1406399 (Refugee)
[2015] AATA 3169
•6 July 2015
1406399 (Refugee) [2015] AATA 3169 (6 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1406399
COUNTRY OF REFERENCE: Afghanistan
MEMBER:Christopher Smolicz
DATE:6 July 2015
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 06 July 2015 at 11:22am
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431(2) 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] June 2013 and the delegate refused to grant the visa [in] March 2014.
3. The applicant appeared before the Tribunal on 11 June 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has had taken 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 the following country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration:
10. The issue in this case is whether the applicant has a well-founded fear of persecution because of his:
·Hazara ethnicity (race) and Shia Muslim religion.
·anti-Taliban imputed political opinion.
·land dispute
11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s factual claims and the Tribunal’s findings
12. First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, his entry interview, statements of claim and addendum statement dated [in] June 2015.
13. The applicant is [a] Hazara, Shia Muslim citizen of Afghanistan. He was born in [Village 1], Waras district Bamiyan province.
14. He is married and has [children]. He arrived in Australia as an Illegal Maritime Arrival [in] July 2012.
15. The applicant said that his great grandfather bought farming land in [Village 1] from a Sayed man[1]. The land has been in his family for over 100 years. In about 1983 there was a dispute over the ownership of the land. A relative of the Sayed man [Mr A] claimed that he was owed the land. [Mr A] was a powerful war lord and member of the Shorai Itifaq Party (SIP). The SIP were the most powerful party in his area and were ruled by Sayed Ali Behishti.
[1] Research conducted by the Tribunal confirms that Sadat, also referred to as Sayeed/Sayed or Sayyid, is an ethnic group distinct from the Hazara. The majority of Sadat are reportedly Sunni Muslim, although some do identify as Shia. Sadat, means “prince, lord, chief,” or “mister” in Arabic, and is applied as a title for the descendants of the Prophet Muhammad. In Afghanistan the name is also applied to healers and holy men. Communities of sayyids exist in Kunar Province and the Hazarajat, where they constitute a hereditary clergy. . See also (Adamec, Ludwig W 2003, Historical Dictionary of Afghanistan (3rd Edition), Scarecrow Press, Maryland, p.339).
16. When the SIP came to power in the applicant’s home area [Mr A] began to threaten the local Hazara people and demand their land. The applicant resisted the demands and was threatened by [Mr A]’s soldiers. The applicant explained that on one occasion he was hit on the head and his ear drum was perforated. On another occasion one of [Mr A]’s soldiers shot at him and grazed his leg. Eventually the Sayed family took over the applicant’s land and the applicant fled to Daikundi province to live with his wife’s family. The applicant said that other Hazara families were also forced off their land by [Mr A] and also had to flee the area.
17. The applicant lived in Daikundi for about 14 years and worked on his father in law’s land. He thought the situation would improve and he would be able to return to [Village 1] and reclaim his land. Sometime after the Taliban came to power, the Sayeds joined forces with the Taliban and Behishti’s son (Wahidi Behishti) became affiliated with the Taliban. Another son, Fakuri Behishti became a member of the Afghani Parliament.
18. The applicant’s father-in-law was a member of the Nasr Political Party which was opposed to SIP and Behishti. The applicant claims that because of his family connections he was accused of spying for the Nasr party and life became increasingly dangerous and in about 1998 he fled with his family to [Country 2].
19. The applicant lived in [Country 2] with his family for about 14 years. His wife and [children] have remained in [Country 2]. The applicant and his family had no legal status in [Country 2]. The applicant was able to support his family by leasing land and growing vegetables.
20. In about April 2012 the applicant was stopped by the [Country 2] police. He did not have the required documents and was told to leave [Country 2] and detained at [a] Detention Centre. He travelled back to the Afghan border by bus. He travelled to Herat and then travelled to Kabul by plane. He spent about 18 days living in a hotel in Kabul and was able to contact his family in [Country 2]. His family told him that it was too dangerous to return. He feared that as an illegal refugee he would be deported. He spoke to other Hazara people and with the assistance of people smugglers decided to travel to Australia.
