1404385 (Refugee)

[2015] AATA 3371

1404385 (Refugee) [2015] AATA 3371 (25 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1404385

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:25 September 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 25 September 2015 at 12:53pm

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] February 2013 and the delegate refused to grant the visa [in] January 2014.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 425(2)(a) of the Act.

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.

   Refugee criterion

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. 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.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

    State protection

16. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Relocation

17. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Complementary protection criterion

18. 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’).

19. ‘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.

20. 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

21. 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 and has done so.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. I have before me material including:

    ·Application for protection visa and accompanying statutory declaration dated 22 February 2013;

    ·Copy of the applicant’s taskera;

    ·Copy of entry interview dated [in] August 2013;

    ·Interview with the delegate dated [in] October 2013;

    ·Agent’s submission dated 5 November 2013.

23. The applicant’s claims can be summarised as follows.  He is a Hazara Shia born in [a village in] Jaghori district, Ghazni province, Afghanistan in [year].  He was raised on his family’s farm which had [crops]. This land has been sold.  From 2007 to 2009 he was a self-employed taxi driver.  From 2009 to 2011 he illegally resided in [Country 1] and worked in a factory.  He was deported and returned to Jaghori where he worked as a taxi driver again.  He then joined the army where he was employed for three months. He departed Afghanistan in April 2012 and arrived in Australia by boat in June 2012.  His wife and [children] still reside in Jaghori.

24. The applicant claims that after the coalition forces came to his area he bought a taxi but it was still dangerous to drive between cities even during the day because of the Taliban as it controlled most of the roads.  He had no choice though as he needed to support his family.  When he came back from [Country 1], the Taliban tried to stop his taxi on three occasions whilst he was driving on the road from Ghazni City to [location].  The first time they shot at him but he was able to speed away.  The second time he was able to again speed away. However, on the third occasion he was driving through [a] desert and was stopped at a Taliban roadblock.  He was forced out of the car, blindfolded and beaten with sticks.  They said they wanted to kill him.  Another vehicle arrived and an old Pashtun man begged the Taliban to let him go.  The Taliban listened to them and let him go.  The applicant then drove straight home.

25. The applicant sold his taxi and joined the army in order to support his family. He was trained for three months at a checkpoint near Kabul and then worked to protect the base. The security situation began to get worse and the soldiers who went off base were regularly attacked by the Taliban.  A high ranking soldier told him the base would be attacked and he decided it was not safe for him and left.

    Country of reference

26. The applicant claims to be an Afghani national from Jaghori in Afghanistan.  He speaks Hazaragi and has also been consistent in his claims that he is from Afghanistan.  His answers at the interview with the delegate were reasonably detailed about his major life events.  Accordingly, I find (as did the delegate) that Afghanistan is his country of nationality for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.

    Assessment of claims

    Army claims

27. I do not accept that the applicant was a soldier in the army as he has claimed.  I do so for the following reasons:

    ·His evidence at his interview with the delegate regarding his claimed service was vague and undetailed.  For example, he could not recall the name of the army base or unit he had been assigned to.  He stated that he was illiterate and he had the name of the base on piece of paper but had thrown it away in [another country] after being advised by a friend who told him he may be hurt in Australia if the authorities found out about this. I do not accept that it is plausible or credible that he would do this given this would have been an important part of his claims in seeking Australia protection and Australia is an ally of the Afghan government.  I do not accept that he could not recall such important matters if he had actually happened been in the military as he has claimed

    ·The applicant gave inconsistent evidence on a number of matters. For example, in his protection visa application form he claimed that he was in the army for one month but then claimed at the interview with the delegate that he was in it for 3-4 months.

    Hazara Shia claims

28. I have considered whether the applicant has a well-founded fear of persecution in if he returns to Afghanistan on the basis of the general security situation in Afghanistan and the situation for Hazara Shias.  I have also considered the associated imputed political opinion (pro government and anti-Taliban) arising from his race and religion. The applicant has claimed that the Hazara Shia face persecution and significant harm at the hands of the Taliban.

29. In making my findings, I have given considerable weight to a number of reports by the Australian Department of Foreign Affairs and Trade (DFAT) as these are authoritative, very recent and the Department has been specifically charged with the provision of this advice to the Australian government.

