Qarabagh and Kabul; the capabilities of the Afghan state to provide protection; and information as to whether it would be reasonable for the applicant to relocate to Kabul to avoid persecution.   

31. The information before the Tribunal from DFAT, the US State Department, the International Crisis Group and other reliable sources, indicates that Afghanistan’s security situation has deteriorated in recent years.  While the Taliban suffered a military defeat in 2001-2002 and were ousted from Kabul, the evidence indicates that they left Afghanistan with most of their resources and leadership intact and re-established operations in Pakistan.

32. Over the past approximately 13 years the Taliban have returned to Afghanistan and gained military momentum. According to some estimates, they are now conducting operations in more than 75% of the country.  The US led invasion of Afghanistan in 2001 seems to have only dispersed the Taliban, and although the International Security Assistance Force (ISAF) led by the US, and the Afghan military attempted to rid the country and region of the Taliban, they have been unable to do so.

33. The independent information before the Tribunal indicates that Ghazni is one of the most volatile provinces in Afghanistan.[2] DFAT was of the view in March 2014 that the threat level is low in Hazara majority districts of Ghazni, such as Nawur, Malistan and Jaghori, but at least 11 Pashtun majority districts are not considered to be safe.[3] Qarabagh is an ethnically mixed district with the western part being Hazara dominated and the eastern part Pashtun dominated. Insurgents have reportedly been present in the district.[4] There are recent reports of the emergence of extremist groups affiliated with Islamic State or ISIS in some districts of Ghazni Province.[5] 

    [2]     See ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.21. 

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

    ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.21.

    [5]     ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.21; ‘Clash between radicals: ISIL vs Taliban in Afghanistan’, Khaama Press, 26 February 2015, available at ‘ISIS linked fighters tighten grip in Afghanistan’, NBC News, 1 May 2015, available at

34. In assessing his claims, the Tribunal has also considered the issue of ‘road security’ in and around Qarabagh, because, were he to return to his home area in Afghanistan, voluntarily or otherwise, he would need to travel by road from Kabul and once home he would need to travel by road to regional centres, including Ghazni City, for work, medical treatment and supplies. 

35. As noted above, although the Hazara majority districts in Ghazni Province are currently secure, information indicates that Pashtun dominated districts are considered ‘highly insecure’, with an active Taliban presence and, more recently, an emerging presence of groups affiliated with the Islamic State or ISIS.[6] 

    [6]     See ‘Taliban fears over young recruits attracted to ISIS in Afghanistan’, The Guardian, 7 May 2015, available at

36. Moreover, the available information demonstrates that recently the Taliban have increased their activities in and around Ghazni, including in Qarabagh, and have carried out targeted attacks against civilians who worked with or for the government or foreign forces.[7] Indeed, in the past year, the Taliban and other Sunni insurgent groups have carried out numerous targeted attacks against police stations, military barracks, schools and organisations associated with international forces, foreign governments and international NGOs, in Pashtun dominated districts, including Qarabagh, Gilan and Moqor. The Taliban are reported to control most parts of those districts.[8]

    [7]     ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UNHCR, 6 August 2013, page 67-68. 

    [8]     See ‘The Taliban Resurgent: Threats to Afghanistan’s Security’, Institute for the Study of War, March 2015, available at ‘Insurgents kill 12 Afghan policemen in Uruzgan: official’, Dawn, 20 May 2015, available at ‘Taliban return to Afghan town that rose up and drove out its leaders: Insurgents now control about 80% of Gizab District in Uruzgan Province four years after successful revolt’, The Guardian, 28 October 2014, available at >

    Reports also indicate that travel along key roads throughout the Hazarajat, as well as between Kabul and Kandahar, is dangerous, as militant groups, including the Taliban, regularly set up checkpoints and have killed and harmed those who work for or support the Afghan government and international community, including Hazaras.[9] In recent years there have been regular reports of ambushes, robberies, kidnappings and killings by the Taliban and other groups along these roads, and the security of roads in the region has become volatile and increasingly dangerous. In March 2013 the director of the Ghazni Rural Support Programme advised the Tribunal that:[10]

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

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

    In such areas the Taliban insurgents have their checkpoints.  They stop all cars, and pull off the passengers … It implies that the Taliban have publicly announced that all those people who work with the Afghan government, the international forces, and with national and international NGOs are ‘enemy’ of the Islamic “Emirates”, and thus are to be targeted and prosecuted anywhere they are found/captured …

    The only roads that are secure are the roads inside Jaghori and other districts where the entire population of the district is Hazara.  But since people are totally dependent on procuring their daily needs, (including food and fuel) they need to travel to Ghazni city, to Kandahar and to other places outside their districts.  The same applies to students who have to travel to Kabul and Ghazni for taking exams and attending universities. Number of students have been killed and beheaded on their way to Kabul.  So even if inside Jaghori is secure it does not help the people, and does not make any difference on the safety of Hazaras.

