1401505 (Refugee)

[2015] AATA 3568

1401505 (Refugee) [2015] AATA 3568 (28 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1401505

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Paul Millar

DATE:28 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 28 October 2015 at 4:30pm

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).  The applicant, who the Tribunal finds to be a citizen of Afghanistan, applied for the visa [in] May 2012 and the delegate refused to grant the visa [in] December 2013.[1]  The applicant appeared before the Tribunal on 20 August 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.  The representative appeared at the hearing by telephone.

   [1] The Tribunal's finding as to citizenship is based on an Afghan Taskera in the applicant’s name which appears at folio 26 of the Tribunal file.

   RELEVANT LAW

2. 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.

3. 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).

4. 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.

5. 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’).

6. 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 (‘the department’) –  PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] In this respect, the Tribunal has taken account of DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014, DFAT Country Information Report Afghanistan 18 September 2015 and DFAT Thematic Report Conditions in Kabul 18 September 2015.  The Tribunal relies on all of these reports as cited further below in this decision.

   FINDINGS

7. The Tribunal has concluded that the decision under review should be affirmed.  According to his evidence to the department and the Tribunal, the applicant claimed protection on the following grounds.[3]  The applicant is a [age] year old Shia Hazara man from a village in the district of Jaghori, Ghazni province.  The applicant’s father was in a dispute with the applicant’s paternal uncle about land which had been given to them by their own father when he passed away.  The applicant’s uncle wanted all of the land and would beat and harm both the applicant and his father when they went to work on it.

   [3] The applicant's evidence to the department and the Tribunal comprised the contents of his protection visa application forms; his written statement dated 29 April 2012; his evidence at an interview with an officer of the department held [in] March 2012 for which there is a record on the department file at folios 1-8; his evidence at his interview with the delegate for which there is an audio recording on the department file and to which the Tribunal has listened; his evidence as put forward in the submissions from his representative dated 4 October 2013 which appear at folios 79-82 of the department file and his evidence at the Tribunal hearing.

8. In 2008, the applicant’s father was killed while travelling out of the district getting supplies for a [business] he was also operating in the native village.  When the applicant went to his father’s land to work on it, the applicant’s uncle again beat him.  In fear of harm from his uncle and his uncle’s [children], the applicant left Afghanistan and went to work in [Country 1].  From there he travelled to [Country 2] and then came to Australia.  Since he left Afghanistan the applicant’s uncle has threatened and also beaten the applicant’s mother and his wife who, in approximately late 2014, themselves, left Afghanistan and went to Pakistan.  The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility concerns

   Evidence about the dispute over the land

9. To the Tribunal, the applicant said that his paternal grandfather left some farmland to his father and his paternal uncle.  The applicant said that there was one parcel of land, his father had the lower side and his uncle had the upper side.  However, from that time, the applicant’s uncle and his father were in dispute over it.  When questioned as to how the dispute had arisen and what it was about, the Tribunal found the applicant’s responses changing and unconvincing.  The Tribunal asked the applicant whether his paternal grandfather had given half of the land to his father and the other half to his uncle.  In response, the applicant said that the division was not very equal and this was why his father and his uncle argued with each other. 

10. The Tribunal asked the applicant who received the better share of the land if it had not been divided equally.  In response, surprisingly, the applicant said that it was his uncle who had the better share.  When asked to confirm that evidence, the applicant then said that his uncle was beating his father and arguing with him about the land.  The Tribunal again asked the applicant to confirm that it was his uncle who had received the better share of the land.  In response, the applicant then said that the dispute was not about the division of the land.  The dispute arose because his uncle wanted all of the land. 

11. The Tribunal asked the applicant how his uncle tried to obtain his father’s land.  In response, the applicant said that each week he and his father would have to go to their land for water and his uncle would try and prevent them from doing that.  The Tribunal asked the applicant how his uncle did this.  In response, the applicant said that his uncle would beat the applicant and his father.  He said that his uncle had [children] and, so, more power.   The Tribunal asked the applicant to explain this process of going for or obtaining water for their land.  His responses were vague.  He said that the water ‘came from the mountain’ and once a week they had to ‘go for water’.  When asked if this water came from a well on the land or was collected from a river, the applicant said it was neither.  He again said that the water came from the mountain. 

12. When asked if it came out of a hole in the ground, he said it came from the inside of the mountain.  The applicant would not be any more specific than that.  He then said that when they needed the water they used it and it was kept in a tank.  The Tribunal asked the applicant whether he was saying that every week he went to get this water but was prevented from doing so by his uncle.  In response, the applicant said that was correct.  He said that his uncle would stop and beat him and his father.  The applicant said that this first happened to him when he was young and his uncle continued doing this to him every week both before and after his father died.

13. The Tribunal asked the applicant if there was any other occasion his uncle beat him apart from when he went to the land for water.  In response, the applicant said that his uncle would come and beat him when he went to work on the farm which was, initially, every week.  He said that his father was also beaten by his uncle every week.  The Tribunal asked the applicant how he and his father were actually able to farm their land if his uncle was preventing them from obtaining water and beating them every time they went there.  In response, the applicant said that this was the reason that both he and his father actually avoided going to the farm and spent more time in a [business] his father was operating.

14. However, the applicant was vague as to when they both began to avoid working on the farm and would not give any indication beyond saying that it was ‘later on’.  When asked if his uncle ever threatened to kill him, the applicant said that most of the time, including before his father died, his uncle said words to that effect (he would not spare the applicant and would not leave him alive).  The impression conveyed by the applicant’s evidence was that the dispute between his uncle and father was a very serious matter and had become so well before his father died in 2008.  The impression conveyed by this evidence is that well before his father died because the dispute was so serious and his uncle’s behaviour so difficult, the applicant and his father had given up trying to farm their land.

15. In contrast, in his written statement of 29 April 2012, the applicant specifically said that once his father died it became impossible for him to use the family land because his uncle had taken over the land and threatened that he would kill the applicant if he tried to claim or use it.  In his statement the applicant does mention his uncle beating him before his father died but the tenor of the evidence in this statement, in the Tribunal’s view, is that it was only after his father died that the land could not be used because of an uncle who, at that time, had threatened to kill the applicant. 

16. Similarly, in his evidence to the delegate, the applicant also conveyed the impression that the dispute was not significant until the applicant’s father died.  In this respect, the applicant said that when his father was alive the argument was ‘not big’.  He said that when his father died the dispute ‘became big’ and his uncle began beating and torturing him to get the land.  While further in the interview the applicant also mentioned the uncle beating him before his father died, he said that it was worse after that time and it was really from that time that the uncle was (more seriously) attacking him and, in his own words, wanting to kill him to get all of the land.

