1313821 (Refugee)

[2016] AATA 3239

1313821 (Refugee) [2016] AATA 3239 (7 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1313821

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Shahyar Roushan

DATE:7 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 January 2016 at 2:42pm

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 is a national of Afghanistan, a Shia Muslim and of Hazara ethnicity. He is [age] years old. He arrived in Australia by boat [in] July 2012. He applied for the visa [in] November 2012. The applicant fears the Taliban who are actively pursuing those who fought against them as well as members of their families. He also fears being harmed by the Taliban for reasons of his race and religion.

3. The applicant essentially claims that his father was a former Hezbi Wahdat fighter. In March 2012, armed Taliban men shot the applicant’s father and kidnapped his brother, who remains missing.

4. The issues in this case are whether the applicant has a well-founded fear of persecution 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 him being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Relevant Law

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

9. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to the DFAT Country Report - Afghanistan (published on 26 March 2014); DFAT Country Report - Afghanistan (published on 18 September 2015); the DFAT Thematic Report - Hazaras in Afghanistan and Pakistan (published on 26 March 2014); the DFAT Thematic Report - Condition in Kabul (published on 3 October 2014); and DFAT Thematic Report - Condition in Kabul (published on 18 September 2015).

   Claims before the Department

   Protection Visa Application

10. In a statutory declaration attached to his application for a protection visa the applicant made the following claims.

11. He was born in [year] in [his home] Village, [District 1], Parwan Province Afghanistan.

12. In 1992 when the Mujahideen came to power his father joined the Hezbi Wahdat armed group which was a part of the Mujahideen. At that time Hezbi Wahdat fought against Hezbi Jam-e-at, another armed group led by Borhanidin Rabbani who was attempting to take control of Afghanistan. Also at that time Afghanistan witnessed the emergence of the Taliban. Some time at the end of 1994 Hezbi Wahdat was defeated by the Hezbi Jam-e-at and the Taliban.

13. Towards the end of the conflict when Hezbi Wahdat was on the verge of defeat, the applicant’s father fled to [the applicant’s home village]. After a while Hezbi Wahdat regrouped in Bamiyan and fought against ‘the enemy’. Hezbi Wahdat then merged with Hezbi Jam-e-at and fought against the Taliban for a short period of time until they were defeated and the Taliban came to power some time in 1996.

14. At some point in 1997 the applicant and his family fled to Pakistan illegally via the Torkham border as his father feared the Taliban would seek revenge and kill the entire family if they remained in Afghanistan. The family remained in Pakistan until 2002 when they returned to Afghanistan following the Taliban’s defeat.

15. While initially the situation appeared to have improved, gradually the Taliban’s presence in the area he was residing in increased. This resulted in the roads becoming dangerous for Hazaras and Shias and some roads were not accessible. The Taliban continue to specifically target Hazaras and Shias for reason of race and religion.

16. Sometime in March 2012 two armed men whose faces were covered and who were armed came to their farmland while he, his father and his brother, [named], were working on the farm. The armed men kidnapped his father and his brother. The applicant was some distance away and ran away when he saw what happened. He managed to hide behind a house nearby and was able to see what was happening at a distance. He saw his father resisting his abductors near the parked car. At that moment one of the abductors shot and killed his father. The abductors then drove away with his brother who remains missing. After this incident he fled to his maternal uncle's house in the Mazar-e Sharif. Thereafter he fled Afghanistan as he believed his life was in danger.

17. The applicant believes that his father was killed by members of the Taliban for having fought against them when he was a member of the Hezbi Wahdat. The Taliban have become stronger than ever before and are actively pursuing those who fought against them as well as members of their families. He believes he would be killed by the Taliban as his father fought against the Taliban in the past.

18. As a Hazara and a Shia he believes he is at risk of being harmed by the Taliban for reasons of his race and religion. He believes the government would not protect him, as the Taliban are strong and are able to strike at will. He does not own land outside of his village in Parwan Province and it is not possible to relocate as the whole of Afghanistan is unsafe for him at the present time as he believe the Taliban would seek revenge as his father was a Hezbi Wahdat fighter. He does not have close family members outside of [his home] Village at the present time.

    Protection Visa Interview

19. The applicant was interviewed by a delegate of the Minister [in] May 2013. Where relevant the applicant’s oral evidence to the delegate is discussed below.