30. In its September 2015 report, DFAT have stated that they are not aware of any credible evidence that everyday Shia Muslims are systematically targeted on the basis of their religious affiliation and that they assessed that Sunni-Shia sectarian violence is infrequent, although occasional violence does occur.  They also stated that Hazaras had made significant gains (albeit from a small base) since the Taliban were removed from power in 2001.  They stated that while conditions for Hazaras had greatly improved since 2001, they still face some societal discrimination.  They stated that they had no evidence to suggest that Hazaras are systematically targeted in insurgent attacks on the basis of their ethnicity alone and that with the exception of kidnappings, Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan.[1]   This view of the level of general threat posed to the Hazara community is supported by Professor Amin Saikal of ANU. ^[2] 

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

    [2] Saikal, Amin 2012, ‘Afghanistan: The Status of the Shi'ite Hazara Minority’, Journal of Muslim Minority Affairs, March, Vol.32, No.1, pp.80-87.

31. DFAT have also reported that the number of active ISIS (Daesh) militants remain low and that they assessed that ISIS currently has limited capacity and influence in Afghanistan and that civilians in Afghanistan face a low risk of violence from groups affiliated with ISIS compared to the risk of violence generally in the country.[3]

    [3] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

32. DFAT have earlier commented:

    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.[4]

    [4] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

33. DFAT have commented that the key Hazara districts of Ghazni Province (Nawur, Malistan and Jaghori) continue to experience relatively low levels of violence.  No recent reports have been found of Taliban or other insurgent incursions into Jaghori.  Based on country information and the applicant’s individual circumstances, I therefore do not accept that the applicant in his home area of Jaghori faces a real chance of persecution, now or in the reasonably foreseeable future from the Taliban or any other insurgent group on account of being a Hazara Shia or any imputed political opinion. 

    Road travel

1. The applicant has given generally consistent evidence about being targeted by the Taliban on the Qarabagh road and country information from DFAT indicates that this is not a secure route. I am therefore prepared to accept that he was stopped at a Taliban roadblock, forced out of the car, blindfolded and beaten with sticks.  I accept that another vehicle arrived and an old Pashtun man intervened and they let him go. 

2. In October 2012 DFAT commented that there is a need of residents to travel outside areas such as Jaghori to access health services.  Although the government and international community have been committed to improving health service delivery, relatively simple procedures still require patients across the country to travel to provincial capitals or to Kabul. In terms of employment in Ghazni, DFAT noted:

   … close to 80 per cent of employment is reliant on small-scale agriculture. We do not have detailed information on employment in Jaghori specifically, but seeking employment and improved economic opportunities remains a key motivator for the many Afghans moving every day from rural areas to provincial centres, to Kabul, and abroad.[5]

   [5] Department of Foreign Affairs and Trade 2012, Security Situation for Hazaras in Afghanistan, 31 October

3. It is clear that the applicant would need to travel on the road from Kabul to return to his home area of  Jaghori. The applicant has work skills in agriculture but his more recent skills have been working as a taxi driver in Afghanistan and a factory and [worker] in [Country 1] and his family does not own land in Jaghori.  I find, like he has done in the past, that it is likely that he will have to travel outside Jaghori on a more than infrequent basis to find work to help support himself and his wife and [children].  Ghazni City is the closest provincial capital and it would also on occasions have to be visited to obtain necessary medical care for himself and his family given the DFAT information set out above concerning the lack of medical care in district areas and that relatively simple procedures still require patients across the country to travel to provincial capitals or to Kabul at significant expense.

4. The Department’s March 2015 Country of Origin Information Service report summarises the differing views regarding the safety of road travel for Hazaras:

   Most security concerns for Hazaras in the Hazara districts of Ghazni relate to travel outside the district, as most roads travel through Pashtun districts where insurgents are active. There are conflicting views among external sources consulted by the RRT on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. In 2014-5 there have been three reported incidents involving Taliban attacks on Hazaras travelling into Jaghori from Kabul …

   There are conflicting views among external sources consulted on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. Advice by DFAT, Qayoom Suroush of Afghanistan Analysts Network and the Afghanistan Development Association indicates that there is no evidence of ethnic targeting on roads in Ghazni.  In contrast, Thomas Ruttig, Professor Alessandro Monsutti, Professor William Maley and a Ghazni based NGO, the Ghazni Rural Support Program, maintain that travel for Hazaras is dangerous on roads passing through Pashtun districts [6]

   [6] ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.46-47.

