1407056 (Refugee)

1407056 (Refugee) [2015] AATA 3155 (10 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1407056
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Filip Gelev
DATE:10 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 10 July 2015 at 4:34pm

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

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).
The applicant who claims to be a citizen of Afghanistan, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] April 2014.
The applicant appeared before the Tribunal on 8 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.]
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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. The Tribunal has considered the most recent DFAT Country Information Report on Afghanistan (dated 26 March 2014) and the DFAT Thematic Information Report – Conditions in Kabul (3 October 2014).
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of persecution for reasons of his actual or imputed political opinion, religion or membership of a particular social group, or real risk of significant harm for any reason. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of reference
Having regard to the copies of the applicant’s national ID (Taskera) card and birth certificate provided to the Department of Immigration by the applicant,[1] the applicant’s ability to speak the Pashto language fluently and his detailed evidence both at interview and at hearing about Kandahar, the Tribunal accepts the applicant’s identity as claimed. The Tribunal accepts that the applicant is a national of Afghanistan.
[1] The Tribunal has considered the document examination conducted by the Department of Immigration and the ‘inconclusive’ results as set out in the Minute, dated 6 March 2014.
Based on the above, the Tribunal finds that the country of reference for the assessment of refugee claims in this case is Afghanistan.
On the evidence before it, the Tribunal finds the applicant does not have a present right to enter and reside in any other country than Afghanistan. The Tribunal therefore finds the applicant is not prevented from protection in Australia by s.36(3) of the Act.
Home region
The applicant has consistently maintained, including at the hearing, that he was born in [Village 1] village, [in a] District[in] Kandahar Province. The applicant also confirmed at the hearing that in late 2011, about two months before he left the country, he moved to [another location] which is an area of Kandahar city. The Tribunal accepts that the applicant lived for most of his life in [Village 1], that in late 2011 or early 2012 he moved to [another location] and then he left for Pakistan. The Tribunal finds that the applicant’s home region is [Village 1], Kandahar Province.
Claims
The Tribunal accepts that the applicant is a Sunni Muslim of Pashtun ethnicity. The applicant was fasting on the day of the hearing, because it is the holy month of Ramadan. The applicant agreed that he remains a committed Muslim and that he had not turned away from his religion.
He is married and has no children. He has [siblings]. His mother, his [siblings] and [one sibling’s spouse] all live in Quetta, Pakistan. [One sibling and spouse] left about a year before the applicant, his mother and[brother], who left in early 2012.
At the hearing the applicant confirmed that his brother is about [age] years old, as claimed in the application. When the Tribunal asked if he works, the applicant said he is so scared of the authorities that he does not leave the home. He has no ID and can be deported. He said Afghans are generally darker skinned and have different hair styles and clothes, which makes them easy to identify. He said that his wife, his mother and brother make ends meet with the money he obtained from selling the family home. He does not send any money from here.
The applicant set out his protection claims in a statutory declaration, dated 3 December 2012, as follows:
Summary of my claims
1.The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the DIAC officer.
Background
2.I am a [age] year-old married man from Afghanistan. I am Pashtun and a Sunni Muslim. I was born in [Village 1] village in Kandahar and I lived most of my life there until I fled the country at the end of 2011 and went to Quetta Pakistan. My wife, mother and siblings are all currently living in Quetta.
3.I am a citizen of Afghanistan and no other country.
The country to which I fear returning
AFGHANISTAN
Why I left that country
4.My father was killed by the Taliban. He was a driver and was doing the trip between the airport and Kandahar. He had been accused of working for the government. That happened around 3 years ago.
5.The Taliban was also personally accusing me of having worked with the government and acting in an un-Islamic way, They pointed to a number of things about me as being evidence of those things.
6.I had run my own business for around 7-8 years before I fled Afghanistan. I was a [occupation] and I had my own workshop. I was making a reasonable living, possibly more than the average person. I had a good standard of living, I worked very hard, often 7 days a week.
7.Some of the local Talibs had noticed that I was making a decent living. They immediately accused me of working with the government. They claimed that was how I was making my money. I had not done any work for the government and I told the Talibs that several times. They didn't believe me. They started to cause problems for me a couple of years before I fled the country. That is the reason I fled the country.
8.The other thing that they pointed to as evidence of me being against them (and against Islam) was the fact that I wore modern clothes and was clean-shaven. That combined with the fact that I had a good standard of living was enough for them to target me as — as working with the government and being anti-Islam. They accused me of deviating from the path and were resentful that I did not follow them in their ways.
9.They warned me a number of times but the threat escalated. They said that I had to follow them or they would kill me.
10.They have attacked me twice. I knew from observing what they did to other people, that the Taliban do not give you too many chances. They will attack you a few times and then kill you.
