1315060 (Refugee)

[2015] AATA 3143

1315060 (Refugee) [2015] AATA 3143 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1315060

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Christopher Smolicz

DATE:7 July 2015

PLACE OF DECISION:  Adelaide

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 07 July 2015 at 11:26am

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] September 2013.

3. The applicant appeared before the Tribunal on 14 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 has had taken 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 the following 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:

   ·     Afghanistan Country Report, 26 March 2014

   ·     DFAT Thematic Information Report - Conditions in Kabul (3 October 2014

10. The issues in this case are whether the applicant meets the refugee or complementary protection criteria because of:

    ·     his Shi’a religion and Hazara ethnicity

    ·     his imputed political opinion as against the Taliban,

    ·     his membership of the particular social group of individuals perceived as contravening the Taliban’s interpretation of Islamic principles, norms and values

    ·     of harm feared from “[Mr A]’s” family.

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

The applicant’s factual claims and the Tribunal’s findings

1. First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, his entry interview and statements of claim and addendum statement dated [in] May 2015.

2. The applicant is a [age] year old married male born in [a] village [of a] district, Daykundi (also known as Daikundi) province, Afghanistan. He described his ethnicity as Hazara and his religion as Shia Muslim. He has received only limited education having attended [number] years of religious study.

3. He has [dependants] which include his [children], his mother, [siblings], [information deleted]. His dependant family have remained in [his home village].

4. The Tribunal has accepted the following evidence provided by the applicant in support of his claims for protection.

5. His father was a [occupation] during the Soviet invasion of Afghanistan and was accused of being a communist supporter and an atheist because of his [work]. In about 2003 his father disappeared and is presumed to be dead. The applicant was unable to provide further explanation of his father’s death but claimed there was a dispute between his father and a local powerful Hazara family ([Mr A]’s family) who were supporters of the Harakat party.

6. In 1998 he travelled with his wife to [Country 1] where he resided illegally and worked [until] 2003 when he was deported back to Afghanistan. He subsequently worked as a farmer growing crops and attending to livestock on his family’s land in [his home village].

7. In 2008 he purchased a van and worked as a driver while continuing to work as a farmer on his family’s land. He transported people between Daykundi and Kabul about 4 to 5 times a year depending on passenger demand and the seasons. The journey to Kabul was dangerous and would go through the Wardak province. He has been stopped by the Taliban on a number of occasions. The Taliban would questione him about the purpose of his travel and that of his passengers.

8. He would pick up passengers in is his home area and take them to Kabul City. When in Kabul he would wait for passengers, sometimes for up to 10 days, before returning back home. When in Kabul he would stay in a hotel which was a known meeting point for people seeking transport to their home region.

9. In October 2011 the applicant had travelled to Kabul and was returning back to Daykundi when he was stopped by the Taliban. He was transporting seven people. One of the passengers was a Hazara man from his village by the name of “[Mr A]”. [Mr A]’s family where powerful and associated with [an officer] who is associated with the Harakat party.

10. There were also three unknown men in the van. The men were members of a government linked to a Hazara [militia group] that are active in the Daykundi district. The Taliban searched the van and found the identification belonging to the [militia group]. The applicant was hit in the head with a rifle butt and taken as prisoner with the three [from the militia group]. The Taliban seized his laptop computer. The computer contained his taskera, passport and personal photos and videos of a wedding that involved music and dancing. He was taken prisoner because he was transporting the [militia group] and because his computer contained anti-Islamic pictures of women without a hijab. The applicant said that there must have been an informer who tipped of the Taliban that he was transporting local [people from the militia group].

11. He and one of the [people from the militia group] managed to escape from the Taliban, stopped a car and travelled to Kabul. He does not know what happened to the rest of the passengers.

12. When in Kabul he called his [relative] to pick him up. He stayed in his [relative]’s house in Kabul for about five to six months before he departed Afghanistan and arrived in Australia in June 2012.

13. He could not return to his home because [Mr A]’s family had been harassing his family and blamed him for the disappearance of their son. They killed his dog and asked his mother questions about his whereabouts. He claims the family understood what happened to their son but wanted to feel superior by bullying and harassing another family and using their power. The applicant said the problems were compounded because of the issues they had with his father.