17. Further, in submissions from his representative of 4 October 2013 in which the applicant’s evidence on certain issues was conveyed, it was submitted that the applicant was using the land once or twice a week before his father died and then stopped using the land after his father died because his uncle threatened to kill him if he tried to do so.  These submissions refer to the uncle beating both the applicant and his father before his father died.  However, the tenor of this evidence is that it was from the time of his father’s death that the applicant had to stop using the land, his uncle having threatened to kill him at that time if he tried to do so.

18. The Tribunal put to the applicant that his accounts in his written statement, to the delegate and in the representative’s submissions, on the one hand, were inconsistent with his account to the Tribunal, on the other hand, about when this dispute became serious and when the applicant and his father had to stop using the land.  In response to this concern, the applicant said that all of these accounts were the same and with respect to his evidence to the department he just answered what he was asked.  The Tribunal disagrees with his assertion and finds that these accounts are strikingly different and that has not arisen because of the manner in which his evidence to the department was obtained.[4]

    [4] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

19. The applicant said that in the dispute between his father and his uncle, his father was weaker.  When asked to explain why his father was weaker than his uncle, the applicant said that his father did not have any power.  When asked why that was, the applicant said that it was because his uncle had [children] whereas his father had only one son, the applicant.  The applicant said that his father did not complain to elders or authorities about his uncle because there were no such legal authorities in the area to whom a complaint could be made.  He said that because of his uncle’s power nobody else could act against him.

20. While the applicant indicated to the Tribunal that he and his father began to avoid using the farmland because of his uncle, he always maintained that his uncle did not actually take over the land until his father died in 2008.  The Tribunal had concerns about that claim given what the applicant said was his uncle’s power.  The Tribunal asked the applicant why, in the circumstances, his uncle would not have actually taken over the land long before his father died.  In response, the applicant said that he did not know his uncle’s plans about that.  The Tribunal did not find that response convincing.

21. The Tribunal asked the applicant why his father’s death would have prompted his uncle to then take over all of the land.  In response, the applicant said that by then they were not using the land much because they were trying to avoid going there and that was because his uncle would beat him.  The Tribunal asked the applicant how his uncle took over the land.  In response, the applicant said that there was nobody else on the land to look after it.  When asked if, before his father died, his uncle actually used all of the land given that neither he nor his father was even going there, the applicant said that his uncle was actually using the land for himself because he would not let them use it. 

22. In effect, the applicant was saying that his uncle took over this land before his father died even though at the hearing (and certainly in his evidence to the department) he was claiming that the takeover took place once his father died.  Again, the Tribunal found the applicant’s evidence on this issue unsatisfactory.  The applicant said that after his father died in 2008 he went to the land once to use it but his uncle again beat him, this time breaking his wrist, so he decided he would not go there ever again.  When asked why he would even bother going to the farm on that occasion given his previous evidence that he was actually trying to avoid going there so he would not be beaten by his uncle, the applicant said that he went to the land on that occasion because he thought his uncle would not harm him. 

23. When asked why he thought that his uncle would not harm him, he said that after his father died he thought his uncle might feel some sympathy for him and the land did belong to his father and so he wanted to use it.  The Tribunal does not accept that response given the history advanced by the applicant of his uncle regularly beating the applicant and his father more or less whenever they went to the land to work on it and also threatening to kill the applicant during that time.  Overall, in view of the matters discussed above, the applicant’s evidence about the dispute between his uncle and his father over a piece of land was vague, unconvincing, inconsistent and not credible.

    Evidence about the applicant’s uncle harming his mother and wife

24. To the Tribunal, the applicant said that after his last visit to the farmland he had no further contact with his uncle or his uncle’s [children].  However, he said that approximately eight months prior to the Tribunal hearing, his mother, his wife and his [child] left Afghanistan.  They are now in Pakistan.  When asked why they left Afghanistan, the applicant broadly referred to a fear of the Taliban and Islamic State being in the local area.  He also said that it was because of ‘the issue’ with his uncle which they, initially, did not tell him about. 

25. In this respect, he said that from the time he left Afghanistan his uncle had been regularly approaching his mother and his wife threatening to kill them.  His uncle had been continually doing this from then right up until they left Afghanistan.  In addition, a few months before they left Afghanistan, his uncle began beating his wife and mother.  He was doing this to ensure that they posed no threat to the uncle’s occupation of the land.  He said that his mother knew that he was suffering and so she did not initially tell him about the problems his uncle was causing them.  The Tribunal asked the applicant when he was told by his wife or mother about the harm inflicted on them by his uncle.  In response, the applicant said that he first learned of these events when his mother, wife and [child] went to live in Pakistan.  At that point his mother told him.

26. The Tribunal put to the applicant that it had difficulty accepting that his mother would have withheld such important news from him for so long and not conveyed that to him until such a late stage.    In response, the applicant said that when he lived in [Country 1] he only occasionally had contact with family in Afghanistan and for some time when he was in [Country 2] there was no contact.  Because they did not want to worry him, they did not mention these problems in their contact with him once he arrived in Australia.  The applicant left Afghanistan in 2008 and it was his evidence that the uncle, from that time, continually threatened to kill his mother and his wife.  No matter how much his mother did not want to worry him, the Tribunal does not accept that he would be told of these threats some years after his uncle began making them.

27. The applicant acknowledged that at his interview with the delegate (held [in] May 2012) and also in his written statement of 29 April 2012 he made no mention of this harm inflicted on his mother and wife by his uncle.  When asked to explain, he first said that there was no mention of that because nobody questioned him about it.  He then said that he was not sure whether he was aware by then that his uncle had been threatening his wife and mother and perhaps he had not been told at that time.  The Tribunal has given reasons above why it does not accept that the applicant’s mother and wife would fail to tell him at an earlier stage about the harm his uncle was inflicting on them.

1. The applicant’s written statement contains an account of his family’s dispute with his uncle and, having listened to an audio recording of the interview with the delegate, the Tribunal is satisfied that the applicant was questioned in a manner in which he had the opportunity to advance the claims he now makes about his uncle inflicting harm on his wife and mother.  Accordingly, the applicant would have had ample opportunity to advance these claims at those stages.[5] The Tribunal also put to the applicant that it had difficulty accepting that his uncle would continually threaten his mother and his wife after he had taken over the land (when he had, in effect, achieved his objective). 

   [5] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

2. The Tribunal put to him that it seemed highly improbable that his uncle would, some years later, start beating his mother and his wife.  In response to these concerns, the applicant said that this is how his uncle behaved and it was to make his family leave the area.  The Tribunal rejects that response given that by the time his father died, if not before, the uncle had taken over the land and if he was as powerful as the applicant claimed then it is highly improbable that he would have perceived the applicant and his family as any threat to what he was doing.  Overall, the Tribunal finds the applicant’s evidence about his uncle harming his wife and mother after he left Afghanistan to be unconvincing and not credible.

