1403485 (Refugee)

[2015] AATA 3962

1403485 (Refugee) [2015] AATA 3962 (21 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1403485

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Carolyn Wilson

DATE:21 December 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 21 December 2015 at 3:08pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Afghanistan applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] February 2014.

3. The applicant appeared before the Tribunal on 18 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

9. 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

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. The applicant is a single man from Ghazni, Afghanistan.  Prior to coming to Australia he lived in Kabul for three years.  He arrived in Australia as an unauthorised maritime arrival in June 2012.

12. At an entry interview [in] September 2012, the applicant said he left Afghanistan because of the lack of security generally, and because of threats in 2005 related to his [brother].  His brother had stood as an independent candidate for the provincial council, and as a result he and his family were threatened.  The family left where they were living ([Ghazni]) and moved back to their home [village]. His [brother] and [other siblings] left for [another country].  In 2009 the applicant moved to Kabul with a [sibling]. They moved from place to place in Kabul due to fear of the Taliban.  He was selling [items] in Kabul and this made him a target.  When asked if he experienced any problems in Kabul he said he didn’t have any direct experience with the Taliban.  He also said it was difficult to travel between Kabul and his village and it was impossible to visit his parents there. 

13. In his application for the Protection visa, the applicant made claims largely consistent with what he had said in his entry interview.  The main difference was that he claimed to have been assaulted by two people he suspected were Taliban militants.  He claimed he was coming home from work when two men approached him.  They stabbed [him] and stole his laptop.  He was hospitalised for 50 days.  After this incident he moved his [business] to another location.  He believed he was targeted because of either his brother’s past political activities or because of his [business]. He continued his [business] for another 18 months before deciding to flee Afghanistan.  He had come to find the level of fear and stress in Afghanistan to be unbearable.

14. The delegate refused the application as they found the applicant could return to his home area in Ghazni where his parents and siblings reside.  The delegate also found the applicant could reasonably relocate to Kabul, as he already had experience living there and had siblings in Kabul. The delegate did not accept the applicant had been targeted by Taliban militants as claimed, and concluded it was a random and opportunistic attack.

15. On review the applicant maintained he had been targeted by the Taliban for reason of his [occupation] and his brother’s past political activities.  The representative submitted the security situation in Ghazni had deteriorated since the delegate’s decision.  In terms of reasonableness of relocation, it was submitted the lack of employment in Kabul and the general lack of security rendered this unreasonable.  The applicant’s siblings who had resided in Kabul had all left, due to the worsening security situation there.

16. At the hearing the applicant told the Tribunal all his siblings who had lived in Kabul had ‘escaped’.  They had all reached a point where they felt it was unsafe to remain living there.  His parents continued to live in the village in Ghazni.  He maintained he could not return there as there was no job for him and it was not safe to travel there or travel around looking for work. He feared returning to Kabul as he felt unsafe there and had no job or family to return to.  

17. The Tribunal asked the applicant to provide more detail on his injuries from the assault and to explain why he was hospitalised for 50 days.  The applicant was unable to convincingly explain the injuries he suffered or the treatment he received.  He said he was on drips and injections in hospital and was given prescription medication, but couldn’t’ name any of the medication he received.  When asked what injuries he sustained in the stabbing, he was unable to give any further detail than that he was stabbed.  When asked whether any organs had been damaged, he said ‘yes’ but couldn’t name what organs he claimed were damaged.  No medical evidence, either from Afghanistan or from a review with doctor in Australia, has ever been provided to support this claim.

18. On the evidence before it, the Tribunal is not satisfied the applicant was attacked by two men whom he believed were Taliban militants.  The Tribunal makes this finding on the lack of medical evidence, and the vague and unpersuasive oral evidence.  The Tribunal also considers that had such an attack happened, the applicant would have mentioned it in his entry interview.  He gave considerable detail in the entry interview about his brother’s political activities and his move to Kabul.  It is implausible he would not have mentioned being stabbed by people he believed were associated with the Taliban if such an incident happened.  In fact, in his entry interview the applicant stated he hadn’t had any experience of the Taliban in Kabul.

19. The Tribunal finds the applicant embellished or fabricated the claimed stabbing by Taliban militants.   However, the Tribunal on assessing all the evidence, does not consider the applicant is not credible about his remaining claims.  He has consistently claimed his family feared harm at the time of his brother’s political campaign, and that he feared for his safety in Ghazni and Kabul.  The Tribunal considers these claims are consistent with independent country information.  The Tribunal believes the applicant embellished his claims out of a genuine fear of being returned to Afghanistan.