11.The first time they attacked me was a couple of years ago. They stopped me on the way home. They accused me of deviating and working for the government. I begged them to give me a reprieve. That day I was still physically attacked by them on the spot. One of them was carrying a long, thin wooden staff and he started violently beating me. I begged them to stop, asking them take pity on me and my family. He did stop but they then robbed me and warned me that if they caught me clean-shaven again, they would kill me. I was so afraid after that beating that I did start to grow a short beard.
12.I was attacked by a different Taliban group a few months later. My beard was not long enough to satisfy them. Again they beat me with wooden staffs. I begged them to stop and take mercy on me. They stopped and let me go. They gave me another warning before they let me go — they said that if they caught me again it would be my last time.
13.The Talibs do whatever they want to people and for whatever reason. They brutally murder many people. This is why I left. The Taliban are a brutal organisation and once you come to their attention for anything, your days are numbered.
14.I moved my entire family to Pakistan around one year ago. We could not remain there as we were there illegally. There are threats everywhere — Police and the security situation is dire there too.
The Tribunal accepts that the applicant’s father was self-employed and worked as a driver (owner-operator) of a mini-bus carrying passengers from Kandahar city to Kandahar airport and back for about 6-7 years until he was killed.
The applicant confirmed at the Tribunal hearing what he had said at interview with the delegate: his father did not have a government job, nor was he working for an international NGO or international military forces. According to notes from the interview – at p.8 of the delegate’s decision, a copy of which was submitted together with the application for review – the applicant said that his father had been ‘a simple worker at the airport; he had nothing to do with politics or had a high position … He was not working for the government, he was working for himself...’
The Tribunal accepts that it was the Taliban, or some other Muslim extremists, who murdered his father because in their view he was an infidel helping the government and foreigners who fly in and out of Kandahar airport. The Taliban were not interested in investigating whether the applicant’s father was in fact associated with anyone foreign or the Afghan government.
The Tribunal accepts that his father was shot and his vehicle was burned. Based on the applicant’s evidence, the Tribunal accepts that his father was killed in the (northern hemisphere) summer of 2009.
The applicant said that his father had been warned by the Taliban before he was killed. The Taliban told him that they knew where he was working and that he should stop. As the Taliban could not access the airport, they had no idea exactly what he was doing. He tried to explain to them that he was not working for the government, he was self-employed. He hoped that the problem had been solved and continued to drive, although he had ‘fear in his heart’. The time between the last warning and his killing was about 2-3 months.
However, for the reasons that follow, the Tribunal does not accept that the applicant was seriously harmed before he came to Australia.
He told the Tribunal that before he left Afghanistan he worked as a [occupation] and[occupation]. He started when he was [age] years old and learned the skills on the job. The Tribunal has no difficulty accepting that claim.
When asked at the hearing if he continued to work after his father’s death in 2009, he said his life was no longer safe, because the Taliban were going to target him next. Therefore, he claimed, he quit his job and started to get ready to leave. He went into ‘hiding’, but what he meant was that he did not leave the house much. He made preparations to sell the house. He said he was at risk, because the Taliban knew the location of the family home and once they kill someone, such as the applicant’s father, they target other members of the family as well. This version of past events contradicts what the applicant said on the visa application form, namely, that he continued to work up until and including 2011.[2] Likewise at ‘entry interview’, the first interview conducted after the applicant arrived in Australia, he said that he worked as a [occupation] until 2012.[3]
[2] At folio 17 of DIBP file.
[3] At folio 95 of DIBP file.
His statutory declaration also does not include a claim that he had to stop working and go into hiding in order to avoid persecution. The statutory declaration does mention that after his father’s death the applicant was personally accused of ‘having worked with the government’ rather than considered to be ‘guilty by association’ as his father’s son.[4] However, at the same time the applicant’s statutory declaration implied that his lack of facial hair caused a problem and growing a sufficiently long beard would solve the problem:
11. The first time they attacked me was a couple of years ago. They stopped me on the way home. They accused me of deviating and working for the government. I begged them to give me a reprieve. That day I was still physically attacked by them on the spot. One of them was carrying a long, thin wooden staff and he started violently beating me. I begged them to stop, asking them take pity on me and my family. He did stop but they then robbed me and warned me that if they caught me clean-shaven again, they would kill me. I was so afraid after that beating that I did start to grow a short beard.
[4] At paragraph 5 of the statutory declaration.

According to the statutory declaration, a few months later he was attacked by a different Taliban group because his beard was not long enough to satisfy them.[5] At the hearing, the Tribunal asked the applicant whether he decided to grow a beard after the first time he was assaulted or the second time. He said he decided to grow a short beard, he was too scared to go out for 2 months and his mother had to go out and do all the shopping. He said that the first time he was not that worried, that is, he implied that he grew the beard after the second assault. Even though this is a relatively minor matter, the Tribunal notes that it appears to contradict the applicant’s statutory declaration in which he said that he grew a beard after the first assault and the second assault happened because the Taliban thought his beard was not long enough.