   Conclusions on credibility

3. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s claims that his father and his uncle were in a dispute over land inherited from their own father.  The Tribunal therefore disbelieves all of the events the applicant claims ensued from that dispute (such as the applicant’s uncle beating both the applicant and his father; threatening the applicant’s mother and his wife and beating them and preventing the applicant and his father from working on the farmland).  The Tribunal finds that the entire account about this dispute and the applicant leaving Afghanistan because of it is false. 

4. The Tribunal also disbelieves residual claims that his father was killed while travelling in or out of the district in 2008; that his wife and mother have left Afghanistan and gone to live in Pakistan and a claim the applicant made at his interview with an officer of the department in March 2012 that when he was travelling (for his work in the [business]) he was confronted by the Taliban and had to escape from them.[6]  The Tribunal finds that it has no credible evidence about the applicant’s background in Afghanistan, including his employment and what he did for a living.  Similarly, in his evidence to the department and the Tribunal the applicant made broad claims to the effect that the Taliban and Islamic state controlled his native area.[7]  Because the applicant is not a witness of truth, the Tribunal rejects those claims and has set out country information relating to the risk of the applicant suffering serious harm in his native area in the district of Jaghori, country information the Tribunal prefers to the applicant’s claims.

   [6] This includes rejecting a claim he made to the delegate that his family abused him for not supporting them.

   [7] These claims included the Taliban having a headquarters his native area, the Taliban commander being associated with the local authority, the Taliban being nearby in mountains all the time, the Taliban controlling the only road out of the applicant’s village, the Taliban keeping the village under permanent observation, there being only a mountain between the applicant’s village and Pashtuns and Kuchis, the Taliban attacking a neighbouring village and killing an elder, and, just prior to the hearing, the Taliban stopping Hazaras on a road somewhere from his native area and killing them.

5. At the hearing the applicant pointed to his [wrist] saying it displayed an injury sustained from his uncle’s beatings.  So far as the applicant’s wrist shows any signs of injury, the Tribunal finds there is no credible evidence as to how that injury was sustained.  In written submissions to the department, the representative said that the applicant suffered from memory loss and had difficulties recalling events, dates, places and names because of stress suffered over recent years.  The Tribunal has taken those submissions into account as well as the lapse in time since some of the claimed events in Afghanistan, with respect to the applicant’s conflict with his uncle, occurred.  The Tribunal also took into account the applicant’s claimed limited education.  The Tribunal is not satisfied that its concerns about the applicant’s credibility are due to (or can be explained by) any of these matters.   

6. Before coming to Australia the applicant claims to have lived in [Country 1] and then stayed in [Country 2] where he claims he was imprisoned for one year after trying to leave that country illegally during which time he was beaten by [the] authorities.[8]  He claimed that he was granted refugee status by the United Nations High Commissioner for Refugees (‘UNHCR’).  The Tribunal does not have before it independent evidence to confirm the applicant was granted refugee status.  Assuming that he was, the Tribunal is not bound by any findings made in another country by UNHCR.  The fact another organisation granted him refugee status does not overcome the Tribunal’s concerns about his credibility (with respect to the reasons he has advanced in Australia as to why he is at risk of harm in Afghanistan). 

   [8] According to the delegate’s decision, in [Country 2] the applicant applied unsuccessfully for a humanitarian visa to enter Australia.

7. The Tribunal does not have independent evidence to confirm the applicant was imprisoned in [Country 2] and beaten by [Country 2] authorities.  The applicant has not claimed protection on those grounds and even if he was treated as he alleged, that does not explain the concerns the Tribunal holds about his credibility which relate to events that he claims occurred in Afghanistan.  During the interview with the applicant, the delegate put to him certain claims he was said to have advanced to UNHCR to the effect that he had led a protest against the Taliban in his native area.  The applicant appeared to deny making those claims and, at any rate, because he is not a witness of truth, the Tribunal disbelieves them. 

8. There is no credible evidence that the applicant or any member of his family suffered harm in Afghanistan and there is no credible evidence that anyone in Afghanistan seeks to harm the applicant.  There is no credible evidence as to why the applicant left Afghanistan and why he does not want to return there.  Accordingly, the Tribunal turns to an assessment of the risk of the applicant suffering serious harm on the remaining grounds which arise in his case which are that he is a Shia Hazara man from a village in the district of Jaghori who has applied for asylum in Australia.

   Assessment of whether the applicant holds a well founded fear of persecution based on a convention ground

   Country information

   The security situation in Afghanistan

9. Anti-government insurgent and terrorist groups, particularly the Taliban, wage a guerrilla campaign against international and Afghan forces.[9]  These insurgent forces are contesting the control of the Afghan government over many areas of the country in a conflict which has escalated over 2014 and 2015.[10]  Consequently, the security situation across the country has deteriorated over the last 12 to 18 months as anti-government groups intensify their efforts and the international military forces gradually withdraw.[11]  According to DFAT, the government retains effective control in major urban centres, particularly Kabul as well as the provincial capitals and district centres.[12] 

   [9] DFAT Country Information Report Afghanistan 18 September 2015 at 2.4.

   [10] DFAT Country Information Report Afghanistan 18 September 2015 at 2.5.

   [11] DFAT Country Information Report Afghanistan 18 September 2015 at 2.33.  In 2006 an International Security Assistance Force (“ISAF’) in Afghanistan assumed security responsibility for the entire country, but, under a transition strategy beginning in 2011, Afghan National Defence and Security Forces (‘ANDSF’) gradually took over responsibility for security and most foreign troops withdrew by the end of 2014.   As at September 2015, approximately 10,800 troops from the United States and 2000 troops from other coalition countries remain in Afghanistan, a gradual withdrawal of international forces being expected in 2016 (See DFAT Country Information Report Afghanistan 18 September 2015 at 2.3  - 2.4).

   [12] DFAT Country Information Report Afghanistan 18 September 2015 at 2.33 and 5.1. See also DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 5.2 to the same effect.

10. Insurgents commonly target government institutions, political figures, the ANDSF, international forces, security forces, foreign missions and international organisations.[13] While the attacks are often directed at specific targets, the methods can be indiscriminate and so result in civilian casualties, the number of which has increased over recent years.[14]  In March 2014 DFAT stated that this violence was particularly high in Pashtun majority areas of Afghanistan because they are the areas most contested in the conflict between insurgents and the government (and international forces).[15] This appears to remain the case in 2015 during which the United Nations Assistance Mission in Afghanistan also reported that in recent years most civilian deaths have occurred in the Pashtun districts in the south and east of the country where few Hazaras live.[16]

    [13] DFAT Country Information Report Afghanistan 18 September 2015 at 2.35.

    [14] DFAT Country Information Report Afghanistan 18 September 2015 at 2.35.  In 2014, the conflict resulted in 10,548 civilian casualties (3,699 deaths and 6,849 injured) a 25 per cent increase from 2013 (See DFAT Country Information Report Afghanistan 18 September 2015 at 2.31).  Up to mid 2015, the conflict has resulted in a similar rate of civilian casualties which may increase over the year (See DFAT Country Information Report Afghanistan 18 September 2015 at 2.31 - 2.32).

