1403239 (Refugee)

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 class.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.
The applicant has limited education and one cannot expect an asylum seeker to forcefully argue that the UNHCR, the authority endeavouring to assist him, has not spelt his name correctly. Furthermore, it might be that the UNHCR would have corrected the applicant’s bio-data before making a final decision on the applicant’s refugee status. The UNHCR Certificate is only a preliminary document, issued without the benefit of a full interview.
At the time he was in [Country 1] he was not terribly familiar with the Gregorian calendar because Afghanistan uses an Islamic calendar. Having listened to the applicant’s interview with the delegate, the Tribunal notes that when asked why he had told the Department that he was born on [date] whereas he had told the UNHCR that he was born on [date], it transpired that the applicant thought [a month] was [a certain] month of the year in the Gregorian calendar.
The Tribunal notes that the UNHCR in [Country 1] operates under considerable constraints in registering asylum-seekers and finds it is not implausible that incorrect variants of the applicant’s name, date of birth and date of arrival in [Country 1] would be recorded given the recording of this information would have involved at least one, if not more, translation plus transliteration and conversion of dates from the Afghan to the Gregorian calendar.
On the evidence before it, including the supporting documents, the Tribunal accepts the applicant is a national of Afghanistan and that the applicant’s name and identity are as claimed. The Tribunal finds that Afghanistan is the applicant’s country of reference and receiving country and accordingly, has assessed his claims against Afghanistan.
The evidence before the Tribunal does not indicate the applicant has the right to enter and reside in a third country and the Tribunal finds that s.36(3) does not apply.
Credibility
The fact that the Tribunal accepts the applicant’s identity and name are as claimed does not mean that the Tribunal accepts the applicant’s claims in relation to past harm.
The Tribunal is mindful of the difficulties of proof faced by applicants for refugee status and complementary protection. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.
However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. In addition, The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
The Full Court noted that this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.
If the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.
Home region
The applicant has maintained consistently that he was born and lived his whole life in Kabul and that his family’s origins were in [Province 1]. He told the delegate that he did not have “exact information”, but he thought that both his parents were born in Kabul. He told the Tribunal he had never travelled outside Kabul. When the Tribunal, at the June 2015 hearing, suggested this seemed unlikely, he replied that many other people lived their whole life without leaving the city.
The applicant told the Tribunal that his family owned property in [another] district although he thinks the house was destroyed years ago. The Tribunal questioned the applicant about the fact that the driver’s licence of which he had provided a copy indicated that his place of residence was [Province 1] and that the licence was issued in Samangan. The applicant said things work differently in Afghanistan.
The delegate expressed a number of concerns about the applicant’s knowledge of his claimed home area in Kabul. At the June 2015 hearing, the applicant spoke confidently about the location of his home [area], the ethnic mix of the neighbourhood and surrounding landmarks. While the Tribunal has considered the possibility the applicant could have researched this information after receiving the delegate’s decision, his responses at hearing appeared to be drawn from his own experience.
The Tribunal finds that the applicant was born, grew up in Kabul and – before travelling to Australia – he had not travelled outside of the city. The Tribunal finds that the applicant has virtually no link to [Province 1].
The applicant told the Tribunal at both hearings that most of his family – his mother, [some] of his brothers, his wife, and [children] live in the same house in Kabul. His [grandfather] and [aunt] live also reside in Kabul.
The Tribunal finds that the applicant’s home area is Kabul.
Claims
The applicant is a married [age] old Hazara and Shia man who claims to have left Afghanistan, because of an incident that took place in late 2011. He is being pursued by a would-be bomber, and extremists associated with the man, whose attack on the local mosque the applicant claims he thwarted. He also fears harm more generally for reasons of his Hazara race, Shia religion or imputed lack of religion, imputed political opinion and as a member of the particular social groups of returnees from the West or failed asylum seekers, and as person perceived to be wealthy.

In a statutory declaration of [November] 2012, the applicant explained that his father had gone missing around August 2000. Four men came to the house in the night, without permission or any reason, and took him away. They were Taliban who were ostensibly searching for weapons, although they knew the family did not have weapons.