    The Delegate’s Decision

20. The delegate refused to grant the visa [in] September 2013. The delegate accepted that the applicant is a Shia Hazara and that he had resided in Parwan province since 2002. She accepts that the applicant’s father was a Hezbi Wahdat fighter in the mid-1990s and that the applicant’s father and brother were taken by the Taliban in March 2012. The delegate found that there is a real chance that the applicant would be seriously harmed by the Taliban on account of his imputed political opinion if he were to return to his home district of [District 1] in Parwan. However, the delegate found that the applicant can reasonably be expected to relocate to Mazar-e Sharif.

    Application for Review

21. The applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

    The Hearing

22. The applicant appeared before the Tribunal on 23 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

    Submissions

23. The applicant’s representatives provided the Tribunal with two detailed submissions, dated 13 March 2014 and 18 May 2015, respectively. Following the hearing, the applicant’s representative provided a further submission addressing the issues raised with the applicant at the hearing. The relevant aspects of these submissions have been discussed below.

    Analysis, Reasons and Findings

24. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

25. The Tribunal found the applicant’s oral evidence at the hearing consistent with his written claims and oral evidence to the delegate. His account of his experiences was straightforward and persuasive. The Tribunal found him to be a truthful and credible witness.

    [District 1], Parwan

26. The Tribunal accepts that the applicant’s father was a former Hezbi Wahdat fighter. The Tribunal accepts that in March 2012, armed Taliban men shot the applicant’s father and kidnapped his brother, who remains missing. The Tribunal accepts that the applicant’s father was killed by members of the Taliban for having fought against them when he was a member of the Hezbi Wahdat.

27. [Deleted.][1] [Deleted.][2]

    [1] [Deleted.]

    [2] [Deleted.]

28. [Deleted.][3] [Deleted.][4] [Deleted.][5] According to The Long War Journal, the Taliban, Haqqani Network, Islamic Movement of Uzbekistan, Hizb-i-Islam Gulbuddin, and al Qaeda all continue to operate in Parwan province.[6] Between June and August 2014, multiple Afghan news sources claimed that insecurity had increased in Parwan compared to earlier months.[7] [Deleted.][8]

    [3] [Deleted.]

    [4] [Deleted.] 

    [5] [Deleted.] 

    [6] Roggio, B 2014, ‘Suicide bomber kills 4 ISAF troops, 12 Afghans in Parwan’, The Long War Journal, 8 July, CX1B9ECAB8499.

    [7] Tanha, F 2014, ‘Gunmen’s presence worries Parwan residents’, Rawa News, 28 June, Abrahimkhil, S 2014, ‘Rising Insecurities in Parwan’, Tolo News, 6 August, CX1B9ECAB8502. 

    [8] [Deleted.]

29. On the basis of the above country information, as well the applicant’s father’s history and experiences in the pasts as a Hezbi Wahdat fighter, the Tribunal is satisfied that, if the applicant were to return to his home area in Parwan, there is a real chance that he would face serious harm at the hands of the Taliban, including threats to his life or liberty and significant physical harassment and ill-treatment. The Tribunal finds that the harm the applicant would be subjected to involves ‘serious harm’ as required by paragraph 91R(1)(b) of the Act. The Tribunal is satisfied that the harm faced by the applicant would be for the reasons of his imputed political opinion, race and religion.

    Relocation

30. The Tribunal has considered whether it would be reasonable for the applicant to relocate to an area of Afghanistan, such as Mazar-e Sharif, where there would not be a real chance that he will suffer serious harm.

31. While pockets of insecurity existed between April and June 2015 in the western districts of Balkh province, in 2015, Balkh province and its capital Mazar-e-Sharif were reported to be among the most secure areas in Afghanistan and to be flourishing economically.[9]  DFAT assesses that the Government of Afghanistan maintains effective control in Mazar-e-Sharif.[10] More recent reports also suggest that the government continues to maintain security around Mazar-e Sharif.[11]

    [9] See European Asylum Support Office 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, CISEC96CF1191, pages 135-139; Kenneth Katzman 2015, ‘Afghanistan: Politics, Elections, and Government Performance’, US Congressional Research Service, 12 January, CISEC96CF1188, page 16; Michael E O’Hanlon 2015, ‘How Not to Squander Hard-Won Gains in Afghanistan’, Wall Street Journal, 5 February, CX1B9ECAB9629; Sreeram Chaulia 2015, ‘Happy news from Afghanistan’, The Asian Age, 10 March, CXBD6A0DE2609.

