1316895 (Refugee)

[2015] AATA 3518

1316895 (Refugee) [2015] AATA 3518 (7 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1316895

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:7 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 07 September 2015 at 5:45pm

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. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 425(2)(a) of the Act.

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

   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.

   Refugee criterion

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. 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.

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

    State protection

16. 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. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Relocation

17. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Complementary protection criterion

18. 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’).

19. ‘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.

20. 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

21. 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 and has done so.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. I have before me material including:

    ·Application for protection visa and accompanying statutory declaration dated 22 November 2012;

    ·Copy of entry interview dated [in] July 2012;

    ·Interview with the delegate dated [in] August 2013;

    ·Translated copies of the applicant’s marriage declaration, receipts regarding a real estate purchase and an identity document of his father;

    ·Agent’s submission dated 21 August 2013.

23. The applicant’s claims can be summarised as follows.  He is a Hazara Shia born in [Jaghori], Ghazni, Afghanistan in [year].  His wife and [children] still live there. The applicant lived in Iran and Pakistan from when he was [a teenager] where he worked as [occupation].  In approximately 2010 he returned to Afghanistan and built a house for his family. 

24. The applicant rented a room to a [man] and his wife.  One night he found the [man] dead on the floor after being stabbed.  The [man]’s family blamed the applicant for the murder.  The applicant was arrested and detained by the police for five days and beaten badly.  Whilst being transported the Taliban attacked the group and a guard removed his handcuffs.  The applicant then hid until the attack was over.  He left the area and contacted his family to send some money to enable him to go to Pakistan.

    Country of reference

25. The applicant claims to be an Afghani national from Jaghori in Afghanistan.  He speaks Hazaragi and has submitted a number of documents which indicate that he is from Afghanistan. I find that Afghanistan is his country of nationality for the purposes of the Convention.

    Assessment of claims

26. The applicant has been generally consistent in his claims at his entry interview, in his statutory declaration and in his interview with the delegate and I am prepared to accept that these events occurred.  However, on the evidence before me, I do not accept that the applicant fears of harm from the authorities or the [man]’s family is Convention related.   I do not accept that he faces a real chance of serious harm which involves discriminatory conduct for the essential and significant reason or reasons of his actual or imputed race, religion, membership of  a particular social group, nationality or political opinion as required by s.91R(1)(a) or (c) of the Act.

    Hazara Shias generally

27. In its March 2014 report DFAT assessed that insurgents—including the Taliban—generally do not target individuals solely on the basis of ethnicity and that no particular ethnic groups are disproportionately subject to violence.  It did note however that ethnicity (or religion) is sometimes a contributing factor. ^[1]  DFAT has also stated that there is currently a low risk of criminal or insurgent violence for Hazaras in Afghanistan relative to the overall security situation, and that Hazaras are not currently at any greater risk of violence than other ethnic groups. ^[2] This view of the level of general threat posed to the Hazara community is supported by Professor Amin Saikal of ANU.[3]

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

    [2] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

    [3] Saikal, Amin 2012, ‘Afghanistan: The Status of the Shi'ite Hazara Minority’, Journal of Muslim Minority Affairs, March, Vol.32, No.1, pp.80-87.

28. The UNHCR, in a detailed report dated 6 August 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan advised that the position of members of (minority) ethnic groups including Hazaras requires a particularly careful examination of the possible risks.  It reports that while overt discrimination by Sunnis against the Shia community is decreasing, violent attacks targeting the Shia population continue to occur. Specifically, it refers to the murder of five Hazaras by the Taliban in Andar district of Ghazni province and the murder, allegedly by the Taliban, of five Hazaras from Bamyan province when travelling on the road connecting Bamyan province to Kabul via Wardak province.

29. Considering the totality of these reports, I accept that there are some incidents where Hazaras have been targeted by the Taliban and that ethnicity is sometimes a contributing factor.  However, I do not accept that all Hazaras in Afghanistan face a real chance of persecution in the reasonably foreseeable future and I find that it is necessary to consider Hazara cases in their individual circumstances.

