1316668 (Refugee)

[2015] AATA 3366

1316668 (Refugee) [2015] AATA 3366 (3 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1316668

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Magda Wysocka

DATE:3 September 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 03 September 2015 at 4:18pm

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] October 2013.

3. The applicant appeared before the Tribunal on 1 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.

   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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant arrived in Australia as an unauthorised maritime arrival. His claims are summarised as follows. He is a Hazara Shia Muslim born in Mazar e Sharif in [year]. His family had fled to Mazar from their home area of Behsood due to conflict with Kuchis. When the applicant was [very young], his family again fled to [Country 1]. The applicant had legal documentation to remain in [Country 1] however this was taken away from him after he and other [Afghanis] against the killing of Afghan refugees by the [Country 1] government. The applicant continued to live and work undocumented in [Country 1] for several years.  In approximately 2011 he reconnected with [an] Afghan woman, [Ms A], he loved before he married, who had separated from her husband. They began an affair that ended when her brother caught them together and beat up the applicant. He fears returning to Afghanistan as a Hazara Shia who has spent considerable time outside of Afghanistan and as a failed asylum seeker/westernised returnee. He also fears harm from [Ms A]’s powerful relatives in Afghanistan because he entered into a relationship with a [woman].

20. The delegate assessed the applicant’s home area as Mazar e Sharif and did not accept that he faced any risk of harm due to his profile upon his return.

21. The issues in this case are (1) what the applicant’s home area is; (2) does he face a real chance or risk of serious or significant harm there; and (3) whether he can reasonably relocate.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

22. The applicant claims that he is a Hazara born in Afghanistan but has spent the majority of his life in [Country 1]. He has consistently claimed to be from Afghanistan, has demonstrated some knowledge of that country (bearing in mind that he has never lived there) and was also able to discuss in detail his life as an Afghan refugee in [Country 1]. He also bears some of the common physical traits of Hazaras. As a result the tribunal accepts that the applicant is a Hazara from Afghanistan and has assessed his claims against that country.

23. The applicant appeared to give generally forthright, spontaneous and consistent evidence in relation to his claims, with the exception of certain matters put to him at the hearing. Nevertheless, despite these inconsistencies, the tribunal accepts that the applicant is a generally credible witness and, for the reasons set out below, has found them not to be material to the assessment of his future risk of harm.

24. The applicant has consistently stated that his family originate from Behsood district, Wardak province and that they fled that area to Mazar e Sharif, where he was born, due to conflict with Kuchis over land. This is consistent with country information referring to longstanding disputes between Hazaras and Kuchis over land in Wardak province.[1] He has also consistently claimed that an uncle returned from [Country 1] to Behsood district, where the uncle and applicant’s father had land. Accordingly the tribunal accepts that the applicant’s family is originally from Behsood district, Wardak. It accepts that they fled to Mazar e Sharif due to Hazara-Kuchi conflict. It accepts that the applicant was born in Mazar e Sharif but only spent [number] or [number] years there before his family fled to [Country 1]. It accepts the applicant’s evidence that he has no family in or connections to Mazar e Sharif and accepts that statements contained in the decision record about the applicant stating he had relatives remaining in Mazar e Sharif is not correct. As is apparent from the applicant’s consistent claims about his life history and information before the tribunal pertaining to another applicant for protection, the delegate appears to have mixed up the details of two different protection visa applicants born in Mazar e Sharif.

    [1] Danish Immigration Service 2012, Afghanistan: Country of Origin Information for Use in the Asylum Determination Process, 25 February to 4 March, p. 46 < Accessed 4 October 2012 <CIS23406>; Fioriti, J 2012, ‘Afghan nomad clashes raise fears of ethnic strife’, AFP, 6 August, Reliefweb website < Accessed 29 August 2012 <CX293090> .

25. The applicant has given a detailed and consisted account of his life in [Country 1]. The tribunal therefore accepts on his evidence that, while he originally held documentation allowing him to reside in [Country 1], this was taken away from him after he and other [Afghanis] protested against the death of Afghan refugees at the hands of [Country 1] authorities in approximately 1998. It accepts that the applicant had to cease his [tertiary] studies and remained in [Country 1] unlawfully after that. It accepts that he faced discrimination in [Country 1] as an Afghan refugee.