    [15] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.3.

    [16] United Nations Assistance Mission in Afghanistan (UNAMA) 2015, Afghanistan Annual Report 2014: Protection of Civilians in Armed Conflict, 18 February < United Nations Assistance Mission in Afghanistan (UNAMA) 2014, Afghanistan Annual Report 2013 Protection of Civilians in Armed Conflict, February < <CIS27840>; United Nations Assistance Mission in Afghanistan 2013, Afghanistan Annual Report 2012, Protection of Civilians in Armed Conflict, 01 February < <CIS25055>; United Nations Assistance Mission in Afghanistan 2011, Afghanistan Annual Report 2010, Protection of Civilians in Armed Conflict, 01 March < <CIS20144>.

11. According to DFAT around mid-2015 there have been a small number of credible reports that Islamic State (which will be referred to as Daesh) is expanding its limited influence in some parts of Afghanistan with some former insurgents identifying themselves as supporters, albeit the number of active militants for Daesh remains low.[17]  DFAT assesses that Daesh has limited capacity and influence in Afghanistan and civilians face a low risk of violence from groups affiliated with it compared to the broader risk of general violence.[18]

    The position for Hazaras

    [17] DFAT Country Information Report Afghanistan 18 September 2015 at 2.34.  See also Osman, B 2015, ‘The Shadows of ‘Islamic State’ in Afghanistan: What threat does it hold?’, Afghanistan Analysts Network, 12 February < Accessed 23 June 2015 <CXBD6A0DE7536> .  This article discusses not only the limited presence and influence of Daesh in Afghanistan but also the fact it is in  conflict with the Taliban and lacks support among Afghans themselves.

    [18] DFAT Country Information Report Afghanistan 18 September 2015 at 2.34.  At 2.34 DFAT states that in the first half of 2015 there were ten civilian casualties resulting from incidents attributable to groups affiliated with Daesh and those casualties included people accused of assisting the Taliban as well as those from ground engagements with rival anti-government groups.

12. The population of Afghanistan is estimated to be approximately 32 million people.[19]  Hazaras make up nine per cent of this population, Pashtuns 42 per cent.[20] Hazaras are a visibly distinct ethnic group in Afghanistan.[21]  The Afghan Constitution prohibits discrimination between Afghan citizens.[22] There is no evidence of any official policy of discrimination by the government on the basis of ethnicity, ethnic groups can participate in elections and political life and ethnic minorities have their own media outlets, political parties and politically active representatives.[23] However, ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan.[24]

    [19] DFAT Country Information Report Afghanistan 18 September 2015 at 2.6.

    [20] DFAT Country Information Report Afghanistan 18 September 2015 at 2.8; DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 2.4 where DFAT stated there are an estimated three million Hazaras living in Afghanistan.

    [21] DFAT Country Information Report Afghanistan 18 September 2015 at 3.10; DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 2.1.

    [22] DFAT Country Information Report Afghanistan 18 September 2015 at 3.1.

    [23] DFAT Country Information Report Afghanistan 18 September 2015 at 3.6.

    [24] DFAT Country Information Report Afghanistan 18 September 2015 at 3.2.

13. Accordingly, Afghans tend to live in areas where their ethnic group constitutes the local majority (be it in major cities or outside major urban areas).[25]  Hazaras predominately reside in the central provinces in addition to there being a large population in Kabul and other major urban areas.[26]  This applicant comes from an area in the district of Jaghori in Ghazni province and he will be returning to live there.  Jaghori is one of the Hazara majority districts of Ghazni.[27] Societal discrimination among different ethnic groups is most commonly manifested in terms of access to employment (that is positive discrimination in favour of the family, tribal or ethnic group members).[28] Hazaras have made strong gains in terms of politics and education since the fall of the Taliban in 2001 and they hold positions in the Afghan government.[29]

    [25] DFAT Country Information Report Afghanistan 18 September 2015 at 3.2; DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.8.

    [26] DFAT Country Information Report Afghanistan 18 September 2015 at 3.3.  At 3.11, DFAT refers to an ‘Hazarajat’ being the central highlands and including the provinces of Bamiyan and Daykundi, as well as parts of the provinces of Ghor, Uruzgan, Wardak and Ghazni’.  See also DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 2.4 to the same effect.

    [27] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.11.

    [28] DFAT Country Information Report Afghanistan 18 September 2015 at 3.8.  See also DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.10 to the same effect but adds that other ethnic groups face discrimination in Hazara dominant areas.

    [29] DFAT Country Information Report Afghanistan 18 September 2015 at 3.12.  For example, DFAT states at 3.12 that Afghanistan’s Second Vice President is an ethnic Hazara and Hazara candidates won lower house seats in the province of Ghazni.  See to the same effect DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.9 and 3.35.

14. With respect to religion, almost 19 percent of the population of Afghanistan are Shia Moslems and almost all Hazaras are Shias.[30] The formal legal position of Shias is largely respected and any discrimination against them is more likely to be societal in nature, again, due to the importance of ethnic, tribal and familial networks and the dominance of the Sunni majority.[31] DFAT stated that it does not have credible evidence that Shias are systematically targeted on the basis of their religion except for their religious leaders (who have been targeted more due to the perception of support for the government or being anti-insurgent).[32]  Sectarian violence between Sunnis and Shias is infrequent beyond occasional incidents such as the bombing of a Shia mosque in Kabul in December 2011.[33]

    [30] DFAT Country Information Report Afghanistan 18 September 2015 at 3.10 and 3.16.

    [31] DFAT Country Information Report Afghanistan 18 September 2015 at 3.25 where DFAT again stated that this discrimination would really be a positive preference for members of one’s own family, tribal or ethnic group.  See also DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.1 which states there are no legal restrictions on freedom of religion for Shias in Afghanistan nor any laws or government policies that discriminate against them.  There is little community prejudice that limits opportunities for them in daily life because of their religion.

    [32] DFAT Country Information Report Afghanistan 18 September 2015 at 3.26.

    [33] DFAT Country Information Report Afghanistan 18 September 2015 at 3.26. See also DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.4 where DFAT stated that while there are some sectarian tensions between Sunnis and Shias in Afghanistan they rarely result in violence.