20. The Tribunal has assessed the applicant’s claims as a young Hazara man from Ghazni. The Tribunal has had regard to the current situation for Hazara men in the most recent DFAT reports.  The DFAT Country Information Report Afghanistan (18 September 2015) provides the following information:

    Hazaras

    3.10 Hazaras are a visibly distinct ethnic group in Afghanistan. Although demographic data is notoriously unreliable, the most generally accepted figure for the proportion of Hazaras in the Afghan population is approximately nine per cent. Hazaras are nearly exclusively Shia Muslims, mostly of the Twelver Sect (athna asharia), with a very small Sunni minority. Hazaras living in rural areas speak Hazaragi, a dialect of the Persian (Farsi) language.

    3.11 The traditional Hazara area in Afghanistan (known as the ‘Hazarajat’) lies in the central highlands and includes the provinces of Bamiyan and Daykundi, as well as parts of the provinces of Ghor, Uruzgan, Wardak and Ghazni.

    3.12 Under the Taliban regime, Hazaras faced systemic official and societal discrimination and violence. According to an August 2013 report by the UN High Commissioner for Refugees, minorities in Afghanistan, including Hazaras, have made significant gains, albeit from a very low base, since the Taliban were removed from power in 2001. This assessment is consistent with information presented to DFAT during consultations in the preparation of this report. Afghanistan’s Hazara population has made strong gains in terms of politics and education over this period. For example, Hazara candidates won all the lower house seats in Ghazni, despite being a minority of the province’s population. In addition, Afghanistan’s Second Vice President, Sarwar Danish, is an ethnic Hazara from Daykundi Province who was elected on the same ticket as President Ghani. Vice President Danish replaced former Vice President Karim Khalili, another ethnic Hazara from Wardak Province. It is important to note, however, that often-quoted figures showing high levels of Hazara electoral success may be misleading, as these figures often include all Shias, rather than just Hazaras. For example, the Minister for Commerce, Trade and Industries, Humayoun Rasa, is ethnically a Bayat (Turkic Shia), and the Minister for Telecommunications, Abdul Razaq Wahidi, is ethnically Tajik but religiously Shia, both are considered Hazara by the government.

    3.13 While conditions for Hazaras have improved greatly since 2001, they still face some societal discrimination, partly as a result of earlier practices of official discrimination. For example, until 2001 there were few Hazaras employed in senior government positions. Due to the important role that ethnic, tribal and familial connections play in day-to-day life for all Afghans, Hazaras are still underrepresented in senior levels of government—Vice President Danish is the only Hazara in Cabinet. The historical enmity between Afghanistan’s Pashtun and Hazara communities contributes to the Hazara community’s perceptions of ongoing discrimination and targeting for violence.

    3.14 All Afghans are vulnerable to violent attacks associated with insurgent and/or terrorist groups. DFAT has no evidence to suggest that Hazaras are systematically targeted in these attacks on the basis of their ethnicity alone. DFAT assesses that, with the exception of kidnappings, Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan.

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

21. On the security situation for Hazaras in Ghazni, DFAT provided the following information in the Hazaras in Afghanistan and Pakistan (26 March 2014):

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

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

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

22. Information from the European Asylum Support Office (EASO) paints a less optimistic picture of security in Ghazni:

    Ghazni is among the volatile provinces in southeastern Afghanistan where anti‑government armed insurgent groups are actively operating in various districts and frequently carry out insurgency activities….

    The Taliban are active in many parts of Ghazni, since it is an important gateway from the south‑east to the capital, Kabul.

    According to officials, in September 2014, Taliban fighters seized control of a strategic district in the Afghan province of Ghazni.[1]

    [1] EASO Afghanistan Security Situation :  EASO Country of Origin Information Reports, 31 January 2015, p84 and 86   < <CISEC96CF1191> 

23. The following New York Times article highlights recent targeting of Hazaras in Ghazni:

    A campaign of kidnappings against the Hazara ethnic group intensified on Saturday as gunmen stopped a number of buses along Afghanistan’s main highway and separated out the Hazara passengers, officials said.

