1407642 (Refugee)

[2016] AATA 3302

1407642 (Refugee) [2016] AATA 3302 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1407642

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:9 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 09 February 2016 at 12:51pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Afghanistan, applied for the visa [in] June 2013 and the delegate refused to grant the visa [in] April 2014.

3. The applicant appeared before the Tribunal on 4 September 2015 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

   RELEVANT LAW

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

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    State protection

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

    Relocation

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

    Particular social group

18. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

19. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

    Complementary protection criterion

20. 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’).

21. ‘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.

22. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. I have before me material including:

    ·Refugee Status Assessment (RSA) application with accompanying statutory declaration dated [in] October 2010;

    ·Agent’s submissions dated 23 March 2011;

    ·Application for protection visa dated [in] June 2013 with accompanying statutory declaration dated [in] October 2010;

    ·Agent’s submissions dated 26 February 2014;

    ·Agent’s submissions dated 14 August 2014;

    ·Psychologist report dated [in] November 2010 stating that the applicant fits the criteria for PTSD and has severe symptoms;

    ·Case note by Departmental officer dated [in] May 2010 referring to applicant’s disclosure of past harm;

    ·[Welfare agency] report, dated [in] June 2015 referring, inter alia, to his self-harm and suicide attempts;

    ·Notes from [a] Hospital, dated [in] April 2011, referring to six episodes of [condition];

    ·Various Community Progress Notes from [a health service], inter alia, referring to his [physical ailment], homelessness, loss of family as a child, drug use and [injury];

    ·Letters from doctor, dated [in] April 2014 and [in] August 2015 referring to [mental and physical ailments] and emergency room admissions;

    ·Agent’s written submissions dated 17 September 2015;

    ·Letter from [a second welfare agency], dated [in] September 2005 stating that they had they had undertaken a tracing exercise to locate the applicant’s family members in Kabul but they had exhausted all search avenues and could not locate them.

25. The applicant’s claims can be summarised as follows.  He is a Hazara Shia who has lived in both [District 1] and Kabul.  When stopped on the road he was robbed and threatened by Pashtuns. The applicant’s father was harassed by local Sunni extremists/Taliban pressuring him to change his religion and support them.  Though his father refused, the local Hazara community shunned his father due to his perceived links with the Taliban.  In Kabul, the applicant was the subject of an attack by Pashtun people in a mosque.  In 2007, the applicant’s father disappeared.  In the spring of 2009 the fighting in [District 1] escalated and the applicant moved to [Kabul]. 

26. In autumn 2009 the applicant was walking to his home in Kabul when he was grabbed by a group of three armed Pashtun Taliban. He was tied up in a bag, thrown into a minivan and taken to a place where he was held for one month.  Then he was taken to another place and held for two months.  He was raped on a daily basis by three men and beaten on a daily basis.  He was repeatedly insulted about his religion.  He was kept in a locked darkened room and his hands handcuffed behind his back.  He was fed once a day. 

27. The Taliban had previously met with his father and wanted his father to convert to Sunni Islam and join their Pashtun community and help the Taliban.  After three months of captivity he was returned to where he was grabbed in a street near his home.  When he went inside his home no one was there and all the belongings had gone.  His neighbours did not know what had happened.

28. The applicant was terrified the Taliban would return so he found an old destroyed building in Kabul where he lived for a week or two until he fixed his arrangements through a smuggler to leave Afghanistan.  He came to Australia on a boat in April 2010.

29. The applicant does not know the whereabouts of his family.  The applicant has an [addiction] and has been homeless in.  It is submitted that the applicant is at risk of harm from Sunni extremist groups including the Taliban, Kuchis, criminal and other private individuals for reasons of his:;

    ·Shia religion;

    ·Hazara race;

    ·Imputed (Western) nationality (arising from the fact that arrived in Australia as a child, has been in Australia for five years and has adopted Australian values and lifestyle);

    ·Imputed political opinion (in support of the West and in opposition to the Taliban, Al Qaeda and other Sunni extremist groups);

    ·Actual and imputed membership of particular social groups of “returnees”, “returnees from the West”, and “wealthy persons”;

    ·Membership of a particular social group consisting of his family;

    ·Membership of a particular social group of persons in Afghanistan lacking tribal and family support networks;

    ·Membership of a particular social group being persons in Afghanistan suffering mental illness;

    ·Membership of a particular social group being persons in Afghanistan with a drug dependency;

    ·Membership of a particular social group being homeless persons in Afghanistan.