26. The tribunal is willing to accept that the applicant’s uncle returned to Behsood at some stage between 2007-2009. It found the applicant’s original evidence that his family knew his uncle had been killed because people coming from Behsood to [Country 1] told his family that an unidentified body had been buried to be far-fetched and speculative. It also appeared inconsistent with the applicant’s claim at hearing that people had directly told his family that his uncle had been killed. While the tribunal has concerns on this issue, it is willing to accept that the applicant’s family did not hear from the uncle after he returned to Behsood and has presumed him dead. 

27. The applicant gave details about his affair with [an] Afghan woman which he claimed was a catalyst for him leaving [Country 1] and which he claims adds to his fears of returning to Afghanistan. The applicant gave spontaneous and forthright evidence on his relationship with [Ms A] as well as being beaten on one occasion by her relatives such that the tribunal accepts that the applicant may have entered into such a relationship. However, several aspects of his evidence on this issue were inconsistent including the status of [Ms A]’s marriage to her husband, the number of brothers who attacked her and the date when the beating occurred. As the tribunal has found the applicant is owed protection obligations on other grounds, it is not necessary for it to make findings on these matters.     

    The applicant’s home area

28. The tribunal has considered whether the applicant’s home area is Mazar e Sharif, where he was born but has no connections, or Behsood, Wardak, where his family is originally from and has owned land. In making findings on this matter, the tribunal has considered the applicant’s evidence on what he believes his home area to be and his representative’s submissions, including that the delegate’s assessment of the applicant’s home area to be Mazar e Sharif was partly based on information related to another applicant which was mistakenly included in the decision record.

29. The tribunal notes that determining the applicant’s home area is a finding of fact to be assessed in the circumstances of each case. [2] In determining a home area where an applicant has no real like with any particular part of the country of reference, consideration should first be given to whether he or she has a well-founded fear of persecution in relation to that part of the country with which the claimant has the closest connection and where he or she might be expected to live in the future, absent a fear of persecution. Having considered the applicant’s particular circumstances, the tribunal finds that his home area is Behsood district, Wardak province. In coming to this finding, the tribunal has given weight to its findings that this is the area which his family is originally from, where they own or have owned land in the past and where at least one relative has returned to. While the applicant was born in Mazar e Sharif and spent [number] or [number] years of his early childhood there, the applicant has no family or other connections there.   

    The applicant’s future risk of harm as a Hazara Shia Muslim in his home area

    [2]         The Courts generally have found no error in varying approaches taken by Reviewers depending on the facts of the particular case. See, for example, SZRKY v MIAC (2012) 132 ALD 525 where the Court found no error in the Reviewer considering firstly the chance of the claimant suffering persecution in the area where he was born, despite having left that area, and Afghanistan, as an infant (upheld on appeal: SZRKY v MIAC (2013) 141 ALD 328. Similarly, the Court in SZRBA v MIBP [2013] FCCA 1361 (Judge Cameron, 24 September 2013), observed at [45] that as Ghazni was the applicant’s home area that he had left as a child, and the area that he might be expected to return, it would not have been inappropriate to have first considered whether the applicant had a well-founded fear of persecution there – although the Court also found no error in the Reviewer’s approach in testing the applicant’s fear of persecution in Afghanistan by reference to the whole country (appeal allowed on a different basis: SZRBA v MIBP (2014) 314 ALR 146). Compare SZQZN v MIAC [2012] FMCA 939 (Barnes FM, 11 October 2012) where the claimant had been born outside his country of nationality, Afghanistan, and had never been there. The Court found that it was open to the Reviewer, based on the claims and evidence, to have considered firstly the chance of persecution in Kabul rather than in the rural area in which the claimant’s family had lived before departing Afghanistan.

30. There is an abundance of available regarding the historical persecution of Hazara Shias in Afghanistan. More recently, differing views have been put forward about the current circumstances of Hazaras in Afghanistan. 