    By morning, between 14 and 30 Hazara passengers had been seized along a stretch of Highway 1 in Zabul Province, in the south of the country, and taken away, three security officials said, each citing a different number of kidnapped people.

    There have been numerous episodes this year involving Hazara motorists and bus passengers. While some of those kidnapped have been released after negotiations, others have been killed: This month, militants affiliated with the Islamic State are believed to have beheaded seven Hazara captives, among them a 9-year-old girl.

    The government’s powerlessness to stop kidnappings along the country’s main highway — or to return the captives to safety — presents a growing political crisis to the presidency of Ashraf Ghani, just over a year old. After the seven captives were killed this month, thousands of mostly Hazara protesters carried the coffins to the presidential palace, in what was the largest political demonstration in Kabul in years. Guards shot and wounded as many as 10 protesters as some of them scaled walls to enter a palace parking lot.

    It was not known whether the Islamic State or the Taliban were behind the kidnappings on Saturday. Both organizations have targeted Hazaras in the past.

    “Security forces are investigating the case and will find out who kidnapped them,” Assadullah Kakar, a member of Zabul’s provincial council, said on Saturday.

    A driver of one of the buses that were stopped, who gave his name as Shawali, said that six or seven militants climbed aboard and began pulling Hazara passengers out of their seats.

    “They were very angry and treating passengers like animals,” he said. “They were telling passengers not to talk as they eagerly looked for Hazara people.”

    Just last month, the top American general in Afghanistan, John F. Campbell, testified to a House committee about the state of security in Afghanistan and claimed that Afghans “continue to have, as I said, freedom of movement on Highway 1.”

    But for Hazaras, bus trips down that highway are a source of dread. This year alone, as many as 31 Hazaras were abducted in a single episode, said Hassan Raza Yusufi, a Hazara member of the provincial council in Ghazni, which sits along Highway 1. Mr. Yusufi said there had been at least five other kidnappings of Hazaras along the portion of Highway 1 between Kabul and Kandahar this year.

    “We blame the government for not taking enough security measures on the highways to protect its people,” Mr. Yusufi said.

    The government’s poor record of securing the release of kidnapped Hazaras is another sign of its limited — and receding — authority in parts of the country. This month, the fate of the seven beheaded Hazara victims was discovered not by government forces but by the Taliban fighters who were advancing into a part of Zabul Province held by militants loyal to the Islamic State. Taliban fighters arranged for a truck driver to take the bodies to a government hospital.

    Hazaras, historically Afghanistan’s most persecuted ethnic group, account for perhaps 5 to 10 percent of the country’s population, although statistics on demographics here are often based on estimates or guesswork. Hazaras are mostly Shiite in an overwhelmingly Sunni country, and Afghans of other ethnicities have long pilloried them as outsiders, possibly descendants of the Mongol invaders who once swept through the region. They faced persecution and campaigns of murder during years of Taliban rule.

    This latest wave of violence against them comes after a decade of upward mobility. Since the fall of the Taliban in 2001, Hazaras have become well represented in the country’s universities and have obtained a degree of political power that has historically eluded them.

    But the rise in kidnappings may be leading many Hazaras to question their future in Afghanistan. As Afghans have joined the migrant trail to Europe, Hazaras are said to be leaving at a disproportionate rate, although statistical evidence is nonexistent.[2]

    [2] CXBD6A0DE16561: "Afghan Kidnappers Prey on Hazaras", New York Times, The, 21 November 2015, (Opens in a new window)

1. The Tribunal finds, based on the country information available to it, that there is a risk for the applicant as a young Hazara man both travelling back to his home area in Ghazni, and travelling around Ghazni to search for or engage in work.  The Tribunal considers the risk amounts to a real chance of serious harm amounting to persecution, should the applicant return to Ghazni in the reasonably foreseeable future.  The Tribunal is satisfied the essential and significant reason for the harm would be his ethnicity and religion as a Hazara Shia.

2. The Tribunal has considered whether state protection would be available such as to remove the real chance of harm.  However, as reported by DFAT in their report on Hazaras in Afghanistan and Pakistan, the ongoing insurgency in the south and east (where Ghazni is situated):

   means that the Government struggles to exercise effective control over parts of the country. As a result, the Government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in those areas [5.1].

3. The Tribunal is not satisfied the applicant could access effective state protection from the risk of serious harm he faces in Ghazni Province should he return there in the reasonably foreseeable future.  