5. DFAT has made the following comments about road security:

   4.22 Afghanistan’s road network, particularly in the mountainous central highlands, is generally poor. Travel in winter is even more difficult and roads at higher altitudes can be cut by snowfalls for long periods during winter. Speeding and unsafe driving further aggravates the problem—the majority of deaths on Afghan roads are caused by traffic accidents.

   4.23 Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly those roads that pass through areas contested by insurgents. Taliban and criminal elements target the national highway and secondary roads, setting up arbitrary armed checkpoints. Official ANP and ANA checkpoints designed to secure the road are sometimes operated by poorly-trained officers known to use violence to extort bribes. More broadly, criminals and insurgents on roads target all ethnic groups, sometimes including kidnapping for ransom. It is often difficult to separate criminality (such as extortion) from insurgent activity.

   4.24 Individuals working for, supporting or associated with the Government and the international community are at high risk of violence perpetrated by insurgents on roads in Afghanistan. Carrying documentation that would indicate employment or another connection with the Government is dangerous. Because Hazaras are perceived to be affiliated with either the Government or international community, those Hazaras travelling these routes who work for the Government or international community frequently take precautions to ensure that, if they are stopped, they could not be identified as such.

   4.25 Hazara MPs and several credible civil society contacts have told DFAT that ‘dozens’ of Hazaras were killed on roads to and from Hazarajat in 2013. However, DFAT has no reliable evidence to indicate that insurgents disproportionately target Hazaras on roads in Afghanistan. Hazaras are often the main travellers on roads to Hazarajat, so higher numbers of victims could also reflect the higher volume of traffic.

   …

   4.32 There are two well-established routes from Kabul to Ghazni city. One is short and insecure, via Maidan Wardak. The other passes through parts of Parwan Province on the Bamiyan–Charikar Highway. This is more secure, but long and arduous.

   4.33 There are three routes from Ghazni city to the Hazara-majority Jaghori district. The most frequently used road passes through Nawur district, and is considered secure. The second route through Qarabagh district is considered less secure. A third through Muqur is insecure due to a Taliban presence, with occasional checkpoints and security incidents. DFAT understands that local residents with ties to the province and knowledge of the area—including Hazaras—are generally able to travel between Ghazni City and Hazara districts without incident and thousands of vehicles use these roads daily.[7]

   [7] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

6. The Department’s Country of Origin Information Service (COIS) report from March 2015 on ‘Afghanistan: Hazara Issues Paper’, refers to reports of the Taliban ‘block[ing] all routes to Malestan, Jaghori, Nawur and Ajrestan’ in or around September 2014.[8]  Similarly, Tolo News recently reported in April 2015 on residents from these districts being stranded in Ghazni City for the past month, unable to return to their home areas ‘due to high security threats on the roads in the area’.[9] 

   [8] ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.46-47.

   [9] ‘Insurgent Risks Leave Ghazni Villagers Stranded In City, Tolo News, 21 April 2015, available at >

   Reports indicate that travel along key roads is dangerous, as militant groups, including the Taliban, regularly set up checkpoints and have killed and harmed those who work for or support the Afghan government and international community, including Hazaras.[10]  In recent years there have been regular reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads, and the security of roads in the region has become volatile and increasingly dangerous.  In March 2013 the director of the Ghazni Rural Support Programme advised the Tribunal that:

   … all residents of Jaghori, Malestan, Qarabagh and other Hazara-Populated districts of Ghazni, like all other Hazara-populated districts of other provinces, are entirely dependent on highways and other roads crossing the Taliban controlled/dominated districts and areas of Ghazni; like Gilan, Moqor, Qarabagh in Ghazni province, and other districts in Wardak province, to the East, and to the West on Kabul-Kandahar highway.  These areas are Taliban-dominated, if not entirely controlled, areas …

   The Afghan Security Forces (ASF) including the Afghan National Army (ANA) and the Afghan National Police (ANP) has failed to provide security for these travellers.  Based on numerous accounts by the travellers and also by some reporters, in many instances the insurgents have established their checkpoints just a few hundred meters from the ASF security check points, and have searched vehicles for hours with no interruption form the ASF.  It is said that in many places, particularly in the remote areas whether the ASF is existent or if non-existent Taliban operate with total freedom. The ASF in many places can barely defend their own posts. They do not walk away from their own checkpoints unless accompanied by the larger group of forces, which rarely comes across.