14. The applicant claimed [Mr A]’s family are well connected and cancelled his [child]’s school enrolment. The applicant claimed [Mr A]’s family had been extorting him for money in the past and he had no choice but to pay. The applicant claimed that such bullying by powerful members of the community is common in Afghanistan. He claims that the reaction of [Mr A]’s family and the threats need to be seen against the context of their disapproval of his father and ongoing historical tensions between the families.

15. The applicant claimed that because he was a Shia Hazara he was considered an Infidel by the Taliban and would be killed. The applicant said that everyone in his village knows he travelled to Australian (a western country) to seek asylum and this would put him at even greater risk from the Taliban who have informers and would be aware of this information.

Does the applicant have a well-founded fear of persecution for a convention reason?

1. The issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings above.

2. The Tribunal finds that in the case of a person who had fled his country of nationality the assessment of well-founded fear of persecution would naturally commence with a consideration of the situation in the area where the person had previously lived (or other home area to which the person had similar or substantial ties).

3. The Tribunal also notes DFAT advice that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan, particularly in rural areas. Kinship is central to identity and acceptance in a community, including for finding shelter and employment. As such DFAT concludes that most Afghans prefer to live in areas where their ethnic group constitutes the local majority. The Tribunal has therefore assessed the applicant’s claims of fear of persecution in Afghanistan against [Daikundi] province as the applicant’s home area.

4. According to country information, Daikundi is a mountainous province situated 460 kilometres west of Kabul and it is a Hazara majority province. Due to heavy snowfall in the winter, the roads remain blocked for months, cutting off communication with the rest of the country.[1] Regarding the security situation, the EASO stated “Daikundi is among the more peaceful provinces of Afghanistan. However, the province is neighbouring the volatile southern Helmand province where insurgents occasionally carry out activities”. The delegate referred to a 2010 DFAT report which stated that the Taliban was not strong in Daikundi and that “ethnically motivated targeting of Hazaras was not practiced”. The delegate noted that according to this report Hazaras in Daikundi are more likely to have a “complicated and detailed personal history and circumstances which place them in that situation”. In 2011 and 2012 DFAT confirmed that there were no protection issues for the Hazara population and the challenges facing the Hazara community in Daikundi were economic rather than security related. The delegate noted however that there were problems in travelling outside the province which were associated more with infrastructure than security issues.

[Mr A]

[1] European Asylum Support Office Country of Origin Information Report Afghanistan January 2015 (p.62-63)

1. The Tribunal finds that the applicant’s fear of [Mr A]’s family appeared to be a personal dispute and not convention related. The Tribunal found the applicant’s claim that [Mr A]’s family was politically connected to [a certain officer] vague and lacking in detail. The Tribunal also finds it surprising that [Mr A]’s family would blame the applicant for their son’s disappearance where both of them were victims of the Taliban.

2. The Tribunal noted that the applicant had never personally been threatened by [Mr A]’s family and only knew about the family’s anger and threats because his mother told him it was dangerous to return home.

3. Further the Tribunal does not accept that the applicant has a political profile in his home area as pro-communist because his father worked as a [occupation] under Soviet rule of Afghanistan. The Tribunal notes that Soviet troops withdrew from Afghanistan in 1989 and the applicant’s father has been missing presumed deceased since about 2003. The Tribunal notes that apart from the applicant’s trip to [Country 1] for work he and his family have always lived in the same village despite his family’s long standing claim dispute with [Mr A]’s family. The Tribunal finds [Mr A]’s family may have been suffering from grief and it was not uncommon for them to be angry and seek to blame someone for their son’s disappearance in the circumstances.

4. The Tribunal does not accept that if the applicant returns to Afghanistan in the reasonably foreseeable future there is a real chance that he will be persecuted by [Mr A]’s family because they blame him for [Mr A]’s disappearance or because the applicant’s imputed political opinion as pro-communist because his father worked under Soviet ruled Afghanistan.  The Tribunal finds that the applicant’s fear of returning to Afghanistan because of his father’s past work or because of [Mr A]’s family is not well-founded.

Taliban

1. The delegate referred to the UNHCR Eligibility Guidelines For Assessing The International Protection Needs Of Asylum-Seekers from Afghanistan (August 2013) and found the applicant fell within the profile of individuals perceived as contravening the Taliban’s interpretation of Islamic principles, norms and values. The delegate accepted that based on this profile he could not rule out that the applicant was in need of protection.

