1405996 (Refugee)

[2015] AATA 3293

1405996 (Refugee) [2015] AATA 3293 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1405996

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:7 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 07 August 2015 at 5:34pm

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] November 2012 and the delegate refused to grant the visa [in] March 2014.

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

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

   RELEVANT LAW

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

   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.

    Complementary protection criterion

16. 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’).

17. ‘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.

18. 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

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. I have before me the Department’s file relating to the applicant.  I have also has had regard to the material referred to in the delegate’s decision, and other material available to me from a range of sources.  This material includes:

    ·Application for protection visa with accompanying statutory declaration dated [November] 2012;

    ·Interview with delegate dated [in] June 2013;

    ·Agent’s submission dated 31 July 2014;

    ·Statutory declaration dated 31 July 2015.

21. The applicant’s claims can be summarised as follows.  He is a Hazara Shia who was born in Kabul in [year].  He lived his entire life in Kabul until he left for Australia in 2012.  As a Hazara and Shia he was discriminated against on a daily basis.  He stopped going to school because every day on the way there he was sworn at by Pashtuns.  Even though he was good at his studies the teachers would give him worse grades.  His parents thought it was too dangerous to send him to school. In about 2000 he went to work in his father’s [shop].  They did not earn much but it was enough to survive. They rented a shop from a Hazara owner and were forced to pay higher rent than others in the market.  The shop was not very profitable and they had to close it.

22. The applicant and his father decided to open a [business] in [Kabul].  In May 2012 the applicant came back from an English class when he saw three tall men aged [ages] with turbans and beard in the [business]. They had come out of a [motor vehicle] which was parked next to the [business].  His father was very sad but did not tell the applicant what was wrong.  The next day he returned from class and again saw the three men leaving the [business].  His father was upset and told him that the men wanted to rent the empty apartment across the road.  The [business] was [in a strategic location]. His father said the Taliban had rented a house from another [business] a few months before and used that as a base to attack an important site.  The three men had given him three days to give them the apartment. They said they were watching the applicant and his father and that his father should not go to the police.

23. On the third day the applicant’s father went early to the [business] to collect a table and TV.  He told the applicant to stay at home. His father did not return home. In the afternoon his mother went to the [business] to look for him.  A few shopkeepers said they had seen his father forced into the [motor vehicle] and that the applicant should not return to the [business].

24. In his later statutory declaration, the applicant claimed that his brother owned the [business] and was threatened by the Taliban.

25. The applicant also fears harm as failed asylum seeker and that he will be accused as a supporter of the West.

    Country of reference

26. The applicant has claimed to be a citizen of Afghanistan.  He speaks Hazaragi and there is no evidence to the contrary.  Accordingly, I find that he is a national of Afghanistan 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

    Credibility of key claims

27. I have considered carefully the applicant’s evidence but find but that he is not a credible witness.  I do so for the following reasons.  The applicant has given highly inconsistent evidence on matters critical to his claims.  In his statutory declaration of November 2012, he claimed that he had lived and worked in Kabul all his life. He claimed that he and his father operated a [business] together.  He claimed that his father had been approached by the Taliban on two occasions and that his father was kidnapped by them and did not return.  He also repeated these claims to the delegate in his interview in June 2013 (as set out in a copy of the delegate’s decision which was submitted to the Tribunal).  However in his statutory declaration of 31 July 2015 and at the Tribunal hearing he claimed that he had actually lived in [four other locations].  He claimed that in 2009 he and his family returned to Kabul and his [brother] started a [business] which he worked part time in.  He claimed that the Taliban approached [his brother] and threatened him.  At the hearing, he said his father did not work much and had stayed at home and had not been harmed.  When these inconsistencies were put to him, he said that when he left Afghanistan he had friends and a brother here and he was told not to say he had a brother.  He said that now he wanted to tell the truth and that life in Afghanistan was different and he was uneducated and had not been to other countries.  He said he had seen war and it had affected his mind and memory.  I have considered his comments but they do not overcome my concerns about the highly inconsistent evidence he has given in the protection visa application process and his willingness to make false claims to the Australian government.   The applicant was represented when he submitted his protection visa application and I do not consider the reasons he has given for being untruthful are a satisfactory explanation for providing such inconsistent evidence and making untrue claims.  I consider that these inconsistencies are very substantial and they detract substantially from his credibility.