    [10] See the DFAT Country Report – Afghanistan 2014, 26 March, paragraphs 2.28, 3.14 and 5.2.

    [11] Insecurity may grip several Balkh districts’ 2015, The Frontier Post, 10 June, "The 2015 Insurgency in the North (3): The fall and recapture of Kunduz" 2015, Afghanistan Analysts Network, 16 October, (Opens in a new window), CXBD6A0DE14835.

32. At the hearing, the applicant was asked why he would be unable to relocate to Mazar-e Sharif. He stated that there has been tit for tat violence and revenge killings in Mazar-e Sharif in the past. When the Taliban took power in Mazar-e Sharif, they massacred the Hazaras. Then Hazaras with NATO support retook Mazar-e Sharif and killed the Taliban in the same way. This type of ethnic revenge has happened in the past and will happen in the future.

33. In her submission of 15 July 2015, the applicant’s representative referred to the 2012 report from Danish Immigration Service’s fact finding mission to Kabul, in which it was stated that when it comes to low profile people, it has not been the a priority for the Taliban to track them down. While the Taliban targeted low profile people in the past, in 2011 and 2012 it has been a priority for the Taliban to go after high profile targets in Kabul’. It was submitted that it is entirely plausible that the applicant’s persecutors have a particular issue with the applicant and his patrilineal kin (including his missing brother) that is more personalised. It was submitted that the applicant’s family have already been targeted by the Taliban and therefore have some profile as enemies of the Taliban and of particular Taliban members. The submission referred to the Danish report, which cited various sources in relation to whether it is possible to track a person down in Kabul. One source stated that if someone is fleeing a conflict in his or her area of origin, it depends on the seriousness of the conflict whether he or she will be tracked down in Kabul. Another source stated that if someone flees a conflict and moves to Kabul, it will be quite difficult to find him. And yet another source claimed that it is possible to trace down a person in Kabul if one has the exact address of that person. The submission stated that that there is no uniformity of opinion on the question of whether one can be traced in a big city like Kabul or Mazar-e Sharif. It was submitted, nevertheless, that the applicant’s persecutors really want to find him and that it would be possible for the Taliban to find the applicant in Kabul, particularly due to its proximity to Parwan and the presence of people from Parwan in Kabul. The submission went on to state that there is insufficient evidence before the Tribunal to suggest that the applicant is not at risk of Taliban revenge in Kabul or Mazar-e Sharif, given the Taliban’s freedom of movement and ‘operation in these cities’. In the Tribunal's view, however, the sources referred to by the applicant’s representative appear to suggest relocation to a big populous city may prevent a person being tracked by the Taliban. Alternatively, whether he or she will be tracked down in ‘Kabul’ depends on the seriousness of conflict the person was fleeing from.

34. In her submission of 15 July 2015, the applicant’s representative submitted that the Taliban follow those internally displaced to Mazar-e Sharif to seek revenge. She referred to a report, dated 9 July 2015, in which a former soldier from Kunduz Province is quoted, saying ‘I fled because they would have killed me. [But] to seek revenge the Taliban even come here’. According to the report, the soldier raised the example of another soldier from Kunduz whose family was gunned down in a makeshift camp in Mazar-e Sharif. The report does not provide any other information in relation to the circumstances of the soldier’s family or why exactly they were killed. The Tribunal has come across no other persuasive evidence to suggest that such incidents are common.

35. The Tribunal has accepted that the applicant’s father was killed and his brother was kidnapped in 2012. This incident happened in the applicant’s village, where he and his family also resided before they fled to Pakistan in 1997. The applicant’s father was associated with the Hezbi Wahdat in that area and it is not surprising that the Taliban had been able to find and harm him. From a certain perspective, the Taliban’s desire to exact revenge might have been fulfilled by killing the applicant’s father and abducting his brother. While the Tribunal appreciates that the applicant’s wife and children are fearful of the Taliban in Kabul, there is nothing in the applicant’s evidence to suggest that there have any signs that anyone has been actively looking for and pursuing him. In any event, the Tribunal is of the view that if the applicant were to return to Afghanistan and relocate to Mazar-e Sharif, a considerable distance from his home area in Parwan, after a three year absence from Afghanistan, there is only a remote chance that he would be traced, found or harmed in Mazar-e Sharif by the Taliban or any individual who might have targeted his father.

