1404894 (Refugee)

[2015] AATA 3153

1404894 (Refugee) [2015] AATA 3153 (9 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1404894

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Hilary Lovibond

DATE:9 July 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 09 July 2015 at 11:06am

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, a citizen of Afghanistan, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] March 2014.

3. The applicant is a single [age] year old Sunni Muslim Pashtun man originally from Lashkarga in Helmand Province who has lived since [as a small child] in Pakistan.  He claims to fear harm in Afghanistan for reason of his imputed political opinion because of his work for the [news company], his work importing [products] to Afghanistan, his father’s previous work supplying [products] to NGOs in Afghanistan and his own western appearance and potential identification as a returned asylum-seeker from the West and also because of his membership of several particular social groups.

4. The delegate refused to grant the visa because while he accepted the applicant worked for a media organisation and imported [products] he did not accept the applicant had a profile that would attract the adverse attention of the Taliban and there was not therefore a real chance he would be seriously harmed or a real risk he would be significantly harmed if he returned to Afghanistan.   

5. The applicant appeared before the Tribunal on 2 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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).

9. 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.

10. 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’).

11. 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.

12. The issue in this case is whether the applicant has a well-founded fear of persecution in Afghanistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity

13. The applicant’s evidence regarding his identity has been consistent throughout his dealings with the Department and the Tribunal and the delegate accepted that his identity was as claimed. On the evidence before it the Tribunal accepts that the applicant’s identity is as stated.

14. The applicant provided a copy of a taskera in his name which he has claimed was issued at the Afghan Consulate in Quetta. The Tribunal has noted country information regarding the prevalence of fraudulent or unreliable Afghan identity documents[1] and does not regard the taskera presented by the applicant as conclusive proof of his identity but having considered it together with his consistent written and oral evidence, accepts that he was born in[Town 1], Lashkarga in Helmand province in Afghanistan and is an Afghan national. 

    [1] Australian Consulate-General, Dubai 2010, Email to MRT Country Advice ‘Re Country Advice Request AFG37408 – Afghanistan Tazkiras’, 20 September

15. The applicant has also claimed and the Tribunal accepts on his evidence that he is of Pashtun ethnicity and is a Sunni Muslim.

    Country of Reference

16. The Tribunal has accepted that the applicant is a national of Afghanistan.  He claims to have lived illegally in Pakistan since[as a small child], to have no documentary evidence of his residence there and never to have registered as a refugee.  The Tribunal questioned him about the implications of living illegally in Pakistan and the applicant said it was not a big deal; many other people did it and if you had problems from anyone you just paid money.  The Tribunal accepts that he remained unregistered in Pakistan and lived there illegally. 

17. According to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, July 2009,

    …some States have sought to return Afghan asylum-seekers to Iran and Pakistan on the basis that protection had been afforded, sometimes for long-periods. Unless in possession of a valid entry visas, such Afghans will, however, be denied re-entry, restoration of residency rights and be subject to forced return to Afghanistan. [2]

    [2] UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, July 2009, Rev., p.62, < docid/4a6477ef2.html> Accessed 28 September 2012

18. The Guidelines state further:  “Afghans without a valid passport and visa, regardless of prior length of stay in Pakistan, cannot enter Pakistan legally and would be subject to deportation under Article 14.3 of the Pakistan Aliens Act.[3]  The evidence before the Tribunal does not indicate that the applicant has the right to enter and reside in a third country and the Tribunal finds that s.36(3) does not apply.  The Tribunal finds that Afghanistan is the applicant’s country of reference and accordingly, has assessed his claims against Afghanistan.

    [3] Ibid.

    Credibility

19. The applicant’s evidence has been largely consistent throughout as to the basic facts of his claims.  He responded readily to questions and was confident and articulate in his oral evidence.  However, as discussed with the applicant the Tribunal has concerns about the plausibility of his claims regarding his father’s [relatives]’ connections with the Taliban and his own targeting by the Taliban and also has some reservations about the credibility of his claim to have worked for [a media company]. Despite this the Tribunal does not consider these claims adversely affect the credibility of his evidence concerning his identity and background and as reflected in the findings above concerning his identity and origins, finds that he is a credible witness with respect to his personal circumstances.

    Home Region

20. The applicant has claimed consistently that his family comes from [Town 1] in Lashkarga, in Helmand province; he told the Tribunal that after he and his father went to Pakistan when he was a small child his mother and[siblings]  remained in [Town 1] until his father’s death in 2003 and they visited them frequently.  After his father’s death his mother and siblings moved to Quetta and no-one in his immediate family has returned to Helmand since.  He told the Tribunal that his mother’s family are also in Quetta; there are some relatives in Afghanistan but neither he nor his mother have any contact with them while on his father’s side there are only [relatives] remaining in Afghanistan with whom they have had no contact since his mother left[Town 1].  Asked what had happened to their property there he said because they had not been there his father’s [relatives] took it all.