    Country of reference

30. The applicant has claimed to be a citizen of Afghanistan.  He speaks Hazaragi and has submitted a copy of a taskera that says he was born in Afghanistan.  Accordingly, I find that he is a national of Afghanistan for the purposes of the Convention.

    Assessment of claims         

    Home areas

31. At the hearing, the applicant said his parents told him that he had been born in [District 1] and he moved to Kabul when he was young.  He said he then lived in both Kabul and [District 1] but could not remember the percentages but it was maybe 50/50 between them.  In the applicant’s entry interview it was stated that the applicant was born in Kabul and that he lived there from the date of his birth.  In agent’s submissions to the Department, dated 23 March 2011, it is stated that the applicant was born in [District 1] in [year] and moved to Kabul as a young boy. It is also stated that during the period 1995 to 2007 he lived with his family in Kabul and when he returned from [another country] in 2008 he lived alone separately from his family.  When this was information was put to him under s.424AA of the Act, he commented that he could not remember and had to say something and that he was under pressure at the time and that he did not know what he was saying.

32. I have considered his response however the applicant’s evidence considered overall indicates that he was born in [District 1] in [year] and moved to Kabul in 1995.  Based on his answers, I find that he lived with his family in Kabul until 2007 and that his family still had a house in [District 1] and they would also live there.  I accept that the applicant was born in [District 1] and that his family owned land there and he would travel with his family there on a regular basis and I consider this to be a home area of his in Afghanistan.  However, the applicant has also provided considerable evidence of his time and connection to Kabul.  He lived there from the age of [age] for many years and in 2008 when he returned to Afghanistan it was to Kabul to live and work.  Given his high level of connection to Kabul as a resident over a long period of time, I consider this area also constitutes a home area for him and accordingly I have assessed his claims against this home area.

    Credibility

1. I have considered carefully the applicant’s claims but I do not consider him to be a credible witness.  I do so for the following reasons:

   ·The applicant gave significantly and fundamentally inconsistent and vague evidence on a number of important matters.  For example, in his statutory declaration of October 2010 (which was submitted with his protection visa application) it is stated that the applicant’s father disappeared in 2007 and that the Taliban who later captured the applicant had previously met with his father and wanted his father to convert to their Sunni religion and join them and the Pashtun community.  However, he told the Tribunal that he did not know if his father had any problems with the Taliban and could not remember if he was enemies with anyone or disappeared.  He did not respond when this inconsistency was put to him.  The applicant also told the Tribunal that he escaped from the Taliban by going through a little hole.  However, in his statutory declaration, he stated that he was returned to where he was grabbed and the Taliban dumped him in a street near his home.  He did not respond when this inconsistency was put to him.  In his agent’s submissions it was stated that the applicant was the subject of an attack by Pashtun people in a mosque in Kabul but he told the Tribunal that he could not remember about this.  When this claim in the submission was put to him, he said he could not remember.  It was also claimed in his statutory declaration that when he had travelled between [District 1] and Kabul, he was stopped, robbed and threatened by Pashtuns, however he told the Tribunal that he had no problems travelling between these two areas.  When this was put to him, he said he could not remember as he had been a little kid.  I have considered his responses but I find them totally unsatisfactory and I find the inconsistencies and level of vagueness to be highly substantial and to detract significantly from his overall credibility.

   ·A record of interview in [Country 1], dated [in] September 2008, conducted by an officer of the Australian Federal Police and an officer of the Department with a person with the same name as the applicant and with a photo of a person who resembles the applicant, demonstrates that the applicant was in [Country 1] in September 2008 and that his claim to have been kidnapped by the Taliban in Kabul in Autumn 2009 is not true.  When this was put to the applicant for comment under s.424AA of the Act, he said that photo was not of him.  In the written submission dated 26 February 2014, it is stated that the applicant speculates that the person may have been his brother but he could not be sure given he lost contact with him and that this was a plausible  explanation why this man shared many of the applicant’s personal circumstances. It is also stated why the man interviewed in [Country 1] claimed to be older than the man interviewed in [Country 1].  I have taken into account that there is no fingerprint evidence and I have considered these explanations, however I consider the explanations to be highly speculative and that there is no plausible reason why his brother would adopt the applicant’s name and I find that the interview demonstrates that he was not in Afghanistan in 2009.  I have taken into account the submissions that if even I find that the applicant was present in [Country 1] in September 2008, that his failure to provide exact dates should not detract from his credibility.  However, I note that the applicant was legally represented when the statutory declaration was made and the events being claimed were not that distant in time from the date of the statutory declaration (October 2010).  I find that this matter detracts from his overall credibility.