[5] At paragraph 12 of the statutory declaration.
The Tribunal asked the applicant whether he ever had a beard before his encounters with the Taliban. He said he had always been clean shaven. When the Tribunal asked the applicant to explain why he had not been targeted until after his father’s death, despite his un-Islamic appearance, he said that until his father’s death he had not been on their ‘radar’. They noticed him more after his father’s death; they noticed that he was ‘flashy’.
The Tribunal told the applicant it agreed that the Taliban target people who are themselves associated with the government and working with foreigners. In response, the applicant did not claim that he was accused of working for the government. He merely continued to assert that his life was in danger – the Taliban killed his father and they would target him next. He referred to the fact that his father provided a good life for the family and the applicant himself had a relatively good job.
The Tribunal asked why they did not inflict more serious harm on him if they knew he was his father’s son. He said that they might not have realised the association; he begged them not to harm him and they relented and let him go.
The applicant was asked how long he remained in Afghanistan before he left for Pakistan. He said he left in late 2011 or early 2012. He said that he was in his home village of [Village 1] for most of that time. He moved to [another location] for only a couple of months.
The Tribunal asked the applicant why it took him almost two and a half years to sell the house and get out of the village if his life was at risk. He said that it took a while to get a good price, because there were a lot of people in the area who sought to take advantage of the family’s desperate situation. The applicant said that a local man had bought the house (for 14 Lakh; 1 lakh is 100,000 Afghanis; therefore, the total was about AU$35,000).[6] The Tribunal suggested that locals would have been aware of the situation and it was hard to see how the passage of time would have helped him achieve a better sale price. The applicant said that for the first year he had been mourning his father and it also took his mother a while to find the land title documents.
[6] 14 x 100,000 = 1,400,000 Afghanis or approximately AU$31,000 at current exchange rates, but closer to $35,000 at the exchange rate on 1 December 2011 according to the exchange rates provided on the website
When the Tribunal asked why he did not leave Afghanistan at the same time as his[sibling and spouse], a year before he left with his wife, mother and [brother], the applicant repeated that he had a house to sell and he needed to do that in order to get money to leave.
When the applicant told the Tribunal that the Taliban were not people from another country; they are locals who walk around and observe things and they also have spies. When something they do not approve of comes to their attention, they harm people. The Tribunal advised the Tribunal that this was exactly the reason why it had difficulty accepting that the Taliban did not kill him for more than 2 years, even though (he claims) they wanted to. He said that they have their priorities and they target different people at different times.
The Tribunal has concluded that the applicant has embellished his claims of past harm. The Tribunal, however, gives the applicant the benefit of the doubt, and accepts that he suffered some level of harassment on account of his ‘un-Islamic (according to Muslim fundamentalists) appearance. As the applicant himself told the Tribunal, the Taliban are locally based and having already identified the applicant’s father, they would have had little difficulty identifying the applicant. The Tribunal considers that the Taliban would have known that he does not work either for the government or for any foreign organisation; he was a [occupation] and[occupation]. The Tribunal considers that the applicant told the truth in his application form, and at entry interview, where he stated that he continued to work in that occupation until he sold the house and left for Kandahar city and then to Pakistan. The Tribunal places significant weight on the applicant’s own evidence that he did not leave the country or move house for almost two and a half years after his father’s death. Such behaviour is inconsistent with a well-founded fear of persecution. The Tribunal does not accept as persuasive the applicant’s explanation that he was (1) in mourning for about a year; (2) he was waiting for a good enough offer; and/or (3) it took a long time to find the title deeds.
The delegate did not accept that the applicant’s father was killed by the Taliban. As already noted, the Tribunal gives the applicant the benefit of the doubt and accepts that this event did occur; however, for the above reasons the Tribunal agrees with the delegate’s findings that the applicant was not seriously harmed by the Taliban in the past.
Well-founded fear of persecution
Notwithstanding the above findings the question which the Tribunal must answer is whether the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future.
In relation to credibility, the Tribunal refers to the decision of the Court of Appeal of England and Wales of GM (Eritrea) v SSHD [2008] EWCA Civ 833 (per Buxton LJ at [31]):
… a person who has not given a credible account of his own history cannot easily show that he would be at risk .. is … a robust assessment of practical likelihood, but it is … any sort of rule of law or even rule of thumb. In every case it is still necessary to consider, despite the failure of the applicant to help himself by giving a true or any account of his own experiences, whether there is a reasonable likelihood of persecution on return.