After the fall of the Taliban, two of the people who were taken returned to Kabul and told the applicant’s family that the Taliban had falsely accused the four men of having weapons and tortured them. The two men, who returned to their families, said they had been taken from Kabul to [another town]. The Tribunal finds that Afghanistan is the applicant’s country of reference and receiving country and accordingly, has assessed his claims against Afghanistan. The two who returned did not know what had happened to the applicant’s father, who was the fourth man taken by the Taliban. The applicant said he thought that his father had been tortured to death.
However, the main reason and catalyst for the applicant’s decision to leave was the incident in 2011. The applicant described in the statutory declaration how he prevented two men from going through a gate leading up to a Shia mosque. According to the statutory declaration these events took place on [a certain] day of the month of Muharram in late 2011, which is [date] December 2011 in the Gregorian calendar.[1] The applicant was a volunteer who stood at the gate of the mosque. At paragraph 3 of the statutory declaration he said: “Attacks at these large events by Sunni extremists such as the Taliban often happened and I was responsible for this not to happen this time”.
[1] The applicant did not provide the conversion into the Gregorian calendar. The Tribunal used an online converter at
He “came across” two people who wanted to enter the mosque together. They looked like strangers, they were Pashtun looking (most Pashtuns are Sunni Muslims and most Taliban in Afghanistan are Pashtun by ethnicity). The applicant searched the first man and found some grenades, although the man said he did not intend to use them. The applicant became concerned that the man wanted to perpetrate a terrorist attack and raised the alarm. He held the man with the grenades, while other people came forward to help the applicant. The police was called and they arrested that man.
The second man had managed to escape in the commotion and confusion. Approximately two weeks later, the applicant was walking in the street when he saw that man in a car that drove nearby, then “this man came with another person, approached [the applicant] and asked [him] to get in the car”. The applicant resisted, they tried to force him into the car, but there were people around who knew the applicant and when they came forward the assailants let him go, got into their car and drove off.
According to his statutory declaration:
After this incident I stayed at home and did not want to go out of the house as I was afraid they would come back. Indeed they did, as my friends had advised me that the car had come back a few times and had passed by the same area, no doubt looking for me. This just further compounded my fears that I had stirred the wrong beehive by arresting that man on that day, and these people, were after me now. They were Pashtun extremists who wanted to kill Shias on that day. They would be connected to the Taliban who are also Sunni extremists.
The Minister’s delegate had concerns about the applicant’s credibility. She did not accept the applicant’s claims about the incident at the mosque or about his subsequent targeting. One aspect of the applicant’s claim which the delegate did not find credible was the following – that the men who wanted to attack the Shia mosque and who had weapons on them agreed to be searched (see second last paragraph at p. 9 of the delegate’s decision, a copy of which was provided together with the application for review). As the delegate noted, if the men’s plan was to attack the mosque, it is implausible that they allowed the applicant – who was standing at the gate by himself – to start searching them and ultimately foil their attack without any resistance from them.
At the first Tribunal hearing the applicant gave evidence at length about various aspects of this incident at the gate. The applicant said that he was questioned by the police, but they did not even take a statement from him. He told the Tribunal that they took away the man with the grenades, but the applicant insisted they did not do anything else. The Tribunal suggested to him it was strange that the police would not have taken any further action whatsoever after apprehending a man with grenades in his possession, who had attempted to enter a Shia mosque during the holy month of Muharram. The applicant argued that incidents of this nature happened at many mosques, and at one mosque the extremists succeeded in their plan to carry out a terrorist attack. The applicant explained that the police were not interested. It was the responsibility of the local people to take care of security at each mosque.
The Tribunal asked why, for example, the police did not close the mosque or search people inside. The applicant responded that he was also surprised that they did not take the incident seriously. He did not know whether the police released that man or what happened to him.
The Tribunal noted that according to the applicant’s evidence[2] and his representative’s submissions from March 2014[3], Shia people were making their own security arrangements because of large scale terrorist attacks; and the police had asked people to organise their own security for the same reason. The Tribunal put to the applicant that according to the country information there was a large bombing on 10 Muharram (Ashura Day) in 2011,[4] which post-dates the time when the alleged incident at the applicant’s mosque took place. The Tribunal further pointed out that it had been the first large scale sectarian attack in Kabul a long time.
[2] At paragraph 3 of his 2012 statutory declaration.
[3] See at p. 2 of submissions of 31 March 2014.