15. There has been no large-scale ethnic violence since the fall of the Taliban in 2001 although ethnic tensions exist at a local level and can result in sporadic violence.[34] According to DFAT, as at September 2015, no particular ethnic group is systematically targeted solely on the basis of ethnicity.[35]  It is individuals working for, supporting or associated with the government or the international community who are at high risk of violence committed by anti-government elements.[36] In March 2014, DFAT assessed that there was a low risk of criminal or insurgent violence for Hazaras relative to the overall security situation and they were not at any greater risk of violence than any other ethnic group.[37] DFAT stated that the threat posed by the Taliban and other insurgent groups in the Hazara majority districts of Ghazni, including Jaghori, was low as was the risk of violence for Hazaras in those areas.[38]

    [34] DFAT Country Information Report Afghanistan 18 September 2015 at 3.4.  For example, DFAT states at 3.4 that each year there are seasonal clashes over land rights and access to natural resources between Hazaras and nomadic Pashtun Kuchi tribes.  See also DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.11 which repeats this comment and adds that this conflict occurs with respect to pastures in the central high lands. 

    [35] DFAT Country Information Report Afghanistan 18 September 2015 at 3.5 and 3.14.

    [36] DFAT Country Information Report Afghanistan 18 September 2015 at 3.38.  See also 3.30 where DFAT stated that, in terms of risk for those who participate in political activities, there is widespread violence against individuals because of their perceived support for or association with the government or perceived opposition to any government elements.  At 3.32 DFAT stated that the Taliban had publicly announced its intention to target high-ranking government officials, members of parliament, High Peace Council members, contractors, judges, prosecutors and others associated with the government or opposed to Taliban objectives.  At 3.33 DFAT stated that government officials of all levels have been subject of violence.  See also DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.40 where DFAT stated that individuals working for, supporting or associated with the government and the international community are at high risk of violence from insurgents.

    [37] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.4. 

    [38] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.11.  At 4.13 DFAT stated that this relatively good security environment meant that the government and the international community had relatively good freedom of movement and so those Hazara majority districts had good access to services.

1. In terms of travel by roads in Afghanistan, in March 2014, DFAT stated that the majority of deaths on roads in Afghanistan are caused by traffic accidents.[39]  The Taliban and criminal elements target the national highway and secondary roads setting up checkpoints but target all ethnic groups sometimes kidnapping for ransom, it being difficult to separate criminal activity like extortion from insurgent activity.[40] DFAT assessed that individuals working for, supporting or associated with the government and the international community are at high risk of violence by insurgents on roads in Afghanistan.[41]  Hazaras were widely perceived to be affiliated with the government and international community because of improvements in their own situation.[42]  However, DFAT did not assert that being targeted for affiliation with the government and the international community arose solely from Hazara ethnicity.  DFAT stated that Hazaras who work for the government or the international community took precautions to ensure that if they were stopped they were not identified as such.[43]

   [39] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.22.

   [40] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.23.

   [41] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.24.

   [42] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.40.

   [43] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.24.

2. In 2013 DFAT received allegations that Hazaras had been killed on roads to and from the Hazarajat but DFAT found there was no reliable evidence that insurgents disproportionately target Hazaras on any road in Afghanistan.[44]  Specifically in terms of travelling from Kabul to Jaghori, in March 2014, DFAT stated that there were well-established routes between Kabul and Ghazni city and a number of routes from there into the district of Jaghori. [45] DFAT stated that some routes were less secure than others but the routes between Jaghori and Ghazni were travelled by thousands of vehicles daily and local residents with ties to the province and knowledge of the area including Hazaras could travel between the two locations without incident.[46]

   [44] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.25.

   [45] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.32 – 4.33.

   [46] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 4.32 – 4.33.

3. In its more recent report on Afghanistan released in September 2015 DFAT stated that Hazaras travelling by road between Kabul and the ‘Hazarajat’ can face a risk greater than other ethnic groups.[47]  If a bus with a mix of ethnic groups on board is stopped while travelling between these areas ethnic Hazaras and other non-Pashtuns are more likely to be selected for kidnapping or violence than Pashtuns.[48]  However, kidnappings of Hazaras were relatively rare ‘in a country wide context’.[49]

   [47] DFAT Country Information Report Afghanistan 18 September 2015 at 3.15.  See DFAT Thematic Report Conditions in Kabul 18 September 2015 at 3.9 in which the same statement is made about the risk for Hazaras when travelling to Kabul from other parts of Afghanistan by road.  DFAT again stated that it is not clear whether that greater risk is due to ethnic targeting or because high numbers of Hazaras travel from the Hazarajat to Kabul.

   [48] DFAT Country Information Report Afghanistan 18 September 2015 at 3.15.

   [49] DFAT Country Information Report Afghanistan 18 September 2015 at 3.15. 

4. Further, insurgent groups often carry out kidnappings for the purpose of extracting money through ransom demands and, although tribal issues can also be a factor, the motivations for kidnapping are also often not clear.[50]  In this respect, in February 2015, a group of 31 people, almost all Hazaras, were kidnapped in Zabul province, while travelling from Iran to Kabul.[51] In early May 2015, 19 of the hostages were released but the motivation for the kidnappings is unclear and disputed.[52]  The Tribunal is also aware of other reports of attacks on Hazaras in recent times, mainly, on roads in Afghanistan.[53]  These incidents are isolated in number and have occurred in different parts of Afghanistan.  It is not clear from these reports that the perpetrators of these incidents selected and harmed the victims because they were Hazara Shias.  However, insurgent groups typically target people associated with the government and the international community or those who appear wealthier than other Afghans.[54]  As stated above, as at September 2015, DFAT assessed that no particular ethnic group was being systematically targeted on the basis of ethnicity.[55]

   Failed asylum seeker returning to Afghanistan after spending time in a Western country

   [50] DFAT Country Information Report Afghanistan 18 September 2015 at 2.36.

   [51] DFAT Country Information Report Afghanistan 18 September 2015 at 2.36.

   [52] DFAT Country Information Report Afghanistan 18 September 2015 at 2.36.  DFAT states at 2.36 that the 19 hostages were released in a prisoner swap arrangement in exchange for people associated with Uzbek insurgents, but, explanations for the kidnappings were that the victims were Hazaras, that the victims were wealthier than other passengers, that the kidnappings took place to gain access to weapons and that the kidnappings were conducted by Daesh, a claim that DFAT stated had been widely dismissed.

   [53] In March 2015, unknown people abducted ten Hazaras  travelling from Jaghori to Ghazni  in Qarabagh district; nine of them being released hours later and the remaining hostage possibly being a government official (See "9 Newly Abducted Hazara Passengers Released", Tolo News, 15 March 2015 <CXBD6A0DE2979>; "9 abducted civilians freed by kidnappers in Ghazni", Khaama Press, 15 March 2015 <CXBD6A0DE2889.

   In January 2015 approximately eight Hazaras were killed in Gilan district in Ghazni province when their van was blown up by a remote controlled bomb (or IED) on their way from Kabul  back to  Jaghori (see ‘Explosion in Ghazni leaves 8 civilians dead’ 2015, Khaama Press, 21 January < <CXBD6A0DE1271> ).

