1401381 (Refugee)

[2016] AATA 3016

1401381 (Refugee) [2016] AATA 3016 (11 January 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1401381

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Rea Hearn Mackinnon

DATE:11 January 2016

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 11 January 2016 at 12:40pm

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] December 2012 and the delegate refused to grant the visa [in] January 2014.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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. 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’).

8. 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.

9. The issue in this case is whether the applicant will be harmed because of his race or religion. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Nationality

10. The applicant claims to be a national of Afghanistan. The applicant provided a copy of a taskera. After considering the applicant’s evidence, the delegate was satisfied that he is a national of Afghanistan. In the absence of any evidence to the contrary, the Tribunal also accepts that the applicant is a national of Afghanistan and has assessed his claims against Afghanistan as his country of nationality and his receiving country. There is no evidence before the Tribunal which indicates that the applicant has a right to enter and reside in a safe third country.

    Background

11. The applicant claims, and the Tribunal accepts, that he was born in about [year] in [a] village in Jaghori district of Ghazni province. He is of Hazara ethnicity and Shia religion. He left Afghanistan in 2003 and resided illegally in Quetta, Pakistan. He then moved between Quetta and [another country] (illegally) until June 2012 when he left Pakistan and travelled to Australia arriving in August 2012.  The applicant is married with [children]. His wife, children, [siblings], parents-in-law and [relative] are all living in Pakistan. His parents are deceased, his [sibling] is missing after traveling to Europe from [another country] and his [other siblings] are in Australia. In Afghanistan the applicant worked on the family farm and as a [occupation] and [Occupation 1]. Since leaving Afghanistan, he has worked as [another occupation]. He has no schooling other than religious education at the mosque.

    Claims

12. The applicant claims that, in 2003, his area in Jaghori was surrounded by Pashtun villages and the Taliban controlled the roads around the area. He was working as [Occupation 1] at a school in his village. He claims that he received two or three threats from the Taliban via people in the village who told him that the Taliban were looking for him and had warned him against working at the school. Villagers advised him not to travel on the roads but this was difficult for him as he had to go to work.

13. The applicant claims that he was also afraid of being harmed because of his ethnicity and religion as he had to travel through Pashtun areas and it was difficult to distinguish between Pashtuns and Taliban.

14. The applicant claims that he left Afghanistan because he feared he would be eventually captured and killed. He claims that he left Pakistan in 2012 because the security situation there had deteriorated and Hazaras were being targeted and killed.

15. The applicant fears he will be harmed or killed by the Taliban if he returns to Afghanistan because of his prior work at the school and because of his ethnicity and religion and because, as a returnee from the west the Taliban will regard him as a supporter of the US and the west. He claims that the authorities will not be able to protect him as the government has no presence in his area.

    Security situation in Afghanistan

16. The security situation in Afghanistan generally is poor with Afghanistan currently ranked second in the World Security Risk Index after Syria.[1] In its recent report on security in Afghanistan, the European Asylum Support Office (EAS0) noted that:

    According to Ruttig and Münch, the withdrawal of foreign troops has had an impact on the areas that they used to secure. In those areas, which are now left to the ANSF [Afghan National Security Forces], insurgents increasingly take control of territory, and attack administrative centres and security installations. The International Crisis Group (ICG) described how the transition initiated a new phase in the war, characterised by fighting between the ANSF and insurgent groups. The latter have failed to capture major towns and cities and some areas are even more secure due to the withdrawal of IMF [International Military Forces]. However, the overall trend is one of decreasing government control outside the larger towns and cities, escalating violence and more insurgent attacks.

    Ruttig and Münch reported that since 2013, insurgents have made increasing territorial gains and cut off major highways, especially in the north. They sometimes symbolically capture abandoned ISAF [International Security Assistance Force] bases, such as Kejran, Daykundi in October 2013 and ANSF bases, such as Omna district, Paktika, in late May 2014 and Ghaziabad, Kunar, in February 2014. The insurgents launch major assaults around the country on administrative centres and security checkpoints. The aim is to capture territory and hold it, such as at Yamgan, Badakhshan, and Qaisar and Ghormach districts of Faryab. They operate in fronts of several hundred fighters. So far, the ANSF has repelled most attacks and regained control over district administrative centres and security installations, but the UN Secretary General reported that ANSF have not been able to curtail insurgents’ presence and freedom of movement, especially in remote districts. However, the expansion of the ALP [Afghan Local Police] and local uprisings have pushed them back from other areas, for example in Ghazni province.[2]