21. The applicant has also claimed that from 2005 until 2010 he travelled regularly from Quetta to [location] in [City 2] for business:  he bought [products] in Pakistan and sold them in[City 2].  He made the trip approximately every month and would stay for 3 or four days with business contacts and friends.  He has claimed that in 2010 he worked in [City 2] for somewhere between six and nine months for [the media company] and stayed for this period with a friend. 

22. The Tribunal notes that the delegate found the applicant’s home area to be[City 2].  However, the applicant has no family there, has never owned any property there and has stayed there only intermittently over a six year period.  On the evidence before it the Tribunal finds the applicant’s home region to be his and his parents’ birthplace, Lashkarga in Helmand Province.

    Does the applicant have a well-founded fear of persecution?

    What has happened in the past?

23. The applicant has claimed that his father had a business supplying [products] to NGOs in Afghanistan and that as a child he helped him after school.  He has claimed that in 2003 his father was killed in [City 2] by the Taliban because of this business due to the Taliban’s opposition to the work of NGOs and the perception that they were pro-government and anti-Islam.  Asked how he knew his father dealt with NGOs his evidence was that they took goods to offices rather than shops or wholesalers and there were a lot of NGOs operating there after 2001.

24. The Tribunal put to the applicant that his evidence about the reason for his father’s death was inconsistent as the record of his entry interview indicated that he had said he didn’t have any idea why his father was shot. The applicant said that he learned the reason later; he had asked his uncle and his mother and there were a lot of things he knew now.  He told the Tribunal he also knows now that his father’s [relatives] have contact with the Taliban and support them economically and physically; they asked his father to support them and he refused so maybe in the future they would ask him as well.

25. As discussed with the applicant at some length the Tribunal considers it implausible that if this were the case his mother and his uncle would not have told him about it before as it would have been directly relevant to any risk to him in Afghanistan when he was travelling back there on a regular basis.  The applicant offered a number of responses:  he has been in Australia for three years now and has asked many questions; they had not told him before because he was younger and they didn’t want to scare him while he was still living there; he hadn’t been to the village since 2003 and had no contact with his father’s [relatives].  The Tribunal is not persuaded by this information that these claims are reasonable or probable and notes further that later in the hearing the applicant said his father’s [relatives] also have property in[City 2], suggesting that the imperative for his mother and uncle to tell him about his father’s [relatives] would have been even greater, given the time he was spending in[City 2].  The Tribunal considers this renders more implausible the claim that he did not know about his father’s [relatives]’ links to the Taliban until after his arrival in Australia. 

26. The Tribunal accepts on the limited but nonetheless consistent evidence before it that the applicant’s father ran a business selling [products] wholesale and retail in Pakistan and Afghanistan and that he was killed in [City 2] in 2003.  The Tribunal does not accept on the evidence before it that the applicant’s uncle and mother told him after he arrived in Australia that his father was killed by the Taliban because he supplied NGOs, that his father’s [relatives] were connected to the Taliban or that his father refused their request to join them.  The Tribunal accepts it is possible the applicant’s father may have dealt with NGOs but on the inconsistent evidence before it does not accept that he was killed by the Taliban for this reason. 

27. The also accepts on the evidence before it that as a child, the applicant helped his father in this business after school.  However, as discussed with the applicant, given the time that had passed since his father’s death in 2003 the Tribunal has some difficulty with the claim that his father’s work and his assistance with that work caused the Taliban to target him in 2010.  The applicant responded that he never had contact with his family back home and they didn’t notice him then.  The Tribunal finds it implausible that the Taliban would have taken action against the applicant in 2010 because of work his father did until 2003 and because as a child he helped after school with that work.  The Tribunal does not accept on the evidence before it that the applicant was targeted by the Taliban for any reasons connected with his late father’s work.

28. The country information cited below describes the applicant’s home province of Helmand as a long time “Taliban stronghold”.  None of the findings above logically preclude the possibility that the applicant’s father’s [relatives] may be connected to or supporters of the Taliban.  As the Tribunal is unable to make a firm finding in this respect, it must proceed on the basis that this may be true. 

29. The applicant has claimed that from 2005 he worked buying [products] in Quetta which he transported to [City 2] and sold.  He gave relatively detailed and consistent evidence about this business and the Tribunal accepts that he operated this business as claimed.  The applicant told the Tribunal he had no problems as a result of this business and the Tribunal finds on the evidence before it that the applicant has not been seriously harmed in any way in the past as a result of his work trading in [products] in Pakistan and Afghanistan.

30. The applicant has claimed that in 2010 he took a job with [the media company] and worked from April to December as a translator and doing administrative work for the [media company’s] newspaper.  On the basis of his ability in spoken English as demonstrated at hearing the Tribunal considers it plausible that he may have the capacity to translate written Pashto to English.  He has also given relatively detailed and consistent evidence about how he got the job.  However, for the reason set out below the Tribunal has reservations about the credibility of his claims regarding this employment. 