2. Given these highly significant concerns about his credibility, I do not accept that the applicant was ever in Afghanistan stopped on the roads, robbed and threatened by Pashtuns.  I do not accept that the applicant’s father was harassed by local Sunni extremists/Taliban pressuring him to change his religion and support them.  I do not accept that though he refused, the local Hazara community shunned him due to his perceived links with the Taliban.  I do not accept that in Kabul, the applicant was the subject of an attack by Pashtun people in a mosque.

3. I do not accept that in autumn 2009 the applicant was walking to his home in Kabul when he was grabbed by a group of three armed Pashtun Taliban. I do not accept that he was tied up in a bag, thrown into a minivan and taken to a place where he was held for one month.  I do not accept that then he was taken to another place and held for two months.  I do not accept that he was raped on a daily basis by three men and beaten on a daily basis.  I do not accept that he was repeatedly insulted about his religion.  I do not accept that he was kept in a locked darkened room and his hands handcuffed behind his back and fed once a day. 

4. I do not accept that the Taliban had previously met with his father and wanted his father to convert to Sunni Islam and join their Pashtun community and help the Taliban.  I do not accept that after three months of captivity he was returned to where he was grabbed in a street near his home or that he escaped from them.  I do not accept when he went inside his home no one was there and all the belongings had gone.  I do not accept that the applicant was terrified the Taliban would return so he found an old destroyed building in Kabul where he lived for a week or two until he fixed his arrangements through a smuggler to leave Afghanistan.  I do not accept that his father went missing in 2007 and I do not accept that he or his family were ever of adverse interest to the Taliban or Pashtuns or anyone else.

5. In making my findings, I have taken into account the Tribunal’s Guidelines on the Assessment of Credibility (including the effects of anxiety and trauma on applicants and the passage of time).  I have also taken into account the various medical reports referred to above that indicate that the applicant has various mental and physical [ailments] and has suffered homelessness and drug use.  I have also taken into account his age, lack of education and inexperience with interviews.  However, these matters do not overcome the highly significant concerns I have about the applicant’s credibility set out above.  I have also taken into account the letter from the [second welfare agency] stating that they had they had undertaken a tracing exercise to locate the applicant’s family members in Kabul but they had exhausted all search avenues and could not locate them.  Whilst I accept that they have not been able to locate his family, I do not accept that they have disappeared in the circumstances claimed by the applicant.

   Hazara Shia claims

6. I have considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and Kabul and the overall current security situation in Afghanistan and Kabul.  In making my findings, I have given considerable weight to reports by the Australian Department of Foreign Affairs and Trade (DFAT) as these are authoritative, recent and the Department has been specifically charged with the provision of this advice to the Australian government.  DFAT have stated that they are not aware of any credible evidence that everyday Shia Muslims are systematically targeted on the basis of their religious affiliation and that they assessed that Sunni-Shia sectarian violence is infrequent, although occasional violence does occur.  They also stated that Hazaras had made significant social and economic gains (albeit from a small base) since the Taliban were removed from power in 2001.  They stated that Hazaras are not systematically targeted solely on the basis of their ethnicity alone and that with the exception of kidnappings on the roads between Kabul and the Hazarajat, Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan.  They assess that Hazaras travelling by road between Kabul and the Hazarajat face a risk that is greater than other ethnic groups though it unclear whether this is due to ethnic targeting or is a result of the high numbers of Hazaras travelling on this route.  They assess that ethnicity and religion can be a contributing factor in these incidents.[1]   This overall view of the level of general threat posed to the Hazara community is supported by Professor Amin Saikal of ANU. ^[2] 

   [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015; Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016.