    [1] Global Intake, World Security Risk ( 12 November 2014

    [2] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January

17. The Department of Foreign Affairs and Trade (DFAT) also notes in its most recent report that “insurgent forces contest many areas of Afghanistan and no part of the country can be considered free from conflict related violence. The situation remains fluid. While the government retains control of much of the country, particularly in the provincial and district centres, some areas are openly contested with varying levels of control exerted by the government and by insurgents. … The security situation is better in areas where government forces maintain strong control, such as major urban centres like Kabul, but attacks remain a common occurrence even in these areas”.[3] 

    [3] DFAT, 2015, DFAT Country Information Report Afghanistan, 18 September

18. The United Nations Assistance Mission of Afghanistan documented 10,548 civilian casualties (3,699 deaths and 6,849 injured) in 2014, marking a 25 per cent increase in civilian deaths and a 21 per cent increase in injuries or an overall increase of 22 per cent in civilian casualties compared to 2013 which was the highest number of civilian deaths and injuries in a single year since the UNAMA began systematically recording civilian casualties in 2009.  This increase was said to result mainly from increased ground engagements across Afghanistan in which parties to the conflict used high explosive weapons systems such as mortars, rockets and grenades in civilian-populated areas with devastating consequences for civilians.  The use of improvised explosive devices had also increased in 2014 as had the number of civilian victims of suicide and complex attacks.[4] The Afghan Analysts Network reported in August that targeted attacks on civilians was the biggest cause of civilian deaths (28%) and that the UNAMA had reported on targeted killings of aid workers, tribal elders, government officials, mullahs and places of worship.[5]

    [4] United Nations Assistance Mission in Afghanistan (UNAMA), Afghanistan Annual Report 2014: Protection of Civilians in Armed Conflict, 18 February 2015, CISEC96CF1205, pages 4, 6-7.

    [5] Clark, K, 2015, ‘War and peace, Highest Civilian Casualty Figures Ever: UNAMA details deaths by mortar, IED, suicide attack and targeted killing’, Afghan Analysts Network, 5 August

19. A number of different anti governments groups are operating in Afghanistan including the Taliban, the Haqqani Network, Hezb-e Islami Afghanistan (led by Gulbuddin Hekmatyar), the Islamic Movement of Uzbekistan and various other armed militias.[6] Foreign fighters associated with Al Qaeda are present in the north and east.[7] Daesh (IS) is exerting limited influence in some parts of Afghanistan and a number of disaffected Taliban insurgents are reported to have identified with IS. As well, there are a number of local militias, aligned to local warlords who are not necessarily opposed to the government but act to protect their own interests.[8]

    [6] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January; Department of Foreign Affairs and Trade, 2015, DFAT Country Information Report Afghanistan,18 September

    [7] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January

    [8] DFAT, 2015, DFAT Country Information Report Afghanistan, 18 September

20. The most common targets for insurgents in Afghanistan are government and security institutions, political figures, foreign missions, international organisations and recently in Kabul, foreign civilians.[9]  DFAT has noted that, whilst attacks may be directed at specific targets, the method of attack can be indiscriminate and result in a high number of civilian casualties, for example, an attack on Afghan Local Police commanders at a crowded volleyball game in Paktika Province in November 2014 killed ten police officers and 53 civilians and injured another 85 civilians.[10]

    [9] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January

    [10] DFAT, 2015, DFAT Country Information Report Afghanistan, 18 September

    Current situation for Hazaras in Afghanistan

21. DFAT has estimated that there are 3 million Hazaras in Afghanistan, (approximately nine percent of the population) living mostly in the central highlands area of Afghanistan known as the Hazarajat. There has been strong enmity between Hazaras and the dominant Pashtun population since the killing or displacement of approximately 60% of the Hazara population under the Pashtun Emir Abdur Rahman Khan in the late 19^th century.  The takeover of Kabul and most of Afghanistan by the Taliban in 1996 resulted in a period of repression and conflict for Hazaras. Thousands of Hazara fighters and civilians were killed in fighting in Kabul and Mazar-e-Sharif where at least 2000 Hazaras were killed in reprisal for earlier killings of Taliban fighters. Hazaras experienced ongoing systematic official and societal discrimination and violence under the Taliban regime.[11]

    [11] DFAT, 2014, DFAT Thematic Report: Hazaras in Afghanistan and Pakistan, 26 March

22. Since the removal of the Taliban regime Hazaras have made “significant gains albeit from a low base”[12] although DFAT has noted that Hazaras still suffer some societal discrimination, mostly in relation to nepotism involving tribal and ethnic connections; and are still underrepresented in senior levels of government (Vice President Danish is the only Hazara in Cabinet); and that the historical enmity between Hazaras and Pashtuns contributes to a perception amongst Hazaras of ongoing discrimination and targeted violence.[13]