31. As put to the applicant at hearing, while information can be found from several sources online indicating that [the media company’s] Radio and TV does exist in Afghanistan[4] the Tribunal has been unable to locate any reference to a [media company] newspaper.  In response the applicant reiterated that there is a [media company] newspaper.

    [4] [Information deleted].

32. Secondly, the applicant’s evidence about his work duties was vague and lacking in detail.  Despite being asked several times and despite the Tribunal explaining that if he could not provide more detail regarding the tasks he undertook it may conclude his claims about this were not truthful, the applicant spoke only in generalities and said he did “work” and “everything” and that the news reporters would give him reports and he would translate them and give it to another guy who would take it to the printers.   Asked whether anyone checked the material he had translated before it went to print the applicant said yes; when the Tribunal queried whether a small news service would employ someone as a translator if there were other employees capable of checking the translations he said there were several translators and they checked each other’s work.  In light of the absence of information about the existence of a [media company] newspaper the Tribunal finds this difficult to accept.  

33. The applicant has provided a copy of an undated reference letter on “[media company] TV” letterhead signed in the name[deleted], “Managing Director, [media company] Radio TV Network” stating that the applicant worked there from March to [December] 2010.  As discussed with the applicant the Tribunal has some reservations about the authenticity of this document, due in part to the ready availability of fraudulent documents in Afghanistan and Pakistan, as noted above, and also due to the confused and inconsistent explanations he has offered for the period of employment referred to in the letter.  He told the Tribunal first maybe they had put something extra in there for him.  As discussed at hearing, the delegate’s decision indicates that when the applicant was questioned about the period of employment indicated in the letter he said he received it when he was in Australia so was not there to correct the error, but he had earlier told the Tribunal he received the letter when he was in Quetta.  Asked about this discrepancy the applicant said the letter was at home, he didn’t bring it with him.  The Tribunal explained to the applicant that in light of the issues they had discussed it may not be able to give any weight to the letter.

34. Thirdly, the applicant claimed for the first time at hearing that he had worked as a “volunteer” for [the media company] in 2009, going out with his friend after his own work was finished when he was in[City 2].  Asked what he did as a volunteer he said he was just learning, his friend was showing him how to do things.  He suggested this may have been a factor in why the reference letter suggested he had worked for [the media company] for longer than his own claims indicated.  The Tribunal explained that the late introduction of this claim may make it doubt its veracity. 

35. The Tribunal finds the concerns outlined above detract significantly from the credibility of the applicant’s claims about this employment.  On the evidence before it the Tribunal does not accept the applicant worked for [the media company] as a translator or in any other capacity.  It follows that the Tribunal does not accept the applicant received three threatening letters and three phone calls from the Taliban telling him he should cease working for[the media company].  It follows also that the Tribunal does not accept the applicant’s father’s [relatives] knew he was working for [the media company] or informed the Taliban about this. 

1. The applicant has also claimed that in December 2010 he was shot and his arm broken when travelling from [City 2] to Quetta with his [friend] from[the media company], in[his friend]’s car.  He has claimed they were nearing [the] Afghanistan – Pakistan border when they came under gunfire and the car rolled; he believes the Taliban were responsible.  He claims that he lost consciousness and when he came to he was in a clinic in Pakistan and was told that his friend had died.  Asked why the Taliban would have targeted their car or how they would have known he was in the car the applicant said maybe they were targeting his friend; the car had a [media] sign in the window.  As put to the applicant at hearing the Tribunal finds it quite implausible that they would have driven from [City 2] to Quetta with a sign on the car identifying it as a media vehicle in light of the known risk of harm to journalists in Afghanistan.[5] The Tribunal does not accept on the evidence before it that the applicant travelled in a car identified as associated with[the media company]. 

   [5] United Nations High Commissioner for Refugees 2013, UNHCR Eligibility Guidelines for assessing the international protection needs of asylum-seekers from Afghanistan, 6 August,   UNHCR/2013/Documents/Afghanistan%20-%20Eligibility%20Guidelines%20-%202013.pdf , pp.38-40

2. When asked by the Tribunal about the injuries he sustained the applicant showed a scar on his left forearm which could, while the Tribunal claims no expertise in such matters, plausibly have been caused by a gunshot. On the evidence before it the Tribunal accepts the applicant sustained an injury to his left arm which may have been caused by a gunshot.  The Tribunal accepts the applicant may have been a passenger in a car driven by his friend, that the car may have been shot at and the driver killed.  However, on the evidence before it and in light of the finding above that the applicant did not travel in a car identified as associated with[the media company], the Tribunal does not accept the applicant was targeted by the Taliban or any other group or individual.