30. DFAT have commented:

    3.21 DFAT assesses that Shia Muslims (mostly Hazaras, but also the minority Ismaili sect) face a low level of societal discrimination, primarily as a result of nepotism within the Sunni majority. Shias have also been subject to occasional violence. For example, a bombing attributed to Pakistan-based Lashkar-e Jhangvi (LeJ) of the Shia Abu Fazl mosque in Kabul during Moharram in December 2011 reportedly killed at least 70 people. DFAT assesses that Shia–Sunni sectarian violence is infrequent in Afghanistan. However, because many adherents of Shia Islam are also Hazaras, it is not always possible to differentiate between religion and ethnicity as the basis for discrimination or violence…[4]

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

31. Whilst these attacks were horrific and targeted at Shias, their relatively rare nature mean they do not alter my assessment that all Hazara Shias do not face a real chance of persecution, now or in the reasonably foreseeable future from the Taliban, Lashkar-e-Jhangvi or any other Sunni extremist group. 

    Jaghori

32. DFAT have commented:

    4.11 At least 11 Pashtun-majority districts of Ghazni Province are not considered to be safe. The threat level in these districts is high due to the presence of Taliban and other insurgent groups. However, the threat level in Hazara-majority districts of Ghazni, including Nawur, Malistan and Jaghori remains low. Security is provided by the Afghan National Police (ANP), without any Afghan National Army (ANA) deployments to these districts. DFAT assesses that there is a low risk of violence for Hazaras in these particular areas.

    4.12 There have been incidents of conflict between Hazara factions in Ghazni, primarily revenge attacks. However, the Government had asserted effective control over the main Hazara districts of the Province in recent years, including by preventing the dissemination of weapons, the confiscation of weapons, and the detention of individuals responsible for violent crime. 

    4.13 The comparatively good security environment in Ghazni’s Hazara districts means that government officials and the international community have relative freedom of movement in these areas. These districts therefore enjoy relatively good access to services and a permanent presence of government officials—including from the Departments of Rural Rehabilitation and Development, and Education. However, security on roads linking Hazara-majority districts of Ghazni to Kabul and other parts of Afghanistan is less safe.[5]

    [5] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

33. In a 2009 DFAT advice on the situation for Hazaras in Ghazni, Uruzgan and Dai Kundi provinces, the report lists one unknown source that explains that the “ethnicity (of Jaghori district) is 100% Hazara.[6]  DFAT have commented that the key Hazara districts of Ghazni Province (Nawur, Malistan and Jaghori) continue to experience relatively low levels of violence.  No recent reports have been found of Taliban incursions into Jaghori.  Based on country information and the applicant’s individual circumstances, I therefore do not accept that the applicant in his home area of Jaghori faces a real chance of persecution, now or in the reasonably foreseeable future from the Taliban or any other Sunni group on account of being a Hazara Shia or due to any imputed political opinion as a returnee from a Western country.

    Road travel

    [6] DIAC Country Information Service 2009, Country Information Response No. 09/14 – CIS Request No. AFG9509: Situation for Hazaras in Ghazni, Uruzgan and Dai Kundi Provinces, (sourced from DFAT advice of 2 February 2009), 3 February, CISNET Afghanistan CX219955.

1. In October 2012 DFAT commented that there is a need of residents to travel outside areas such as Jaghori to access health services.  Although the government and international community have been committed to improving health service delivery, relatively simple procedures still require patients across the country to travel to provincial capitals or to Kabul. In terms of employment in Ghazni DFAT notes:

   In Ghazni, close to 80 per cent of employment is reliant on small-scale agriculture. We do not have detailed information on employment in Jaghori specifically, but seeking employment and improved economic opportunities remains a key motivator for the many Afghans moving every day from rural areas to provincial centres, to Kabul, and abroad.[7]

   [7] Department of Foreign Affairs and Trade 2012, Security Situation for Hazaras in Afghanistan, 31 October

2. It is clear that the applicant would need to travel on the road from Kabul to return to his home area of Jaghori. The applicant has had to travel regularly in the past outside Jaghori for work purposes particularly as his skills are in [a certain industry].  I find that it is likely that he will have to travel outside Jaghori on a more than infrequent basis to obtain supplies and find work to help support himself and his wife and [children].  Ghazni City is the closest provincial capital and it would also on occasions have to be visited to obtain necessary medical care for himself and his wife and [children] given the DFAT information set out above concerning the lack of medical care in district areas and that relatively simple procedures still require patients across the country to travel to provincial capitals or to Kabul at significant expense.