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

    [13] DFAT, 2015, DFAT Country Information Report Afghanistan,18 September

23. Assessing the level of risk to Hazaras in Afghanistan is complex. DFAT reported recently that, “all Afghans are vulnerable to violent attacks associated with insurgent and/or terrorist groups. DFAT has no evidence to suggest that Hazaras are systematically targeted in these attacks on the basis of their ethnicity alone. DFAT assesses that, with the exception of kidnappings, Hazaras are not currently at any greater risk of violence than any other ethnic groups in Afghanistan.[14] In a letter provided to the Tribunal, William Maley noted that, “it is a serious mistake to conclude that Afghanistan is safe for Hazaras. The disposition of extremists to strike at them has not disappeared”.[15]

    [14] Ibid

    [15] Maley, W, 2015, ‘On the Return of Hazaras to Afghanistan’, 16 February

24. There have been a number of reported kidnappings of Hazaras recently including:

    ·    The kidnapping of 31 Hazaras travelling in two buses from Herat to Kabul in Zabul Province on 23 February 2015. The armed men who carried out the abductions reportedly stopped the buses and checked the passenger’s identity cards, separated the Hazara men and took them away.[16]  The Taliban denied involvement in this kidnapping and it has been suggested that IS was responsible;[17] 

    ·    The kidnapping of ten Hazaras travelling from Kabul to Jaghori in two cars in the Qarabagh district of Ghazni Province on 15 March 2015. Nine of the ten passengers have since been released.  Reports suggest that this was not an isolated incident;[18] 

    ·    The kidnapping of six Hazara passengers on their way from Herat to Farah on 16 March 2015 however four of those taken were reportedly soldiers in the Afghan National Army;[19] and

    ·    The kidnapping and killing of four Hazaras from Malistan in Ajrestan district of Ghazni Province on 14 April 2014. These people were reportedly taken as leverage to negotiate the release of a Taliban commander and his men.[20]

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

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

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

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

    [20] Suroush, Q, 2015, ‘War and peace: Hazaras in the Crosshairs? A scrutiny of recent incidents’, Afghan Analysts Network, 24 April

25. As well, five Hazara coal merchants were reportedly abducted in Balkh Province on 30 March 2015 for ransom; thirteen Hazaras were reportedly taken in Sar-e Pul on 1 April 2015 for an unknown reason and released two weeks later; and another twenty Hazaras were taken in Qarabagh on 1 April 2015 and held for a day, reportedly as leverage to force the police to return a Pashtun girl to her family.[21]

    [21] Ibid

26. The DFAT advice above notes that Hazaras have been subject to kidnappings.  DFAT also notes that:

    While no ethnic group is immune from kidnappings, DFAT assesses that Hazaras travelling by road between Kabul and the Hazarajat face a risk which is greater than other ethnic groups. It is unclear whether this is due to ethnic targeting or is a result of the high numbers of Hazaras travelling on this route. Nonetheless, DFAT assesses that, if a bus with a mixture of ethnic groups on board is stopped in these areas, ethnic Hazaras (and other non-Pashtuns) are more likely to be selected for kidnapping or violence than Pashtun passengers. It should be noted, however, that kidnappings of Hazaras are relatively rare in a country-wide context. According to the UNAMA 2015 mid-year report on protection of civilians in Afghanistan, of the 196 abduction incidents country-wide in the first six months of 2015, only 10 incidents involved Hazaras. All but one of the kidnappings of Hazaras occurred in areas of mixed Hazara and non-Hazara communities. A total of 97 Hazaras were reported as being abducted, 67 of whom have been confirmed as being subsequently released.[22]

    [22] DFAT, 2015, DFAT Country Information Report Afghanistan,18 September

1. DFAT notes that although ethnicity and religion may be a factor in kidnapping of civilians, insurgents generally target persons associated with the government or the international community or who appear wealthier that other Afghans.[23] DFAT has assessed that Hazaras have taken full advantage of the opportunities available to them since the removal of the Taliban regime (including in education and politics) and that, due to the improvement in their circumstances, Hazaras are widely perceived to be affiliated with both the government and the international community.[24] In October 2014, a Hazara asylum seeker returned to Afghanistan from Australia was reportedly kidnapped by the Taliban in Ghazni Province and tortured after the Taliban found his Australian licence.[25] Another Hazara dual Afghan-Australian citizen was killed by Taliban in Ghazni in September 2014 reportedly because of his association with Australia.[26]

   [23] Ibid

   [24] DFAT, 2014, DFAT Thematic Report: Hazaras in Afghanistan and Pakistan, 26 March

   [25] Donelly, B, ‘Government to investigate torture claims of deported asylum seeker Zainullah Naseri’, The Sydney Morning Herald, 28 October 2014; also referred to in DFAT, 2015, DFAT Country Information Report Afghanistan, September

   [26] ‘Australian man Sayed Habib ‘tortured and killed by Taliban’, The Australian, 29 September 2014

2. Ghazni province is regarded as one of the most dangerous in Afghanistan and a gateway between Kabul and the south-east of Afghanistan. Several anti-government insurgent groups, including the Taliban, the Haqqani network, Arab and Pakistani fighters and IS are reported to be active in Ghazni. [27] There were 1,257 reported security incidents in Ghazni between January and 31 October 2014.[28] The insurgents usually target government officials and employees travelling on the main Kabul-Kandahar highway. Information about harm to Hazaras in Ghazni is set out in the preceding paragraphs.