21. The applicant claims he is unable to return to Waras district because the Sayed family will suspect he has come to reclaim his family land and will kill him. The applicant said the Sayed family are well connected to the Behishti family who have links in the government. He suspects that his name has been given to the Taliban and that he is considered to be an enemy of the Taliban and the SIP.
22. The applicant said he will always pose a threat to [Mr A] who suspects that he will want to reclaim his land. He claims that [Mr A] was one of Behishti’s generals and has accused him of being a spy and made false accusations to harass him and his family. He claims the Behishti family are well connected and will be able to find him.
23. The applicant’s representative submitted that the delegate was incorrect to characterise the applicant’s dispute with [Mr A] as a “civil matter” with no convection nexus. It was submitted that [Mr A] was a Sayed warlord with political power who threatened all Hazaras in the applicant’s home area. [Mr A]’s actions were not just directed at the applicant but impacted on other Hazaras who had to flee the area.
24. It was submitted that the applicant’s land dispute needs to be looked at against the broader context of [Mr A] using the land dispute as a pretext for exerting political power over local Hazaras and forcing them of their land.
25. The delegate had regard to country information which confirmed that Wahidi Behishti is a member of the provincial council of Waras who is described as a warlord. His brother (Fakuri Behishti) was a member of the Itefaq Council which was led by his father Ayalullah Behishti from 1979 to 1989. This council became part of Hezb-e-Wahdat Islami Afghanistan.
Does the applicant have a well-founded fear of persecution for a convention reason?
26. The issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings.
27. The Tribunal finds that the applicant is a Hazara Shia Muslim who was born in Waras district, Bamyan Province. In about 1984 he relocated to Daikundi and lived with his wife’s family for about 13 years. In about 1998 he fled Afghanistan and has lived in [Country 2] with no legal status with his family. The Tribunal finds that the applicant has no known family in Afghanistan and his property in Waras district has been abandoned. His wife and children continue to live in [Country 2].
28. The Tribunal finds that in the case of a person who had fled his country of nationality, the assessment of well-founded fear of persecution would naturally commence with a consideration of the situation in the area where the person had previously lived (or other home area to which the person had similar or substantial ties). In a case such as the present, where the applicant left Afghanistan over 17 years ago, there is an issue as to whether there is an area within Afghanistan that could be characterised as the applicant’s home area and, if so, what it is.[2]
[2] SZQZN v MIAC [2012] FMCA 939 FMCA, Barnes FM, SYG 2967 of 2011, 11 October 2012, see also SZRKY v MIAC29. DFAT advise that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan, particularly in rural areas. Kinship is central to identity and acceptance in a community, including for finding shelter and employment. As such, DFAT conclude that most Afghans prefer to live in areas where their ethnic group constitutes the local majority. The Tribunal has therefore assessed the applicant’s claims of fear of persecution in Afghanistan against Waras district, Bamyan Province as his home area.
30. Country information states that Bamyan Province is among the peaceful provinces in Central Afghanistan where insurgent groups do not operate in any of the districts. The province has witnessed little insurgent presence after the fall of the Taliban regime. However the province does face occasional security challenges from the neighbouring provinces.
31. According to the 2002 UNHCR District Profile, Waras district has a 99 per cent Hazara ethnic composition and 1 per cent Sayed (Shia).
32. The head of the district is Fakurii who is affiliated with Shura Etefak. The district has 443 villages and is surrounded by high mountains. Waras city is 240 km away from Bamyan. The roads to Waras was not accessible during the winter months and road networks in Waras is extremely deficient and two thirds of the district is not accessible by road.
33. The UNHCR state that the district is disputed among Pasdar and Hezb-e-Wahdat and this has made it difficult to appoint a head of the district and hence there are no official authorities which could effectively control the district. This political instability has led to many arbitrary executions by commanders affiliated with various parties. Some of the Hezb-e-Wahdat military bases are reportedly led by commanders involved with the Taliban in the past.