36. In her submission of 13 March 2014, the applicant’s representative referred to an interview conducted by her on the same day with Farid Mutaqi, a former employee of the Afghanistan Independent Human Rights Commission, in which Mr Mutaqi referred to the ongoing dominance of the Governor of Balkh, Atta Muhammad Nur, over the political landscape in Mazar-e Sharif and the activities of Mujahedeen networks of other ethnicities. Mr Mutaqi’s comments appear to have been in the context of the then upcoming presidential elections and divided loyalties in Balkh. The submission also referred to a news report from September 2013 in relation to the concerns of Balkh residents in relation to ‘the activity of illegal armed groups and other armed elements apart from Taliban’.

1. In her submission of 15 July 2015, the applicant’s representative stated that the applicant, as the son of a former Hezbi Wahdat combatant, may be put under pressure to join the recently emerging Hazara-dominated militia, such as Margh, organising in the shadow of Islamic State in the north. The applicant would be at risk of forced recruitment by former mujahedeen fighters. The Tribunal has found no information in any of the sources consulted, including sources referred to by the applicant’s representative in her submissions, that Shia Hazara men in Mazar-e Sharif are being forcefully recruited by Hazara-dominated militia. There is no persuasive evidence before the Tribunal to suggest that divided political loyalties and power struggles that were particularly manifest around and in the aftermath of the 2014 presidential elections resulted or would result in Shia Hazaras in Mazar-e Sharif, regardless of their political opinion, being targeted by any group or individual. The Tribunal is not satisfied that the applicant faces a real chance of being seriously harmed in Mazar-e Sharif for the reason of his imputed political opinion or membership of his father’s family. The Tribunal is not satisfied that there is a real chance that the applicant would be forcefully recruited by Hazara- dominated militia in Mazar-e Sharif. The evidence submitted by the applicant’s representative does not suggest and the Tribunal has found no information in other sources to satisfy it that the applicant faces a real chance of being persecuted by ‘illegal armed groups’ if he were to relocate to and reside in Mazar-e Sharif.

2. In her submission of 13 March 2014, the applicant's representative referred to the risk of ‘Convention-based’ harm to Hazaras and Shias in Kabul and ‘throughout Afghanistan’. She referred to an Eid message by Gulbuddin Hekmatyar, delivered in July 2013, containing claims about the level of control Hazaras have in government and making threats against the Hazara minority. In her submission of 15 July 2015, the applicant’s representative referred extensively to the spreading violence in Afghanistan and submitted that Mazar-e Sharif is not likely to be spared the spreading violence as the Taliban, Islamic State and the Hezb-i Islami advance across the north. The Tribunal finds these claims highly speculative and, on the evidence before it, the Tribunal is not satisfied that Mazar-e Sharif is at risk of being affected by violence by these groups at the levels predicted by the applicant’s representative.

3. The applicant’s representative’s submission of 13 March 2014 referred to a number of recent attacks in Kabul as a demonstration of significant expansion of insurgent activities into the capital. The submission also noted that anti-Shia Pakistani groups now operating in Afghanistan are in Afghanistan for the foreseeable future and their demands are not so easily met through negotiation. It was submitted that if groups like Lashkar Jangvi have the capacity to operate in Kabul by launching the Ashura attacks, as well as in other cities, such as Mazar-e Sharif, ‘it is reasonable to assume that they seek to broaden their campaign of ethnic cleansing into Afghanistan’. The submission referred to the 2013 US Commission on Religious Freedom Annual report, stating that religious freedom conditions continued to be exceedingly poor and that Shias continue to be threatened by insurgents and their future is uncertain once international forces withdraw. The Tribunal accepts that in December 2011 Lashkar Jangvi took responsibility for a suicide bomb strike on a shrine in the capital, Kabul, killing at least 54 people; and another near a Shia mosque in Mazar-e-Sharif at about the same time, killing four. However, there have been no further attacks of this nature on Shia Hazaras by Lashkar Jangvi or other insurgent groups in Mazar-e Sharif. The applicant’s representative’s submission of 18 May 2015 referred to the April 2015 assault by the Taliban on the provincial prosecutor’s office in Mazar-e Sharif. The submission quoted at length from a 9 April 2015 news report, sourced from the New York Times, in which it was stated that ‘the attack took place in Mazar-i-Sharif, the capital of Balkh Province, which has long been seen as a model of economic prosperity and stability… Mazar-i-Sharif… has been spared the bloodshed of most large cities across the country’. Sources consulted by the Tribunal suggest that the siege ended after the gunmen had been killed by Afghan security forces.[12] Reports suggest that attacks of this scale and nature in Mazar-e-Sharif are rare.[13] Commenting on the attack, Dr. Muhammad Afzal Heeded, a member of the Balkh provincial council, stated that ‘these kind of attacks haven’t happened in Balkh in recent years’.[14]