31. In its March 2014 report on Afghanistan, DFAT advises that ‘Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan’[3] and that sectarian violence was infrequent but noted that it is not always possible to differentiate between religion and ethnicity as the basis for discrimination or violence.[4] The report further notes that ‘[t]he security situation in Afghanistan remains fluid and varies from district to district within individual provinces’, noting that “any categorical assessment on the security in a particular area could be rendered quickly inaccurate.”[5]

    [3] DFAT 2014, Afghanistan: Country Report, 26 March 3.14

    [4] Ibid. 3.22

    [5] DFAT 2014, DFAT Thematic Report: Hazaras in Afghanistan and Pakistan, 26 March, s.4.4 and 4.5

32. No reports were found of insurgent activity in the Hazara districts (of which the two Behsood –or Behsud- districts are part) of Wardak. [6] Threats to the security of Hazaras in Wardak have been either within the context of the Kuchi-Hazara conflict or the dangers of travelling from the Behsood districts to Kabul through Pashtun districts of Jalrez and Maydan Shayr.

    [6] In 2014, for example EASO reported only 1 attack in the two Hazara Behsud districts combined, whereas each of the Pashtun districts received between 15 and 115 attacks. (European Asylum Support Office (EASO) 2015, Afghanistan Security Situation: EASO Country of Origin Information Report,, 31 January, p.52 security situation.pdf <CISEC96CF1191>).

1. In relation to the first issue, information indicates that since 2007 conflict between Hazaras and the ethnically Pashtun nomadic Kuchis has become more violent particularly in the two Behsood districts of Wardak province in the summer months. Landinfo indicates that the conflict is characterised by random, violent attacks caused by Kuchi nomads entering Hazara areas in the summer months.[7] In March 2012, the Danish Immigration Service cited advice from the Afghanistan Independent Human Rights Commission (AIHRC) that in past years the conflict has been particularly destructive in, amongst other places, the districts of Hisa‐I‐Awali Bihsud, Markazi Bihsud and Day Mirdad of Wardak province.

   [7] Landinfo 2011, Afghanistan: The conflict between Hazaras and Kuchis in the Beshud Districts of Wardak Province, 6 June, p.6 < > Accessed 14 May 2012 <CIS23056>. 

2. According to the AIHRC, villages have been destroyed and 2,000 Hazara families have left these districts for Kabul and Mazar. The AIHRC claims ‘[t]he conflict erupted each year from 2007 up to 2010, but in 2011 there have been fewer disputes’.[8] A more recent report in June 2012 claim that the conflict between Hazaras and Kuchis has escalated with up to 2000 Kuchi raiders, allegedly aided by the Taliban, attacking Hazara villages in the Kajab valley in Markazi Bishud district of Wardak province.[9] Additional attacks by the Kuchi in June 2012 were also reported in the Dahan-e Baghak area of Hisa-I- Awali Behsud district, the Kajaw valley in Markazi Behsud district and in Dasht-e Yorud of Dai Mirdad district.[10]

   [8] Danish Immigration Service 2012, Country of Origin Information for Use in the Asylum Determination Process, March, p.46 < Accessed 15 June 2012 <CIS23406> 

   [9] Fioriti, J 2012, ‘Afghan nomad clashes raise fears of ethnic strife’, AFP, 6 August, Reliefweb website < Accessed 29 August 2012 <CX293090> 

   [10] Afghanistan NGO Safety Office 2012, ‘ANSO Report – Issue 99’, 1-15 June, p. 3 < Accessed 29 August 2012 <CIS23863> 

3. In addition to the above issues, the Pashtun districts in the east of Wardak province have been areas of insecurity over several years: between 2010 and 2012 ANSO recorded over 300 attacks per year by insurgents in Wardak;[11] in 2011 the International Crisis Group (ICG) found the Taliban to have widespread influence over the province and assessed all Pashtun districts apart from the provincial capital as ‘insurgent-dominated’;[12] and in 2014 security statistics obtained by European Asylum Support Office (EASO) showed that security incidents in the province had increased to 10 per week in 2014, with all occurring in Pashtun or mixed districts.[13] The ICG in 2011 noted that both the Taliban and Hizb-I Islami were active in the province, and had gained full control of Jaghatu, Chak and Sayadabad districts, and a substantial presence in Jalrez.[14]

   [11] Afghanistan NGO Safety Office 2012, Quarterly Data Report Q.4 2012, 1 January-31 December, p.15-16 < Accessed 15 April 2013<CIS25001>ANSO reports since 2012 have not been made public. 