[4] “Afghanistan bombs kill 58 in Kabul and Mazar-e-Sharif”, BBC News, 6 December 2011, accessed at on 24 June 2016.
The Tribunal asked why he was guarding the mosque on 6 Muharram if no large mosque bombings had happened prior to that date for some time. The applicant said that many minor incidents happen in Kabul all the time and they are not reported. He gave some examples of individual Hazaras being killed. The Tribunal said that there may be such incidents, but the applicant was claiming that the reason why he was guarding his local mosque was because of previous large scale attacks. The applicant said that was what he was saying – small scale attacks are not reported and large ones are reported.
The Tribunal suggested that such attacks or foiled attacks – prior to the 6^th of Muharram – would have been reported in the media. The absence of such reports might lead the Tribunal to doubt the truth of the applicant’s claims.
Towards the end of the first hearing, after a break, the applicant’s representative addressed the issue of the applicant’s credibility and the incident at the mosque. She acknowledged that no large scale attacks had happened at the time the applicant claimed to have been guarding the mosque. However, there was the well-known history of animosity between the Taliban and Hazaras; and the authorities may have had information that an attack was being planned and that was why they warned members of the Shia community to take precautions.
As set out above, the applicant said in his statutory declaration that about two weeks after the incident, as the applicant was on the way to the market, a car stopped near him and the man who had escaped from the mosque, together with another man, unsuccessfully tried to kidnap him.
At the first hearing the Tribunal asked the applicant about the claim. He confirmed that the man from the mosque was driving the car. The other man came out of the car and tried to push the applicant into the car. The Tribunal expressed its scepticism that the applicant would have been able to recognise the man from the mosque, given that the applicant had only seen him for a short time and in difficult circumstances. The applicant insisted that he remembered the face – he said he had tried searching the man and the time that elapsed between the two incidents (the search at the mosque and the same man trying to kidnap him) was not long.
He said that he left the country about 2 months after this incident. He said that nothing further happened to him, but he was scared of these men and he was not working in the shop. His brothers continued to operate the [shop].
At the second hearing the applicant repeated the claim that after the incident at the mosque, some men tried to take him away in their car. They also came looking for him when he was in hiding at home. When asked if they had come again afterwards, the applicant initially replied that they had not. The Tribunal suggested that if this was the case, it was hard to see why he would be harmed in the future – some 4.5 years after the alleged incident at the mosque. The applicant then explained that they may have come more again; he may not know about it. He said that there were a lot of Pashtuns in the area who were with the Taliban. He said that if people did come looking for him, everyone in Afghanistan has problems and the locals in his neighbourhood would not necessarily have realised or told his family that Pashtuns had come again to look for him.
The Tribunal asked the applicant why these same men did not target others from his mosque given that he was only one man of many who apprehended the would-be terrorist bombers. He said it was because he was the first one involved, he was the one who held the man initially, at the gate.
The Tribunal asked why these men did not kill him later. He said he did not know why. He insisted that they targeted him.
The Tribunal asked why these men did not harm other members of his family after he left if they were do determined to harm him. He said that he did not know.
At the second hearing the Tribunal noted that 10 months had passed since the last hearing. The Tribunal asked whether anything had happened to any members of the applicant’s family in Afghanistan. He said no.
The Tribunal asked whether the applicant had any fears related to his father and the way he had been taken away by the Taliban around 2000. He said that yes, of course, if someone does this to you father, you would be fearful. The applicant elaborated on this issue and confirmed that he meant that he does not specifically fear harm from the people who apparently killed his father 15 years ago.
The Tribunal asked why the incident was not reported in the media, given that from the point of view of the government it would have been a good news story where a terrorist act had been foiled. The applicant said he did not know why.
Having carefully assessed the applicant’s evidence, for the following reasons the Tribunal does not accept that the claimed incident at the mosque occurred and consequently that anybody was out to harm the applicant prior to his departure from Afghanistan:
1)The applicant could not explain persuasively why the two men agreed to be searched by him, given that this led to the capture of one of them and the prevention of a potential terrorist attack. They could have walked away, fought with the applicant or detonated/hurled their grenades. It is implausible that they would not have had a plan of action – even a simple plan made up at the last minute – other than to hope that the applicant will not search them at the gate when clearly he was there to guard the mosque and he would have been suspicious of them as they were not known to him and they appeared to be Pashtuns (which for the applicant would have equalled danger).