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

   Most security concerns for Hazaras in the Hazara districts of Ghazni relate to travel outside the district, as most roads travel through Pashtun districts where insurgents are active. There are conflicting views among external sources consulted by the RRT on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. In 2014-5 there have been three reported incidents involving Taliban attacks on Hazaras travelling into Jaghori from Kabul …

   There are conflicting views among external sources consulted on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. Advice by DFAT, Qayoom Suroush of Afghanistan Analysts Network and the Afghanistan Development Association indicates that there is no evidence of ethnic targeting on roads in Ghazni.  In contrast, Thomas Ruttig, Professor Alessandro Monsutti, Professor William Maley and a Ghazni based NGO, the Ghazni Rural Support Program, maintain that travel for Hazaras is dangerous on roads passing through Pashtun districts [8]

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

4. DFAT has made the following comments about road security:

   4.22 Afghanistan’s road network, particularly in the mountainous central highlands, is generally poor. Travel in winter is even more difficult and roads at higher altitudes can be cut by snowfalls for long periods during winter. Speeding and unsafe driving further aggravates the problem—the majority of deaths on Afghan roads are caused by traffic accidents.

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

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

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

   …

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

   4.33 There are three routes from Ghazni city to the Hazara-majority Jaghori district. The most frequently used road passes through Nawur district, and is considered secure. The second route through Qarabagh district is considered less secure. A third through Muqur is insecure due to a Taliban presence, with occasional checkpoints and security incidents. DFAT understands that local residents with ties to the province and knowledge of the area—including Hazaras—are generally able to travel between Ghazni City and Hazara districts without incident and thousands of vehicles use these roads daily.[9]

   [9] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

5. The Department’s Country of Origin Information Service report from March 2015 on ‘Afghanistan: Hazara Issues Paper’, refers to reports of the Taliban ‘block[ing] all routes to Malestan, Jaghori, Nawur and Ajrestan’ in or around September 2014.[10]  Similarly, Tolo News recently reported in April 2015 on residents from these districts being stranded in Ghazni City for the past month, unable to return to their home areas ‘due to high security threats on the roads in the area’.[11] 

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

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

   Reports also indicate that travel along key roads is dangerous, as militant groups, including the Taliban, regularly set up checkpoints and have killed and harmed those who work for or support the Afghan government and international community, including Hazaras.[12]  In recent years there have been regular reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads, and the security of roads in the region has become volatile and increasingly dangerous.  In March 2013 the director of the Ghazni Rural Support Programme advised the Tribunal that:

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

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

   In such areas the Taliban insurgents have their checkpoints.  They stop all cars, and pull off the passengers … It implies that the Taliban have publicly announced that all those people who work with the Afghan government, the international forces, and with national and international NGOs are ‘enemy’ of the Islamic “Emirates”, and thus are to be targeted and prosecuted anywhere they are found/captured … The only roads that are secure are the roads inside Jaghori and other districts where the entire population of the district is Hazara.  But since people are totally dependent on procuring their daily needs, (including food and fuel) they need to travel to Ghazni city, to Kandahar and to other places outside their districts.  The same applies to students who have to travel to Kabul and Ghazni for taking exams and attending universities. Number of students have been killed and beheaded on their way to Kabul.  So even if inside Jaghori is secure it does not help the people, and does not make any difference on the safety of Hazaras. [13]

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

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

6. Though there is conflicting information on whether Hazaras are targeted for reasons of their race and religion whilst travelling on roads in Afghanistan, there have been a number of reliably-reported incidents in which Hazaras have been targeted.