   In such areas the Taliban insurgents have their checkpoints.  They stop all cars, and pull off the passengers … It implies that the Taliban have publicly announced that all those people who work with the Afghan government, the international forces, and with national and international NGOs are ‘enemy’ of the Islamic “Emirates”, and thus are to be targeted and prosecuted anywhere they are found/captured … The only roads that are secure are the roads inside Jaghori and other districts where the entire population of the district is Hazara.  But since people are totally dependent on procuring their daily needs, (including food and fuel) they need to travel to Ghazni city, to Kandahar and to other places outside their districts.  The same applies to students who have to travel to Kabul and Ghazni for taking exams and attending universities. Number of students have been killed and beheaded on their way to Kabul.  So even if inside Jaghori is secure it does not help the people, and does not make any difference on the safety of Hazaras.[11]

   [10] See ‘DFAT Report 1450 – RRT Information Request: AFG41196’, Department of Foreign Affairs and Trade, 5 November 2012; ‘Country Information Report No. 11/56 – CIS Request No.AFG12298: Road security in Ghazni’, DIAC Country Information Service, 21 September 2011; Ruttig, T, ‘Comments provided by Thomas Ruttig on travel between Kabul and Ghazni for Hazaras’, 25 May 2012; Maley, W, ‘On the Position of the Hazara Minority in Afghanistan’, 9 September 2012; ‘Kabul-Kandahar highway is a symbol of what's gone wrong in Afghanistan’, The Telegraph, 9 September 2012, available at Zeerak, M, ‘Email to RRT, Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013.

   [11] M. E. Zeerak, ‘Email to RRT: Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013, CIS28576. 

7. 31 Hazaras travelling by bus on the highway from Kandahar to Kabul were abducted in Zabul Province on 23 February 2015.  The armed men who carried out the abductions stopped the vehicles in which people were travelling and checked their identity cards before abducting the Hazara passengers.[12]  The Taliban denied involvement in the kidnapping and, as referred to above, there have been suggestions that Islamic State was responsible.[13]  Reports suggest that traffic on the highway from Kabul to Kandahar has decreased by a half as a result of this and other incidents.[14]  Further, on 15 March 2015 ten Hazaras were kidnapped in the Qarabagh district while travelling from Kabul to Jaghori in two cars. (Nine of the ten have since been released).  Reports suggest that this was not an isolated incident.[15]  There was a report that another six Hazara passengers had been abducted by the Taliban on their way from Herat to Farah on 16 March 2015 but other reports do not mention that the passengers who were abducted were Hazaras.  Four of those abducted were reportedly soldiers in the Afghan National Army and four of the kidnapped passengers were subsequently released in an army rescue operation.[16]

   [12] ‘Fear stalks Afghan minorities after rare attacks’, News24 -South Africa, 17 March 2015, CXBD6A0DE3141; ‘Drivers explain how Hazara passengers were kidnapped in Afghan south’, Tolo TV, 24 February 2015, CXBD6A0DE1909.

   [13] ‘Taliban deny hand in abduction of 30 Hazara men in Zabul; Khalili says they are safe’, Afghan Zariza, 7 March 2015, CXBD6A0DE2428; Frud Bezhan, ‘Mass Abduction Of Hazaras In Afghanistan Raises Fears Of Islamic State’, Radio Free Europe/Radio Liberty (RFE/RL), 25 February 2015, CXBD6A0DE1904; Ali M. Latifi and Shashank Bengali, ‘Afghan officials acknowledge Islamic State presence in their country’, Los Angeles Times, 17 March 2015, CXBD6A0DE3139.

   [14] ‘9 Newly Abducted Hazara Passengers Released’, Tolo News, 15 March 2015, CXBD6A0DE2979; ‘Protests in Ghazni Over 31 Hazara Hostages’, Tolo News, 17 March 2015, CXBD6A0DE3146; ‘Traffic on Kabul-Herat highway down by a half’, Pajhwok Afghan News -Afghanistan, 18 March 2015, CXBD6A0DE3132.