Similarly, the Canadian Federal Court of Appeal observed in Attakora v Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (F.C.A.) that ‘whether or not the applicant was a credible witness … that does not prevent him from being a refugee if his political opinion and activities are likely to lead to his arrest and punishment’.
Actual and Imputed anti-Taliban political opinion
The applicant has claimed that on his return from Australia to Afghanistan he would be imputed with an anti-Taliban political opinion.
At the hearing the Tribunal asked the applicant why he feared returning to Afghanistan. The applicant said that the threat to his life was still there. Also, he has now been away for more than 3 years and he will be accused of becoming westernised, turning away from Islam and possibly even of being a spy. They would not accept that he is a failed asylum seeker. They will say that he has returned from the west as a spy.
The Tribunal noted that according to the country information millions of people have returned from outside of Afghanistan since the fall of the Taliban. He said that the Taliban were now even more powerful now than in the past. As he had already said, the Taliban recently mounted an armed assault on the Parliament in Kabul in a ‘hit and run’ attack. He told the Tribunal that he personally knew two people who had been killed recently. One was 18 years old and the Taliban put a bomb in front of his shop. The other one was working for the government. When asked about the death of the 18 year old, the applicant said that they wanted to create fear and they did not care if they killed innocent people. They had no mercy and they did not care who their victims were.
The Tribunal notes the country information about returnees from outside of Afghanistan:[7]
Since 2002 an estimated 5.8 million Afghan refugees—25 per cent of Afghanistan’s population—have returned to Afghanistan, predominantly from Pakistan and Iran; 4.7 million of those with the assistance of the UNHCR. The rate of returns slowed in 2013 compared to previous years. The UNHCR estimates 40 per cent of these returnees have been unable to reintegrate in their home communities due to a lack of internal security and problems with access to land, shelter, services and livelihoods. Approximately a third of returnees have chosen to settle in new locations, mostly in urban areas.
… Returnees who have obtained foreign language and computer skills (often as a result of their time in another country) may be best placed to find well-paid employment, including in major urban areas. Those who have not obtained useful skills whilst seeking protection outside Afghanistan often seek to depart Afghanistan again.
At present, all involuntary and most voluntary returnees from Western countries are to Kabul. A high proportion of returnees choose to remain in Kabul rather than return to other places of origin. DFAT assesses that because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against or targeted on the basis of ethnicity or religion.
[7] Department of Foreign Affairs and Trade, DFAT Country Report Afghanistan, 26 March 2014.
This is a finely balanced case and it is clear that millions of refugees have returned to Afghanistan and have not been harmed subsequently. The Tribunal may well have affirmed the decision of the delegate had it come before it in 2013 or early 2014.
The Tribunal acknowledges that the period 2012 to mid-2014 saw a decrease in the level of violence in Kandahar Province from previously very high levels.[8] At the time of the delegate’s decision, the situation in the Province was relatively stable, if far from peaceful.
[8] Sief, K 2014, ‘In Taliban heartland where U.S. once fought, Afghan forces triumph — for now’, The Washington Post, 14 July <CX1B9ECAB8711>.
However, since July 2014, the situation has once again deteriorated sharply. The Department of Immigration’s most recent Road Security Guide, reports the following:[9]
In late July 2014, the Taliban launched an offensive in Kandahar province which according to Afghan officials ‘led to some of the heaviest protracted fighting there in years’. The offensive was described by media as a ‘multifront offensive involving hundreds of Taliban fighters’ that was timed to take advantage of Eid al-Fitr, which ends the holy month of Ramadan. As part of the offensive, up to 100 Taliban, Pakistani and other foreign fighters attacked the district centre of Registan, which led to the death of the district police chief, and attacked security outposts in the Chahar Shakh, Pashamol and Siachawai areas of Zheray District to the west of Kandahar city.[10] According to Kandahar's Chief of Security, Rahmatullah Atrafi, ANSF also engaged Taliban fighters in Kandahar's Maruf, Nesh, Ghorak, Shah Walikot and Mywand districts.[11] In Kandahar city, the Taliban launched a coordinated suicide assault in July that targeted the governor's compound and police headquarters. Three suicide bombers detonated their explosives while 19 fighters engaged in a firefight with Afghan forces. According to Afghan officials, 22 Taliban fighters, four policemen, and five civilians were killed during the fighting. Kandahar's chief of police maintained that Pakistanis may have been fighting with the Taliban.[12] Nightwatch argues that the attacks in July across Kandahar province are similar to earlier attacks in Helmand and Ghor provinces, in which forces of hundreds of Taliban overwhelmed the district centre. Although the government was able to recapture district centres, after it assembled reinforcements, the absence of air support ensured that the recapture campaign took at least a week in each province. According to Nightwatch, the Taliban attacks in July sent a message to villagers that ‘the Taliban are back and the government cannot stop them’.[13]
[9] ‘Afghanistan: Road Security Guide’, DIBP, Issue date April 2013, updated December 2014, at p. 84.