   In September 2014 a Hazara male who also held Australian citizenship was allegedly killed by the Taliban while travelling from Kabul to Jaghori.  The male was taken off a bus by the Taliban and allegedly told them he had returned to Afghanistan from Australia to visit family upon which they killed him.  (See ‘Sydney man killed by Taliban because he was Australian’ 2014, Sydney Morning Herald,  29 September < <CX1B9ECAB8564> ).  

   In July 2014, in Ghor province, gunmen took 14 Hazaras off buses on which they were travelling and shot them (See  ‘Afghan conflict 15 killed in ‘[suspected] Taliban attack’ on buses’ 2014, British Broadcasting Corporation (BBC), 25 July < <CX324002>).  The Taliban denied responsibility for the attack (See ‘Gunmen Execute 15 Minority Shia Muslims in Afghanistan’ 2014, Wall Street Journal, 25 July < <CX325141> ).

   In its Country Information Report Afghanistan 18 September 2015 at 5.22 DFAT stated that in 2014 a Hazara male was abducted and tortured by the Taliban after being deported from Australia.  He escaped from his captors and returned to Kabul.  DFAT stated these reports have not been corroborated and the male concerned is not ‘currently pursuing any action regarding this matter’.

   [54] DFAT Country Information Report Afghanistan 18 September 2015 at 3.5 and 3.34.

   [55] DFAT Country Information Report Afghanistan 18 September 2015 at 3.5 and 3.14.

5. The applicant will return to Afghanistan after seeking asylum in a Western country, namely, Australia.  According to DFAT, returnees from Western countries are not specifically targeted on the basis of being failed asylum seekers.[56] In terms of risk arising from having spent time in a Western country, in March 2014, DFAT stated that there was no evidence to indicate that low profile individuals suffer discrimination or violence on that ground.[57] Many Afghans regularly travelled abroad to Iran, Pakistan, Europe and other Western countries to seek work and better economic and educational opportunities.[58]  In its country report of September 2015 DFAT stated that it was aware of ‘occasional reports’ of returnees from Western countries alleging they have been kidnapped or otherwise targeted because they had spent time in a Western country.[59]

   [56] DFAT Country Information Report Afghanistan 18 September 2015 at 5.21.

   [57] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.39. 

   [58] DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014 at 3.41.

   [59] DFAT Country Information Report Afghanistan 18 September 2015 at 5.21.

6. However, DFAT did not express an opinion as to the veracity of those claims.  DFAT did state that people identifiable as being associated with foreign (particularly Western) countries may be targeted by anti-government groups like the Taliban.[60] That comment is consistent with statements made by DFAT set out above as to who these anti-government groups target (namely, people associated with the Afghan government, its institutions, international forces and international institutions or the international community).  DFAT then stated that ‘returnees’ from Western countries faced a similar level of risk as such people but that risk would be reduced if those returnees maintained a low profile by taking steps to conceal their association with the Western country from which they have returned.[61] In this respect, DFAT referred to people who are associated with the Afghan government or the international community taking measures to conceal that association, such as not travelling with documents or symbols that may link them to either group. 

   Inferences to be drawn from the country information

   [60] DFAT Country Information Report Afghanistan 18 September 2015 at 5.21.

   [61] DFAT Country Information Report Afghanistan 18 September 2015 at 5.21.

7. From this country information the Tribunal infers that the risk of the applicant suffering serious harm in the district of Jaghori where he will live is remote.  This is because while the conflict between the Afghan government and anti-government groups has resulted in civilian casualties, the specific targets of anti-government groups are not specific ethnic groups, but, rather, people associated with the Afghan government, its institutions, international forces and international institutions or groups.  The applicant is not such a person.  The Tribunal acknowledges the risk that he could suffer serious harm in this conflict as a civilian.  However, the number of casualties has to be considered in the context of the overall population.[62]  As well, the conflict and the civilian casualties which result from it occur in Pashtun majority areas and the applicant does not come from (and will not be returning to live in) such areas. 

   [62] In 2014, those casualties were approximately 10,600 out of a population of approximately 32 million people (see the sources for those figures cited above). 

8. Although there are reports of the presence of Daesh in Afghanistan, it’s capacity and influence is limited.  Accordingly, the Tribunal infers the risk of the applicant suffering serious harm from or because of this group is remote.  There has been no large-scale ethnic violence since the fall of the Taliban.  In the Hazara majority districts, where the applicant will return to live, the threat posed by the Taliban and other insurgent groups is low as is the risk of violence for Hazaras in those areas (insurgent or criminal).  While societal discrimination exists in Afghanistan (based on ethnicity and possibly religion), the applicant will be returning to live in the district of Jaghori which is a Hazara majority area.  Accordingly, it is highly unlikely that he will suffer discrimination there.  Sectarian violence in Afghanistan is infrequent and he will be free to practice his Shia religion in his Hazara majority area.

9. The applicant will enter Afghanistan in Kabul and will have to travel by road to his native area in Jaghori.  The Tribunal infers that the risk of the applicant suffering serious harm in that travel is remote.  Although the Taliban and criminal elements target certain roads, while some routes between Kabul and Jaghori are safer than others and while DFAT stated that Hazaras were more likely to be selected for harm over Pashtuns if a bus carrying a mix of ethnic groups was stopped, DFAT has also repeatedly stated that Hazaras are not systematically or disproportionately targeted.  The Tribunal infers that those really at risk on road travel are those groups identified as targets of anti-government groups and they are people working for, supporting or associated with the Afghan government or the international community (forces).  The applicant is not such a person. 

10. The other likely target of criminal elements would be people who appear to be wealthier than other Afghans but the Tribunal can see no reason why this applicant should be perceived as such if he returns to Afghanistan.  If it was the case that Hazaras were systematically targeted on roads (and in their own areas) there would be far more frequent reports of that actually occurring beyond the isolated incidents cited above in this decision.  Accordingly, the Tribunal infers that the risk of the applicant suffering serious harm travelling from Kabul to Jaghori is remote.  The Tribunal can acknowledge the possibility that the applicant may have to travel out of Jaghori but it would be highly speculative for the Tribunal to assess when that would be, how often and to what extent.  The applicant did not, himself, advance a specific claim about any need for him to travel into and out of that district.

11. The Tribunal infers that the risk of the applicant suffering serious harm because he sought asylum in Australia is remote (based on DFAT’s assessment of that matter).  In terms of spending time in Australia, in the Tribunal’s view, it is conceivable that spending time in a Western country might, if that was made known to anti-government groups, lead to them perceiving a returnee as being associated with a foreign government.  However, the Tribunal infers that the risk of the applicant suffering serious harm on this ground is remote.  If it was truly the case that (Hazara) Afghan returnees were targeted on return to Afghanistan for spending time in Western countries, this would be widely reported in available country information but the Tribunal considers that it is not.  DFAT have only mentioned ‘occasional’ reports of returnees alleging harm on return to Afghanistan for having spent time in a Western country, reports it did not determine were true or false. 