   [15] ‘Gunmen free 9 kidnapped passengers in Ghazni’, Pajhwok Afghan News -Afghanistan, 15 March 2015, CXBD6A0DE2899; ‘9 abducted civilians freed by kidnappers in Ghazni’, Khaama Press, 15 March 2015, CXBD6A0DE2889;

   [16] ‘Another 6 Hazara Passengers Abducted from Herat-Farah Highway’, Tolo News, 17 March 2015, CXBD6A0DE3029; ‘Masked gunmen kidnapped 6 people on Farah-Herat Highway’, Khaama Press, 17 March 2015, CXBD6A0DE3031; ‘Kidnapped passengers rescued in ANA operation’, Pajhwok Afghan News -Afghanistan, 17 March 2015, CXBD6A0DE3032.

8. DFAT have recently commented that whilst no ethnic group is immune from kidnapping that they assessed that Hazaras travelling by road between Kabul and the Hazarajat face a risk that is greater than other ethnic group.  They said it was unclear this is due to ethnic targeting or is a result of the high numbers of Hazaras travelling on this route.  They assess 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 subject to kidnapping and violence than Pashtun passengers.  They noted, however, that kidnappings of Hazaras are relatively rare in a country-wide context.[17]

   [17] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

9. In my view, considering the country information as a whole and his previous history of being targeted and harmed by the Taliban, the applicant is at an elevated risk of being targeted in on the roads outside Jaghori because he is a Hazara Shia.   Considering the country information as a whole and the applicant’s individual circumstances, I find that he faces a real chance of serious harm amounting to persecution in the reasonably foreseeable future at the hands of the Taliban and other insurgent groups on the roads to and around his home area of Jaghori as a Hazara Shia.   

   State protection

10. DFAT have commented:

    5.1 The ongoing insurgency, particularly in the south and east of Afghanistan 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.

    5.2 Despite these challenges, DFAT assesses that the Government maintains effective control over major urban areas—particularly Kabul, all provincial capitals including Herat, Mazar-e-Sharif and Kandahar and the majority of district centres.

    5.3 Many Afghans, including Hazaras, have expressed their concern about security in Afghanistan post-2014. In the absence of effective state protection outside of major urban areas, DFAT assesses that many local communities, including Hazaras, maintain their own militias to protect themselves from criminals and insurgents.[18]

    [18] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014.

11. More recently DFAT repeated the advice set out in 5.1 directly above.[19]

    [19] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

12. Given this authoritative information, I find that the applicant would not be able to access state protection in accordance with the principles in MIMA v Respondents S152/2003.

    Relocation

13. A Hazara Issues Paper issued by the Department of Immigration in March 2015 stated:

    Hazaras in Kabul have not been systematically targeted by insurgent attacks or other ethnic groups since 2001 because of their ethnicity or religion, apart from one deadly attack aimed on a Shia mosque in 2011 where many of the victims were Hazaras.[20]

    …

    Although the reports note a high level of attacks in and around Kabul, most target government and international personnel and no reports suggest that Hazaras and Shias are being disproportionately targeted by these attacks.

    In 2014, analysis of attacks in Kabul by insurgents[21] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.[22]

    [20] Department of Immigration, Afghanistan: Hazaras Issues Paper, March 2015.

    [21] see European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January,

14. DFAT also specifically reported in relation to Kabul in September 2015:

    2.29 Insurgents regularly conduct high-profile attacks in Kabul. DFAT assesses that the primary targets for insurgent attacks are government institutions, political figures, Afghan National Defence and Security Forces (ANDSF), personnel from the Resolute Support mission (the NATO-led mission that replaced the International Security Assistance Force or ISAF on 1 January 2015), other security services, and international organisations. Such attacks often cause significant casualties amongst civilian bystanders in addition to those being targeted. Kabul has seen a marked increase in the number of incidents in 2015 compared to the corresponding period in 2014. According to a Resolute Support mission report for January-April 2015, insurgent attacks in Kabul have increased by around 60 per cent compared with the same period in 2014.