3. The applicant has claimed consistently that he has no family other than his father’s [relatives] remaining in[Town 1], that he believes they have taken his family’s property and that he has had no contact with them since his father’s death in 2003.  The applicant’s evidence regarding his movements and residence from 2003 onwards, when his father was killed and his mother and siblings left Afghanistan for Pakistan has been consistent throughout; despite the concerns detailed above as to some of his claims the Tribunal accepts the applicant has not been to Helmand since 2003, has no family there with whom he remains in contact and that his family no longer controls any property there.  Although the Tribunal has not accepted the applicant’s claims in relation to being targeted by the Taliban because of his late father’s work or his own work or because of his father’s [relatives]’ connection to the Taliban, it has accepted that it is possible his father’s [relatives] are connected to or supporters of the Taliban. 

   Is there a real chance the applicant would be seriously harmed for a Convention reason?

   Returned asylum-seeker from a western country

4. The applicant has claimed that he fears harm for reason of his membership of the particular social groups of returnees from a Western country and failed asylum-seekers and his imputed political opinion.  Asked about this at hearing he said he has spent many years here now and they will say he comes from Australia and he is like a foreigner, that he doesn’t support the Taliban, he supports the government.  He also fears that he may be the subject of forced recruitment by the Taliban. 

5. The applicant stated further that although he is Pashtun, he does not support the Taliban and he will be at risk as were the two returnees from Australia whose cases were documented last year.  Asked about his claimed fear of harm for reason of imputed lack of religious belief he also said that he has and would be seen to have changed culture, that his style was different; he had no beard and wore western dress.  If he returned like this they would say he is a spy.  The applicant has also claimed that he feared harm because he would be susceptible to forced recruitment by the Taliban. 

6. Recent media report have detailed the September 2014 killing of Afghan-Australian Sayed Habib Musawi, who was taken from a bus by the Taliban while travelling between Kabul and Gahzni on a trip to visit relatives.  A report in The Australian quotes Ghazni's deputy governor, Mohammed Ali Ahmad as saying he was killed because he was an Afghan-Australian"  "The reason if his murder was very clear - that he was a dual citizen, he came from a country that Taliban think is an infidel country".  According to the same report, Mr Musawi's family understood there were signs he had been tortured before being killed. [6]

   [6] The Australian 2014, “Australian man Sayed Habib tortured and killed by Taliban”, 29 September, Accessed 2 December 2014

7. In a Sydney Morning Herald article reporting the reaction of Mr Musawi's son to his killing following the rejection by the UNHCR of his own application for refugee status, Sayed Najibullah Musawi was reported to have said that "…it was clear well before the murder of his father that Hazara people faced serious dangers living in the Jaghori district of the Ghazni province of Afghanistan. The Taliban are freshly insurgent in the area after the departure of international troops." [7]

   [7] Sydney Morning Herald 2014, “Son of Afghan-Australian killed by Taliban denied refugee status” 29 September, Accessed 2 December 2014

8. In October 2014 it was widely reported that the first Afghan asylum-seeker to be forcibly removed from Australia was held hostage and tortured by the Taliban within weeks of his return.  A report in the Sydney Morning Herald on 28 October stated that

   ABC's Lateline program on Monday night aired footage that Afghan police say is the interrogation of Hazara man Zainullah Naseri.

   The video shows a dishevelled Mr Naseri emerging from darkness to the sound of gunfire after reportedly escaping from militants. Afghan police are heard yelling at him to keep his hands up as they take him into custody. …. 

   Mr Naseri was reportedly abducted and tortured by the Taliban for two days but managed to break free from chains around his leg using a rock.

   He said he was kidnapped while travelling from Kabul to his home district of Jaghori, along the same stretch of road where Australian-Afghan Sayed Habib Musawi, also a Hazara, was reportedly killed by the Taliban last month.

   Mr Naseri told the ABC he was targeted within weeks of returning to Afghanistan because militants found evidence linking him to Australia.

   "They found my [Australian] driving licence, then they understood I was from Australia. They beat me, they said 'this boy is from Australia, that country is full of infidels'," he said.[8]

   [8] Sydney Morning herald 2014, “Government to investigate torture claims of deported asylum-seeker Zainullah Naseri”, 28 October, Accessed 2 December 2014

9. The Tribunal discussed with the applicant the fact that his circumstances were different from those of the two Hazara men whose cases are set out above.  The applicant responded that he is Pashtun but he still does not support the Taliban and they would know this.  The Tribunal finds that the country information cited above regarding these attacks suggests that the individuals’ status as returnees from Australia was the dominant factor in the attacks and indicates that individuals known to have returned from Australia are liable to be imputed by the Taliban with an anti-Taliban and/or pro-western political opinion.  