2. The Tribunal accepts the applicant’s evidence that in about 2011 he came to the attention of the Taliban because of videos stored on his laptop of him attending a wedding with music, dance and women not wearing the hijab. The Tribunal accepts the applicant also escaped from the Taliban however they have retained his personal details on the laptop.

3. Against this background the Tribunal has considered whether a Hazara Shia Muslim with the applicant’s profile would face a real risk of serious harm traveling by road from Kabul to his home area.

4. Country information referred to above confirms that Daikundi province is among the more peaceful provinces in Afghanistan. Further, DFAT assesses that there are currently no significant protection issues for Hazara returnees to Afghanistan beyond generalised environment of criminal and insurgent violence. In particular, DFAT assesses that it is relatively safe for Hazara to return to Hazara-majority areas in Hazarajat and Kabul.

5. DFAT advise that there are some sectarian tensions between Sunni and Shia Muslims in Afghanistan, but other than insurgent attacks, these rarely result in violence. DFAT advise that due to their linguistic and religious links with Iran, Hazars are sometimes viewed with suspicion by other Afghan groups.

6. Against this, the Tribunal notes the evidence of Professor William Maley[2] and Associate Professor Alessandro Monsutti[3], both of whom indicate that while some gains have been made by Hazaras, the deep-seated causes of discrimination against Hazaras remain unchanged.  Both Maley and Monsutti indicate that the gains made by some Hazaras have not been enjoyed by all and further, that they may not last. Professor Maley questioned the ability of Australian Embassy staff to conduct field research given the tight security constraints. Professor Maley stated that there was no reason to believe that the underlying ethnic and sectarian factors fuelling hostility towards Hazaras had dissipated.

   [2] Maley, W 2011, ‘On the Position of the Hazara Minority in Afghanistan’, 7 December < Associate Professor, Anthropology and Sociology of Development, at the Graduate Institute of International and Development Studies in Geneva, Switzerland

7. DIBP advised in March 2015 that most security concerns for Hazaras in the Hazara districts relate to travel outside the district, as most roads travel through Pashtun districts where insurgents are active.

8. DFAT’s Thematic Report provides the following information regarding travel by road in Afghanistan:

   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.

   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.

9. Most recently Professor Maley has provided an expert opinion on the safety of return to Afghanistan for members of the Hazara minority in which he made the following conclusions: 

   First, it is essential to appreciate that the situation in Afghanistan is extremely fluid, and assessments of the situation made even a year ago do not necessarily provide an accurate picture of the situation in the first half of 2015. Roads that may have been safe to traverse in 2012, 2013 or 2014 may be unusable in 2015. In July 2014, 14 Hazara passengers on two minibuses in Ghor province were massacred by the Taliban (see ‘Afghanistan: Taliban Kill at Least 14 Bus Passengers’, Reuters, 26 July 2014). ….Given this fluidity, it is a serious mistake to conclude that Afghanistan is safe for Hazaras. The disposition of extremists to strike at them has not disappeared.[4]

   [4] On the Returns of Hazaras to Afghanistan, Professor William Maley AM, FASSA Professor of Diplomacy Australian National University 16 February 2015.

10. The Department has identified the following list of security incidents where Hazaras were specifically targeted in the recent past:

    ·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.

    ·23 February 2015, masked men stopped two vehicles traveling on the highway near Zabul and identified and abducted 30 Hazaras. 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.

    ·20 January 2015, eight or nine 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.264 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 Page 56 of reports mentions that one of the victims was the nephew of Governor Amanollah Timuri who is elsewhere reported to be a Hazara.

    …..

    ·     In January 2014, an AP report stated that the Maidan Shahr-Behsud road had ‘seen many beheadings, kidnappings and other Taliban attacks in recent years against members of the minority ethnic Hazara community’ and ‘nearly all drivers avoid it.’ This report does not mention any particular attacks.[5]

    [5] Afghanistan: Hazara Issues Paper, Department of Foreign Affairs and Trade (DFAT), March 2015, p 56.  