28. With his protection visa application, the applicant submitted a taskera which he later stated (in his statutory declaration of 31 July 2015) was a fraudulent document which was obtained by an agent in Afghanistan whom his friend knew.  Asked why he had submitted this fraudulent document to the Australian government, he stated that he had made a mistake and was uneducated and was not aware of Australian law.  I have considered his comments but he was represented when he submitted his protection visa application and I do not consider the reasons he has given for being untruthful are a satisfactory explanation for submitting a false document.  I find his willingness to do so is a further factor that detracts from his overall credibility.

29. Given these very substantial concerns about his credibility, I do not accept that the applicant ever lived outside Kabul.  I do not accept that at any time, the Taliban or anyone else threatened any of his family members or himself in respect of renting out an apartment or for any other reasons.  I do not accept that his father was kidnapped.  I do not accept that such men stated that they were watching the applicant and his brother and that he and his brother then kept a low profile and did not return to the business and rarely left their house.  I do not accept that the applicant and any of his family members were or are of adverse interest to the Taliban or anyone else.

30. In making these findings (and other findings in the decision) I have taken into account the Tribunal's “Guidelines on the Assessment of Credibility”.  However, these do not outweigh the very serious and fundamental concerns that I have with his credibility as set out in this decision.

    Hazara Shia claims

31. I have considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and Kabul and the overall current security situation.  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 generally in Kabul.  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 and ISIS.

32. 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, quite recent and the Department has been specifically charged with the provision of this advice to the Australian government.

33. In its March 2014 report, DFAT assessed that insurgents—including the Taliban—generally do not target individuals solely on the basis of ethnicity and that no particular ethnic groups are disproportionately subject to violence.  It did note however that ethnicity (or religion) is sometimes a contributing factor.[1]  DFAT reported:

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

    3.1 DFAT assesses that there are no legal restrictions on freedom of religion for Shias, including Hazara Shias, in Afghanistan or Pakistan. There are no laws or Government policies that discriminate against Shias (i.e. ‘official’ discrimination). Further, 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. Any incidents of discrimination would likely be cases of local nepotism, favourtism or patronage, rather than evidence of a broader trend of societal attitudes.

    …

    3.9 DFAT assesses that since the removal of the Taliban regime in 2001, minorities in Afghanistan have made significant gains, albeit from a low base. Afghanistan’s Hazara community has taken advantage of the opportunities available to them since then, particular in politics and education. Afghanistan’s Hazaras are active participants in Afghanistan’s civil society.

    3.10  DFAT has no evidence of any official policy of discrimination pursued by the Government on the basis of ethnicity. However, societal discrimination exists. Most commonly, societal discrimination tends to be in the form of nepotism in favour of particular ethnic and religious communities. Although Hazaras do face societal discrimination by other ethnic groups, equally these groups face discrimination in Hazara-dominant areas.

    ...

    4.6      In general, DFAT’s current assessment is that there is currently a low risk of criminal or insurgent violence for Hazaras in Afghanistan relative to the overall security situation. Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan.

    ...

    4.7    The security situation for Hazaras in Kabul does not differ significantly from that experienced by the general population of the city and Hazaras are not disproportionately targeted by criminals or insurgents in Kabul. The bombing of the Shia Abu Fazl mosque in Kabul during Moharram in December 2011 reportedly killed at least 70 people, many of whom were Shia Hazaras. DFAT assesses this to be an isolated incident and has no information about other recent attacks against the Shia or Hazara community in Kabul.