   The security situation in Helmand

10. Country information before the Tribunal indicates that the insurgency is active in Helmand and anti-government elements (AGEs) such as the Taliban control many parts of the province. Reports indicate that a number of significant insurgent attacks have taken place in Lashkarga in the last year:  in June 2015 a suicide bomber drove an explosive-laden car into the police station in the provincial capital of Helmand, wounding dozens of people;[9] in December 2014 five suicide bombers believed to be Taliban militants raided the New Kabul Bank branch in Lashkarga, killing at least ten people.[10]  In June 2015 The Wall Street Journal reported that Taliban; fighters had overrun part of Musa Qala District in Helmand “demonstrating the insurgents’ growing power in an area that American and British troops had long fought to keep out of Taliban control”.[11]

    [9] Pajhwok Afghan News  2015, “4o injured in Lashkargah suicide attack”, 30 June, 2015/06/30/40-injured-lashkargah-suicide-attack Accessed 2 July 2015

    [10] The Guardian 2014, “Insurgents storm bank in Afghanistan’s Helmand Province”,   com/world/2014/dec/17/taliban-suicide-attack-bank-afghanistan Accessed 2 July 2015

    [11] The wall Street Journal 2015, “Taliban Strike Crucial District in Afghanistan” 18 June, com/2015/06/19/world/asia/taliban-helmand-province-afghanistan.html Accessed 2 July 2015

11. A December 2014 Wall Street Journal article indicated that the Taliban were regaining control in areas thought to have been secured by US and international forces and painted a gloomy picture of future security in the province.  The report stated in part:

    In a large swath of the Taliban heartland in southern Afghanistan, government centers are facing a long-dormant concern this winter: Four years after the American troop surge helped make such places relatively secure, they are back under threat from the insurgents.

    The fighting in Helmand Province in the south has been particularly deadly, with over 1,300 security force members killed between June and November. And the insurgents’ siege of several key districts has continued long after the traditional end of the fighting season. …

    “This year is much worse than previous years,” said Dr. Abdul Hamidi, a police colonel who is head of medical services for the national police in Helmand. “We’ve heard that the Quetta Shura has a big push to raise their flags over three districts by January, and has ordered their people to keep fighting until they do,” he said, referring to the exiled Taliban leadership council in Pakistan.

    One of the differences is that this year, the American forces, and their close air support, have been almost completely absent from the field. And though the Afghan forces are holding on, for the most part, they are taking punishingly heavy losses.

    The Taliban offensive in northern parts of Helmand Province began in earnest in June, after the last American troops pulled out of the area, and has continued at a fierce tempo. …

    Given the area’s long tradition as a Taliban stronghold, the authorities expected the June and July offensive, which at some points threatened the fall of both Sangin District and Musa Qala District. What has been unusual is the apparent determination of the Taliban to continue pressing the fight.

    The insurgents even managed to infiltrate the Afghan National Army’s main base in Helmand Province, Camp Shorab Maidan, formerly called Camp Bastion when it served as Britain’s main base in Afghanistan.[12]

    [12] The Wall Street Journal 2014, “Taliban Push Into Afghan Districts The US Had Secured”, 22 December, Accessed 2 July 2015

12. In June 2014 the Wall Street Journal reported that the Taliban had launched a major offensive in Helmand, “…massing hundreds of fighters in an attempt to seize ground from government forces as the US and international forces depart.”[13]  The report stated that much of the fighting was located in Sangin district, just to the north of Lashkarga and quoted a spokesman for the Afghan Ministry of the Interior as saying that “taking over Sangin has become a matter of honour” for the Taliban, which is why they keep launching large-scale attacks there, and notes further that “[g]overnment control has remained tenuous in that part of Afghanistan.  Late last year some low-level Afghan military officers in Sangin were relieved of command for striking local non-aggression pacts with Taliban commanders.”[14]

    Road travel

    [13] The Wall Street Journal 2014, “Taliban Launch Offensive In Afghanistan’s Helmand Province”, 25 June, Accessed 2 July 2015

    [14] Ibid.

13. It has been widely reported that “Sunni extremists are operating along [a certain] Highway heading [from] Kabul rendering the road extremely dangerous.[15]  A 2012 report for the [deleted] in the UK described in detail the experience of the journalist and his photographer travelling the[highway].  The report notes that

    [Information deleted].

    [information deleted].[16]

    [15] [Information deleted].

    [16] [Information deleted].