   [12] International Crisis Group 2011, The Insurgency in Afghanistan’s Heartland, Asia Report No. 207, June, pp.16, 31 < Accessed 26 April 2012 <CIS20921> 

   [13] European Asylum Support Office (EASO) 2015, Afghanistan Security Situation: EASO Country of Origin Information Report,, 31 January, p.52 < <CISEC96CF1191>

   [14] International Crisis Group 2011, The Insurgency in Afghanistan’s Heartland, Asia Report No. 207, June, pp. 17, 31 < Accessed 26 April 2012 <CIS20921>.

4. The security environment in Wardak has been dominated by attacks on security forces and convoys along the Kabul-Ghazni highway, particularly in Saydabad district, which saw far more attacks in 2014 than any other district in Wardak.[15] Despite the long Taliban presence in the province, the Afghan army has recently made gains in Chak district, which was the Taliban’s main base in the province.[16]

   [15] Afghanistan NGO Safety Office 2012, ‘ANSO Report – Issue 110’, 16-30 November, p. 2 < <CIS28147>. 

   [16] ‘In a strategic valley, a glimpse of Afghan troops’ future after most U.S. forces leave’ 2014, Washington Post, 21 December < <CX1B9ECAB9113>; ‘ANSF Gain Control of District Chak After 13 years’ 2015, Tolo News, 29 January < <CXBD6A0DE841>; ‘Afghans claim abuse by security forces in Chak’ 2015, The Nation (UAE), 24 February < <CXBD6A0DE1905>. 

5. The Kabul-Behsud Highway which is used by Hazaras travelling between the Behsud districts and Kabul has been frequently targeted by insurgent groups. In July 2013, DFAT provide an update on the security situation for Hazaras in Afghanistan which noted an increasing number of abductions and killings on this route by Taliban and Haqqani groups. It suggests that some of these attacks may be attributed to criminal groups rather than insurgents. According to DFAT, travel on the section of the highway through the districts of Maidan Shahr, Jalrez and Behsood I and II is particularly dangerous for all civilians. Although the report cites sources that claim ‘dozens’ of Hazaras have been killed on roads between Kabul and the Hazarajat in 2013 – DFAT concludes that ‘it remains extremely difficult to state with any degree of certainty that the victims' ethnicity was the prime criteria for targeting’.[17] A 2014 AP report states that the road has ‘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.’[18]

   [17] Department of Foreign Affairs and Trade 2013, Afghanistan: Hazara: Community Situation Update, 2 July <CISNET Afghanistan <CX310678>. 

   [18] ‘Deadly road blocks Afghanistan’s Hazara minority from homeland’ 2014, The Australian (Source: Associated Press), 23 January < Accessed 11 July 2014 <CX323113>. 

6. There are conflicting views as to whether Hazara travellers are being targeted because of their ethnicity, which are summarised in the department’s Country of Origin Information Service  (COIS) March 2015 Hazara Issues Paper as follows:

   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.[19]

   [19] DIBP, COIS,  2015, “Afghanistan: Hazaras Issues Paper”, March, pp. 46 & 47.

7. The department’s Country of Origin Information Service  (COIS) March 2015 Hazara Issues Paper provided a list of reported attacks on Hazaras in Afghanistan, the majority of which occurred on the roads:

   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.

   c.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.[20]

   [20] DIBP, COIS, 2015, “Afghanistan: Hazaras Issues Paper”, March, pp. 54-57.

8. The tribunal notes that security concerns in Afghanistan, particularly for Shia Hazaras, have increased in recent months with what appears to be the addition of a small but growing Islamic State (IS) presence in the country. Some of the reported recent attacks on Hazaras have been attributed to IS fighters - foreign fighters and/or defectors from the Taleban. The Associated Press recently reported on not only the emergence of an IS presence in Afghanistan but also of the “Taliban spreading their own influence to areas where they have not had a significant presence in the past.”[21] According to a recent New York Times article there is speculation the Taleban is becoming increasingly brutal to Hazaras to try to combat the growing popularity of IS and the defection of its fighters to IS.[22]

   [21]Associated Press 2015, “Taliban Announce Their Spring Offensive In Afghanistan”, 22 April The New York Times, 2015, “Taliban Are Said to Target Hazaras to Try to Match ISIS’ Brutality, 22 April.