12. There are two reports that relate to Afghans who have come back to Afghanistan from Australia suffering harm (both cases cited above).  In one case, an Afghan deported from Australia alleged that the Taliban had tortured him but DFAT stated that those allegations have not been corroborated.[63] The other case concerned an Afghan who lived in Australia and held Australian citizenship, returning to Afghanistan and being taken off a bus and killed by the Taliban while on his way to Jaghori to visit family, the man allegedly telling the Taliban that he had come from Australia.[64] The Tribunal does not regard this isolated incident as country information demonstrating a real chance that for having spent time in Australia the applicant will suffer serious harm in Afghanistan.

    [63] See DFAT Country Information Report Afghanistan 18 September 2015 at 5.22 .

    [64] See ‘Sydney man killed by Taliban because he was Australian report’ 2014, Sydney Morning Herald, The, 29 September < <CX1B9ECAB8564>.

13. In addition, on return to Afghanistan, including in travel from Kabul back to his native village in Jaghori, the applicant will not conduct himself in any way that would bring him to the attention of anti-government groups as a person associated with the Afghan government or the international community just for having spent time in Australia.  Certainly, this applicant expressed no desire to do so and refraining from such conduct to avoid the risk of anti-government groups perceiving him as such is not in itself persecutory as that concept was discussed in Appellant S395/2002 v MIMA (2003) CLR 473.

14. The Tribunal assesses the risk of the applicant suffering serious harm in the reasonably foreseeable future.  Country information indicates that, with the gradual withdrawal of international forces, there has been an increase in conflict and civilian casualties.  However, it would be far too speculative to find that the situation in Afghanistan will change in the reasonably foreseeable future such that there is a real chance the applicant will suffer harm on either, or, cumulatively, all of the grounds discussed above.  Accordingly, the Tribunal infers that the risk of the applicant suffering serious harm in Afghanistan is remote. 

    Country information and inferences put to the applicant

15. At the Tribunal hearing, the Tribunal discussed with the applicant (and the representative) country information and the inferences the Tribunal has drawn.[65]  In response, the applicant said that the area near his village was under the control of the Taliban (Wahabis) and Daesh.  He said that these groups have their main base in that area.  He said that they would stop him on the roads and kill him if he went back to his area.  For the reasons given above, the Tribunal disbelieves those claims and does not accept that his native area is controlled by those groups.  He also said that in his native area he did not have anybody there to help him to be able to live there.  For the reasons given above, because the applicant is not a witness of truth, it has no credible evidence about his circumstances in his native village.  It has no credible evidence that he does not have family, employment or property there to which he can return.  Accordingly, the Tribunal is not persuaded by the applicant to depart from the inferences it has drawn above and, in particular, the inference that the risk of him suffering serious harm in Afghanistan is remote.

    [65] DFAT Country Information Report Afghanistan 18 September 2015 and DFAT Thematic Report Conditions in Kabul 18 September 2015 were released after the hearing and provided to the applicant and his representative by letter dated 9 October 2015.  The country information discussed with the applicant at the hearing included a previous assessment of Afghanistan by DFAT.  However that information was to the same effect as the country information set out above in this decision and which refers to the most recent reports from DFAT.

16. The representative also made submissions on these issues and the Tribunal now turns to those. [66]  The representative made submissions and presented country information about the security position in Afghanistan.  At the outset and for the sake of completeness, the Tribunal records that at the interview with the delegate, the representative who attended that interview made reference to reports about the security position and the treatment of Hazaras more generally.  The interview was held in May 2012 and the reports referred to were issued before that time.  Accordingly, for a country like Afghanistan, the Tribunal considers that that information is out of date and the Tribunal prefers its more recent sources as reflecting the current and more accurate position on these issues. 

    [66] These submissions were made by the representative by letters dated 2 June 2014, 7 September 2015 and 19 October 2015.  The representative who attended the applicant's interview with the delegate in May 2012 also made oral submissions on the same themes covered by the written submissions made to the Tribunal.

1. Otherwise, the representative’s written submissions and country information indicated that anti-government groups in Afghanistan continue to engage in a military conflict with the Afghan government and international forces for which there are more civilian casualties.   This country information referred to the Taliban continuing attacks including on Kunduz but it also indicates that the targets of these attacks are the government and international forces.    The representative claimed that in this conflict Hazaras were being singled out, abducted and killed.  No evidence of this was provided by the representative beyond isolated incidents in which Hazaras had been harmed, mainly while travelling on roads, incidents which the Tribunal has also acknowledged and discussed earlier in this decision.

2. The representative referred to a human rights lawyer claiming that Hazaras were being disproportionately targeted in the current security environment but no specific cases of that happening were provided.  The representative asserted that to combat the presence of Daesh the Taliban were being increasingly brutal to Hazaras but no examples were given to substantiate that allegation.  Overall, the submissions and country information presented did not detract from the inference the Tribunal draws which is that the targets of anti-government groups are those who work for or support the Afghan government and the international community (including as represented in Afghanistan in the form of organisations or military forces).  The applicant is not such a person and, for the reasons given above, the Tribunal infers that the risk of him suffering serious harm as a civilian casualty is remote. 

3. The representative asserted that the presence of Daesh was growing but the only evidence of that put forward was the occasion in February 2015 when a number of Hazaras were abducted in Zabul, there being dispute as to the true cause of this incident and who was responsible.  The representative put forward incidences of attacks in Afghanistan said to be attributed to Daesh as well as reports about that organisation’s flags being seen in different locations but none of this information persuades the Tribunal to depart from the position put by DFAT that this group’s influence and control is limited.

4. The representative made submissions and presented country information about the risk of travelling on roads in Afghanistan.  It was submitted that roads the applicant would have to take to get back to his native area from Kabul were dangerous because of the activities of insurgents in Pashtun areas.  The country information put forward by the representative on this matter referred to the Taliban temporarily blocking roads, people being afraid to travel on them and cases alleging that Hazaras had been harmed when travelling (cases which included the incidents cited earlier in this decision).[67]  The Tribunal acknowledges the risk posed to people travelling on roads in Afghanistan by the conflict and insurgents.  However, those for whom there is a real chance of suffering serious harm are people who the insurgents target.  The Tribunal has already specified who those people are and the applicant is not one of them.

   [67] The representative referred to one source claiming that since the abduction of Hazaras in Zabul in February 2015 there had been three further mass kidnappings of Hazaras but no specific incidents were described.

5. Instances of Hazaras suffering harm on roads are isolated in number.  As discussed above, it is not always clear from the brief reports of these incidents that the victims in these cases were harmed because of their ethnicity (as opposed to appearing to be wealthier than other Afghans, working for the government or for some other reason).  The Tribunal is not persuaded that they are specifically targeted on roads (and certainly not in any degree demonstrating that there is a real chance this will happen to the applicant when he travels back to his native area from Kabul).  The Tribunal acknowledges the possibility that the applicant could be harmed while travelling on the road during an attack by insurgents on the people they target who happen to be on the road at the same time and in the same location as the applicant.  However, that is really assessing the possibility of the applicant being a civilian casualty in the conflict between the insurgents and the government and, for the reasons given above, the Tribunal infers that the risk of the applicant suffering serious harm on that ground is remote.