34. The UNHCR report confirms the applicant’s claims that most disputes in the area are related to land and they often escalate into political conflicts if the disputing parties are affiliated with Akbari or Hezb-e-Wahdat parties. UNHCR confirm that there is no effective or reliable dispute resolution mechanism in the area.
Land disputes in Afghanistan
35. The UNHCR Eligibility Guidelines For Assessing The International Protection Needs Of Afghan Asylum-Seekers (December 2007) identify those who might be exposed to a particular risk of violence, harassment or discrimination and, depending on the circumstances of the individual case, could fall within the Convention definition, including landowners. In particular relation to landowners, the UNHCR provide the following information:
36. There are also circumstances in which Afghan landowners may be exposed to a risk of persecution by State and non-State agents. The risk is acute in circumstances where houses have been occupied by powerful commanders or local authorities, and restitution is being pursued by a landowner, even where there is a court decision for the return of the property. In such circumstances, the rightful owners may be at risk if they do not have political, tribal or family protection, and the authorities are unable or unwilling to protect their rights - including the enforcement of a court-decision. The real owners risk beatings or arrest and detention by local militia leaders or security officials. ... Landowners resisting illegal expropriation can be viewed in relation to the 1951 Convention as having an imputed political opinion or being members of a particular social group.
37. In December 2011, an article by Asia Times Online referred to a dispute between neighbours over land ownership. The article noted that the neighbours had attempted to resolve the dispute through a local jirga without success and that the matter was now before a government court. According to the article, land disputes among individuals are common:
38.
Land disputes are most commonly fought between individuals, including family inheritance claims. Others pit the government against individuals or tribes, or tribes versus tribes.
The majority of landowners prefer to abide by customary law and resolve disputes using traditional mechanisms because it takes less time. The courts are regarded as time consuming - always an expensive undertaking for those involved - and are suspected of corruption.[3]
[3] Murray, R 2011, ‘Afghanistan: Land triggers new conflicts’, Asia Times Online, 6 December, para 14 < <
39. An August 2010 report from the Washington Post notes that ‘[l]and disputes are common in Afghanistan, a war-torn country where people have been repeatedly displaced, leading to competing claims on property’.[4]
[4] Nakamura, D. 2010, ‘Karzai names panel to look into rising ethnic Afghan violence’, The Washington Post, 14 August, para 9 < In a January 2008 fact sheet, the Immigration and Refugee Board of Canada stated that ‘[o]ngoing land disputes are a problem in Afghanistan’ and that ‘[i]n some cases, land has been illegally confiscated from returned refugees and ownership rights are often unclear’.[5] Similarly, a more dated report by the International Crisis Group in 2003 noted that contested claims over land are a main cause of local disputes that often lead to violence:
Contested claims over land often go back generations. The picture has been complicated by decades of poorly considered land reform and development programs, the flight of so many people during the war and the fact that successive waves of political parties and combatants have seized both private and state property to claim as their own. Examples abound across the country where land has changed hands repeatedly. Few people have clear legal title, and the court system is ill equipped to mediate disputes or the police to enforce judgments.[6]
[5] Immigration and Refugee Board of Canada 2008, Country Fact Sheet: Afghanistan, January
[6] International Crisis Group 2003, Peacebuilding in Afghanistan, 29 September, p.i <
41. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers From Afghanistan, published on 17 December 2010, also provides information regarding land disputes in Afghanistan and the violence that can result. The relevant information reads:
42. Land disputes, particularly where ethnic differences arise or claims involve the illegal occupation of land by persons in positions of authority, are sometimes resolved by resorting to violence or threats. This may be the case where land occupiers are local commanders with strong links to the local or central administration. Where restitution is pursued and in the absence of political, tribal or family protection, the rightful owners may be at risk of ill-treatment, arrest and detention by local militia leaders or security officials. Generally, persons residing in areas where they are an ethnic minority are at heightened risk when attempting to reclaim land and property.[7]
[7] UN High Commissioner for Refugees 2010, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December, p. 30 < >
43. The Tribunal finds that the applicant had left Waras district and his family land over 30 years ago. He has been living in [Country 2] from 1998 until he travelled to Australia in 2012. The applicant stated that he feared the Behishti family but admitted at the hearing that he has not had personal contact with the family and they would not know his name or that he even exits. The Tribunal found the applicant’s claim that he would be accused of being a spy for the Nasr political party vague and lacking in detail and does not accept this aspect of his claim. The Tribunal finds the applicant, as a farmer, with no political involvement in Afghanistan who left his land 30 years ago would be of no interest to [Mr A] or his family.