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

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

   Hazaras in Kabul have not been systematically targeted by insurgent attacks or other ethnic groups since 2001 because of their ethnicity or religion, apart from one deadly attack aimed on a Shia mosque in 2011 where many of the victims were Hazaras.[3]

   …

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

   In 2014, analysis of attacks in Kabul by insurgents[4] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.[5]

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

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

8. DFAT have stated that the government maintains effective control over Kabul.[6]  DFAT also specifically reported in relation to Kabul in September 2015:

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

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

   2.31 The ANDSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANDSF are quick to respond to insurgent attacks when they occur. Nonetheless, violent attacks within the city are common.[7]

   [6] Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016; Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

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

9. I have taken into account the reports of regular insurgency attacks on Kabul taken place but these need to be seen in the context that Kabul has a population of over four million and that the government maintains effective control of Kabul and has a range of counter-measures in place to prevent and respond to insurgent attacks.[8]  I have taken into account that the primary targets for insurgent attacks are government institutions, political figures, military, other security services and international organisations and that such attacks often cause significant casualties amongst civilian bystanders.  I am of the view that the available country information considered as a whole indicates that the chance of the applicant being seriously harmed in such a circumstance would be best described as remote, and not a real chance. 

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

10. The independent country information indicates that there are no laws or Government policies that discriminate against Shias and that broadly speaking, there is little community prejudice (i.e. societal discrimination) that would limit opportunities for Shias in daily life on the basis of their Shia religion.  DFAT state that they are not aware of any official policy of discrimination pursued by the government on the basis of ethnicity.[9]  The country information further indicates that though there is some societal discrimination on the basis of ethnicity it is most commonly manifested in forms of nepotism within ethnic and religious communities rather than negative discrimination against a particular group.[10]  DFAT have also commented that ethnic violence in Kabul is rare and that generally sectarian violence in Afghanistan is rare.[11] 

    [9] Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016.

    [10] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015; Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016.

    [11] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015; Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016.

11. DFAT have commented that Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city and that returnees are unlikely to be discriminated against or subjected to violence on account of their ethnicity or religion.  They have commented that there are many Shia mosques in the city.[12]  This information suggests that there is a large Hazara Shia community which the applicant can reintegrate into.  Whilst I accept that there was fighting in [District 1] and the Kuchis in [District 1] would take food from his family and others and applicant was once hit by them as a child as he claimed at the hearing, this incident where he was hit was when he was a child and in [District 1] and I do not consider given the country information about Kabul, this indicates that he faces a real chance or real risk of serious harm or significant harm now or in the reasonably foreseeable future in Kabul.

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

12. Considering the country information as a whole, I do not accept that all Hazara Shias in Kabul face a real chance of persecution now or in the reasonably foreseeable future from the Taliban, Kuchis, other Sunni groups, criminals or anyone else.  I find that the chance or risk he will be seriously harmed in Kabul is remote on account of being a Hazara Shia and due to his membership of a particular social group consisting of his family.

    Various particular social groups

13. I have considered carefully and taken into account all the information contained in the agent’s submissions and in DFAT’s recent report on Conditions in Kabul[13] including the information that unemployment is widespread and underemployment is common in Kabul and that it has a relatively high cost of living particularly for housing and that it is one of the poorest cities in the world.  DFAT state that basic public health care is free though medicines are not which excludes the poor for treatment for common illnesses.  They also state that medical facilities in the public system whilst basic tend to be better in Kabul than in other areas of Afghanistan. I accept that the applicant will face difficulties obtaining work, medicines or more than basic health care and access to proper utilities such as electricity, water and sanitation.  I accept based on the medical evidence that the applicant suffers from mental illness and has a history of drug dependency.  I accept that he has lost contact with his family and that if he was to return to Kabul he would lack tribal and familial support networks.  I accept that he is or is likely to become a member of particular social groups consisting of “persons in Afghanistan lacking tribal or tribal and familial support networks”, “persons in Afghanistan suffering mental illness”, “persons in Afghanistan with drug dependency” and “homeless persons in Afghanistan”.  I do not accept that the applicant would be a member of an actual or imputed particular social group consisting of “wealthy persons” given he has also claimed that he faces homelessness and I do not accept that he faces a real chance or real risk of serious harm or significant harm on this basis. 