[10] Gall, C & Shah, T 2014, ‘After Losing Province in 2010, Afghan Taliban Strike Back’, The New York Times, 27 July < <CX1B9ECAB8422>; ‘Officials claim killing dozens of Taleban in Afghan east, south’ 2014, Afghan Islamic Press, 26 July <CX1B9ECAB6553>.
[11] ‘Pakistani insurgents attack Afghanistan's southern districts – paper’ 2014, Gardab, 19 July <CX1B9ECAB7801>.
[12] Roggio, B 2014, ‘Taliban seize district in central Afghanistan, launch suicide assault in Kandahar, The Long Wall Journal, 9 July < <CX1B9ECAB8318>.
[13] Kforce Government Solutions 2014, NightWatch for 29 July 2014, 28 July <CIS2F827D91691>
According to reports, 2014 saw the largest number of killed and injured civilians in Afghanistan since the UN started keeping records. More than 10,000 Afghans were killed or injured in 2014 and in 2015 this grim number will likely be exceeded.[14] Country information from mid-2015 indicates a further worsening of the security situation following the withdrawal of most of the International Security Assistance Forces (ISAF).
[14] ‘More than 10,000 Afghan civilians died or were injured in 2014, U.N. says’ The Washington Post, 18 February 2015, accessed at on 6 July 2015.
According to a June 2015 report by the UNHCR entitled ‘The Situation in Afghanistan and its implications for international peace and security’[15] in the week after the 22 April announcement by the Taliban of the start of the spring offensive there was a 45 per cent increase in recorded armed clashes, compared with 2014.
[15] “The Situation in Afghanistan and its implications for international peace and security”, UNHCR, 10 June 2015, <CISEC96CF12665>.
In May 2015 Agence France Press reported that a number of civilians were killed in a district in Kandahar Province[16] and that [t]he Afghan Taliban launched their annual spring-summer offensive -- titled 'Azm' (Determination) -- in late April, vowing nationwide attacks in what is expected to be the bloodiest summer in a decade.’
[16] "Taliban truck bomber wounds over 70 in south Afghanistan ", Agence France Presse (AFP), 26 May 2015, >
The Tribunal also notes that a nuanced reading of the country information from early 2014 (when the delegate made her decision) reveals that the relative improvement around that time in Kandahar Province was from a very low base. The delegate, quite reasonably, relied in part on a Standard Q&A Report prepared by the Department of Immigration in February 2014 according to which the Taliban in Kandahar province were struggling to regain influence due to improvements in Afghan security forces capabilities and presence in the area. This conclusion was based on a US Department of Defense (DoD) report to Congress from July 2013.[17] Further, the Q&A Report asserts there were significant improvements in, for example, Panjwa’i District of Kandahar Province.[18]
[17] The DIBP Q&A citation refers to US Department of Defence 2013, Report on Progress towards Security and Stability in Afghanistan, November, at p.16 < Accessed 26 February 2014
[18] US Department of Defence 2013, Report on Progress towards Security and Stability in Afghanistan, November, at p.16 < Accessed 26 February 2014.
The Tribunal considers that while both of these claims may be factually correct, the improvements must be viewed in context. The Tribunal observes that the Taliban originate from Kandahar Province and surrounding areas along the border with Pakistan and that the central government’s hold on that Province has never been particularly firm. The same July 2013 DoD report referred to Zharay, Panjwa’i, and Maiwand Districts in Kandahar Province as ‘some of the most contested districts in the country, constituting a significant proportion of attacks nationwide’:
These three districts are home to less than one percent of the total Afghan population, but accounted for nearly eight percent of nationwide EIAs and more than seven percent of nationwide direct fire (DF) events during the reporting period. Insurgents will likely continue efforts to gain access to Kandahar City and its surrounding districts over the fighting season. Improvements in ANSF capabilities and increased ALP presence have forced Kandahar-based insurgents to struggle to regain influence in the province.
The November 2013 DoD report found that two out of the ten most dangerous districts in Afghanistan are located in Kandahar Province.[19]
[19] US Department of Defence 2013, Report on Progress towards Security and Stability in Afghanistan, November, at p.18 < Accessed 26 February 2014.
An International Crisis Group report from May 2014 argues that while in 2013 security improved in some parts of Kandahar Province and in particular Kandahar city, in some respects it was at the expense of rural areas:[20]
The escalating war in Kandahar shows the conflict’s disproportionate effect on rural areas as compared with the better-protected major cities. The rapid increase in the number of ANSF has saturated Kandahar city, the provincial capital, reducing attacks in the city centre for the first time in a decade. Yet, the increasing presence of Afghan forces and their brutal tactics are breeding resentment in the countryside, leading to growing violence in the villages. While the ANSF lack neither firepower nor motivation to fight, the abusive nature of some of their operations may lead to backlash and risks undermining international support.