44. The Tribunal does not accept there is a real chance the applicant will be persecuted because of the land dispute should he return to Waras district in the reasonably foreseeable future. The Tribunal finds the applicant’s fear of persecution because of the land dispute and his fear of [Mr A] and the Behishti family is not well-founded.
45. For the same reasons, the Tribunal also finds 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.
46. The Tribunal notes however, that the test for determining refugee status is forward looking and must not only assess the persecution the applicant has suffered in the past but also the likelihood of the applicant suffering persecution in the reasonably foreseeable future.
47. Next, the Tribunal has considered whether the applicant as a Hazara Shia Muslim would face a real risk of serious harm traveling by road from Kabul to his home area.
48. Country information referred to above confirms that Bamyan province is among the more peaceful provinces in Central Afghanistan where insurgent groups do not operate in any of the districts and the district of Waras has a large majority Hazara population.
49. DFAT assesses that there are currently no significant protection issues for Hazara returnees to Afghanistan beyond generalised environment of criminal and insurgent violence. In particular, DFAT assesses that it is relatively safe for Hazara to return to Hazara-majority areas in Hazarajat and Kabul.
50. DFAT advise that there are some sectarian tensions between Sunni and Shia Muslims in Afghanistan, but other than insurgent attacks, these rarely result in violence. DFAT advise that due to their linguistic and religious links with Iran, Hazaras are sometimes viewed with suspicion by other Afghan groups.
51. Against this, the Tribunal notes the evidence of Professor William Maley[8] and Associate Professor Alessandro Monsutti[9], both of whom indicate that while some gains have been made by Hazaras, the deep-seated causes of discrimination against Hazaras remain unchanged. Both Maley and Monsutti indicate that the gains made by some Hazaras have not been enjoyed by all and further, that they may not last. Professor Maley questioned the ability of Australian Embassy staff to conduct field research given the tight security constraints. Professor Maley stated that there was no reason to believe that the underlying ethnic and sectarian factors fuelling hostility towards Hazaras had dissipated.
[8] Maley, W 2011, ‘On the Position of the Hazara Minority in Afghanistan’, 7 December < Associate Professor, Anthropology and Sociology of Development, at the Graduate Institute of International and Development Studies in Geneva, Switzerland
52. DIBP advised in March 2015 that most security concerns for Hazaras in the Hazara districts relate to travel outside the district, as most roads travel through Pashtun districts where insurgents are active. Country information detailed above confirms that Waras district is a mountains region which is difficult to access by road.
53. DFAT’s Thematic Report provides the following information regarding travel by road in Afghanistan:
54. Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly those roads that pass through areas contested by insurgents. Taliban and criminal elements target the national highway and secondary roads, setting up arbitrary armed checkpoints. Official ANP and ANA checkpoints designed to secure the road are sometimes operated by poorly-trained officers known to use violence to extort bribes. More broadly, criminals and insurgents on roads target all ethnic groups, sometimes including kidnapping for ransom. It is often difficult to separate criminality (such as extortion) from insurgent activity.
55. Individuals working for, supporting or associated with the Government and the international community are at high risk of violence perpetrated by insurgents on roads in Afghanistan. Carrying documentation that would indicate employment or another connection with the Government is dangerous. Because Hazaras are perceived to be affiliated with either the Government or international community, those Hazaras travelling these routes who work for the Government or international community frequently take precautions to ensure that, if they are stopped, they could not be identified as such.