   [27] European Asylum Support Office, 2015, EASO Country of Origin Information Report Afghanistan Security Situation, January

   [28] Ibid

3. DFAT reported recently that Hazara minorities living in Pashtun-majority areas are less safe than those living in Kabul or the Hazara-majority areas.[29]

   Finding

   [29] DFAT, 2015, DFAT Country Information Report Afghanistan, 18 September

4. The Tribunal accepts that the applicant left Afghanistan in 2003. The Tribunal accepts that there may not have been much of a government presence in Jaghori in 2003. The Tribunal accepts that the applicant would have had to travel through Pashtun areas outside of Jaghori and that the Taliban may have stopped people on the roads. The Tribunal accepts that the applicant may have worked as [Occupation 1] at a school in his village but considers it unlikely that the Taliban would have been aware of this occupation or warned the applicant against it given that this employment was inside the Hazarajat. The Tribunal does not accept that the Taliban would seek to harm the applicant now because he worked as a school [Occupation 1] for a few months in 2003. However, the Tribunal is satisfied that the applicant faces a more than remote chance of serious harm in Afghanistan now for the reasons discussed below.

5. Whilst Jaghori is itself relatively secure, the surrounding districts of Ghazni are highly insecure. The Tribunal accepts that the applicant may have to travel in and out of Ghazni in order to support himself and his family. 

6. In view of the country information above, regarding the high level of insecurity in Ghazni and the heightened risk to Hazaras of being kidnapped by insurgents whilst travelling in Ghazni, the Tribunal finds that there is a more than remote chance that the applicant will be subject to serious harm in the form of kidnapping and possible killing if he returns to Ghazni and that this harm will be because of his race, religion or imputed political opinion as a supporter of the government and/or the international community.

7. Given that the Afghan government and security forces are struggling to exercise effective control over large parts of Afghanistan, including large areas of Ghazni province, the Tribunal finds that state protection will not be effective or available to the applicant.

   Relocation

8. In view of the finding above, the Tribunal has considered whether the applicant could live safely in a different part of Afghanistan and whether it would be reasonable for him to relocate.

9. The country information above indicates a high level of insecurity across large sections of Afghanistan with large urban centres under the control of the government, such as Kabul, being the most secure. Kabul is a diverse city with an estimated population of between 5 and 7 million people of which Hazaras comprise about one third.[30] Whilst there have been a number of recent targeted attacks in Kabul (discussed further below), these have not been directed at Hazaras. There was a bomb attack on the Shia Abu Fazi Mosque during an Ashura celebration in December 2011 which killed 70 people which has been attributed to Lashkar-e Jhangvi, an extremist Sunni group from Pakistan however there has not been a sectarian attack in Kabul since then. In view of the country information discussed above, the Tribunal is not satisfied that the applicant could live safely in a rural part of Afghanistan. Even if the applicant could live safely in Kabul, the Tribunal does not accept that such relocation is reasonable for the reasons set out below.

   [30] Ibid

10. 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.[31] DFAT notes that Kabul offers relatively better opportunities for employment and access to services than rural areas but also notes that unemployment is widespread; that underemployment is common; and that new arrivals are at a disadvantage because they lack skills and a family network to assist them to obtain employment. DFAT notes that many new arrivals work as relatively poorly paid day labourers or have to beg or work as street sellers. DFAT notes that the cost of living and rents are relatively high in Kabul and that many residents live in “informal settlements” with no electricity, water or sanitation.[32]

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

    [32] DFAT, 2015, DFAT Thematic report Conditions in Kabul, 18 September

11. DFAT also notes that insurgents regularly conduct high profile attacks in Kabul and that, whilst the primary targets of such attacks are government institutions, military and security facilities or personnel, political figures and international organisations, these have caused significant civilian casualties.[33]  A series of attacks in August 2015 killed an estimated 355 civilians in a single day.[34]

    [33] Ibid; EASO also noted a number of attacks which targeted foreign civilians

    [34] Ibid

12. There is no evidence before the Tribunal which indicates that the applicant has any family or support network in Kabul. He has little or no education, limited job skills and no family network or support in Kabul to assist him with employment or accommodation. In view of these circumstances and the poor security situation in Kabul, the Tribunal finds that relocation to Kabul is not reasonably practicable.

    CONCLUSION

13. 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

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

    Rea Hearn Mackinnon
    Member