7. 31 Hazaras travelling by bus on the highway from Kandahar to Kabul were abducted in Zabul Province on 23 February 2015.  The armed men who carried out the abductions stopped the vehicles in which people were travelling and checked their identity cards before abducting the Hazara passengers.[14]  The Taliban denied involvement in the kidnapping and, as referred to above, there have been suggestions that Islamic State was responsible.[15]  Reports suggest that traffic on the highway from Kabul to Kandahar has decreased by a half as a result of this and other incidents.[16]  Further, on 15 March 2015 ten Hazaras were kidnapped in the Qarabagh district while travelling from Kabul to Jaghori in two cars. (Nine of the ten have since been released).  Reports suggest that this was not an isolated incident.[17]  There was a report that another six Hazara passengers had been abducted by the Taliban on their way from Herat to Farah on 16 March 2015 but other reports do not mention that the passengers who were abducted were Hazaras.  Four of those abducted were reportedly soldiers in the Afghan National Army and four of the kidnapped passengers were subsequently released in an army rescue operation.[18]

   [14] ‘Fear stalks Afghan minorities after rare attacks’, News24 -South Africa, 17 March 2015, CXBD6A0DE3141; ‘Drivers explain how Hazara passengers were kidnapped in Afghan south’, Tolo TV, 24 February 2015, CXBD6A0DE1909.

   [15] ‘Taliban deny hand in abduction of 30 Hazara men in Zabul; Khalili says they are safe’, Afghan Zariza, 7 March 2015, CXBD6A0DE2428; Frud Bezhan, ‘Mass Abduction Of Hazaras In Afghanistan Raises Fears Of Islamic State’, Radio Free Europe/Radio Liberty (RFE/RL), 25 February 2015, CXBD6A0DE1904; Ali M. Latifi and Shashank Bengali, ‘Afghan officials acknowledge Islamic State presence in their country’, Los Angeles Times, 17 March 2015, CXBD6A0DE3139.

   [16] ‘9 Newly Abducted Hazara Passengers Released’, Tolo News, 15 March 2015, CXBD6A0DE2979; ‘Protests in Ghazni Over 31 Hazara Hostages’, Tolo News, 17 March 2015, CXBD6A0DE3146; ‘Traffic on Kabul-Herat highway down by a half’, Pajhwok Afghan News -Afghanistan, 18 March 2015, CXBD6A0DE3132.

   [17] ‘Gunmen free 9 kidnapped passengers in Ghazni’, Pajhwok Afghan News -Afghanistan, 15 March 2015, CXBD6A0DE2899; ‘9 abducted civilians freed by kidnappers in Ghazni’, Khaama Press, 15 March 2015, CXBD6A0DE2889;

   [18] ‘Another 6 Hazara Passengers Abducted from Herat-Farah Highway’, Tolo News, 17 March 2015, CXBD6A0DE3029; ‘Masked gunmen kidnapped 6 people on Farah-Herat Highway’, Khaama Press, 17 March 2015, CXBD6A0DE3031; ‘Kidnapped passengers rescued in ANA operation’, Pajhwok Afghan News -Afghanistan, 17 March 2015, CXBD6A0DE3032.

8. As referred to in the COIS Afghanistan: Road Security Guide (issued 23 December 2014), in November 2014 COIS sought advice from a Kabul-based analyst/researcher with the Afghanistan Analysts Network, Abdul Qayoom Suroush, on road security with specific reference to travel from Kabul to Jaghori.  In his response he noted that he came from Qarabagh district himself and he said that he did not think that the two longer and more circuitous routes identified by COIS (Route 2 through Wardak to Behsud and then south and Route 3 through Parwan to Bamian and then south) were being used regularly.  He said that the shortest route through Qarabagh was also the most insecure.  He said that the route through Muqur (and then via Angori to Jaghori) had more robbers than Taliban and was not recommended for use.  Like DFAT he said that the most secure route was that from Ghazni City through Nawur (identified as Route 1a by COIS) although this route was rough and took hours longer to reach Jaghori.[19]

   [19] Email from Abdul Qayoom Suroush, ‘Re: DIBP request to Qayoom Suroush for comments on road security for Hazaras in Ghazni province’, 9 November 2014, CIS2F827D91516.