    2.30 Representative examples include the series of bombings against employees (including prosecutors and judges) of the Ministry of Justice in May 2015, which killed at least 11 people and injured dozens more; an attack on the Park Palace guesthouse in May 2015 that killed five people, including foreigners; and a car bomb attack near the Ministry of Finance in Kabul which killed eight people and wounded 37 more. Kabul International Airport has been attacked on a number of occasions, with a rocket attack in 2014 landing on the runway apron. Attacks also occur in the vicinity of the airport, including in May 2015 when a European Union vehicle was hit by a vehicle-borne improvised explosive device, killing at least three people and injuring 18 others. On 22 June 2015, the National Parliament building in Kabul was attacked by the Taliban. A suicide vehicle detonated outside the building, followed by gunfire. Twelve people were reportedly killed, including six Taliban gunmen and the suicide bomber, with at least 21 more people injured in the attack. In August 2015, a series of attacks resulted in an estimated 355 civilian casualties (deaths and injuries), the largest number of civilian casualties in a single day since data collection started in 2009.

    2.31 The ANDSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANDSF are quick to respond to insurgent attacks when they occur. Nonetheless, violent attacks within the city are common.[23]

    [23] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

1. Professor Alessandro Monsutti stated in January 2012 that insecurity in Kabul is the result of indiscriminate attacks and Hazaras are not less safe than any other ethnic group.[24]

   [24] Monsutti, A 2012, Comments by Professor Alessandro Monsutti on Hazaras in Afghanistan Provided to the Independent Protection Assessment Office on January 2012

2. I have taken into account the reports of regular insurgency attacks on Kabul taken place but these need to be seen in the context that Kabul has a population of four million and that the government maintains effective control of Kabul and has a range of counter-measures in place to prevent and respond to insurgent attacks.[25]  I am of the view that the available country information considered as a whole indicates that the chance or risk of the applicant being seriously or significantly harmed in such a circumstance would be best described as remote, and not a real chance or real risk.

   [25] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

3. I accept that there have been some incidents where Hazara Shias have been targeted, and where ethnicity and religion would appear to be a factor and that ISIS have started operating in Afghanistan.  However, I do not accept that all Hazara Shias in Kabul face a real chance of persecution or significant harm now or in the reasonably foreseeable future from these Sunni groups or anyone else.  I accept that the applicant is a Shia and will attend mosque and religious events; however, given the country information viewed overall, I find that the chance or risk he will be seriously harmed or significantly harmed is remote.

4. The independent country information indicates that there are no laws or Government policies that discriminate against Shias and that broadly speaking, there is little community prejudice (i.e. societal discrimination) that would limit opportunities for Shias in daily life on the basis of their Shia religion.[26] The country information further indicates that though there is societal discrimination on the basis of ethnicity it is most commonly manifested in forms of nepotism within ethnic and religious communities and that positive societal discrimination in favour of family, tribal or ethnic group members is common.[27]  DFAT have also commented that ethnic based violence in Kabul is rare.[28]  I find that the chance that he will suffer discrimination or treatment amounting to either serious harm or significant harm is remote.

   [26] Department of Foreign Affairs and Trade, DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 26 March 2014.

   [27] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

   [28] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

5. I do not accept that the applicant faces a real chance or real risk of serious harm or significant harm in Kabul on account his membership of a particular social group of failed returned asylum seekers from the West.  There is no recent information before me that returnees or failed asylum seekers or those who have spent time outside Afghanistan have been seriously or significantly harmed in Kabul.  DFAT have stated 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.[29]   Whilst DFAT say there are aware of occasional reports of returnees from western countries alleging that they have been kidnapped or otherwise targeted on the basis of having spent time in a western country they assess that in general returnees from western countries are not specifically targeted on the basis of their being failed asylum seekers.[30]

   [29] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

   [30] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

6. Having regard to the country information concerning the overall situation for Hazara Shias and failed returned asylum seekers from western countries and the country information that indicates that the Government maintains effective control of Kabul and the applicant’s individual circumstances, I do not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future in Kabul on account of being a Hazara Shia or an imputed political opinion or for membership of a particular social groups consisting of failed returned asylum seekers from the West or his family from the Taliban, ISIS, other insurgent groups, Sunnis, the state or anybody else. 

7. Having regard to the country information concerning the overall situation for Hazara Shias and failed returned asylum seekers from western countries and the country information that indicates that the Government maintains effective control of Kabul and the applicant’s individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm in Kabul on these bases.