2)The applicant originally claimed that his community had to organise the security of the mosque because large scale sectarian attacks were common. This was also apparently the excuse used by the police as to why they were not protecting the mosque – they did not have the resources to protect all the potential targets. However, as the first Tribunal advised the applicant, the major bombing of a Shia mosque took place four days after the alleged incident at the applicant’s mosque. This attack on the 10^th day of Muharram was the first sectarian attack in a long time and there have no further large scale attacks in Kabul on Shia mosques. The Tribunal has considered the explanation that the police may have known that such a major attack was being planned and that was why they advised Shias to guard their mosques as a precaution. The Tribunal rejects that explanation and finds that the applicant would have provided that explanation in his statutory declaration if it were true.
3)The Tribunal finds it implausible that the police would not have taken a statement from the applicant, nor taken any other action after they detained the man with the grenades, even though it appeared that a potentially major terrorist attack had been foiled.
4)It is implausible that the second Pashtun man would have remembered the applicant’s face and would have been able to identify him and find out where he lives in order to stalk him and try to kidnap him. And if it was of such importance to this group to punish the applicant for what he had done, it is implausible that they did not punish him. Having bungled the terrorist attack they then failed to kidnap the applicant. Before departing in their car, they did not even punch him, slap him or threaten to harm him. When he went into hiding and these men allegedly returned, they did not do anything further e.g. damage the applicant’s house or family shop (the two are in the same building), let alone physically harm him. According to the applicant they came back more than once, in a car, hoping to find the applicant in the street, but took no other action against him or members of his family.
5)Since the applicant left in early 2012, nobody has approached the applicant’s family to threaten them or to inquire about his whereabouts.
6)The foiled attack was not reported in the media.
The Tribunal finds that the applicant did not leave Afghanistan because he feared for his safety. The Tribunal has reached the conclusion that the applicant has fabricated his claims of past harm in so far as it relates to him.
The Tribunal is prepared to give the applicant the benefit of the doubt and accepts that his father may have been killed by the Taliban, although the applicant and his family have no definitive proof of that. However, the applicant has never had any dealings with the people who allegedly harmed his father in 2000. The Tribunal finds that there is less than a real chance that the applicant will be harmed some 16 years later for any reason related to his father.
At the first hearing the Tribunal asked the applicant why he could not return to Kabul. The Tribunal pointed out that the applicant had lived in Kabul, in the same house for many years, without problems (up until the alleged problems in late 2011 and early 2012). Further, since he left the country, the applicant’s family have continued to live there without incident. The applicant said that he was fearful. He said that fear was the reason why three of his brothers had also left Afghanistan.
As already noted, at the second hearing the Tribunal noted that another ten months had passed since the first hearing, during which he told the Tribunal that his family in Kabul had not been harmed. The Tribunal asked whether anything had happened to any members of the applicant’s family in Afghanistan. He said no.
He told the Tribunal that his mother, wife and children are in Kabul as well. He said that the family shop was not open at present, because the brothers who are left in Afghanistan are still studying, and not working.
At the 2016 hearing, the applicant said that [three] brothers were in Kabul. [One brother] is in [Country 2]. [Two] brothers [in] [Country 3]. He said the brothers in [Country 3] were working [in the same role] while his brother in Moscow worked in [a certain industry].
The applicant told the Tribunal at the first hearing that not long ago he had heard that a member of a family he knows had been kidnapped for ransom, because that person’s brother was living [overseas]. The father had to go to [Province 1] province to sell the family home in order to pay the ransom amount of $[amount]. The applicant was concerned that the same may happen to him.
In relation to this claim at the second hearing the Tribunal asked why the family would be asked to pay a ransom after he returned, if they have not been asked to pay any money in the past. The Tribunal observed that the applicant has been in Australia since 2012, two of his brothers have been in [Country 3] since 2010 and one in [Country 2] since 2013. He said that the brothers in [Country 3] had been there since 2011 (not since 2010) and the one in in [Country 2] for the last 1-1.5 years (not since 2013). The applicant confirmed that everyone in the neighbourhood knew that he and his brothers were outside of Afghanistan. He said they all grew up together in the neighbourhood and of course people know of his and his brothers’ whereabouts. However, he referred again to the kidnapping of a man from [Province 1] whom he mentioned at the 2015 hearing.