14. A recent report from Pajhwok Afghan News indicates that Taliban insurgents control the main road to Kajaki District in Helmand, to the north of Lashkarga and that it is feared they may also take control of the strategically significant Kajaki Dam.[17] The report also quotes the District Governor as saying that some Taliban militants used the Daesh name and had initiated Daesh activities against the government. Another June 2015 report indicates that Taliban insurgents had overrun a series of police checkpoints and killed at least 20 police officers in Helmand’s Musa Qala district, north of Lashkarga.[18]

    [17] Pajhwok Afghan News 2015, “Kajaki residents, forces face food, weapons shortage” 30 June, /article/559171ef7ec3c6047dace0aa/kajaki-residents-forces-face-food-weapons-shortage Accessed 2 June 2015

    [18] UPI 2015, “Taliban overrun Afghan police checkpoints in Helmand Province”, 14 June, com/Top_News/World-News/2015/06/14/Taliban-overrun-Afghan-police-checkpoints-in-Helmand-province/1011434306898/  Accessed 2 July 2015

15. Any consideration of what may happen in Afghanistan in the reasonably foreseeable future must take into account the ongoing withdrawal of international troops from Afghanistan and the implications of these changes for the security situation in the country.  No view is entirely positive.  Consideration of recent analyses suggests that many well-placed commentators predict a dire outcome, as set out by Peter Beinart in The Atlantic in his October 2014 discussion of former US Defence Secretary Leon Panetta’s book:  

    It’s a plan that many of the people paying closest attention to Afghanistan fear could end in tears. That includes Obama’s generals, who according to The New York Times “had recommended leaving at least 10,000 troops in Afghanistan for several years (my italics) after the formal end of the combat mission in 2014.” (It’s unclear from Panetta’s book whether he backed the generals.) It includes commanders of the Afghan military, one of whom told The Washington Post, “Leaving in 2016 is not responsible.” It includes regional leaders like Indian Prime Minister Narendra Modi, who during his recent trip to the United States explained that he “requested to America, regarding the defense withdrawal subject—please do not repeat the mistake that you did in Iraq. … [T]he withdrawal process from Afghanistan should be very slow, and only then can we stop the Taliban from emerging its head.” And it includes regional experts like renowned Pakistani journalist Ahmed Rashid, who recently called the U.S. withdrawal plan “catastrophically wrong” and predicted it “will almost certainly mean the relapse of Afghanistan into civil war and the emergence of groups even more extreme than the Taliban, as has happened in Iraq and Syria.”[19]

    [19] Beinart, Peter, 2014, “The Afghanistan Withdrawal: A potential Disaster in the Making”, The Atlantic, 15 October, Accessed 5 December 2014

16. The International Crisis Group has written that factionalism and corruption see Afghanistan unready to take responsibility for security when the international forces withdraw in 2014, with ongoing instability and failure of the rule of law during the transition period likely to deliver conditions that the insurgency will exploit and a worst-case scenario of full state collapse.[20]  In September 2012, Carnegie Endowment scholar and Afghanistan expert Gilles Dorronsoro wrote that “[t]he withdrawal of international forces will leave Afghanistan worse than it was before 2001 in some respects. There is no clear plan for the future.”  Dorronsoro states further “The Afghan regime will most probably collapse in a few years.”  While allowing this is not certain, Dorronsoro explains he considers the survival of the regime unlikely, in the main because it would require a convergence of unpredictable events.[21]

    [20] International Crisis Group 2012, Afghanistan:  The Long, Hard Road to the 2014 Transition, 8 October, Accessed 1 March 2013

    [21] Dorronsoro, G, 2012, Waiting for the Taliban in Afghanistan, September, .org/files/waiting_for_taliban2.pdf, Accessed 15 November 2012

17. Respected commentator Dr Antonio Giustozzi suggested that the situation after 2014 depends on the ability of the Taliban to adapt.  He noted that there are already signs the Taliban are “...retraining their forces for more conventional operations such as taking towns and cities” and outlined the possibility of the Afghan state being reduced to Kabul and areas dominated by ethnic minorities in the event of a successful Taliban push in 2014/15.[22]

    [22] Giustozzi, A, in Behr, T and C Salonius-Pasternak, eds, The Beginning of the End? “Afghanistan towards and after 2014”, April 2012, Finnish Institute of International Affairs

18. On 6 December 2014 US Defence Secretary Chuck Hagel announced that the United States will keep up to 1,000 more soldiers than previously planned into Afghanistan next year, “…in recognition of the still formidable challenge from Taliban insurgents.”[23]  DFAT also noted in the March 2014 report cited above that there is uncertainty about the current and future political situation in Afghanistan.[24]

    [23] Reuters 2014, “US to keep more troops in Afghanistan as violence spikes”, 6 December, Accessed 9 December 2014

    [24] Department of Foreign Affairs and Trade, 2014, DFAT Country Information Report Afghanistan, 26 March

19. According to the UNHCR:

    People fleeing Afghanistan may be at risk of persecution for reasons that are related to the ongoing armed conflict in Afghanistan, or on the basis of human rights abuses that are not directly related to the conflict, or a combination of the two…..