[20] ICG, Afghanistan’s Insurgency after the Transition, Crisis Group Asia Report No 256, 12 May 2014, at p 33.
The Tribunal does not accept that any Afghan national, who has spent time in a western country such as Australia, has a well-founded fear of persecution, regardless of their individual circumstances.
The task of the Tribunal is to assess carefully the circumstances of each applicant and in the present case, with some considerable hesitation, the Tribunal finds that the applicant does have a well-founded fear of persecution.
At the hearing the applicant spoke passionately, if not particularly eloquently, about his disdain for the Taliban. The applicant is a humble and pious man, who is terrified of the savage and backward attitude of the Taliban and other Sunni extremists towards everyone in Afghanistan who disagrees with them. He told the Tribunal that he did not consider them to be real Muslims, that they were prepared to slaughter or bomb anyone in order to terrorise the population. As already noted, he talked about people whom he knew personally and who had become the innocent victims of the Taliban’s relentless campaign of terror which, while waxing and waning in intensity, has been ongoing for some 20 years.

It is all too easy to dismiss an uneducated person’s evidence that he possesses strong political views, because he is unable to express himself as eloquently as, for example, a university educated political activist might. There is, however, no reason why an illiterate and pious Sunni Muslim cannot be passionately opposed to the Taliban and their ideas. It is, in the Tribunal’s view, impermissible to apply to the applicant the logic that because he is not well-spoken, therefore he can easily pretend on return to Afghanistan that he holds no political opinion in opposition to the Taliban and their ideology. If the Tribunal were to do that, it would fall in the erroneous line of reasoning rejected by the High Court in the case of Appellant S395 v MIMA (2003) 216 CLR 473. As their Honours Gummow and Hayne JJ said (at p.500):
If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning.
The Tribunal has already found that the applicant has not suffered serious harm in the past. It does not follow that he does not hate the Taliban who killed his father and caused him and his entire family to leave their home country and to live on the fringes of society in Pakistan. The Tribunal has considered the reasons why the applicant moved to Pakistan and – since it accepts the applicant’s evidence that his mother and [brother] reside in Pakistan illegally and do not have work there – it finds that they did not move for economic reasons. While the Tribunal does not accept the applicant’s claims about being seriously harmed, the Tribunal accepts he was both known to the Taliban and harassed.
The applicant explained in simple terms why he left Afghanistan:
…[N]ow there [is] no security and the Taliban is always taking people and cutting their head[s]. We can’t come out from our home and go for our work because on the way they always plant mines for us… I was born in that country … [but] I haven’t had a free life [so] how can I stay in that country?
If the applicant’s home area were not in the restive Kandahar Province and the applicant’s father had not been murdered by extremists, the Tribunal would likely have found that the applicant’s fear of returning to Afghanistan is not well-founded.
The Tribunal accepts the claim that as the applicant sold the family home and fled Afghanistan in early 2012, on his return to his home village questions will be asked about the applicant’s whereabouts after he left Afghanistan. The likelihood that local Taliban or other anti-government elements would realise that he has been to a Western country is not remote, particularly if he returns to his home area without the rest of the family, who remain in Quetta.
In addition, the applicant, if he is returned from Australia to Afghanistan, would be taken to Kabul. He will then be forced to travel to Kandahar. In assessing the totality of the applicant’s circumstances, the Tribunal has considered the issue of the applicant’s ability to return to his home area, even though the issue was not raised by the applicant or his representative. It has been widely reported that ‘Sunni extremists are operating along the Kabul-Kandahar Highway heading south from Kabul rendering the road extremely dangerous’.[21] A 2012 report for the Telegraph Group in the UK described in detail the experience of the journalist and his photographer travelling the Kabul to Kandahar highway. The author called it the ‘highway of death’ or ‘a bomb-cratered, 300-mile long shooting gallery littered with the wrecks of vehicles attacked by Taliban insurgents’:
[t]he road's importance has not been lost on the Taliban, and it has been under relentless attack for at least five years. Statistics for violence on the road are sobering. By the middle of August, there had been 190 bomb attacks along the road in 2012 alone. On top of that, there had been another 284 shooting attacks, or nearly one for every mile of road.