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

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

1. In March 2014, DFAT advised that:[11]

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

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

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

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

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

   [11]    ‘Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan’, DFAT, 26 March 2014 at 4.22-25.

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

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

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

   With regard to what might happen in the foreseeable future in Afghanistan, the independent evidence before the Tribunal including from United Nations Secretary-General,[14] UNAMA,[15] the International Crisis Group,[16] the Institute for the Study of War, the Brookings Institute,[17] indicates a significant likelihood that, in the wake of the handover from international to Afghan security forces in late 2014, the Taliban will continue to increase their power and control over most parts of the country. 

   [14]    ‘The situation in Afghanistan and its implications for international peace and security: report of the Secretary-General’, UN General Assembly, 9 December 2014, available at    ‘Afghanistan Annual Report 2014: Protection of Civilians in Armed Conflict’, United Nations Assistance Mission in Afghanistan (UNAMA), 18 February 2015. 

   [16]    ‘Afghanistan’s political transition’, International Crisis Group, 16 October 2014, available at

   [17]    ‘Post-ISAF Afghanistan: The early months’, Brookings Institute, 6 May 2015, available at

3. It is clear that Afghanistan remains in a highly volatile and unpredictable phase, and that despite the international community’s efforts Afghanistan has not achieved durable peace and security. It appears likely that insurgent activity will increase in the reasonably foreseeable future, as the Taliban seek to expand their sphere of control. In light of the widely pessimistic outlook for Afghanistan’s security situation, the Tribunal considers it prudent to adopt a cautious approach in making predictions as to the relative safety for a person in the applicant’s situation. As the independent information demonstrates, areas once thought to be relatively free of Taliban influence may not necessarily be so in the reasonably foreseeable future. 

4. Assessing the risks to the applicant in such unstable and uncertain conditions is a difficult task. In the Tribunal’s view, the independent information supports the adoption of a sceptical view towards the proposition that the risk of harm to a person in his circumstances living in Qarabagh district and travelling to and from Ghazni city is remote, and will continue to be so in the reasonably foreseeable future.

5. As already noted above, even if he was able to travel from Kabul to Qarabagh without any harm – and the applicant will be unfamiliar with the practicalities of travel in Afghanistan, because except for two short periods of time after being deported from Iran to Afghanistan –the applicant has not lived in Afghanistan for 15 years – it is reasonable to assume that, from time to time, he would be required to travel to Ghazni City or, more rarely, to Kabul, to obtain supplies and access certain services, including medical treatment, or to seek employment; it would be unreasonable to expect that he could simply return to his home village and remain there for the reasonably foreseeable future. 

6. In these circumstances, the Tribunal is unable to make a confident finding that the chance of him suffering serious harm while residing in his home area or traveling on those roads is remote or far-fetched, or that it is based on mere speculation, and, accordingly, accepts there is a real chance he would suffer serious harm in, or travelling to and from, the Qarabagh district of Ghazni, in the reasonably foreseeable future.  

7. For the applicant to meet the refugee criterion, the Tribunal must be satisfied that there is a real chance he would be singled out for serious harm in a ‘systematic and discriminatory’ manner for the ‘essential and significant’ reason of one or more of the Convention grounds.

8. He has claimed that he is at risk of persecution because of his Hazara race and his Shi’a religion, as well as his membership of the particular social group of Hazara returnees who have lived in Australia, and that the Taliban or other armed Sunni group, would impute him with an adverse political opinion, based on his race and religion, and his long period of residence outside of Afghanistan. He has also claimed that the Taliban will target him because his brother fought for Hezb-e-Nahzat in the 1990s.

9. The Department’s March 2015 Country of Origin Information Service report summarises the differing views regarding the safety of road travel for Hazaras:[18]

   Most security concerns for Hazaras in the Hazara districts of Ghazni relate to travel outside the district, as most roads travel through Pashtun districts where insurgents are active. There are conflicting views among external sources consulted by the RRT on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. …

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

   On one view, the available information indicates that, for most of the past decade, the primary motivation of the Taliban and other armed militants in attacking people traveling on the roads between Kabul and Kandahar, and in and out of Ghazni, appears to be political, as it has mostly been targeted against persons connected to or associated with the Afghan government or international forces, or simply criminal, in that it involves robbery, extortion, kidnapping and ransom. 

