1403239 (Refugee) - [2016] AATA 4853

1403239 (Refugee) [2016] AATA 4853 (27 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1403239
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Filip Gelev
DATE:27 June 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 27 June 2016 at 12:13pm

CATCHWORDS
Refugee – Protection visa – Afghanistan – Risk of harm – Father missing – Apprehended a would-be bomber – Attempted kidnap by would-be bomber – No threats to other family members – Brothers working overseas – Fabricated claims of past harms to the applicant
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
BBK15 v Minister for Immigration & Anor [2015] FCCA 3220
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIBP v SZSCA [2014] HCA 45
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZSFF v MIBP [2013] FCCA 1884
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

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 claims to be a citizen of Afghanistan, applied for the visa on [date] November 2012 and the delegate refused to grant the visa on [date] February 2014.
The applicant appeared before the Tribunal on 17 June 2015 and 14 April 2016 to give evidence and present arguments (on 11 November 2015 the matter was reconstituted to a new member, because the member who conducted the first hearing was unavailable). 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 attended the Tribunal hearing.
RELEVANT LAW
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1403239 (Refugee)

Details

AGLC: 1403239 (Refugee) [2016] AATA 4853
Case: [2016] AATA 4853
Decision Date: 27 June 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa for Afghanistan. The applicant claimed to be a national of Afghanistan and presented various documents to support his identity, including an Afghan taskera, driver's licence, marriage certificate, land deed, and a UNHCR Asylum Seeker Certificate. However, discrepancies were noted regarding his name and date of birth across these documents and a social media account. The Tribunal also considered the applicant's claims of past harm and the risk of future harm in Afghanistan.

The primary legal issue before the Tribunal was whether Australia owed protection obligations to the applicant. This required the Tribunal to assess the applicant's claims of identity, determine if he had a well-founded fear of persecution for a Convention reason, and consider any claims for complementary protection. The Tribunal was required to have regard to Ministerial Direction No. 56, which mandates consideration of relevant policy guidelines and country information assessments prepared by the Department of Immigration and the Department of Foreign Affairs and Trade.

The Tribunal found the applicant's explanations for the discrepancies in his identity documents to be plausible and reasonable, giving considerable weight to his consistent evidence regarding his identity. While acknowledging the limitations of the documentary evidence, the Tribunal considered the applicant had provided ample evidence compared to other Afghan applicants. Regarding the claim of past harm, the Tribunal concluded that the applicant had not been subjected to serious harm amounting to persecution for reasons of his race or religion. The Tribunal also considered country information indicating that violence in Kabul primarily targeted government workers, security forces, and foreign forces, rather than ordinary civilians like the applicant. Despite the applicant's father having been killed by the Taliban, the Tribunal found the current situation in Afghanistan to be significantly different from the period of Taliban rule prior to international military intervention. The Tribunal concluded that the applicant did not have a well-founded fear of persecution in Kabul for any Convention reason, nor did it find a basis for complementary protection, as any violence in the country was a general risk rather than specific to the applicant. The Tribunal distinguished the present case from *MIBP v SZSCA* by noting that the applicant stated he did not travel outside of Kabul, unlike the applicant in that case who made regular trips for business.

The Tribunal affirmed the decision under review, concluding that Australia did not owe protection obligations to the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality and identity The applicant claims to be a national of Afghanistan. He provided to the Department of Immigration a copy of an Afghan taskera, an Afghan driver’s licence, an original marriage certificate, a hand written document purporting to be a land deed and a UNHCR Asylum Seeker [Certificate]. The applicant’s claims with respect to his identity have been consistent throughout, although – as the delegate pointed out in her decision – there were discrepancies in relation to his name and date of birth: he told the Department that his date of birth was [date], according to his UNHCR Certificate he had told the UNHCR that he was born in [date]. The UNHCR Certificate he provided is [Name 1], not [applicant name]. There are also variations on his name shown on his [social media] account. These issues were discussed at both Tribunal hearings. The Tribunal considers his responses both plausible and reasonable. He told the Tribunal a friend set up his [social media] account initially; he didn’t regard it as important and he could have put any name on there. while the details on his UNHCR certificate were not accurate, because the UNHCR is not as thorough as the Australian authorities. The Tribunal is mindful of the limitations of the documentary evidence provided by the applicant in support of his identity and notes that he provided only copies. However, the Tribunal considers that relatively speaking, compared with most other applicants from Afghanistan, the applicant has provided ample evidence of his identity. The previously constituted Tribunal asked the applicant how he had come to lose the originals of both his taskera and driver’s licence but keep copies and the applicant said that he left the copies in Kabul with his wife; he had the original with him because he thought they would be important but he lost them. The Tribunal considers this is not an unreasonable explanation. The Tribunal has given considerable weight to the applicant’s consistent evidence regarding his identity and no weight to his use of other names on [social media]. The Tribunal can see no logical reason why the applicant would benefit he could gain from giving the UNHCR a different name to the name he has given Australian authorities. It was he who voluntarily provided a copy of his UNHCR Certificate to the Department.

Decision

Reasons for decision

In relation to complementary protection, the Tribunal discussed with the applicant the fact that to the extent there is violence in the country, it is a risk faced by the population generally, not the applicant personally. He said anyone who has a chance to flee Afghanistan would do it. He referred to the Hazaras who have gone to Europe. The Tribunal said it indicates that people are trying to obtain protection, not that they are found to be owed protection. He said many of them travel with their families and children and they would not do this if there was no risk to them.Conclusions on well-founded fear of persecution The Tribunal has already concluded that the applicant’s main claim of past harm is not true. The Tribunal finds that the applicant has never been subjected to serious harm amounting to persecution for reasons of his race or religion. In making its decision the Tribunal has taken into account the country information from DFAT, discussed with the applicant at the Tribunal hearings, as well as many other sources, including the representative’s submissions and the recent 2016 UNHCR Guidelines on Afghanistan.[7] It has also taken into account the fact that the applicant’s father was killed by the Taliban. The Tribunal finds that the situation is now drastically different from Afghanistan under the Taliban rule, prior to the international military intervention in late 2011. [7] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 19 April 2016. Country information, including by DFAT, indicates that in Kabul the Taliban and other insurgents target government workers, security forces, foreign forces and NGOs.[8] They do not target ordinary civilians such as the applicant, nor do they target Shias, Hazaras, failed asylum seekers or returnees from the West, or people perceived as wealthy.[8] See e.g. DFAT Country Information Report (18 September 2015) at 3.34 to 3.38. Having carefully assessed the totality of the evidence before it, as the Tribunal does not accept that the applicant himself has been harmed in the past for any reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Kabul for reasons of his race, religion (including imputed lack of religion), being a returnee from Australia or a Western returnee, a failed asylum seekers, a person related to his father (who was killed by the Taliban in the past), a person perceived as being wealthy or any combination of his personal attributes and circumstances, or any Convention reason, now or in the reasonably foreseeable future. In MIBP v SZSCA [2014] HCA 45, the High Court held that the Tribunal in that case had failed to consider whether it would be unreasonable for a truck driver to remain in Kabul in circumstances where there was evidence that he made regular trips outside of Kabul in the course of his business. Unlike in the present case, a question that clearly arose on the facts was SZSCA’s ability to earn an income from other sources – if he were not to drive a truck in and out of Kabul. In the present case, when the Tribunal discussed the issue, the applicant said that he did not travel outside of Kabul.

Ratio Decidendi

Legal Principle Established

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