No proper figures for casualties are available, but the best estimate from police officials is that several dozen people have been killed or wounded travelling the highway this year, and hundreds over the past few years.[22]
[21] International Crisis Group, 2011, The Insurgency in Afghanistan’s Heartland, Asia Report No 207, June
[22] AFGHANISTAN: “Kabul-Kandahar highway is a symbol of what's gone wrong in Afghanistan”, Telegraph Group, 9 September 2012, < afghanistan/9530320/Kabul-Kandahar-highway-is-a-symbol-of-whats-gone-wrong-in-Afghanistan.html><CX296017>.
The most recent 2013 UNHCR assessment notes that anti-government elements reportedly kill civilians perceived to support the government or the international community in order to punish them and to warn others. They identify men and boys of fighting age – such as the applicant who is in his 20s – as having a potential risk profile in areas under the control of anti-government elements:
In a traditional form of war mobilization known as lashkar, every household is expected to contribute a man of fighting age. In areas where [anti-government elements] 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. ...[23]
[23] UNHCR, 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 6 August
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 central government’s control is weaker ‘particularly in the south and east of Afghanistan’, including Kandahar, leading to human rights abuses. Anti-government elements furthermore ‘seek to propagate fear and uncertainty among the civilian population to discourage them from cooperating with the Government and international forces’.[24]
[24] Department of Foreign Affairs and Trade, 2014, DFAT Country Information Report Afghanistan, 26 March
Having regard to the evidence set out above the Tribunal accepts that the applicant may be targeted by Taliban or other anti-government elements on return to Kandahar or on the roads en route to Kandahar. As set out above, the Taliban have a significant presence and influence in much of Kandahar Province and control key roads on which the applicant would need to travel to return to his home area from Kabul. The applicant will be returning after a relatively long absence and would be without family or other support, nor would he have a property to which to return.
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 Kandahar Province because of his actual or imputed political opinion 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 extremists in his home area, because of his actual or imputed political opinion.
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.
State protection
It is clear from the country information set out above and from the DFAT assessment in particular, that the government is unable to exercise effective control over parts of the country and it lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators.
The available information also indicates that there is an absence of effective state protection outside major urban areas. Given this information, the tribunal finds that the applicant would not be able to access state protection in accordance with the principles in MIMA v Respondents S152/2003.
Relocation
Having found that the applicant faces a real chance of serious harm for reasons of his imputed political opinion if he returns to his home area, the Tribunal then considered relocation to another part of Afghanistan. The ‘internal relocation principle’[25] was accepted by the Full Federal Court in 1994 in Randhawa v MILGEA on the basis that ‘[t]he focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country’.[26] The Chief Justice reasoned that:
If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.[27]
[25] Also known as the ‘internal flight alternative’ and ‘internal protection alternative’.
[26] Randhawa v MILGEA (1994) 52 FCR 437 at 440-1.
[27] (1994) 52 FCR 437 at 441.
The High Court has confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[28] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[29] Therefore, in determining whether an applicant is a person in respect of whom Australia has protection obligations, it may be necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country, free of the risk of persecution.
[28] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.
[29] MIBP v SZSCA (2014) 314 ALR 514.
The Tribunal has considered whether it is reasonable in the applicant’s individual circumstances for him to relocate to Kabul to avoid the real chance of persecution in Kandahar Province. Given his background, as well as the need for employment, and the fact that the vast majority of returnees – who do not go to their home areas – remain in the capital, at the hearing the Tribunal identified Kabul as a location in Afghanistan where the applicant could relocate.
The Tribunal asked the applicant whether he could relocate there. He said he could not: he has never been there, did not know anyone in Kabul, either friends or relatives.
The Tribunal accepts the applicant is married and that in addition he is responsible for the well-being of his mother and [brother]. It further accepts that he has only the most basic education, having completed [number] year of ‘home schooling’ around [time period]. He has some skills as a[occupation], but he does not otherwise have significant qualifications or skills. The Tribunal finds that he will be under significant pressure to provide for his wife, mother and [brother] who would be expected to join him in Kabul. He has also been living outside of Afghanistan for a considerable period of time.
The Tribunal accepts that the applicant lacks any connection to the city. Having regard to his circumstances, the Tribunal considers there is a very good chance that he and his family would end up in an IDP camp in Kabul. The Tribunal observes that if Kabul were a reasonable option, the applicant (and his relative) would not have relocated as illegal and thus unemployed migrants to Quetta in Pakistan after the applicant’s father’s death.
The Tribunal notes that the UNHCR Guidelines[30] and the 3 October 2014 DFAT thematic report Conditions in Kabul advise that traditional extended family and tribal community structures are needed for relocation. They stress that internally displaced Afghans rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence. DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation. They assess that this is exacerbated by Kabul’s relatively high cost of living, particularly the cost of housing. They note that relocation is generally more successful for single men of working age. However the applicant is married and has a family to support. Returnees generally have lower household incomes and higher rates of unemployment than established community members.