   [12] ‘Afghan attack: Deadly gun battle in Mazar-e-Sharif’ 2015, BBC, 9 April, CXBD6A0DE4260; Mashal, M 2015, ‘Taliban Attack in Northern Afghanistan Leaves at Least 10 Dead’, The New York Times, 9 April, CXBD6A0DE10046.

   [13] ‘At least 10 people killed in Taliban siege at Afghan courthouse’ 2015, Agence France Presse (AFP) - France, 10 April, CXBD6A0DE4258; Mashal, M 2015, ‘Taliban Attack in Northern Afghanistan Leaves at Least 10 Dead’, The New York Times, 9 April, CXBD6A0DE10046; ‘10 killed in Taliban siege on Afghan court complex’ 2015, Channel News Agency, 10 April, Mashal, M 2015, ‘Taliban Attack in Northern Afghanistan Leaves at Least 10 Dead’, The New York Times, 9 April.

4. In her submission of 18 May 2015, the applicant’s representative referred to Mr Habib Mosawi, a dual Afghan-Australian national, who was tortured and killed by the Taliban on the road between Jaghori and Kabul in September 2014. She also referred to the case of Mr Zainullah Naseri, a failed asylum seeker from Australia, who claimed to have to have been kidnapped and tortured by the Taliban along the road between Ghazni City and Jaghori. It was submitted that the Taliban target Hazaras believing them to be associated with foreign forces. This is particularly the case for Hazaras who have returned from Australia. In her submission of 15 July 2015, the applicant’s representative argued that the applicant is more likely to be considered with suspicion as a returnee from overseas and as a man returned from Australia is at risk of being perceived as either a spy or a wealthy man.

5. In her submission of 7 September 2015, the applicant’s representative referred to an attack on a minibus in Mazar-e Sharif on 5 September 2015. The submission also referred to a report by UNAMA in relation to the abduction of 97 civilians of Hazara ethnicity in ten incidents in the first half of 2015 in areas with mixed Hazara and non-Hazara communities in Ghazni, Balkh, Sari Pul, Faryab, Uruzgan and Ghor Provinces. The motives for the abductions varied and 67 of the abducted Hazaras were released. It was submitted that the report ‘explicitly rebuts’ that which is implied in much DFAT reporting of kidnapping incidents involving Hazaras – that Hazaras are abducted because there are more of them passing through dangerous roads. INAMA reporting does not cover incidents believed to be carried out by criminal elements. The submission also referred to additional reports of recent abductions of Hazaras in Ghazni and Zabul. Given this pattern, there is real risk of persecution in and around Mazar-e Sharif.

6. The Tribunal accepts that there was a sectarian attack in Mazar-e-Sharif in December 2011 and that incidents have occurred in other provinces, as well as on the roads in certain areas, particularly the roads between Kandahar and Kabul and Ghazni and Kabul as referred to by the applicant’s representative in her submissions and the opinion of Professor Maley (‘On the Return of Hazaras to Afghanistan’ dated 16 February 2015), which was provided to the Tribunal by the applicant’s representative. As it was put to the applicant at the hearing, he would be able to fly to Mazar-e Sharif from Kabul and avoid travelling by road. In any event, there are only very occasional incidents on the road to and from Mazar-e-Sharif.[15] As already noted, DFAT has assessed that the Government of Afghanistan maintains effective control in Mazar-e-Sharif, that there is a low risk of criminal or insurgent violence for Hazaras in Afghanistan and that Shia-Sunni sectarian violence is infrequent in Afghanistan as a whole.[16] 

   [15] European Asylum Support Office, EASO Country of Origin Information Report: Afghanistan - Security Situation, January 2015, CISEC96CF1191, page 138.