56. Most recently Professor Maley has provided an expert opinion on the safety of return to Afghanistan for members of the Hazara minority in which he made the following conclusions:
57. First, it is essential to appreciate that the situation in Afghanistan is extremely fluid, and assessments of the situation made even a year ago do not necessarily provide an accurate picture of the situation in the first half of 2015. Roads that may have been safe to traverse in 2012, 2013 or 2014 may be unusable in 2015. In July 2014, 14 Hazara passengers on two minibuses in Ghor province were massacred by the Taliban (see ‘Afghanistan: Taliban Kill at Least 14 Bus Passengers’, Reuters, 26 July 2014). ….Given this fluidity, it is a serious mistake to conclude that Afghanistan is safe for Hazaras. The disposition of extremists to strike at them has not disappeared.
58. …
59. A recent study of returnees to Afghanistan highlights how difficult reintegration can be even if people do have associates in the region to which they are returned (Liza Schuster and Nassim Majidi, ‘What happens post-deportation? The experience of deported Afghans’, Migration Studies, vol.1, no.2, 2013, pp.1-19). Of course, an Hazara returned from abroad with no ties in areas they can safely access would be in an even more perilous position. This ties in directly with the issue of livelihood opportunities. Again, serious research in this area highlights the importance of social relations. A recent study by Kantor and Pain emphasises the centrality of relationships to livelihoods in rural Afghanistan, and the points they make apply equally to urban areas (Paula Kantor and Adam Pain, Securing Life and Livelihoods in Afghanistan: The Role of Social Relationships (Kabul: Afghanistan Research and Evaluation Unit, December 2010). The mere fact that there may be people of similar ethnic background living in a potential relocation destination does not overcome this problem, since ethnic identities do not in and of themselves give rise to the ties of personal affinity and reciprocity that arise from family connections. (Indeed, one mistake that observers — even Afghan observers — on occasion make is to underestimate the degree of differentiation amongst groups such as the Hazaras, including distinctions between elite and non-elite figures, distinctions based on district of origin and tribe, and distinctions based on values and ideology.) An Hazara who is returned to a region in which he lacks social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation.[10]
[10] On the Returns of Hazaras to Afghanistan, Professor William Maley AM, FASSA Professor of Diplomacy Australian National University 16 February 2015.
60. In assessing the applicant’s claims the Tribunal has noted that the applicant has lived away from his home area for over 30 years and would be perceived as an outsider, returning from the West. Country information has also confirmed the dangers faced by Afghanistan asylum seekers deported from Australia being targeted as being favourable to the West when returning to Afghanistan.[11]
[11] Edmund Rice Centre, ‘ERC research in Afghanistan uncovers grave dangers faced by deportees from Australia’, Media Release, April 2012, The Department has identified the following list of security incidents where Hazaras were specifically targeted in the recent past:
· 15 March 2015, a bus was stopped travelling between Ghazni and Jaghouri. Ten Hazaras were abducted. After some hours, nine were released with one continuing to be held at the time of writing. Unconfirmed reports believe the remaining captive worked for the government.
· 23 February 2015, masked men stopped two vehicles traveling on the highway near Zabul and identified and abducted 30 Hazaras. The Hazaras were reported to be Afghan refugees returning from Iran. Different reports identified the abductors as possibly foreign and either members of the Taliban or ISIS. As of the time of publication, the men had not been found, although one Hazara escaped on 25 February.
· 20 January 2015, eight or nine Hazaras were killed in Gilan district in Ghazni when their van was exploded by a remote controlled bomb. The Hazaras were travelling from Kabul to Jaghori district. The pro-Hazara source Kabul Press claimed that ‘These victims were civilians who were going from Kabul to Jaghori, did not work for any government offices and did not have any connection with any of Afghanistan’s political parties’, though other sources do not give such details about the victims.
· 20 September 2014, Australian-Afghan Sayed Habib Musawi, a Hazara from Jaghori district in Ghazni, was reportedly killed by the Taliban while travelling from Kabul to his home district of Jaghori. He was reportedly killed as he was an Australian, but the fact that he was also a Hazara may have been relevant.