1. In April 2015 Afghanistan Analysts Network reported eight alleged abductions of Hazaras travelling by road in Afghanistan since February 2015. Although the article does not conclude that Hazaras are being systematically targeted is concludes that Hazaras are particularly vulnerable when travelling by road:

   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 (although, see AAN reporting here on how the Daesh threat has so far been overblown). 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. [6]

   [6] CXBD6A0DE5323: "Hazaras in the Crosshairs? A scrutiny of recent incidents ", Afghanistan Analysts Network, 24 April 2015, (Opens in a new window)

2. Having weighed carefully the information outlined above, the Tribunal does not consider the reported absence of “targeted persecution” eliminates the likelihood that a Hazara Shia Muslim with the applicant’s profile would not be harmed for reason of their ethnicity or their religion when traveling by road to his home area. The Tribunal also finds that the need to work and potentially to travel out of his home area would place the applicant in further danger from the Taliban.

3. Having considered the applicant’s particular profile as a Hazara Shia returnee, the Tribunal finds the applicant faces a real chance of serious harm if he returns to his home area. The Tribunal notes that the delegate also found that the applicant’s fears of harm could not be ruled out as a mere farfetched possibility and found that there was a real chance the applicant would face serious harm in his home area. The delegate found however, that it was reasonable for the applicant to relocate to Kabul to avoid persecution.

4. The Tribunal finds the harm the applicant fears from the Taliban is for reasons of his religion and ethnicity. The Tribunal is satisfied the persecution is systematic and discriminatory and amounts to serious harm as it includes threat to life or liberty, significant physical harassment or ill-treatment. 

5. The applicant primarily fears harm from the Taliban, a non-state insurgency group, however, harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the state is unable to provide adequate protection against the harm.

6. The UNHCR reported 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.  

7. In respect of the ability of the state to protect, the Tribunal has also considered the following DFAT advice, provided in March 2014, before the coalition forces began the pull out:

   5.1      The ongoing insurgency, particularly in the south and east of Afghanistan means that the Government struggles to exercise effective control over many 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.

   5.2      Despite these challenges, DFAT assesses that the Government maintains effective control in major urban areas, particularly Kabul, all provincial capitals, including Herat, Mazar-e-Sharif and Kandahar, and the majority of other district centres.

8. In view of the unstable security situation in Afghanistan, the Tribunal finds the state cannot meet the level of protection which citizens are entitled to expect, as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal finds based on the country information, that the applicant would not be able to avail himself of effective state protection against such harm.

Relocation and Kabul

1. The applicant’s feared persecution described above is linked to the risk faced by a Hazara Shia seeking to return to his home area.

2. There remains the question of whether the applicant can find protection from this feared persecution by relocating to a different part of Afghanistan.

3. The Tribunal questioned the applicant if he could relocate to Kabul to avoid serious harm from [Mr A]’s family and the Taliban. The Tribunal noted that the delegate referred to country information which states that Kabul was considered a possible place for relocation of Hazara asylum seekers in Afghanistan. The Tribunal noted that since the delegate’s decision DFAT have confirmed its earlier advice.

4. In assessing whether it is reasonable and practicable for the applicant to relocate to Kabul the Tribunal noted the applicant had trade skills, had worked in Kabul as a driver

5. The applicant said that Kabul is surrounded by the Taliban. He fears the Taliban will be able to identify him because they have his personal details from his laptop. He said he does not know what the Taliban look like and they could come and attack him at any time.

6. The applicant said he would not be able to relocate to Kabul because he has [several] dependent family members to support. The applicant referred to the difficulties faced by women living alone in Afghanistan and claimed it is not possible for his wife to remain alone and his family needs his support and he could not go to Kabul without them.

7. The Tribunal noted the applicant had family connections (his [relative]) which would make it easier to relocate to Kabul. In response, the applicant said that his [relative] was an unemployed drug addict and was only in Kabul renting a house for 6 months seeking treatment for his addiction. His [relative] has since left and he no longer knows where he is. The Tribunal noted that the applicant had not previously disclosed this information.

8. In response, the applicant said that the delegate did not ask him any questions about his [relative]’s personal circumstances and he did not realise that it was relevant to his claim. Consequently he did not tell the delegate that his [relative] was a drug addict who was only living temporarily in Kabul. The applicant’s agent submitted that the applicant did not appreciate the context of the delegate’s questions about relocation at the time of the interview and would have provided more evidence about his [relative] if he realised the purpose behind the delegate’s questions.

9. The Tribunal has concerns about the credibility of the applicant’s claim that his [relative] was only living in Kabul temporarily and has now disappeared and is unable to provide him with assistance. The Tribunal does not accept this aspect of the applicant’s claims. The Tribunal finds the applicant manufactured his evidence in response to the delegate’s finding that it was reasonable for the applicant to relocate to Kabul to avoid persecution.