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

10. However, the sources consulted by the Tribunal agree that the Taliban are predominantly Sunni and Pashtun, and that the Taliban and Pashtuns have a historical hatred of Hazaras based on ethnicity and religion.

11. Recent reports suggest that Hazaras have been targeted by groups affiliated with Islamic State or ISIS in Afghanistan, and the New York Times has reported that the Taliban are adopting a new campaign of brutality towards Hazaras in order to ‘compete’ with ISIS.  The report details the kidnapping and beheading of four Hazara farmers in Ajristan district and the murder of six Hazaras kidnapped from Daikundi Province.[19]

    [19]    ‘Taliban Are Said to Target Hazaras to Try to Match ISIS’ Brutality”, New York Times, 23 April 2015, available at

12. Also in September 2014, a dual Afghan-Australian citizen who came to Australia in 2000, Sayed Habib Musawi, was abducted and killed by the Taliban when he was on his way back to Kabul after visiting relatives in his village in the Jaghori district of Ghazni province.[20]  According to the most detailed report the minibus in which he was travelling was stopped by the Taliban in Larga, a village in the Muqur district, and one of the Taliban ordered him by name to get off the bus.  Another passenger heard one of the Taliban asking him, ‘Did you come from Australia?’  They found his wallet, which had an Australian flag design, and also his driver’s licence and Medicare card.  His body was subsequently found in the Qarabagh district.[21]  However, the Department’s recent Country of Origin Information Service report indicates he was killed in the Jaghori district.[22]  According to the most detailed Australian news report, his family believe that he was killed because he was an Australian citizen. The news report quotes Bashi Habib, the head of the security forces in Jaghori, as stating that the fact that Mr Musawi was an Australian citizen was reported to the Taliban by an informant in his area.

    [20]    ‘Sydney man killed by Taliban because he was Australian report’, The Sydney Morning Herald, 29 September 2014; ‘Son of Afghan-Australian killed by Taliban denied refugee status’, The Sydney Morning Herald, 29 September 2014.

    [21]    Abdul Karim Hekmat, ‘Hazaras face death on return to Afghanistan’, The Saturday Paper, 8 November 2014.

    [22]    ‘Programme summary of Afghan Bost Radio news in Pashto, 28 Sep 14’, BostNews (Bost Bastan), 28 September 2014, CX1B9ECAB7743; ‘Programme summary of Afghan Sharq TV news in Pashto, 28 Sep 14’, Sharq Magazine, 28 September 2014, CX1B9ECAB7744.

13. In this context, the Tribunal has also considered the following report by a Hazara academic describing how the Taliban operate in Ghazni:[23]

    The Taliban usually arrest people through their informants embedded in the Afghan community.  It is not so much the physical presence of the Taliban that threats people’s lives but the role of these informants.  The informants usually report a person, for instance, who may be working for the government or the ISAF or an NGO when travelling outside Jaghori, by passing specific information to the Taliban such as the kind of passenger car the person is travelling in, and what kind of clothes they wear.

    [23]    Abdul Karim Hekmat, Unsafe Haven: Hazaras in Afghanistan and Pakistan, Cosmopolitan Civil Societies Research Centre, UTS, Sydney, October 2011, p.19.

14. Despite the gains made by some Hazaras in recent years, there is little evidence to indicate that the entrenched enmity towards Hazaras by the Taliban and Pashtuns has diminished, such that Hazaras would not be at some risk of harm for reason of their ethnicity or religion under ascendant Taliban. More recent reports indicate that the Taliban and other armed insurgents, including groups affiliated with Islamic State or ISIS, have increasingly targeted Hazaras on the roads in and around Ghazni, and subjected them to serious harm. For example, the Department’s recent Country of Origin Information Service report includes a list of reported attacks on Hazaras on the roads in Afghanistan, including the following attacks in 2014 and 2015, most of which occurred in or near Ghazni. The top four reported incidents post-date the Department’s report and have been sourced by the Tribunal:[24]

    [24]    ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.54-57.

    ·6 July 2015 – the Taliban ‘slaughtered’ at least 22 Hazara policemen in the region of Jairez, about an hour west of Kabul.[25]

    [25] ‘Protests erupt after Taliban kill Afghan-Hazara police’, France 24, 9 July 2015, accessed at on 15 July 2015.