9. Mr Suroush said that the Taliban did not usually stop Hazara travellers just because they were Hazaras but for other reasons, for example if they were known to work for the Afghan Government or NGOs or if they were accused of being spies, insulting Islam or converting to other religions.  He said that in recent years the Taliban had killed a lot of members of the Afghan National Security Forces passing through Qarabagh to Jaghori and other areas.[20]  He referred to the case of Zainullah Naseri who was reportedly abducted by the Taliban in September 2014 when he was on his way back to his home in Jaghori from Kabul after he had been removed from Australia to Afghanistan.  Mr Naseri has said that he was abducted and beaten because the Taliban found his Australian driver’s licence and photographs of Australia on his iPhone.[21]  A statement from the then Minister for Immigration and Border Protection in October 2014 indicated that enquiries in regard to the allegations made by Mr Naseri were ongoing but that he was advised that the reports suggested that any kidnapping was opportunistic and was therefore not related to a fear of persecution that would have otherwise given rise to a protection obligation.[22]

   [20] Email from Abdul Qayoom Suroush, ‘Re: DIBP request to Qayoom Suroush for comments on road security for Hazaras in Ghazni province’, 9 November 2014, CIS2F827D91516.

   [21] Abdul Karim Hekmat, ‘Taliban tortures Abbott government deportee’, The Saturday Paper, 4 October 2014, CX1B9ECAB6244.

   [22] ‘Returned Hazara held hostage by Taliban’, Australian Broadcasting Corporation (ABC) - Lateline, 27 October 2014, CX1B9ECAB8565.

10. Also in September 2014 a dual Afghan-Australian citizen who came to Australia by boat in 2000, Sayed Habib Musawi, was abducted and killed by the Taliban when he was on his way back to Kabul after visiting relatives in his village of Hotqul in the Jaghori district of Ghazni province.[23]  According to the most detailed report the minibus in which he was travelling was stopped by the Taliban in Larga, a village in the Muqur district, and one of the Taliban ordered him by name to get off the bus.  Another passenger heard one of the Taliban asking him, ‘Did you come from Australia?’  They found his wallet, which had an Australian flag design, and also his driver’s licence and Medicare card.  His body was subsequently found in the Qarabagh district.[24]  According to the most detailed Australian news report, although Mr Musawi was a Hazara his family believe that he was killed because he was an Australian citizen.  The news report quotes Bashi Habib, the head of the security forces in Jaghori, as stating that the fact that Mr Musawi was an Australian citizen was reported to the Taliban by an informant in his area.[25]  In my view, the applicant is at an elevated risk of being targeted in on the roads around Jaghori because of his individual circumstances.  It would be known that he has lived in Australia as well as being identified as a Hazara Shia.

    [23] ‘Sydney man killed by Taliban because he was Australian report’, The Sydney Morning Herald, 29 September 2014, CX1B9ECAB8564; ‘Son of Afghan-Australian killed by Taliban denied refugee status’, The Sydney Morning Herald, 29 September 2014, CX1B9ECAB8530.

    [24] Abdul Karim Hekmat, ‘Hazaras face death on return to Afghanistan’, The Saturday Paper, 8 November 2014, CX1B9ECAB6982.

    [25] Abdul Karim Hekmat, ‘Hazaras face death on return to Afghanistan’, The Saturday Paper, 8 November 2014, CX1B9ECAB6982.

11. Considering the country information as a whole and the applicant’s individual circumstances, I find that he faces a real chance of serious harm amounting to persecution in the reasonably foreseeable future at the hands of the Taliban and other insurgent groups on the roads to and around his home area of Jaghori for reason of his imputed political opinion as a returnee from the West and as a Hazara Shia.  

    State protection

12. DFAT have commented:

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

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

    5.3 Many Afghans, including Hazaras, have expressed their concern about security in Afghanistan post-2014. In the absence of effective state protection outside of major urban areas, DFAT assesses that many local communities, including Hazaras, maintain their own militias to protect themselves from criminals and insurgents.[26]

    [26] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

1. Given this authoritative information, I find that the applicant would not be able to access state protection in accordance with the principles in MIMA v Respondents S152/2003.