    …. In the context of the conflict in Afghanistan, relevant factors in this respect are: 

    (i) the control over civilian populations by anti-government elements (AGEs), including through the imposition of parallel justice structures and the meting out of illegal punishments, as well as by means of threats and intimidation of civilians, restrictions on freedom of movement, and the use of extortion and illegal taxation;

    (ii) forced recruitment;

    (iii) the impact of violence and insecurity on the humanitarian situation as manifested by food insecurity, poverty and the destruction of livelihoods;

    (iv) increasing levels of organized crime and the ability of warlords and corrupt government officials to operate with impunity in government-controlled areas; …….[25]

    [25] UNHCR, 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 6 August

1. The UNHCR notes that AGEs reportedly kill civilians perceived to support the government or the international community in order to punish them and to warn others and identifies men and boys of fighting age as having a potential risk profile in areas under AGE control:

   In a traditional form of war mobilization known as lashkar, every household is expected to contribute a man of fighting age. In areas where AGEs exercise effective control, as well as in IDP settlements in Afghanistan, they are reported to use threats and intimidation to enforce this mechanism to recruit fighters for the insurgency. People who resist recruitment are reportedly at risk of being accused of being a government spy and being killed or punished. There are reports of families linked to the insurgency giving boys to AGEs as suicide bombers, in the hope of gaining status with the AGE in question. ...[26]

   [26] UNHCR, 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 6 August

2. The Tribunal has had regard to the most recent DFAT Country Report on Afghanistan which notes that insurgents maintain parallel political and judicial structures in contested areas where the Government’s control is weaker, “particularly in the south and east of Afghanistan” leading to human rights abuses and “also seek to propagate fear and uncertainty among the civilian population to discourage them from cooperating with the Government and international forces”.[27]

   [27] Department of Foreign Affairs and Trade, 2014, DFAT Country Information Report Afghanistan, 26 March

3. Having regard to the evidence set out above the Tribunal accepts that the applicant may be targeted by AGEs on return to Helmand. As set out above, the Taliban have a significant presence and influence in much of Helmand and control key roads on which the applicant would need to travel to return to Lashkarga from Kabul.  The applicant will be returning after a prolonged absence and would be without family support; he would have no property to which to return. He has claimed and the Tribunal accepts that in these circumstances the fact that he had returned from Australia after unsuccessfully seeking asylum would easily become known to those with whom he came into contact.

4. Article 1A(2) of the Refugees Convention requires that a person's fear of persecution must be "well-founded". The High Court in Chan Yee Kin v MIEA (1989) 169 CLR 379 held that the concept of "well-founded fear" requires an objective basis for the fear. There is a basis for the fear if there is a "real chance" of being persecuted. 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 percent.

5. Given the current uncertainty about how the situation will unfold in the wake of the international withdrawal, the Tribunal considers it is not possible to say there is only a remote chance that the applicant will suffer serious harm in Helmand because of his ethnicity and religion and his status as a returnee.  The Tribunal considers that these factors cumulatively give rise to a real chance which goes beyond mere speculation of future harm the applicant will be seriously harmed by the Taliban or other AGEs in the district because of an imputed political opinion.

6. The Tribunal finds that the harm faced by the applicant would amount to persecution as envisaged by s.91R(2) as it would be likely to involve a threat to his life or serious physical harassment or ill-treatment.  The Tribunal finds that the harm would be systematic and discriminatory as it would be selective, deliberate and non-random as it would be directed at the applicant for reason of his imputed political opinion as a returnee from Australia.  The Tribunal finds that the applicant's religion and imputed political opinion would be the essential and significant reasons for the harm.

   Could the applicant relocate?

7. The Tribunal has considered whether the applicant can relocate to Kabul or some other part of Afghanistan. Country information indicates there is a high level of insecurity in the east and south of Afghanistan which are largely under the control of the AGEs and that the north is increasingly insecure with increased insurgency activity.[28]   The UNHCR has noted that the reasonableness of relocation in Afghanistan depends on the availability of traditional support structures such as family and tribal support networks, access to shelter, the availability of infrastructure and access to essential services such as sanitation and health care, livelihood opportunities and the scale of internal displacement in the area.[29] DFAT also notes that “traditional extended family and tribal community structures are the main protection and coping mechanism for IDPs, particularly in rural areas. Afghans rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence”.[30]

   [28] UNHCR, 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 6 August

   [29] UNHCR, 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 6 August

   [30] Department of Foreign Affairs and Trade, 2014, DFAT Country Information Report Afghanistan, 26 March

8. The Tribunal has considered whether the applicant can relocate to Kabul.  Country information before the Tribunal indicates that conditions in Kabul for returnees are   extremely difficult.  There are more than 620,000 internally displaced people in Afghanistan and according to the Norwegian Refugee Council:

   …..many of them living [are] in very precarious conditions in the informal urban settlements on the outskirts of the capital Kabul. A high number of these IDPs were refugee returnees who faced hardships in attempting to integrate and enjoy a normal life following return. Over the past year, the return of refugees has significantly declined with 50% less refugees returned to Afghanistan compared the previous year. Deteriorating security, continued armed conflict and high levels of violence, combined with lack of access to basic services and livelihood opportunities are the main reasons so few refugees are seeking to return and internal displacement inside Afghanistan continues to rise.[31]