    …

    5.8  DFAT assesses that there are currently no significant protection issues for Hazara returnees to Afghanistan beyond the generalised environment of criminal and insurgent violence. In particular, DFAT assesses that it is relatively safe for Hazaras to return to Hazara-majority areas in Hazarajat and Kabul. [2]

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

34. This view of the level of general threat posed to the Hazara community is supported by Professor Amin Saikal of ANU. ^[3]  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.

    [3] 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.

1. DFAT also specifically reported in relation to Kabul in October 2014:

   2.24 A bombing attributed to Pakistan-based Lashkar-e Jhangvi (LeJ) of the Shia Abu Fazl mosque in Kabul during Moharram in December 2011 reportedly killed at least 70 people. However, DFAT assesses that this was an isolated incident and that it is unclear whether it was the result of sectarian tensions. DFAT assesses that Sunni-Shia sectarian violence is infrequent in Kabul.

   …

   2.27 Insurgents regularly conduct high-profile attacks in Kabul. DFAT assesses that the primary targets for insurgent attacks are government institutions, political figures, Afghan National Security Forces (ANSF), International Security Assistance Forces (ISAF), other security services and international organisations. Such attacks often cause significant casualties amongst civilian bystanders in addition to those being specifically targeted.

   …

   2.29 The ANSF 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 strong  deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANSF and international forces concentrated in Kabul are also quick to respond to insurgent attacks when they occur. For example, the ANSF provided a rapid and effective response to an insurgent attack against Kabul airport in June 2013.

   …

   3.1  Overall, DFAT assesses that the Government maintains effective control of Kabul, due to a range of counter-measures put in place to prevent and respond to insurgent attacks. The relatively high level of state protection available in the city, including in formal, informal and illegal areas, has been an important driver of large-scale urban migration to Kabul since 2001. [4]

   [4] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 3 October 2014.

2. Professor Alessandro Monsutti agreed, stating in January 2012 that insecurity in Kabul is the result of indiscriminate attacks and Hazaras are not less safe than any other ethnic group.[5]

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

3. The DIBP report stated that:

   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[6] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.[7]

   [6] 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,

4. I have taken into account the list of insurgency attacks on Kabul listed in the agent’s submissions of having taken place but these need to be seen in the context that Kabul has a population of up to seven million people (with up to two million Hazaras).[8]  I am of the view that the available country information 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.

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

5. 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, I find that the chance or risk he will be seriously harmed or significantly harmed is remote.

6. In making these findings, I have taken into account the withdrawal of international forces.  The UN Secretary-General stated in his most recent report on the situation in Afghanistan that:

   Since the end of the summer period, the Government has faced a sustained and determined challenge in securing key districts that remained under insurgent pressure. The post-elections political impasse and the delayed signing of the security agreements with the United States and NATO created an environment of uncertainty, which appeared to embolden anti-Government elements in their actions across the country to undermine public confidence in the Government and its security forces. During the reporting period, multiple attacks took place on district administrative centres, security force checkpoints and major roads. Apart from their apparent intent to project insurgent strength and generate media attention, none of the attacks succeeded in permanently capturing the intended targets.[9]

   [9] UN General Assembly, The situation in Afghanistan and its implications for international peace and security: report of the Secretary-General, 9 December 2014, A/69/647-S/2014/876, available at: paragraph 17.

7. In an opinion piece published in the Wall Street Journal, Michael O’Hanlon of the Brookings Institution provided the following overview of the current situation:

   ‘As President Obama prepares to pull all U.S. combat forces from Afghanistan by the end of next year, the recent news coverage of America’s longest war is depressingly violent and familiar. Suicide bombings and insider attacks in Kabul, Taliban comebacks in parts of Helmand and Kunduz provinces (in the south and northeast respectively), continued insurgent activity throughout much of the east, and high casualties to Afghan soldiers and police.

   But after my systematic survey in consultation with the U.S. command in Afghanistan, unclassified reporting and other information, I would argue that the security situation is on balance stressed but generally holding. It has deteriorated somewhat over the past couple of years, as NATO forces have dramatically downsized, from a high of nearly 150,000 in 2010-11 to about 15,000 today. But thanks largely to the hard work and sacrifices of Afghan security forces as well as recent political compromise in Kabul, Afghanistan is by no mean a failing state.