· 16 September 2014, Zainullah Naseri, a Hazara from Jaghori district in Ghazni, was reportedly abducted and tortured by the Taliban for two days in Ghazni province after being deported from Australia. He escaped to Jaghori then returned to Kabul. DFAT was unable to confirm the report.
· 25 July 2014, suspected Taliban fighters halted two minibuses in Lal-o-Sar Jangal district in the western province of Ghor, identified 14 Shia Hazara passengers, including three women and a child, bound their hands, then shot them dead by the side of the road.
· 28 June 2014, the Taliban killed (Hazara sources say ‘beheaded’) between 14 and 17 people, usually described as policemen or ex-policemen, in Gizab district of Uruzgan Province. This incident was little reported and reports do not give much detail. According to Hazara sources, the victims were Hazaras, mostly students and workers, though other sources do not mention their ethnicity.264 Other information tends to support the assertion that the victims were Hazaras: Hazaras comprised a disproportionately large part of the police force in Uruzgan and particularly in Gizab, according to a 2010 NGO report on Uruzgan, and one of the Page 56 of reports mentions that one of the victims was the nephew of Governor Amanollah Timuri who is elsewhere reported to be a Hazara.
…..
· In January 2014, an AP report stated that the Maidan Shahr-Behsud road had ‘seen many beheadings, kidnappings and other Taliban attacks in recent years against members of the minority ethnic Hazara community’ and ‘nearly all drivers avoid it.’ This report does not mention any particular attacks.[12]
[12] Afghanistan: Hazara Issues Paper, Department of Foreign Affairs and Trade (DFAT), March 2015, p 56.
62. The Tribunal also accepts the applicant’s evidence that he has no continuing family ties or support networks in Waras district. The applicant will need to find work and find accommodation which will require him to travel and as such putting himself at even greater risk given his Hazara appearance.
63. Having weighed carefully the information outlined above, the Tribunal does not consider the reported absence of “targeted persecution” eliminates the likelihood that a Hazara Shia Muslim with the applicant’s profile would not be harmed for reason of their ethnicity or their religion when traveling by road to his home area.
64. Having considered the applicant’s particular profile as a Hazara Shia returnee, the Tribunal finds the applicant faces a real chance of serious harm if he returns to his home area. Specifically, the Tribunal finds that the need to find accommodation, work and potentially to travel out of his home area would place the applicant at a real chance of serious harm from the Taliban.
65. The Tribunal finds the harm the applicant fears from the Taliban is for reasons of his religion and ethnicity. The Tribunal is satisfied the persecution is systematic and discriminatory and amounts to serious harm as it includes threat to life or liberty, significant physical harassment or ill-treatment.
66. The applicant primarily fears harm from the Taliban, a non-state insurgency group, however, harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the state is unable to provide adequate protection against the harm.
67. 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.
68. In respect of the ability of the state to protect, the Tribunal has also considered the following DFAT advice, provided in March 2014, before the coalition forces began the pull out:
5.1The ongoing insurgency, particularly in the south and east of Afghanistan means that the Government struggles to exercise effective control over many parts of the country. As a result, the Government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in those areas.
5.2Despite these challenges, DFAT assesses that the Government maintains effective control in major urban areas, particularly Kabul, all provincial capitals, including Herat, Mazar-e-Sharif and Kandahar, and the majority of other district centres.
69. In view of the unstable security situation in Afghanistan, 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. The Tribunal finds based on the country information, that the applicant would not be able to avail himself of effective state protection against such harm.
Relocation and Kabul
70. The applicant’s feared persecution described above is linked to the risk faced by a Hazara Shia seeking to return to his home area.
71. There remains the question of whether the applicant can find protection from this feared persecution by relocating to a different part of Afghanistan.
72. The Tribunal notes that Kabul has a sizeable Hazara population (which the country information indicates a large proportion of which are also displaced from other areas) and a range of employment options.