10. The Tribunal notes that Kabul has a sizeable Hazara population (which the country information indicates a large proportion of which are also displaced from other areas) and a range of employment options.

11. In relation to relocation DFAT advise that “large urban areas such as Kabul are home to mixed ethnic and religious communities. Urban areas offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas, including as a result of a higher degree of anonymity for returnees. In practice, internal relocation to urban areas can be limited by a lack of financial resources. Internal relocation to urban areas is generally more successful for single men of working age. Unaccompanied women and children are least likely to be able to relocate to urban areas without the assistance of family or tribal networks.”

12. Professor Maley holds the view that it is a mistake to conclude that Kabul is safe for Hazaras.  He cites the December 2011 suicide bombing attack against Shia Afghans, mostly Hazaras, who were commemorating the Ashura festival in downtown Kabul which killed at least 55 people, with Pakistani Sunni extremist group Lashkar-e Jhangvi claiming responsibility. 

13. The Tribunal also notes that there is a huge Hazara underclass in Kabul that does not have access to clean water or electricity. It is also reported by the UNHCR that there is widespread unemployment in urban areas that limit the ability of a large number of people to meet their basic needs. There is also evidence of the deaths of children in refugee camps and the inadequate response of government and aid agencies.

14. DFAT report that insurgents regularly conduct high-profile attacks in Kabul and that the primary targets for insurgent attacks are government institutions, political figures, Afghan National Security Forces (ANSF), International Security Assistance Forces (ISAF), other security services and international organisations. DFAT confirm that such attacks often cause significant casualties amongst civilian bystanders in addition to those being specifically targeted.

    Representative examples include the suicide bomb attack against the Supreme Court in Kabul in June 2013 which killed 17 and injured 39 others; a complex attack by insurgents against a restaurant in Kabul during January 2014 which killed at least 21 people, including 13 foreigners; and an attack on the Kabul Serena Hotel in March 2014 which killed at least nine people, including four foreigners. Kabul International Airport has been attacked on a number of occasions, including most recently in July 2014.[7]

    [7] DFAT Thematic Report Conditions in Kabul 3 October 2014 p7

15. The Department’s Issue paper of Afghan Returnees and Relocations[8] notes that the UNHCR, in its most recent guidelines, states that applicants may be able to fall back on these support networks in so far as the extended family or wider ethnic group is ‘willing and able to provide genuine support to the applicant in practice’. Therefore, relocation may only be a reasonable alternative in cases where meaningful family or community support is available in the intended area of relocation.[9] The guidelines further state that:

    The only exception to this requirement of external support are single able-bodied men and married couples of working age without identified vulnerabilities, who may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and are under effective government control. Given the breakdown in the traditional social fabric of society caused by decades of war, mass refugee flows and internal displacement, a case-by-case analysis will, nevertheless, be necessary.[10]

    [8] Issues Paper: Afghanistan: Returnees and Relocation Issued January 2014, Reviewed July 2014

    [9] United Nations High Commissioner for Refugees 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers from Afghanistan, UNHCR Refworld, 6 August, pp.8, 74, 76 < Accessed 8 August 2013 <CISA26045>

    [10] United Nations High Commissioner for Refugees 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers from Afghanistan, UNHCR Refworld, 6 August, pp.8-9 < Accessed 8 August 2013 <CISA26045>

16. The Department’s Issue paper of Afghan Returnees and Relocations stresses the importance of family and social networks for returnees was emphasised in advice received from the International Organisation for Migration (IOM) in January 2013. When asked to comment on the assistance provided by NGOs to returnees in Afghanistan, IOM indicated that this type of support is normally provided by the returnee’s family. The IOM advice states that:

    Afghanistan is a family oriented country and usually returnees upon arrival establish connection with their communities through family, friends and social networks. It is important to highlight that in the case where potential returnees have lost contact with their families, then the International Red Cross and Red Crescent Movement has longstanding experience and expertise in the area of restoring family links between family members separated as a result of war and conflict and more recently as a result of natural or man-made disasters.[11]

    [11] Krdzalic, E 2013, Email to RRT, RE: Information Request from RRT Australia, 22 January  

17. The Tribunal accepts that parts of Kabul are not free from violent crimes and it is hard to obtain employment and that evidence suggests that the Taliban have restabilised a presence in Kabul. For example the Tribunal noted that the day before the hearing, it was reported that a Taliban suicide bomber and several gunmen attacked the Afghan parliament in Kabul killing a woman and child and wounding at least 30 people.