   The core Western requirement of preventing a large-scale extremist sanctuary on Afghan soil continues to be met. This central fact should guide Mr. Obama, Congress and the 2016 presidential hopefuls. The war is not won, but those who base their thinking on the premise that the war is lost need to reconsider.

   While Afghanistan’s woes are well known, its strengths are often forgotten. The country has a security force of 350,000 that, unlike the Iraqi army in 2014, has not dissolved in the face of battle or split along ethnic lines. President Ashraf Ghani and Chief Executive Abdullah Abdullah have fashioned a workable political compromise out of last year’s tortured election process, bridging major ethnic and power-broker divides and this January beginning to forge a cabinet.

   This political reconciliation makes it likely that the security forces will continue to respect central-government authority. The nation’s citizenry remains strongly anti-Taliban, partly due to a much-improved quality of life since 2001, and evinces much greater political awareness and participation.

   Most major cities remain safer for Afghan citizens than they were even four or five years ago. There has been some worsening on balance over the past one to two years, in Kabul particularly, and some smaller cities in the south and northeast. But on balance the country’s largest cities after Kabul—Kandahar, Herat, Mazar-e-Sharif—are not becoming more violent or anarchic. Kandahar, where the Taliban movement originated, is probably safer than at any time in the past seven or eight years. Of the country’s 34 provinces, no capital cities are inaccessible to the government.

   Many rural areas remain contested and not in government hands. Most have not benefited in a lasting way from the “clear, hold, build” paradigm recommended by standard counterinsurgency logic and advocated by Gens. Stanley  McChrystal and David Petraeus . Yet there are only a few significant swaths of territory where the central Taliban organization truly controls an area, as in parts of Helmand, Kunduz, Wardak, Kunar, Nangahar and Khost provinces.[10]

   [10] Michael O’Hanlon, ‘How Not to Squander Hard-Won Gains in Afghanistan’, Wall Street Journal, 5 February 2015, CX1B9ECAB9629.

8. I accept that the withdrawal of troops has led to an increase in violence.  However I do not accept that the withdrawal has led to the deterioration of security to such an extent that the government has lost control of significant locations in Afghanistan, and most relevantly for the applicant, locations such as Kabul.  I do not accept that the applicant has a real chance of serious harm or a real risk of significant harm arising from the withdrawal of foreign troops from Afghanistan, now or in the reasonably foreseeable future.

9. I accept that the applicant only has limited primary school education and that his parents stopped sending him to school because his parents thought it was too dangerous and that he suffered verbal abuse from Pashtuns.  He claims that he received worse grades in school because he was a Hazara Shia.  Even if I accept that this occurred, these events are now 20 years ago during a period when the Taliban was in power and in assessing his future prospects I have placed more weight on more recent circumstances affecting him and the independent country information that 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. The country information further indicates that there is societal discrimination on the basis of ethnicity and I accept that the applicant has had a limited education and that most of his family is now in Australia. However the applicant was able to work in businesses and undertake English classes in the years that followed his limited primary school education.  He is an adult male with no family to support and has work experience both in Kabul (and here in Australia as a [occupation]) and I find he would be able to employ these skills to obtain work to support himself.  I note that DFAT have commented that men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children without the assistance of family networks.[11]  I find that the chance that he will suffer discrimination or treatment amounting to either serious harm or significant harm is remote.

   [11] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 3 October 2014.

10. The applicant has also claimed that as his family were Hazaras they were forced to pay a higher rent than the other shop owner in the market.  Even if I accept that this is true this occurred many years ago and I do not consider that such conduct amounts to either serious harm or significant harm.  In making this finding, I have also taken into account that in his statutory declaration, the applicant stated that the failure of the [shop] was due to the importation of cheap [products] from China.