[30] UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan , 6 August 2013.
The DFAT Thematic Report – Conditions in Kabul – 3 October 2014 states, amongst other things:
2.12 Because of the city’s size and growth, Kabul offers a greater range of employment opportunities than many other areas of Afghanistan. Employment growth has been strongest in Kabul’s service sector, particularly in the construction industry and in small businesses such as family-owned markets. Due to the significant military and government presence in Kabul, there are also some employment opportunities in the armed forces or civil service.
2.13 Although there are no reliable statistics, unemployment is widespread in Kabul and underemployment is also common. The influx of IDPs and returnees in the city has put pressure on the local labour market. Those who have foreign language and computer skills tend to be best placed to find well-paid employment in Kabul. New arrivals to Kabul from rural areas tend to be at a disadvantage due to their lack of skills in demand. Many of these new arrivals also lack a network of family contacts needed to find employment. In this situation, employment may be irregular and often insecure–many work as relatively poorly paid day labourers who seek occasional work as it becomes available. Others are required to beg or work as street-sellers.
……
3.13 In practice, DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation. This is compounded by Kabul’s relatively high cost of living, particularly the cost of housing.
The Tribunal is grateful for the applicant’s representative’s submissions in relation to Kabul and has taken the liberty to reproduce country information, in the two paragraphs immediately below, from the Norwegian Refugee Council and the Oxford Refugee Studies Centre as set out in the submissions.
The Norwegian Refugee Council Report: Still at Risk: Security of tenure and the forced eviction of IDPs and refugee returnees in urban Afghanistan, February 2014, found the following:[31]
The arrival of large numbers of IDPs and refugee returnees in Afghanistan’s cities presents the government and the international community with both a protection and an urban development challenge. Informal settlements in Afghanistan can make up entire neighbourhoods. Some are now several decades old. Informal settlements are frequently characterised by insecure tenure, poor sanitation, lack of safe drinking water, high vulnerability to disasters and lack of investment in services and infrastructure.
Indeed, three quarters of Afghans affected by conflict have faced some form of displacement and in cities such as Kabul most of the urban poor have been IDP s or refugees at some point in their lives. Poverty, informality and marginalisation are a reality for the majority of urban dwellers in Afghanistan and much of the wider urban poor lack access to adequate housing and secure tenure.
[31] ‘Still at Risk: Security of tenure and the forced eviction of IDPs and refugee returnees in urban Afghanistan’, Norwegian Refugee Council, February 2014, accessed 8 July 2015 at
The Oxford Refugee Studies Centre report entitled Afghanistan Afghanistan’s Displaced People: 2014 and Beyond, found the following:[32]
Return not as successful and sustainable as hoped: Though it is unclear exactly how many Afghans have returned home (some more than once) since 2001, 5.7 million is a recent estimate.1 Added to this are the 2.7 million who are still in Pakistan and Iran, and who are unlikely to return home unless there is a strong forced incentive from the host countries, namely deportation. But return has been unsustainable for many, if not a majority, due to the struggle to obtain a place to live and make a living, let alone access basic services and enjoy security and protection. Many returnees already live in secondary displacement.
Added demographic stress: With its exceptionally high birthrate (2.4%), fghanistan’s population is predicted to exceed 40 million by 2030, with ever greater competition for resources such as land, services and employment in a country that already struggles to provide for the current population of around 28 million. More stresses and vulnerabilities are likely to produce displacement and, with a larger population, any future displacement will mean larger numbers of refugees and IDPs.
Insecurity as a key driver of displacement: The recent sharp increase in violence in Afghanistan does not inspire much confidence that the push factors will be resolved any time soon. Security incidents and the killing of civilians have been steadily on the rise over the last few years, and the trend is already continuing into 2014. Civilian casualties, however, only tell us part of the story, and should be considered along with the increase in threats, intimidation and human rights violations, the rise in instances of impunity, and the lack of protection provided by the Afghan government and its security forces.
[32] The Oxford Refugee Studies Centre, Forced Migration Review, Issue 46, May 2014, accessed 29 May 2015 at:
>
In his individual circumstances, particularly his lack of family and social links and the absence of any formal education, as well as the need to relocate and support his family, the Tribunal does not consider it reasonable for the applicant to relocate to Kabul. These circumstances would also be applicable to the reasonableness of him relocating elsewhere in Afghanistan.
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).
As the Tribunal has found the applicant faces a well-founded fear of persecution by the Taliban now or in the reasonably foreseeable future in Afghanistan for reasons of his actual or imputed political opinion, it is not necessary for it to consider the other grounds he has submitted in his protection claims. Further, it is not necessary for the Tribunal to consider whether the applicant meets the criteria for complementary protection.

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

[2015] AATA 3155

10 July 2015

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