18. As stated above the country information emphasises given the lack of social security infrastructure in Afghanistan, people typically rely on traditional family and clan networks for support. DFAT advise that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan. Kinship is central to identity and acceptance in a community, including for finding shelter and employment. The country information supports a conclusion he has little prospect of being employed or finding accommodation without such connections.

19. Albeit this would be easier for him initially on his own, it is reasonable to expect he would seek to be re-united with his [dependent] family members which would make securing suitable accommodation and sufficient income considerably more difficult. Although the Tribunal has accepted that the applicant has lived and worked in Kabul with his [relative], the Tribunal finds that the applicant was alone and this was not on a permanent basis.  The Tribunal is unsure of the [relative]’s current financial circumstances, his health or willingness to support the applicant. Given the [relative]’s background is unclear whether the applicant can expect to benefit from meaningful support from the [relative] in Kabul in the future.

20. The Tribunal also notes that the situation in Afghanistan has deteriorated further since the applicant lodged his protection visa application in November 2012 and the delegate’s decision in September 2013. There has been a significant increase in violence against the civilian population. For Hazaras, who have historically been persecuted and faced discrimination, the situation is even more dangerous than for the general population in Kabul. For example, the Tribunal accepts that the growing presence of Islamic State (Daesh) in neighbouring Pakistan and Afghanistan pose new risks for Hazara Shia Muslims.[12]

    [12] Frud Bezhan, Radio Free Europe Radio Liberty, ‘Mass Abduction Of Hazaras In Afghanistan Raises Fears Of Islamic State’, 25 February 2015,  

21. In April 2015 the New York Times provided the following report that waves of kidnappings followed by numerous beheadings of members of Afghanistan’s Hazara ethnic group. “The police in Ghazni Province confirmed Sunday that four Hazara farmers kidnapped by the Taliban had been found beheaded in Ajristan District. Six more Hazaras from Daikundi Province who had been kidnapped by unknown assailants were also found dead, dumped in Ajristan, less than a week after their families began searching for them, officials confirmed on Monday.” [13] Its reported that beheading is not normally a Taliban tactic, but the insurgents seem to be trying to make an example of the Hazaras, in what some see as a bid for attention to recruit supporters in Afghanistan.

    [13] CXBD6A0DE5364: "Taliban Are Said to Target Hazaras to Try to Match ISIS’ Brutality ", New York Times, The, 22 April 2015, (Opens in a new window)

22. In a March 2015 update on the situation of Hazaras in Afghanistan, Graeme Swincer OAM summarised the following developments of concern:

    ·     The arrival of foreign Islamic State forces in support of the Taliban, especially in the southern and central areas, apparently with national government support.

    ·     Resurgence of Taliban activity in previously “safe” areas.

    ·     Shift of Taliban focus from mainly government and “western links” targets to increased persecution of Shia Muslims (essentially Hazaras).

    ·     Continuing evidence of abduction and mistreatment of Hazaras on a selective basis – including murder and torture.

    ·     A surge in the flight of Hazaras from Afghanistan in the face of escalating persecution.

    ·     Targeting of Hazara returnees from Western countries, both voluntary and involuntary.

    ·     The February 2015 message from the Afghanistan Minister for refugees and repatriation requesting relevant governments to stop the deportation of asylum seekers to Afghanistan and confirming the policy that intended returnees who arrive in Kabul will be sent back to the deporting countries.[14]

    [14] Graeme Swincer OAM, Blue Mountains Refugee Support Group, ‘Hazara asylum seekers from Afghanistan: the increasing dangers they would face if they return – Supplementary update March 2015’, 2 March 2015, p 2,  

23. Having considered the applicant’s personal circumstances, the Tribunal does not accept that relocation is reasonable in that it is practical and meaningful in terms of safety, economic and social needs and civil, political and human rights.[15] For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    [15] AZAEH v MIBP [2015] FCA 414 and SZATV v MIC [2007] HCA 40.

    DECISION

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

    Christopher Smolicz
    Member