11. Considering the country information as a whole and his individual circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of his race, religion, actual or imputed political opinion arising out of his race and religion at the hands of the Taliban, ISIS, Lashkar-e Jhangvi or anybody else. 

12. Considering the country information as a whole and his 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 on these bases.

    Failed Shia Hazara asylum seekers

13. It has been submitted that the applicant faces harm due to his membership of a particular social group of “Failed Shia Hazara asylum seekers”.  I have had regard to reports referred to by the agent which suggest that there are negative attitudes to returnees; however, I do not accept that such treatment amounts to either serious harm or significant harm.  I have also taken into account submitted reports of two Hazara returnees from Australia being targeted.  However, the submitted reports concern individuals who were targeted outside Kabul and there is no information before me that returnees or failed Hazara Shia asylum seekers have been targeted in Kabul.  Furthermore, DFAT have commented:

    3.9        DFAT assesses that there is no evidence to indicate that low-profile individuals are subject to discrimination or violence as a result of them having spent time in western countries.

    ...

    3.41 More broadly, many Afghans—including Hazaras—regularly travel abroad, to Iran, Pakistan and also to Europe and other western countries to seek work and greater economic or educational opportunities. Even under the Taliban regime, Afghans continued to travel abroad to work or study, and then returned to the country.[12]

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

14. Considering the country information as a whole and his individual circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of his membership of a particular social group of “Failed Shia Hazara asylum seekers” or due to any imputed political opinion as being a supporter of the West. 

15. Considering the country information as a whole and his 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 on these bases.

    Conditions in Kabul

16. In the submission it was argued that the applicant faced significant harm in Kabul as there is poor sanitation, lack of clean water, poor infrastructure and limited health care.  I have considered this information and that contained in the DFAT Thematic Report, Conditions in Kabul, 3 October 2014.  At the hearing, the applicant stated his mother passed away in hospital after being given medicines.  He said she died due to a lack of facilities.  I accept based on the available information that there is poor sanitation, lack of clean water, poor infrastructure and limited health care. However, I do not accept that any of these matters creates a real risk that the applicant will suffer significant harm.  In making these findings I note that the applicant is an adult [and] that he has not claimed to have any particular health problems.  Whilst public health services are poor and there is poor sanitation, lack of clean water and poor infrastructure, the country information does not indicate that there is the necessary element of intention for these circumstances to constitute either cruel or inhuman treatment or punishment or degrading treatment or punishment. Whilst public health medical care is limited this is due to a lack of resources with DFAT stating that the health care system has greatly improved since 2001 and though basic they are better in Kabul than the rest of the country.  I accept that the applicant’s mother died in 2011 but she was in hospital receiving medicines.  I do not accept that any of these submitted circumstances constitute torture, the arbitrary deprivation of life or the carrying out of the death penalty. I have also had regard to the Department’s Complementary Protection Guidelines which provide that the absence or inadequacy of medical treatment in the country of return will not generally meet the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment.  Accordingly, I find that the applicant does not face a real risk of significant harm due to any of these factors.

17. The applicant has not advanced any arguments or evidence that he will be denied access to services for any reason under the Convention.  I find that the poor infrastructure, sanitation and water supply do not constitute serious harm and do not constitute serious harm for any reason under the Convention.  DFAT have stated that there is no evidence of any official policy of discrimination pursued by the Government on the basis of ethnicity and I find that there is not a real chance that the applicant will be denied access to health or any other essential services on account of his race or religion or for any Convention reason.  Considering the country information as whole and the applicant’s individual circumstances, I find that he does not face a real chance of persecution due to any of these factors and that the circumstances are not Convention-related and do not involve discriminatory conduct as required by s.91R(1)(a) and (c) of the Act.

    Cumulative assessment

18. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any reason (Convention or non-Convention related).  His fear of persecution is not well-founded. 

19. Considering the applicant’s individual circumstances and the independent country information cumulatively, 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.

    Conclusions

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    David Corrigan
    Member