8. DFAT have recently commented:

   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.

   …

   2.20 The health care system in Afghanistan has improved greatly since 2001. Basic public health care is free, but medicines are not, which excludes the poor from treatment for common illnesses. Medical facilities in the public system, while still basic, tend to be better in Kabul than in other areas of Afghanistan, particularly remote rural areas. Better quality services are provided by private practices, but many residents cannot access these services because of their high cost.

   …

   2.22 Access to electricity is highly variable, even in formal areas of the city. Electricity ‘load shedding’ is common, causing blackouts (including scheduled blackouts) that can last up to 15 hours. For many residents of Kabul’s informal areas, electricity is supplied by a community generator for which a fee is charged by the operator, a relatively expensive form of supply. According to the World Bank and the United Nations High Commissioner for Refugees (UNHCR), although most established residents have access to some electricity, up to 84 per cent of IDPs lack access to any electricity.

   2.23 Most informal and illegal areas do not have reliable access to municipal water supply, relying instead on wells and water deliveries. Sanitation in these areas is poor. Waste collection is better in informal areas than illegal areas. Many communities burn their waste which contributes to high levels of air pollution.

   …

   3.6 Large urban areas in Afghanistan are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas. As Afghanistan’s largest urban centre, Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan.

   …

   3.8 Traditional extended family and tribal community structures are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence. People tend to move and settle in large groups, often with several other families, for this reason. As a consequence, large groups of people can arrive in a particular area, resulting in rapid population growth and a strain on infrastructure and services.

   …

   3.10 Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city. Given the growth of Kabul’s population since 2001, many individuals may have members of their extended family in Kabul who can assist with their relocation. Ethnic-based violence in Kabul is rare.

   3.11 DFAT assesses that, notwithstanding road safety concerns and the security situation in Kabul, there are generally options available for members of most ethnic and religious minorities to relocate from other parts of Afghanistan to relative safety in Kabul. This relocation is more likely to be successful where the individual travels as part of a larger group, or has established networks that can assist with the provision of basic necessities.

   ...

   3.12 In practice, DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation. This is compounded by Kabul’s relatively high cost of living, particularly for housing.

   3.13 Internal relocation to urban areas is generally more successful for single men of working age, provided they are able to make use of family or tribal networks. Unaccompanied women and children are least likely to be able to successfully relocate to urban areas, particularly if these networks are lacking. [31]

   [31]

9. I have had regard to the information in this most recent DFAT report that suggests generally there are options available for members of most ethnic and religious minorities to be able to relocate from other parts of Afghanistan to relative safety in Kabul.  I have also taken into account that the applicant has experience living in an urban area ([in Country 1]) and that he has work skills as a driver and factory and [worker].  However, there are a number of factors that in my opinion outweigh this evidence and make it unreasonable for the applicant to relocate to Kabul to avoid the real chance of persecution on the roads surrounding Jaghori.  These are:

   • The applicant has no family members living in Kabul and has not lived there.  DFAT have emphasised family and tribal networks as being important factors for successful relocation.  
   • A significant factor is that the applicant has a wife and [children] to support which would make relocation far more difficult. 
   • There is a huge Hazara underclass in Kabul that does not have access to clean water or electricity and rents are very high.  It is also reported by the UNHCR that there is widespread unemployment in urban areas that limit the ability of a large number of people to meet their basic needs.  DFAT have also referred to unemployment being widespread in Kabul and underemployment common. The applicant has rather limited work skills and only a very limited education.
   • Notwithstanding, Kabul is safer than other parts of the country there is evidence of a number of insurgent attacks that target government institutions, political figures and Afghan National Security Forces, other security services and international organisations.  Though this is not sufficient in itself to establish a real chance that the applicant would face serious harm, the existence of these attacks and the danger that the applicant may be caught up in them contributes to the unreasonableness of relocation.

10. I therefore do not consider it reasonable for the applicant to relocate to Kabul and factors set out above (e.g. lack of family networks, widespread unemployment limiting the ability to meet his basic needs and the general lack of security) would also be applicable to other areas.  I therefore consider his fear of persecution is well-founded.

    Third Country Protection

11. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.

    Conclusions

12. 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

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

    David Corrigan
    Member

    
    
    

(CISNET CX298127).