   [16] DFAT Country Report - Afghanistan, 26 March 2014, paragraphs 2.28, 3.14, 3.22 and 5.2.

7. DFAT has advised that the people to whom it has spoken do not believe that Hazaras will be targeted because they have sought asylum in the west if they return to Afghanistan.[17] The Department has said that many Afghans, including Hazaras, regularly travel abroad, to Iran, Pakistan and also to Europe and other western countries to seek work and greater economic or educational opportunities. There is no evidence to indicate that low-profile individuals are subject to discrimination or violence as a result of them having spent time in western countries.[18] In its most recent report, DFAT advised that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers.[19]

   [17] DFAT Country Information Report No. 10/60, dated 28 September 2010, CX250180.

   [18] See the DFAT Thematic Report - Hazaras in Afghanistan and Pakistan, 26 March 2014, paragraphs 3.39 and 3.41.

   [19] DFAT Country Report - Afghanistan, 18 September 2015.

8. On the basis of the evidence before it, the Tribunal finds that there is no real chance of the applicant facing serious harm as a result of attacks by insurgents, including the Taliban, Hezb-i-Islami, the Islamic State or other insurgent groups, on Shia Hazaras in Mazar-e Sharif. The Tribunal does not accept that there is a real chance that the applicant will be a victim of ethnic or sectarian violence or random generalised violence if he relocates to Mazar-e-Sharif. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of his race or his religion as a Hazara and a Shia Muslim if he returns to Afghanistan and relocates to Mazar-e Sharif. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted in Mazar-e Sharif because he will be perceived as either a spy or a wealthy man or for any other reason because he will be returning to Afghanistan after having unsuccessfully sought asylum in Australia, a western country.

9. In her submissions, the applicant’s representative had also fleetingly referred to conflicts such as land disputation, threatening communities close to Mazar-e Sharif. No further information was provided in this regard and there was no persuasive evidence before the Tribunal to suggest that, as a result of such conflicts, the applicant faces a real chance of being persecuted in Mazar-e Sharif.

10. Having found that there is no real chance that the applicant will face Convention based persecution in Mazar-e Sharif, the Tribunal has considered whether it would be reasonable for him to relocate to Mazar-e Sharif in all his circumstances.

11. Professor Alessandro Monsutti has described the situation of ordinary Hazaras as possibly better in Mazar than in Kabul.[20] The applicant had briefly travelled to Mazar-e Sharif in search of safety before departing Afghanistan, as he had an uncle in that city. In her post hearing submission of 15 July 2015, the applicant’s representative stated that the applicant’s elderly uncle has since passed away, leaving his aunt and young nephews. The applicant has no patronage networks to secure employment. He will be culturally obliged to take charge of his minor nephews, as their adult male relative. This evidence is contrary to the applicant’s evidence at the hearing. While the applicant stated that his uncle has now passed away, he also stated at the hearing that his cousins still live in Mazar-e Sharif and that one of his cousins works as a [salesman]. The applicant did not claim that he would be obligated to take charge of his minor nephews and the Tribunal does not accept this claim. While the Tribunal appreciates that the applicant does not own land outside of his village in Parwan, the evidence before the Tribunal suggests that he has working family members and a network that would be able to assist him with housing and settling in Mazar-e Sharif.  The applicant has skills and experience [in three different occupations]. These are useful skills that would no doubt assist him in finding employment. 

    [20] Monsutti, A 2012, Comments by Professor Alessandro Monsutti on Hazaras in Afghanistan Provided to the Independent Protection Assessment Office on January 2012, January, CIS28579.