   Relocation

2. DFAT specifically reported in relation to Kabul in October 2014:

   2.24 A bombing attributed to Pakistan-based Lashkar-e Jhangvi (LeJ) of the Shia Abu Fazl mosque in Kabul during Moharram in December 2011 reportedly killed at least 70 people. However, DFAT assesses that this was an isolated incident and that it is unclear whether it was the result of sectarian tensions. DFAT assesses that Sunni-Shia sectarian violence is infrequent in Kabul.

   …

   2.27 Insurgents regularly conduct high-profile attacks in Kabul. DFAT assesses 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. Such attacks often cause significant casualties amongst civilian bystanders in addition to those being specifically targeted.

   …

   2.29 The ANSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a strong  deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANSF and international forces concentrated in Kabul are also quick to respond to insurgent attacks when they occur. For example, the ANSF provided a rapid and effective response to an insurgent attack against Kabul airport in June 2013.

   …

   3.1  Overall, DFAT assesses that the Government maintains effective control of Kabul, due to a range of counter-measures put in place to prevent and respond to insurgent attacks. The relatively high level of state protection available in the city, including in formal, informal and illegal areas, has been an important driver of large-scale urban migration to Kabul since 2001.[27]

   [27] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 3 October 2014.

3. I accept that there are insurgent attacks in Kabul but these need to be seen in the context that Kabul has a population of up to seven million people (with up to two million Hazaras).[28]  Having regard to the country information concerning the overall situation for Hazara Shias and the country information that indicates that the Government maintains effective control of Kabul and that the security situation is relatively secure and safe for Hazaras in Kabul, I do not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future in Kabul on account of being a Hazara Shia or an imputed political opinion.  In making this finding I have taken into account the reports of two Hazara returnees from Australia being targeted.  However, the reports concern individuals who were targeted outside Kabul and there is no recent information before me that returnees or failed asylum seekers or those who have spent time outside Afghanistan have been seriously or significantly harmed in Kabul.

   [28] Department of Foreign Affairs and Trade, DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 26 March 2014.

4. DFAT have commented:

   2.10 The concentration of international forces, international organisations and government ministries has meant that the cost of living is relatively high in Kabul. Rents in Kabul tend to be expensive compared to most other parts of Afghanistan. As a result, many who live in Kabul may have no other option than to live in informal settlements. Many poorer residents are forced to borrow money to survive, entering a cycle of poverty and indebtedness.

   …

   2.13 Although there are no reliable statistics, unemployment is widespread in Kabul and underemployment is also common. The influx of IDPs and returnees in the city has put pressure on the local labour market. Those who have foreign language and computer skills tend to be best placed to find well-paid employment in Kabul. New arrivals to Kabul from rural areas tend to be at a disadvantage due to their lack of skills in demand. Many of these new arrivals also lack a network of family contacts needed to find employment. In this situation, employment may be irregular and often insecure–many work as relatively poorly paid day labourers who seek occasional work as it becomes available. Others are required to beg or work as street-sellers.

   …

   2.21 Access to electricity is highly variable, even in formal areas of the city. Electricity ‘load shedding’ and blackouts are common. For many in Kabul’s informal areas, electricity is supplied by a community generator for which a fee is charged by the operator, a relatively expensive form of supply. According to the World Bank and United Nations High Commissioner for Refugees (UNHCR), although most established residents had access to some electricity, up to 84 per cent of IDPs lacked access to any electricity.

   2.22 Most informal and illegal areas do not have reliable access to municipal water supply, relying instead on wells and water deliveries. Sanitation in these areas tends to be poor. Waste collection is better in informal areas than illegal areas.

   …

   2.27 Insurgents regularly conduct high-profile attacks in Kabul. DFAT assesses 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. Such attacks often cause significant casualties amongst civilian bystanders in addition to those being specifically targeted.

   …

   3.1 Overall, DFAT assesses that the Government maintains effective control of Kabul, due to a range of counter-measures put in place to prevent and respond to insurgent attacks. The relatively high level of state protection available in the city, including in formal, informal and illegal areas, has been an important driver of large-scale urban migration to Kabul since 2001.