    ·14 or 15 April 2015 – according to reports 5 Hazaras were abducted in Ghazni as they were travelling out of their home district, and their headless bodies were found in Malestan district.[26]

    ·25 March 2015 – it was reported that 20 Hazaras were abducted by the Taliban in Daikundi Province.[27] However, According to the Afghan Analysts Network the BBC ‘found out’ that the  

    ·16 or 17 March 2015 – according to reports 6 Hazaras were abducted by armed masked men on the Herat-Farah highway in Farah province.[28]

    ·15 March 2015 - a bus was stopped travelling between Ghazni and Jaghouri. Ten Hazaras were abducted. After some hours nine were released with one continuing to be held at the time of writing. Unconfirmed reports believe the remaining captive worked for the government. Reports suggest that this was not an isolated incident.[29]

    ·23 February 2015 - masked men stopped two vehicles traveling on the highway near Zabul and identified and abducted 30 or 31 Hazaras. The armed men who carried out the abductions stopped the vehicles in which people were travelling and checked their identity cards before abducting the Hazara passengers.[30] The Hazaras were reported to be Afghan refugees returning from Iran. Different reports identified the abductors as possibly foreign and either members of the Taliban or ISIS. As of the time of publication, the men had not been found, although one Hazara escaped on 25 February. Reports suggest that traffic on the highway from Kabul to Kandahar decreased by a half as a result of this and other incidents.[31]

    ·20 January 2015 – 8 or 9 Hazaras were killed in Gilan district in Ghazni when their van was exploded by a remote controlled bomb. The Hazaras were travelling from Kabul to Jaghori district.  The pro-Hazara source Kabul Press claimed that ‘These victims were civilians who were going from Kabul to Jaghori, did not work for any government offices and did not have any connection with any of Afghanistan’s political parties’, though other sources do not give such details about the victims.

    ·20 September 2014 - Australian-Afghan Sayed Habib Musawi, a Hazara from Jaghori district in Ghazni, was reportedly killed by the Taliban while travelling from Kabul to his home district of Jaghori. He was reportedly killed as he was an Australian, but the fact that he was also a Hazara may have been relevant.

    ·16 September 2014 - Zainullah Naseri, a Hazara from Jaghori district in Ghazni, was reportedly abducted and tortured by the Taliban for two days in Ghazni province after being deported from Australia.  He escaped to Jaghori then returned to Kabul.  DFAT was unable to confirm the report.

    ·25 July 2014 - suspected Taliban fighters halted two minibuses in Lal-o-Sar Jangal district in the western province of Ghor, identified 14 Shia Hazara passengers, including three women and a child, bound their hands, then shot them dead by the side of the road. 

    ·28 June 2014 - the Taliban killed (Hazara sources say ‘beheaded’) between 14 and 17 people, usually described as policemen or ex-policemen, in Gizab district of Uruzgan Province. This incident was little reported and reports do not give much detail. According to Hazara sources, the victims were Hazaras, mostly students and workers, though other sources do not mention their ethnicity.  Other information tends to support the assertion that the victims were Hazaras: Hazaras comprised a disproportionately large part of the police force in Uruzgan and particularly in Gizab, according to a 2010 NGO report on Uruzgan, and one of the reports mentions that one of the victims was the nephew of Governor Amanollah Timuri who is elsewhere reported to be a Hazara.

    [26]    ‘Five abducted Hazaras beheaded in Afghanistan: officials,’ The Express Tribune (Pakistan), 17 April 2-15, available at The original source is not in English. A reference to this reported abduction appeared in an article claiming that the abductees were released unharmed and they were not Hazaras: Suroush, Q 2015, ‘Hazaras in the Crosshairs? A scrutiny of recent incidents’, Afghanistan Analysts Network, 24 April < Accessed 18 June 2015 <CXBD6A0DE5323> (see below at paragraph 51).

    [28]    ‘Another 6 Hazara Passengers Abducted’, The Daily (Afghanistan), 18 March 2015.

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

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

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

Some of the country information challenges the view that Hazaras are specifically targeted. In May 2015 it was reported that on 11 May 2015, 19 of the 31 Hazaras kidnapped in February 2015 were released in exchange for militants fighting for the Islamic Movement of Uzbekistan, and that the other Hazaras would be released as well.[32]

[32] ‘Afghanistan Hazara kidnapped passengers released’, British Broadcasting Corporation (BBC), 11 May < Accessed 17 June 2015 <CXBD6A0DE6468>.

1. The Afghanistan Analysts Network (AAN) in an online article published in April 2015 challenges the view that Hazaras are being targeted. The AAN analysed 8 recent incidents, from the 23 February 2015 kidnappings in Zabul to the alleged beheadings in Ghazni in April 2015:[33]

   On 15 March 2015, another ‘Hazara kidnapping’ was reported … Taleban stopped a car coming from Jaghori district .and took ten passengers, all of whom were Hazaras. However, they released them only hours later, after the Taleban had interrogated the travellers and warned the women to wear “proper Islamic attire”, meaning burqas rather than the large headscarves or chadors favoured by many Hazara women. This kind of road block is common across the country, including in insecure Qarabagh district where there is little Afghan National Army (ANA) presence. With both districts having large Hazara communities, chances are that Hazaras will often face such incidents, but such road blocks also hit the local Pashtun population.