73. In relation to relocation DFAT advise that “large urban areas such as Kabul are home to mixed ethnic and religious communities. Urban areas offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas, including as a result of a higher degree of anonymity for returnees. In practice, internal relocation to urban areas can be limited by a lack of financial resources. Internal relocation to urban areas is generally more successful for single men of working age. Unaccompanied women and children are least likely to be able to relocate to urban areas without the assistance of family or tribal networks.”
74. Professor Maley holds the view that it is a mistake to conclude that Kabul is safe for Hazaras. He cites the December 2011 suicide bombing attack against Shia Afghans, mostly Hazaras, who were commemorating the Ashura festival in downtown Kabul which killed at least 55 people, with Pakistani Sunni extremist group Lashkar-e Jhangvi claiming responsibility.
75. The Tribunal also notes that there is a huge Hazara underclass in Kabul that does not have access to clean water or electricity. It is also reported by the UNHCR that there is widespread unemployment in urban areas that limit the ability of a large number of people to meet their basic needs. There is also evidence of the deaths of children in refugee camps and the inadequate response of government and aid agencies.
76. The country information emphasises given the lack of social security infrastructure in Afghanistan, people typically rely on traditional family and clan networks for support.
77. DFAT advise that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan. Kinship is central to identity and acceptance in a community, including for finding shelter and employment.
78. The Tribunal has also had regard to an interview with Professor Maley in which he highlights difficulties and vulnerability faced by returnees which is relevant to the applicant’s situation as someone who has lived away from Afghanistan for many years:
79. …People who are seen as being in some respect outside the social norm for whatever reason are less likely to find that they secure the sort of assistance that they would need in order to access the labour market because there could be potential costs for the middle man in being seen to assist somebody who has, in the eyes of others, moved outside the realm of traditional social norms…There are all sorts of matters that can be as simple as one bearing one’s degree of deference to other people that can bring about antagonisms without a person who has lived in Australia for some years even appreciating why those antagonisms might be there…
80. And something that might almost have slipped from the memory of a person who has lived in Australia for four or five years could still be terribly important and salient to a person they might encounter and thus I suspect that the greatest danger for young people who have been here for quite some time and being sent back to Afghanistan is not that they would be consciously offensive to Afghan norms but that they would by this stage have assimilated Australian ways of behaviour to the extent that their grasp of Afghan norms would be fragile and in that way they would end up offending somebody very dangerous without even realising that they were in the process of doing it…[13]
[13] (Maley, Professor William 2005, Transcript of Seminar on Afghanistan, 30 September 2005 more recently quoted in Research Response, AFG33041, 29 February 2008 available at
81. The Tribunal finds the applicant has no family, tribal or clan ties in Kabul to assist or protect him. The country information supports a conclusion he has little prospect of being employed or finding accommodation without such connections. Albeit this would be easier for him initially on his own, it is reasonable to expect he would seek to be re-united with his wife and [children from Country 2], making securing suitable accommodation and sufficient income considerably more difficult.
82. The Tribunal does not accept that relocation is reasonable in that it is practical and meaningful in terms of safety, economic and social needs and civil, political and human rights.[14]
[14] AZAEH v MIBP [2015] FCA 414 and SZATV v MIC [2007] HCA 40.
83. In summary, the Tribunal finds that the applicant, as a Hazara and Shia Muslim, is at a heightened risk of harm if he were to relocate to Kabul, because of the following factors:
· he has no relatives or tribal connection in Kabul
· he has not completed any formal education
· his work experience is limited to farming work
· he does not possess any assets to assist in his return to Afghanistan
· he has lived outside of Afghanistan for 17 years making it more difficult to successfully adapt to and integrate into the Hazara community
· he would be forced to travel by road to look for work.
84. In these circumstances, and having regard to the applicant’s personal situation as set out above, the Tribunal accepts that it is not reasonable for the applicant to relocate to Kabul to avoid the risk of Convention based persecution.
85. 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
86. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christopher Smolicz
Member
[2012] FMCA 942 FMCA, Cameron FM, SYG 916 of 2012, 18 October 2012
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