   …

   3.8 Traditional extended family and tribal community structures of Afghan society can be an important protection and coping mechanism for IDPs. Many Afghans who are IDPs rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence.

   3.9 Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups present in the city. Given the growth of Kabul’s population since 2001, many individuals may have members of their extended family in Kabul who can assist with their relocation.

   3.10 DFAT assesses that there are generally options available for members of most ethnic and religious minorities to be able to relocate from other parts of Afghanistan to relative safety in Kabul.

   …

   3.13 In practice, DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation. This is compounded by Kabul’s relatively high cost of living, particularly the cost of housing.

   3.14 Internal relocation to urban areas is generally more successful for single men of working age.[29]

   [29] Department of Foreign Affairs and Trade, “DFAT Thematic Report, Conditions in Kabul”, 3 October 2014.

5. The UNHCR in its latest Eligibility Guidelines said the following:

   The traditional extended family and community structures of Afghan society continue to constitute the main protection and coping mechanism, particularly in rural areas where infrastructure is not as developed. Afghans rely on these structures and links for their safety and economic survival, including access to accommodation and an adequate level of subsistence. Since the protection provided by families and tribes is limited to areas where family or community links exist, Afghans, particularly unaccompanied women and children, and women single head of households with no male protection, will not be able to lead a life without undue hardship in areas with no social support networks, including in urban centres. In certain circumstances, relocation to an area with a predominantly different ethnic/religious make-up may also not be possible due to latent or overt tensions between ethnic/religious groups.

   In urban centres, the IDP population and growing economic migration are putting increased pressure on labour markets and resources such as construction materials, land and potable water. Widespread unemployment and underemployment limit the ability of a large number of people to meet their basic needs. The limited availability of humanitarian assistance has generally not improved this situation in a meaningful way. In addition to causing loss of life and serious injuries, mine contamination has prevented livelihood activities, including by restricting access to agricultural land, water, health care and education.

   In light of the foregoing, UNHCR generally considers IFA/IRA as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of intended relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. A case-by-case analysis will, nevertheless, be necessary given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas.[30]

   [30] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, UNHCR, 17 December 2010, pp. 38-40.

6. I have had regard to the information in the most recent DFAT report that suggests generally there are options available for members of most ethnic and religious minorities to be able to relocate from other parts of Afghanistan to relative safety in Kabul.  I have also taken into account that the applicant has experience living in urban areas (including Quetta, Pakistan) and that he has some work skills as [occupation].

7. However, there are a number of factors that in my opinion outweigh this evidence and make it unreasonable for the applicant to relocate to Kabul to avoid the real chance of persecution on the roads surrounding Jaghori.  These are:

   • That the applicant has no family links in Kabul and has not previously resided there.  I note that the UNHCR Guidelines and the DFAT reports stress the importance of the availability of traditional support mechanisms, such as extended family and tribal community structures and that Afghans rely upon these networks for their safety and economic survival including access to accommodation and an adequate level of subsistence. 
   • There is a huge Hazara underclass in Kabul that does not have access to clean water or electricity and rents are very high.  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.  DFAT have also referred to unemployment being widespread in Kabul and underemployment common.
   • A very significant factor is that the applicant has a wife and [children] to support which would make relocation far more difficult.  DFAT have stated that internal relocation to urban areas is more likely to be successful for single men of working age but this is not the situation for the applicant. 
   • Notwithstanding, Kabul is safer than other parts of the country there is evidence of a number of insurgent attacks that target government institutions, political figures and Afghan National Security Forces, other security services and international organisations.  Though this is not sufficient in itself to establish a real chance that the applicant would face serious harm, the existence of these attacks and the danger that the applicant may be caught up in them contributes to the unreasonableness of relocation.

8. I therefore do not consider it reasonable for the applicant to relocate to Kabul and the above factors (e.g. lack of family links elsewhere, widespread unemployment limiting the ability to meet his and his family’s basic needs and the general lack of security) would also be applicable to other areas.

   Third Country Protection

9. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.

   Conclusions

10. 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

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

    David Corrigan
    Member

    
    
    

(CISNET CX298127).