   …

   On 17 March 2015, another ‘Hazara kidnapping’ was reported, this time from Farah province. …[A]ccording to Farah governor Asef Nang there had not been a kidnapping of Hazaras; rather, he said Afghan soldiers “went missing” on the way from Farah to Herat province…It also remains unclear how many of the potential victims were Hazara, with local media reporting, for example, four out of the six being Hazara…. It seems likely that if the six had indeed been abducted, insurgents took them because they were soldiers. AAN, talking to locals and security officials, could not find evidence for this incident being specifically Hazara-related.

   …

   …[O]n 25 March 2015, Afghan media reported another ‘Hazara kidnapping’, with the Taleban abducting “20 Hazaras” in Daikundi province as they travelled from Kandahar. On the same day, the Taleban rejected the report and said that they had only stopped the vehicle, not detaining anyone, because of the ongoing fighting between them and ANSF in the area and would allow the travellers to pass as soon as the area was safe. They did so on 28 March 2015.

   At this point, the BBC also found out that the travellers who had been affected, had not been Hazaras, but rather (Shia) Baloch.
   …

   Finally, the most recent ‘crime against Hazaras’ was reported on 14 April 2015 in Ajrestan district of Ghazni province … Four Hazaras (from Malestan district) were kidnapped and, soon after, killed. AAN spoke to local Hazaras in Malestan who said they were at a loss as to why such a thing had happened, “We have not had tensions between Pashtuns and Hazaras here in 25 years,” they said. Here too, the perpetrators appear to have had goals other than ethnically-motivated ones. Ghazni’s deputy governor, Muhammad Ali Ahmadi, told Deutsche Welle that the Taleban had taken the four as leverage in an attempt to negotiate the release from jail of their commander and his men, who had been arrested the day before in Jaghori district. The Taleban released a statement condemning the killing and rejecting any involvement, though. They blamed “Kabul’s spies,” meaning the NDS [National Directorate of Security], of trying to “cause ethnic and sectarian violence.”

   [33] Suroush, Q 2015, ‘Hazaras in the Crosshairs? A scrutiny of recent incidents’, Afghanistan Analysts Network, 24 April < Accessed 18 June 2015 <CXBD6A0DE5323> 

2. The AAN article draws the following conclusions:

   …[T]he reaction to the reporting – and sometimes the reporting itself – clearly shows that Hazaras feel very vulnerable. Hazaras generally live in areas where traveling means navigating passes through high, otherwise impassable mountains and through areas where other groups predominate. Hazaras are easily identifiable and, although there are some Sunni and Ismaili Hazaras, the group is largely perceived as Shia. Afghanistan has experienced ethnic-based bloodshed in the past during the war, with Hazaras as both victims and perpetrators – although sectarianism of the kind seen in Pakistan, Iraq and now Syria has been rare. Nevertheless, there is a  fear that insurgents and other groups might change tactics.

   The reasoning sounds like this: The Taleban, although currently presenting themselves as a national movement for all Afghans regardless of sect or ethnicity, are largely made up of Sunni Pashtun mullahs. Also, this year has seen an increase in foreign fighters moving into Afghanistan after Pakistani operations drove them out of their stronghold in North Waziristan last summer. These fighters tend to be more vicious and more reckless than the Taleban (it is not their country, after all) and potentially more sectarian-minded. The savagely sectarian Islamic State might also gain ground in the country…. Moreover, other countries in the region with previously harmonious intra-ethnic and intra-sect relations (such as Syria and Yemen) have recently descended into bloody, sectarian chaos.

   The recent trend of reporting kidnappings as aimed at Hazaras , for the moment, appears to say less about the actual dynamics and trends within the insurgency (or among criminal elements), but a great deal about how vulnerable Hazaras feel about their safety.

3. Despite the sceptical, or cautious, views advocated by AAN, the Tribunal notes that the number of reported incidents is quite large and that the most benign interpretation of the current situation is that the Taliban (and other groups such as Islamic Movement of Uzbekistan) set up roadblocks, and kidnap and kill people with complete impunity. Furthermore, none of the incidents covered by AAN involved criminal activities motivated by profit. Rather, extremists are targeting persons associated with the Afghan government or kidnapping people to secure the release of extremists in the custody of the government.

4. In addition, in the applicant’s individual circumstances, the Tribunal considers it prudent to accept the possibility that it would be known in his home area (1) that the applicant’s brother was involved with an armed Hazara group called Hezb-e-Nahzat; and (2) that the applicant had lived in Australia for a number of years since he left Afghanistan – even though he mostly lived in Pakistan between 2000 and 2012, both of which would elevate the risks he faces.