   [31] Ahmad S and Gauthier A, 2013, ‘Tough Times and uncertain futures: Voices of Afghan Refugees living in Pakistan’, Norwegian refugee Council, 9 December

9. According to the Afghan Independent Human Rights Commission:

   Lack of employment opportunities, poverty, insecurity, lack of an adequate standard of living, lack of health services, lack of education, lack of potable water, and so on are the major problems facing returnees. The Afghan Government encounters many challenges in meeting these needs and has not been able to provide an adequate standard of living for its people.[32]

   [32] Afghanistan Independent Human Right Commission 2011, Fifth Report Situation of Economic and Social Rights in Afghanistan, 29 November, pp.107-109

10. It has also been reported that there is a ‘lack of opportunities for livelihoods and shelter’ as well as ‘[a] lack of clinics, drinking water and poor education facilities in their places of origin’[33] and that returnees could face ‘serious socio-economic threats’ and would pose ‘serious challenges’ to the Afghan government;[34] that ‘[m]any returnees end up living in informal settlements or begging on the street’;[35] that there is only employment for skilled workers in Afghanistan and the cost of living is unaffordable;[36] that there is widespread poverty in the camps on the outskirts of Kabul and the work available is limited to repairing and selling old clothes, selling wood or driving carriages.[37]

    [33] ‘Numbers of returnees down’ 2011, IRIN News, 9 November

    [34] ‘Millions of returnees to burden Afghanistan: IOM’ 2012, Pajhwok Afghan News, 6 June

    [35] ‘Bracing for mass evictions from Pakistan’ 2012, IRIN News, 27 February

    [36] Ahmed, R 2012, ‘For many refugees, Afghanistan remains a distant country’, Express Tribune, 1 December

    [37] ‘Displaced Afghans feel strangers at home’ 2013, Aljazeera, 9 January

11. Other reports indicate that returning Afghan refugees find themselves in extremely poor living conditions. The Danish Refugee Council has described returning refugees “living in muddy slum areas of the cities in Afghanistan” and that, most returnees “end up in one of the rapidly growing tent and mud house settlements, alongside a quarter million internally displaced Afghans”.[38]

    [38] Danish Refugee Council 2012, Afghan refugees return to absolutely nothing, 13 April

12. Kabul is also increasingly insecure with three high profile insurgent attacks on civilian targets in 2014 (a Kabul restaurant, the Serena Hotel and the electoral commission) killing at least 30 people.[39] Further serious attacks on government and international targets have occurred in 2015.  Having regard to all the information set out above, the, the Tribunal finds that relocation to Kabul is not reasonable.

    [39] Department of Foreign Affairs and Trade, 2014, DFAT Country Information Report Afghanistan, 26 March; Harooni, M and Donati, J, 2014, ‘Taliban attack electoral commission HQ in Kabul ahead of vote’, The Sydney morning Herald, 30 March

13. The Tribunal accepts that the applicant has no family or tribal network in any other part of Afghanistan and, in view of the information above and the extreme uncertainty regarding the future security situation in Afghanistan as discussed in the country information set out above, the Tribunal is satisfied that relocation to a rural area of Afghanistan is neither a safe nor reasonable option for the applicant. 

    Would state protection be available to the applicant?

14. As stated in the UNHCR Guidelines for 2009, "…to the extent that the harm feared is from non-State actors, State protection is on the whole not available in Afghanistan".   The Tribunal notes that the 2013 Guidelines make no mention of the availability of state protection generally while the DFAT Country Information Report provides a cursory description of police, security and judicial mechanisms but offers no overall assessment.  In 2010 the UNHCR reported that state protection in Afghanistan is compromised by high levels of corruption, ineffective governance, a climate of impunity, lack of official impetus for the transitional justice process, weak rule of law and widespread reliance on traditional dispute resolution mechanisms that do not comply with due process standards.  

15. The Tribunal notes that this information is now somewhat dated but having considered the more recent country information concerning the current situation in Afghanistan finds there is nothing to suggest a more positive view should prevail.  In view of the unstable security situation in Afghanistan and potential for further deterioration, the Tribunal finds the state cannot meet the level of protection which citizens are entitled to expect, as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

16. On all the evidence before it and having considered the applicant’s circumstances cumulatively, the Tribunal finds for the reasons set out above there is a real chance that should he return to Afghanistan now or in the reasonably foreseeable future the applicant would suffer serious harm amounting to persecution at the hands of the Taliban or other insurgent groups.  The Tribunal finds the applicant has a well-founded fear of persecution for reason of his imputed political opinion.

17. 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).

    Conclusion

18. 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

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

    Hilary Lovibond
    Member