4. The Tribunal has considered whether the applicant could reasonably relocate to a safer, urban centre in Afghanistan such as Kabul to avoid the persecution he fears. In relation to relocation to Kabul, the Tribunal has noted the following information from the DFAT Thematic Report Conditions in Kabul (18 September 2015):

   2.14 Although there are no reliable statistics, unemployment is widespread in Kabul and underemployment is also common. The influx of IDPs and returnees to the city has put pressure on the local labour market. The decrease in the international presence and the tight budgetary situation of the Afghan government have further reduced the availability of quality employment opportunities… Interviewees in Kabul for the preparation of this report often cited a lack of job opportunities as a key concern, more so even than the security situation.

   …

   3.15 Returnees from western countries are almost exclusively returned to Kabul. While some families are returned, most tend to be single men travelling alone. While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into the Afghan community. The relatively better economic opportunities available mean returnees often choose to remain in Kabul. There are no tracking mechanisms for these returnees, so it is difficult to assess the conditions they face, particularly some time

   after they return. There are plausible, but anecdotal, reports of returnees from western countries turning up in drug communities. DFAT assesses that, because of Kabul’s size and diversity, returnees are unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion.

   3.16 Returnees generally have lower household incomes and higher rates of unemployment than established community members. However, DFAT assesses that the situation for returnees in Kabul provided with cash or in-kind reintegration assistance tends to be more favourable than for internal migrants and other international returnees who do not receive this level of assistance. Such reintegration programs offered by the International Organization for Migration (IOM) and others can include the provision of vocational and other training, assistance to help establish businesses and cash grants. These programs are generally only available for voluntary returnees.

5. The DFAT Country Information Report Afghanistan provides the following information on relocation:

   5.14 According to UNHCR, there were more than 850,000 internally displaced persons (IDPs) in Afghanistan in March 2015 as a result of the conflict, an increase of more than 230,000 over the preceding 17 months. Populations may be displaced from any part of Afghanistan, and areas of displacement change over time as a result of military operations. UNHCR estimates that more than half of Afghanistan’s displaced population live in urban areas. The International Committee of the Red Cross estimated in 2009 that 76 per cent of Afghans had been displaced at least once in their lives.

   5.15 Resettlement and reintegration in areas of origin can be difficult because of the ongoing security situation. As is commonly the case in developing countries, the bulk of internal movement within Afghanistan is from rural areas to urban areas. This is true for both IDPs and people moving for economic or educational reasons. Large urban areas such as Kabul are home to mixed ethnic and religious communities, and offer relatively better opportunities for employment, access to services and state protection than rural areas.  

   Nonetheless, Kabul remains one of the poorest and most dangerous cities in the world (see the 18 September 2015 DFAT Thematic Report on Conditions in Kabul). Goods and services, including accommodation, can be significantly more expensive in urban areas, making it difficult for some people to relocate there, particularly unaccompanied women and children. The recent slowdown in economic growth is also having an impact on the availability of employment opportunities.

   5.16 Traditional extended family and tribal community structures are the main protection and coping mechanism in Afghan society. Afghans rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of sustenance. For this reason, people tend to move in large groups, often with several other families. This approach increases the resilience of the members of the group, but can result in rapid growth in population for particular areas and a strain on local infrastructure and services. Large groups of internal migrants often live in informal settlements in poor conditions, with high rates of unemployment and under-employment, limited access to water and a lack of basic infrastructure.

6. The Tribunal notes the applicant lived in Kabul for three years, but finds it significant that his siblings have since fled the city.  The applicant has no job to return to, and he no longer has his [business].  There is no evidence the applicant now has the funds to re-start such a business.  The applicant would be relocating to a city where he has no family members to assist with accommodation and finding employment.  Taking into account his current lack of family or support network in Kabul, the Tribunal considers relocation is not reasonable in the circumstances.  Given his lack of connection to any other part of Afghanistan, the Tribunal finds there is nowhere in Afghanistan where it would be reasonable for the applicant to relocate. 

7. For the reasons given above, the Tribunal finds the applicant has a well-founded fear of persecution for reason of his ethnicity and religion in his home area of Ghazni province.   The Tribunal has found the applicant cannot access state protection, and nor is it reasonable for him to relocate to Kabul or any other part of Afghanistan.

8. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

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

   Carolyn Wilson
   Member