5. Having carefully considered the information and evidence before it, the Tribunal is unable to dismiss the contention that Hazaras have, in the recent past, been subjected to serious harm in various Afghan provinces, because of their race, religion and imputed political opinion.[34] In the Tribunal’s view, even if the main focus of Taliban activity has been directed against perceived supporters or associates of the Afghan national government or the international forces, Hazaras are nevertheless differentially at increased risk if they come to the attention of the Taliban in the course of such activity, particularly Hazaras such as the applicant who are perceived to be associated with the government and the West.[35]

   [34]    See ‘On the Returns of Hazaras to Afghanistan’, Professor William Maley AM, FASSA Professor of Diplomacy Australian National University, 16 February 2015; ‘On the position of the Hazara Minority in Afghanistan’, 7 December 2011; ‘Afghanistan: Situation in Ghazni Province - views of Member of Parliament’, DFAT, 15 July, 2010; ‘Failure of Security Transition?’, Kabul Perspective, 15 August 2012, available at

   [35]    ‘Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan’, DFAT, 26 March 2014 at 3.40; ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015; Foschini, F, The Social Wandering of the Afghan Kuchis, Afghanistan Analysts Network, 1 November 2013, p.19 available at

6. Given the evidence about the historic enmity towards Hazaras in Afghanistan, and the current targeting of Hazaras in Afghanistan for reasons of their religion and ethnicity by Sunni fundamentalist groups linked with the Taliban,[36] the Tribunal considers the weight of recent independent information indicates that, in his individual circumstances as a clearly identifiable Hazara Shi’a Muslim, there is a real chance the applicant would be singled out for harm by the Taliban or some other Sunni insurgent group either in his home area or while travelling on the roads surrounding Qarabagh in the reasonably foreseeable future for the essential and significant reasons of his race, religion and imputed political opinion.

   [36]    ‘Pakistan: Targeting Hazaras – Analysis’, Eurasia Review, (source: South Asia Terrorism Portal), 29 April 2013, available at ‘Pakistan: Authorities must do more to protect Hazara community from deadly attacks’, Amnesty International, 18 February 2013, available at protection

7. It is clear from the country information set out above and from the DFAT assessment in particular, that the government is unable to exercise effective control over parts of the country and it lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators.

8. DFAT has recently advised that[37]

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

   [37]    ‘Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan’, DFAT, 26 March 2014 at 5.1-5.4. 

9. In its most recent ‘Eligibility Guidelines’, UNHCR notes that state protection in Afghanistan is compromised by ‘high levels of corruption, ineffective governance, a climate of impunity, lack of official impetus for the transitional justice process, weak rule of law and widespread reliance on traditional dispute resolution mechanisms that do not comply with due process standards’.[38] 

   [38]    ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UNHCR, 6 August 2013 at 23-25. 

10. On the basis of its comprehensive assessment of the available sources at that time, it was UNHCR’s recommendation that, ‘to the extent that the harm feared is from non-State actors, State protection is on the whole not available in Afghanistan’. There is nothing in the information before the Tribunal to indicate or suggest that there has been any improvement in the underlying conditions that caused UNHCR to form that view in mid-2013. 

11. Indeed, in view of the prevailing unstable security situation in Afghanistan and the potential for further deterioration in the context of the draw-down of international forces, the Tribunal finds that the applicant would be unable to access state protection, in accordance with the principles in MIMA v Respondents S152/2003, from the serious harm he faces from the Taliban and other armed militants.

    Relocation

12. Having found that the applicant faces a real chance of serious harm for reasons of his imputed political opinion if he returns to his home area, the Tribunal then considered relocation to another part of Afghanistan. The ‘internal relocation principle’[39] was accepted by the Full Federal Court in 1994 in Randhawa v MILGEA on the basis that ‘[t]he 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’.[40] The Chief Justice reasoned that:

    If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.[41]

    [39] Also known as the ‘internal flight alternative’ and ‘internal protection alternative’.

    [40] Randhawa v MILGEA (1994) 52 FCR 437 at 440-1.

    [41] (1994) 52 FCR 437 at 441.

13. The High Court has confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[42] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[43]  Therefore, in determining whether an applicant is a person in respect of whom Australia has protection obligations, it may be necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country, free of the risk of persecution.

    [42] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.

    [43] MIBP v SZSCA (2014) 314 ALR 514.

14. In the applicant’s circumstances Kabul is the only realistic option, particularly as reports indicate that there is an increasingly large community of Hazaras in Kabul,[44] with relatively few reported incidents of Hazaras being targeted in the capital. 