12. In her submission of 13 March 2014, the applicant’s representative referred to comments by Mr Mutaqi in relation to the economic situation of Mazar-e Sharif. Mr Mutaqi observed that many people from remote areas of Balkh were coming to Mazar-e Sharif to find work opportunities. He noted that this is not the case anymore and most people are now crossing the border into Iran. He also noted that ‘this year’ will be good for agriculture. He was not sure that there will be a labour market for people coming from other provinces. In her submission of 15 July 2015, the applicant’s representative submitted that Mazar-e Sharif is experiencing the effects of economic downturn and the effect of worsening security on the economy of Mazar-e Sharif as it becomes more difficult to use the highways to supply the city. She contended that the conflict in other parts of the province is driving more and more IDPs into Mazar-e Sharif, creating more competition for already scarce resources. She stated that it is the relative safety of Mazar-e Sharif that is attracting those fleeing conflict in the North, but the city is ill equipped to handle the influx. Nor is it capable of providing a permanent settlement solution for someone like the applicant.

13. The Tribunal is prepared to accept that Balkh’s economy has slowed with the rest of Afghanistan, where the growth rate is estimated to have fallen to 2 percent in 2014 from 3.7 percent in 2013.[21] The Tribunal accepts that many people from remote areas of Balkh now prefer to travel to Iran instead of Mazar-e Sharif. It also accepts that the city’s safety is attracting IDPs from the North, which may put additional pressures on resources. However, Mazar-e Sharif remains one of the more prosperous urban centres in Afghanistan. While the applicant will face economic challenges faced by many others in Mazar-e Sharif, his past experiences show that he has acquired skills in a number of fields, which no doubt will assist him in his quest to find the means to support himself upon his return.

    [21] Saboor, A and Bansal, P, 2015, ‘In Mazar, Afghans enjoy life as fighting draws near’, Reuters, 1 June,

14. On the basis of the evidence before it and having regard to the applicant’s circumstances overall, the Tribunal is satisfied that it would be reasonable and practicable for the applicant to safely relocate to Mazar-e Sharif. The Tribunal is satisfied that there is no real chance that the applicant will face serious harm for a Convention reason if he were to internally relocate.

15. For the reasons outlined above, the Tribunal is not satisfied that the applicant’s fear of persecution in Afghanistan for the reason of his political opinion or any other Convention reason is well-founded.

    Complementary protection

16. Having regard to the findings of fact above, the Tribunal finds that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in his home district of [District 1].

17. However, as stated above, it would be reasonable for the applicant to relocate to Mazar-e Sharif. Under s.36(2B)(a), there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that ‘it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm’.

18. For the reasons and findings set out above, the Tribunal does not accept that, if the applicant returns to Afghanistan and relocates to Mazar-e Sharif, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm arising from his Hazara ethnicity or Shia faith by the Taliban, Hezb-i Islami, Islamic State on any other insurgent group. The Tribunal does not accept that there is a real risk that the applicant would traced, found or significantly harmed in Mazar-e Sharif by the Taliban or individual who had sought vengeance against his father.

19. The Tribunal does not accept that the applicant faces a real risk of significant harm in Mazar-e Sharif arising from his imputed political opinion or being a member of his father’s family. The Tribunal does not accept that there is a real risk that the applicant would be forcefully recruited by Hazara- dominated militia in Mazar-e Sharif or that he faces a real risk of being significantly harmed by ‘illegal armed groups’. The Tribunal does not accept that there is a real risk that the applicant will be a victim of ethnic or sectarian violence or random generalised violence if he relocates to Mazar-e-Sharif. The Tribunal does not accept that there is a real risk that the applicant will face significant harm arising from being perceived as either a spy or a wealthy man or for any other reason arising from returning to Afghanistan after having unsuccessfully sought asylum in Australia.

20. In her submission of 15 July 2015, the applicant’s representative contended that, due to his circumstances, the applicant would be at risk of suffering significant harm in Mazar-e Sharif. She submitted that the risk is specific to the applicant, who is more vulnerable as an adult male, ethnic minority member and returnee without supportive networks and with obligations to care for women and children. Without guaranteed employment and accommodation, the applicant would be forced to travel to wherever work might be available. The Tribunal has already found that the applicant does not face a real risk of significant harm arising from his ethnicity, religion or being a returnee. The Tribunal has found that he has family and, therefore, a network in Mazar-e Sharif. As he has an adult cousin in Mazar-e Sharif, who is employed, the Tribunal does not accept that the applicant would be burdened with additional obligations to look after his aunt and nephews.

21. For the reasons provided above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Shahyar Roushan
   Senior Member