6. The representative asserted that people in Jaghori would need to travel out of that area to receive health care and because of poor living standards.  The Tribunal has no credible evidence about the applicant’s life in Jaghori and why he actually left Afghanistan.  As the Tribunal has said above, it can only speculate as to whether, when and to what extent the applicant would travel out of Jaghori and, accordingly, the risk of him suffering serious harm on that basis is remote.  It was submitted that the applicant belongs to particular social groups made up of Hazara landowners, Hazara landowners involved in land disputes and Hazara land disputes.  There is no need for the Tribunal to determine whether such social groups exist because the Tribunal does not believe the applicant’s claims about being involved in a land dispute and it has no credible evidence about his life in his native area.  The representative’s submissions about him being at risk as a landowner were all predicated on the basis that he had been in dispute in Afghanistan but the Tribunal does not believe that evidence.

7. It was submitted that the applicant belongs to a particular social group of failed Hazara asylum seekers who fled to the west.  Again, there is no need for the Tribunal to determine whether such a social group exists because, according to country information set out earlier in this decision, returnees (be it Hazaras or any other ethnic group) are not harmed in Afghanistan because they applied for asylum in another country.  The representative referred to a report released in April 2012 from an Australian non-government organisation asserting that Afghan returnees sent back to Afghanistan from Australia had been harmed because they had spent time in a Western country.  That report is over three years old and is based on allegations made by certain individuals which may or may not be true.  Even if those people were harmed, allegations that this was due to having spent time in a Western country also may or may not be true.

8. The representative has not put forward any other country information demonstrating that for spending time in a Western country, a returnee will be harmed in Afghanistan.  The Tribunal has discussed above the two cases of Afghans who went back to Afghanistan after spending time in Australia and has given reasons above why it infers that these cases do not demonstrate there is a real chance the applicant will suffer serious harm because has been in Australia (and, for that matter, in [Country 2] and [Country 1]).  With respect to one of these cases, namely, the man who was taken off a bus by the Taliban and killed, the representative submitted that informants told the Taliban that this man had come from Australia and that was why they apprehended him.

9. The Tribunal is sceptical of that claim because DFAT has made no assertion that an association with a Western country, by virtue of having spent time in that country, becomes known to insurgent groups through the use of informants.  Indeed, considering that the applicant comes from a district of Afghanistan which is almost entirely Hazara the risk of informants telling anti-government groups that he has been in Australia becomes only more remote.  The representative referred to one commentator stating that the Afghan government had refused to accept returnees from European countries, but that does not alter the Tribunal’s view as to the risk of the applicant suffering serious harm because he has been in Australia.  Similarly, in earlier written submissions the representative referred to statements by government officials in 2011 that they could not guarantee the safety of returnees.  No government can guarantee the safety of its people at all times and the fact that these officials make that statement does not cause the Tribunal to depart from the inferences it has drawn about this case.

10. The representative also referred to a report released in May 2013 in which some Afghan nationals who had been in Great Britain had been sent back to Afghanistan and claimed that because they had been in a Western country their own communities saw them adversely.  DFAT has discussed the risk posed by having spent time in a Western country but nothing was said about a returnee being rejected by their own community on that basis.  The applicant will be returning to a Hazara area and the Tribunal finds the risk of his own people regarding him adversely because he has been in a Western country is remote.  Finally, the representative made submissions about why the applicant could not relocate to Kabul but that issue does not arise in this case because the applicant will go back to his native area in the district of Jaghori.

11. The Tribunal has set out above the inferences it draws from country information and neither the applicant nor the representative has persuaded the Tribunal to depart from them.  Accordingly, the Tribunal finds that those inferences are correct and there is not a real chance the applicant will suffer serious harm in Afghanistan.  Accordingly, the applicant does not hold a well founded fear of persecution based on any convention ground.

    Complementary protection

12. With respect to the complementary protection criterion, the Tribunal repeats its finding that the applicant is not a witness of truth.  His claims about being in a land dispute with his uncle are false.  There is no credible evidence as to why the applicant left Afghanistan and no credible evidence as to his true circumstances in his native area.  There is no credible evidence that anybody in Afghanistan seeks to harm the applicant or his family.  There is no credible evidence as to why the applicant does not wish to return to Afghanistan.  For the same reasons the Tribunal finds that there is not a real chance the applicant will suffer serious harm in Afghanistan, it finds that there is not a real risk the applicant will suffer significant harm in that country.

13. In summary, notwithstanding the continuing conflict in Afghanistan, resulting civilian casualties and the gradual withdrawal of international forces, the risk of the applicant suffering significant harm as a civilian is remote.  The capacity and influence of Daesh is limited and the risk of the applicant suffering significant harm on this ground is remote.  The risk of the applicant suffering significant harm on the ground of his ethnicity is remote.  There has been no large-scale ethnic violence since the fall of the Taliban and the risk of violence for Hazaras in Jaghori is low.  The applicant will be free to seek employment in his native area among Hazaras.  In that area he can also practice his Shia religion and, given sectarian violence is infrequent, the risk of him suffering significant harm on that ground is remote. 

14. The applicant will travel by road from Kabul to return to his native village.  The Tribunal has set out above the categories of people most at risk in travelling on roads and the applicant does not come within any of them.  The risk of him suffering significant harm on this ground is also remote.  In view of the country information discussed above, the risk of the applicant suffering significant harm for seeking asylum in Australia is remote.  While he has spent time in a Western country, the Tribunal is not satisfied that there is country information demonstrating a real risk of an Afghan returnee suffering significant harm on that ground.  In addition, the applicant will not conduct himself in any way that would bring him to the attention of anti-government groups as a person associated with the Afghan government or the international community by virtue of having spent time in Australia.  This applicant expressed no desire to do so and refraining from such conduct to avoid the risk of anti-government groups perceiving him as such is not significant harm.  Accordingly, the risk of the applicant suffering significant harm on the ground that he has spent time in a Western country is remote. 

15. As discussed earlier in this decision, the Tribunal considers the risk of the applicant suffering harm in the reasonably foreseeable future.  For the reasons already given, the Tribunal finds that it would be far too speculative to determine that the situation in Afghanistan as reflected in the country information set out above, will change in the reasonably foreseeable future such that there is a real risk the applicant will suffer significant harm on either, or, cumulatively, all of the grounds discussed above.  For all of these reasons, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Afghanistan, there is a real risk that he will suffer significant harm.

    CONCLUSIONS

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

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

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

    DECISION

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

    Paul Millar
    Member