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

15. Reports on the economic situation for Hazaras in Kabul are mixed. The Department’s March 2015 Country of Origin Information Service report provides a helpful presentation of a range of views and analyses.  Most commentators appear to agree that the overall socio-economic situation for Hazaras in Afghanistan has improved significantly, and that many Hazaras have been able ‘embrace and create’ work and business opportunities in Kabul. 

16. However, it is also reported that the experiences of individual Hazaras differ greatly, and that not all Hazaras have benefited from the increased economic opportunities, that patronage and connections are still a critical element in a person’s survival, and that the Hazaras are still described as amongst the poorest communities in Afghanistan, with an ‘underclass’ of Hazaras present in Kabul.  UNHCR has reported of the widespread unemployment in Kabul that limits the ability of a large number of people to meet their basic needs.  DFAT has also referred to unemployment being widespread in Kabul and underemployment common, with some reports indicating that more than one third of Kabul’s residents are unemployed and another 36% earn less than $1 a day, with most having little access to clean water and sanitation, adequate housing, health services or education. 

17. UNHCR Guidelines and the recent DFAT ‘Thematic Report: Conditions in Kabul’, advise that traditional extended family and tribal community structures are fundamentally important for successful relocation.[45]  Both DFAT and UNHCR stress that internally displaced Afghans rely on these networks for their safety and economic survival, including 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 exacerbated by Kabul’s relatively high cost of living, particularly the cost of housing.  Returnees generally have lower household incomes and higher rates of unemployment than established community members.  Although DFAT assesses that men of working age are more likely to be able to return and reintegrate successfully, UNHCR has highlighted the importance of employment skills.  While DFAT has stated that internal relocation to urban areas is more likely to be successful for single men of working age, and that the Danish Refugee Council has suggested that Hazaras relocating from the Hazarajat can and do access support and assistance from a large community support network, as noted above, other reports indicate that accessing that support is dependent on having a contact point from an existing network, which usually comes from the person’s village or tribe, which the applicant does not have.   

    [45]    ‘Thematic Report: Conditions in Kabul’, DFAT, 3 October 2014, at p 5-7; ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UNHCR, 6 August 2013, p 72-75.  See also Majidi, N., ‘Urban Returnees and Internally Displaced Persons in Afghanistan’, Middle East Institute & Foundation pour la. Recherche Strategique, 25 January 2011, available at afghanistan/pdf/01_majidi.pdf; Saito, Mamiko, Searching For My Homeland: Dilemmas Between Borders, Experiences of Young Afghans Returning “Home” From Pakistan and Iran, AREU Synthesis Paper Series, July 2009, available at org.af/index.php?option=com_docman&Itemid=&task=doc_download&gid=686

18. In addition, even though reports indicate that Kabul is safer than other parts of the country, there is evidence of a number of insurgent attacks against government institutions, political figures and Afghan National Security Forces, as well as other security services and international organisations, they have often involved significant civilian casualties.[46] 

    [46]    See ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015; ‘Afghanistan Annual Report 2014: Protection of Civilians in Armed Conflict’, United Nations Assistance Mission in Afghanistan (UNAMA), 18 February 2015; ‘Thematic Report: Conditions in Kabul’, DFAT, 3 October 2014. 

19. According to a United Nations Assistance Mission in Afghanistan report, there was an overall increase of 22% in civilian casualties in Kabul in 2014 compared to 2013.  In late 2014, the Washington Post referred to a recent report of the IHS Jane’s Terrorism and Insurgency Center that there had been over 80 reported insurgent attacks in Kabul in 2014, and quoted a respected Afghan journalist, who lived in the capital, that Kabul ‘city is now the front line of the war’.[47] 

    [47]    ‘Taliban brings war to Afghan capital, Washington Post, 29 November 2014, available at at >

    Though this is not sufficient in itself to establish a real chance that the applicant would face serious harm in Kabul, the existence of these attacks and the danger that the applicant may be caught up in them, contributes to the unreasonableness of relocation. Further, in the Tribunal’s view, the available information indicates that it is reasonable to anticipate the possibility that increased levels of insecurity and instability throughout the country will cause further large-scale displacements, with Kabul receiving increasing numbers of new residents, placing further pressure on the city’s already over-stretched infrastructure. 

20. The Norwegian Refugee Council Report: Still at Risk: Security of tenure and the forced eviction of IDPs and refugee returnees in urban Afghanistan, February 2014, found the following:[48]

    The arrival of large numbers of IDPs and refugee returnees in Afghanistan’s cities presents the government and the international community with both a protection and an urban development challenge. Informal settlements in Afghanistan can make up entire neighbourhoods. Some are now several decades old. Informal settlements are frequently characterised by insecure tenure, poor sanitation, lack of safe drinking water, high vulnerability to disasters and lack of investment in services and infrastructure.