The Tribunal acknowledged that perhaps his brothers had left Afghanistan for work more recently than the Tribunal had suggested. Still, the Tribunal pointed out that he and three brothers have been earning money outside of Afghanistan and sending money back to Afghanistan for some time and nobody has targeted his family members in Afghanistan for their perceived wealth. He said his relatives may be really anxious when they hear about other people being kidnapped. He said his family may then stop sending the children to school. He said the children do go to school at present, but they go to private school so they get picked up form home and dropped off back at home on the school run bus (they do not catch public transport or walk to school).
The Tribunal considers that as people in Kabul know that he and three of his brothers are working outside of Afghanistan, earning “big money” (relative to the average person in Afghanistan) and sending money to support the more vulnerable members of the family in Kabul (the applicant’s mother, his wife and children, and his [other] brothers), the family members in Kabul, without adult male protection, would have been targeted for ransom already. On the evidence before it, the Tribunal finds that there is no real chance of the applicant being harmed on return to Afghanistan for reasons of his perceived wealth.
On 16 October 2015 the first Tribunal member wrote to the applicant and invited him to comment in relation to the new DFAT Country Information Report on Afghanistan (18 September 2015) and on the new DFAT Thematic Report on Conditions in Kabul (18 September 2015).
His representatives provided submissions in relation to these two new reports on 30 October 2015.
On 8 February 2016 DFAT published a new Thematic Report on Hazaras in Afghanistan.
At the commencement of the second hearing the Tribunal explained to the applicant that it had invited him to a second hearing mainly in order to discuss the new DFAT report on Hazaras in Afghanistan.
The Tribunal discussed with the applicant the drawdown of international troops. The Tribunal acknowledged that the drastic reduction of foreign military personnel has led to a deterioration in the security situation. The Tribunal put to the applicant that there was no prospect of the Taliban returning to power in Kabul in the reasonably foreseeable future.

The Tribunal said that country information indicates that Hazaras and Shias are not targeted for their ethnicity or religion. The Tribunal observed that Kabul has a population of at least 3 million, possibly 5 million people, and estimates say that about a quarter of the population are ethnic Hazaras living in Kabul without problem. He said that the Pashtuns who live around his neighbourhood will persecute him (and other Hazaras) if the Taliban gain more power. He said the Taliban were making progress and it is possible that Kabul may fall into their hands.
The Tribunal suggested to the applicant that according to country information, virtually no incidents of sectarian violence had occurred since the Ashura bombing on 6 December 2011 (10^th of Muharram), and that was perpetrated by Pakistani extremists rather than by locals. In response the applicant referred to the kidnapping of 31 Hazaras. The Tribunal asked him whether he was referring to an incident in Kabul. He said there may be such incidents in Kabul, but he was not aware of them, thus implicitly admitting that this alleged kidnapping occurred somewhere else in the country. The Tribunal suggested that even incidents on remote roads in Afghanistan are reported and therefore incidents in Kabul where most of the international media and NGOs are located would have been reported. He said he was not sure.
The Tribunal referred to the cases of two people who were associated with Australia and who were harmed when they travelled back to Afghanistan. The Tribunal observed that they were harmed in what is known as the Hazarajat or on the roads near it.[5] The applicant pointed out that in his view travel between the Hazarajat and Kabul is not safe. However, he does not have any “business” in Hazarajat. The applicant said that this may be so, but then asked rhetorically for how long can this situation continue.
[5] The two men were harmed in September 2014. Sayed Habib Musawi, a recognised refugee, was killed in the Jaghori district of Ghazni and Zainullah Naseri, a Hazara from Jaghori district in Ghazni, was allegedly abducted and tortured by the Taliban for two days also in Ghazni province.
The Tribunal observed that according to DFAT Australia does not monitor returnees to Afghanistan. The Tribunal referred to an issues paper from July 2015.[6] The paper covered the issue of returnees to Afghanistan in the period January 2014 to March 2015. The UK had returned over 6,000 people and Norway about 750 Afghan nationals. Norway monitors some returnees, normally for 6 months, and there have been no reports of harm. The UK does not monitor returnees, but the UK government had not received any credible reports of harm in relation to any returnees. He said that he feared harm on return, but conceded that he had not heard of anybody suffering harm other than the two men (returned from Australia) that the Tribunal had mentioned a second ago.