The tribunal notes that the applicant’s family left their land in Behsood some 40 years ago. It has accepted that the applicant’s uncle returned to Behsood several years ago and was not heard from again. The tribunal finds that there is a real chance that the applicant’s uncle is no longer alive and that the family’s land may have been confiscated. The tribunal finds that the applicant will be returning to his home area with no family connections or networks there and no land. Given this, there is a real chance that he will have to travel outside of Behsood to look for work. Apart from this, the tribunal finds that the applicant will stand out even more due to his long absence from Afghanistan which will be apparent from his accent, mannerisms and lack of familiarity with many local customs. Furthermore, he has also spent the last three years in a Western country, which may make him stand out further.

In light of the above information regarding the increasingly violent conflicts between Hazaras and Kuchis in Behsood districts, the presence of Taliban in Wardak province including on the road between Kabul and Behsood, past reports of targeting of Hazaras in the area and what appears to be a deteriorating security situation, the tribunal finds that there is a real chance that the applicant will face serious harm at the hands of the Taliban or Kuchi nomads due to a combination of his Hazara race, Shia Muslim faith and imputed political opinion resulting from his prolonged absence from Afghanistan and time spent in Australia either travelling to, around or in his home area.

DFAT has advised that the Afghan government struggles to exercise effective control over parts of the country due to the ongoing insurgency.[23] In its current Eligibility Guidelines the UNHCR was of the view that state protection was, on the whole, not available in Afghanistan to the extent that the harm feared is from non-state actors.[24] Reports above have commented on the deteriorating security situation in Afghanistan. In light of this information the tribunal is not satisfied that effective state protection is available to the applicant.

Relocation to Kabul

[23] DFAT Thematic Report: Hazaras in Afghanistan and Pakistan 26 March 2014 at

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

The tribunal has considered whether the applicant can reasonably relocate to another area of Afghanistan.  The tribunal considers Kabul as the only realistic option, as the capital and place of likely initial return for the applicant.

As discussed with the applicant reports indicate that there is an increasingly large community of Hazaras in Kabul,[25] with relatively few reported incidents of Hazaras being targeted in the capital.

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

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.  As put to the applicant at his hearing, 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.  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.  DFAT has also referred to unemployment being widespread in Kabul and underemployment being common.[26]

[26] DFAT Thematic Report: Conditions in Kabul (3 October 2014).

The UNHCR has noted that the reasonableness of relocation in Afghanistan depends on the availability of traditional support structures such as family and tribal support networks, access to shelter, the availability of infrastructure and access to essential services such as sanitation and health care, livelihood opportunities and the scale of internal displacement in the area.[27] DFAT also notes that “traditional extended family and tribal community structures are the main protection and coping mechanism for IDPs, particularly in rural areas. Afghans rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence”.[28]

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

[28] Department of Foreign Affairs and Trade, 2014, DFAT Country Information Report Afghanistan, 26 March.

The tribunal accepts that the applicant has never been to Kabul and has no family or other networks there. It finds that, while he has completed secondary schooling and started tertiary studies in [Country 1], his work experience is limited to [an occupation] in his youth and since then [in other industries]. Furthermore, it accepts that he has [children] of various ages and that his wife has recently been diagnosed with [an illness]. Arguments were made at the hearing about the applicant’s inability to provide for his family as well as his wife’s future medical treatment were he to relocate with his family to Kabul.

Having considered the above country information regarding relocation to Kabul and the applicant’s personal circumstances, namely his lack of connections or network in Kabul, his past employment in low-skilled jobs and his need to support his [children] and the health care for his [ill] wife, the tribunal finds that relocation to Kabul would not be a reasonable option for the applicant.

The tribunal therefore finds that the applicant’s fears of persecution in Afghanistan are well founded.

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

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

Magda Wysocka
Member