    Indeed, three quarters of Afghans affected by conflict have faced some form of displacement and in cities such as Kabul most of the urban poor have been IDP s or refugees at some point in their lives. Poverty, informality and marginalisation are a reality for the majority of urban dwellers in Afghanistan and much of the wider urban poor lack access to adequate housing and secure tenure.

    [48] ‘Still at Risk: Security of tenure and the forced eviction of IDPs and refugee returnees in urban Afghanistan’, Norwegian Refugee Council, February 2014, accessed 8 July 2015 at

1. The Oxford Refugee Studies Centre report entitled Afghanistan Afghanistan’s  Displaced People: 2014 and Beyond, found the following:[49]

   Return not as successful and sustainable as hoped: Though it is unclear exactly how many Afghans have returned home (some more than once) since 2001, 5.7 million is a recent estimate.1 Added to this are the 2.7 million who are still in Pakistan and Iran, and who are unlikely to return home unless there is a strong forced incentive from the host countries, namely deportation. But return has been unsustainable for many, if not a majority, due to the struggle to obtain a place to live and make a living, let alone access basic services and enjoy security and protection. Many returnees already live in secondary displacement.

   Added demographic stress: With its exceptionally high birthrate (2.4%), fghanistan’s population is predicted to exceed 40 million by 2030, with ever greater competition for resources such as land, services and employment in a country that already struggles to provide for the current population of around 28 million. More stresses and vulnerabilities are likely to produce displacement and, with a larger population, any future displacement will mean larger numbers of refugees and IDPs.

   Insecurity as a key driver of displacement: The recent sharp increase in violence in Afghanistan does not inspire much confidence that the push factors will be resolved any time soon. Security incidents and the killing of civilians have been steadily on the rise over the last few years, and the trend is already continuing into 2014. Civilian casualties, however, only tell us part of the story, and should be considered along with the increase in threats, intimidation and human rights violations, the rise in instances of impunity, and the lack of protection provided by the Afghan government and its security forces.

   [49] The Oxford Refugee Studies Centre, Forced Migration Review, Issue 46, May 2014, accessed 29 May 2015 at:

   >

   In the Tribunal’s view, when considered in the context of the overall pessimistic outlook for Afghanistan’s foreseeable future,[50] the general insecurity, the widespread unemployment in Kabul, its general high costs of living, poor general living conditions for IDPs, the evidence that the applicant has no family or relatives or known tribal or clan ties in Kabul, that he is the primary breadwinner for his [family] (he, his wife and [children]), he has been outside the country for about 15 years, with limited financial means and employment-related skills, gives the Tribunal little confidence in finding that, as a matter of practical reality, it would be reasonable to expect him[51] to relocate to Kabul, and, accordingly, finds that relocation is not a reasonable option for the applicant. 

   [50]    See ‘Post-ISAF Afghanistan: The early months’, Brookings Institute, 6 May 2015; ‘The situation in Afghanistan and its implications for international peace and security: report of the Secretary-General’, UN General Assembly, 9 December 2014; ‘The Taliban Resurgent: Threats to Afghanistan’s Security’, Institute for the Study of War, March 2015; ‘Afghanistan’s political transition’, International Crisis Group, 16 October 2014.

   [51]    See SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.

   CONCLUSION

2. For the above reasons, the Tribunal is satisfied that the applicant has a well-founded fear of being persecuted by non-state actors, from which the state would not be able to protect him, if he returned to Afghanistan now or in the foreseeable future, and that, in the circumstances, it would not be safe or reasonable for him to relocate to another part of the country. 

3. The Tribunal considers that the persecution which the applicant is at risk of suffering involves ‘serious harm’ as required by s.91R(1)(b) of the Act, in that it involves significant physical harassment or ill-treatment. The Tribunal finds that the applicant’s race, religion and imputed political opinion, are the essential and significant reasons for his fear of persecution as required by s.91R(1)(a). 

4. The Tribunal is satisfied that the persecution he is at risk of suffering involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason. 

5. As the Tribunal has found the applicant faces a well-founded fear of persecution by the Taliban, or other Sunni extremists, now or in the reasonably foreseeable future in Afghanistan for Convention reasons, it is not necessary for the Tribunal to consider whether the applicant meets the criteria for complementary protection.

6. The Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations and that he satisfies the criterion set out in s.36(2)(a) for a Protection visa.

   DECISION

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

   Filip Gelev
   Member