[6] Issues Paper, Afghanistan: Returnees and Relocation, Department of Immigration and Border Protection, July 2015, responses to questions from the DIBP Country of Origin Information Section, at pp. 16-17.
The representative said that there were cases of people being returned from the UK and then coming to Australia and claiming protection successfully. The Tribunal observed that this may be true, but it does not necessarily demonstrate that Afghans have been returned from the UK and have then suffered harm for reason of being returnees or failed asylum seekers. It may be that the assessment of the claims in the UK was flawed and they should have been found to be owed protection on other grounds. The representative said he must have misunderstood; he thought the Tribunal was saying that nobody who has been returned from the UK was a person in need of protection.
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.
The Tribunal finds that the applicant does not need to travel in and out of Kabul for work or for any other reason and therefore he would not expose himself to any harm.
The applicant is from Kabul. He has accommodation there and well-established networks and history in that city, including employment history. The Tribunal finds that the applicant can return to Kabul and live there without any fear of serious harm amounting to persecution.
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 the criterion set out in s.36(2)(a).
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).
Complementary protection
In considering whether the applicant faces a real risk of significant harm for the purposes of the complementary protection criteria, the Tribunal notes that ‘significant harm’ is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

100. In MIAC v SZQRB, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of well-founded fear in the Refugee Convention definition.[9]
[9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
101. Based on the above reasons, set out under the heading “Conclusions on well-founded fear of persecution”, it follows that the Tribunal does not accept that there is a real risk that the applicant will face significant harm on any of the claimed bases as a necessary and foreseeable consequence of his being removed from Australia to Afghanistan.
102. Further and in any event, even if the Tribunal is wrong that the applicant does not face a real risk of significant harm, subs. 36(2B)(c) of the Act provides:
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

103. In SZSFF v MIBP [2013] FCCA 1884 the presiding judge considered the qualification in s.36(2B)(c) to the complementary protection criterion. The Court stated:
…s.36(2B)(c) contemplates that a risk may be faced by a section of the population and by the applicant personally, as the applicant states at particular (e). Properly construed, the complementary protection provisions and, specifically, s.36(2B)(c) emphasise the requirement that the real risk of significant harm must be a personal risk. That is, it must be a risk which is faced by the individual personally in light of the individual’s specific circumstances.
The prevalence of serious human rights violations (in the context of generalised violence) in the destination country will not, of itself, be sufficient to engage a non-refoulement obligation for all people who may be returned to that country. However, where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the ICCPR and/or CAT. As such, s.36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.[10]
[10] SZSFF V MIBP paras 33 – 34. See also BBK15 v Minister for Immigration & Anor [2015] FCCA 3220 at paras 29-32.

104. The Tribunal accepts that there has been violence against the civilian population across Afghanistan, including Kabul. There are fears that Islamic State is increasing its strength and influence and Gulbuddin Hekmatyar (Hezb-e-Islami Party) has aligned himself with it.[11]
[11] K. Sengupta, “Taliban problem hasn’t gone away – and it has new extremists to contend with”, The Independent, 23 July 2015, accessed at on 16 October 2015.
105. While the Tribunal accepts that terrorist attacks do occur in Kabul and other parts of Afghanistan, the Tribunal considers that this is a risk of harm faced by the population generally, and not by the applicant personally. The Tribunal does not accept that the applicant will be specifically targeted for harm in his personal by the Taliban or other insurgent groups in Kabul.
106. Having considered the country information detailed above, and the information from a number of sources, including the risk of deterioration in the security situation, the Tribunal does not accept that the level of generalised violence in Afghanistan is so elevated that the applicant faces a real risk of significant harm, as defined in the Act.
107. Having regard to the findings of fact above in relation to the applicant’s Convention claims, and having assessed the applicant’s claims individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed to Afghanistan, there is a real risk that the applicant will suffer significant harm from any person or group in Afghanistan for any reason.
108. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
109. 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
110. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Filip Gelev
Member

[2016] AATA 4853

27 June 2016

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