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

14. The country information concerning Afghanistan is that it is an extremely poor country with only basic though improved health services[14] and that large parts of Kabul are extremely poor with poor quality irregular housing.[15]  According to the UN Human Development Index, Afghanistan is the least developed country in Asia and ranked 169^th out of 187 countries.[16]  I have considered carefully the submitted reports concerning incidents of mistreatment of drug addicts by the police and medical staff, however these need to be seen in the context that Afghanistan has a very large drug problem with up to 2.4m adult drug users or 12.6% of the adult population which is more than double the global drug use rate of 5.2%. I have also had regard to the comments of Dr Wodak regarding the difficulty he had setting up methadone clinic in Kabul in 2011.  Whilst drug treatment services are inadequate there are 123 treatment centres in the country[17] and 70% of all visible drug users in Kabul have been treated at least once.[18] The Afghan government has also committed to increase the availability of drug treatment services.[19]  I have also considered the submitted reports concerning the lack of services available for mental health.  They indicate that mental health problems are widespread in Afghanistan; however the Afghan government has made tackling mental illness a priority and developed a mental health strategy and all provincial hospitals offer free counselling.[20]  I have taken into account the submitted report that a group of unknown gunmen opened fire in the Kabul Psychiatric hospital in July 2015; however no one was injured and I consider this to be one off event that does not indicate that persons in Afghanistan with a mental illness face a real chance or real risk of serious harm or significant harm.

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

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

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

    [17] United Nations Office on Drugs and Crime, Afghanistan Drug Report 2015: Press Release, 9 December 2015,

    [18] Afghanistan Analysts Network, Homeless and Unwanted: How Kabul’s drug users are driven from place to place, 29 October 2015,

    [19] Islamic Republic of Afghanistan Ministry of Counter Narcotics, Afghan National Drug Action Plan 2015-2019, 14 October 2015,

    [20] The Guardian, Afghanistan tackles hidden mental health epidemic, 2 September 2015,

1. I have also taken into account the submitted reports that bribery and corruption affect the provision of services, however, the country information, viewed as a whole, does not indicate that there is a real chance that any of the problems he faces will be due to any systematic and discriminatory conduct by any actor for a reason under the Convention as required by s.91R(1)(c) of the Act but will rather be due to his individual circumstances and the poor economic situation, government services and infrastructure that belie the city and the nation.  I do not accept that he faces a real chance of serious harm for reasons of his membership of particular social groups consisting of “persons in Afghanistan lacking tribal or tribal and familial support networks”, “persons in Afghanistan suffering mental illness”, persons in Afghanistan with drug dependency” and “homeless persons in Afghanistan” from the state or any other actor.  Furthermore, the country information viewed as a whole, indicates that he does not face a real risk of being arbitrarily deprived of his life, having the death penalty carried out on him or being subjected to torture.  It does not establish that there is a real risk that the problems he faces would be as a result of any intentional act or omission so as to constitute either cruel or inhuman treatment or punishment or degrading treatment or punishment.  I find that the risk of him being subject to significant harm on any of these bases is remote.

   Failed asylum seekers in Kabul

2. I do not accept that the applicant faces a real chance or real risk of serious harm or significant harm in Kabul on account of imputed Western nationality and his membership of particular social groups consisting of failed asylum seekers or failed Hazara Shia asylum seekers or of returnees or returnees from the West.  I have considered the reports submitted by the agents but there is no recent information before me that returnees or failed asylum seekers or those who have spent time outside Afghanistan or left the country illegally have been seriously or significantly harmed in Kabul.[21]  DFAT have stated that because of Kabul’s size and diversity returnees are unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion.[22]  Whilst DFAT say there are aware of occasional reports of returnees from western countries alleging that they have been kidnapped or otherwise targeted on the basis of having spent time in a western country they assess that in general returnees from western countries are not specifically targeted on the basis of their being failed asylum seekers.[23]  They have also said that with the exception of those travelling by road between Kabul and the Hazarajat, low-profile Hazaras who have spent time in western countries face a low risk of violence as a result of those international links.[24]  I have taken into account that the applicant has lived in Australia for several years and has adopted Australian values and lifestyle, however he did live in Afghanistan for many years and would have a substantial degree of familiarity with life there.  

   Road travel

   [21] For example, Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015, Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016 and United States Department of State, Country Reports on Human Rights Practices for 2014, Afghanistan do not refer to this happening in Kabul. 

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

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

   [24] Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016.

3. I have considered the guidance as provided by the High Court in the case of MIBP v SZSCA [2014] HCA 45. This case is relevant as it discusses the reasonableness of expecting the applicant to remain in Kabul, with the majority of the Court determining that the same considerations as are relevant to relocation apply when the Tribunal identifies an area where the applicant may be safe, so long as he or she remains there.

4. The applicant was born in [District 1] and his evidence indicates that whilst he and his family moved to Kabul when he was young they continued to have a home in [District 1] and the applicant would regularly go there with his family to live.  I accept that the applicant’s family is missing and it is not clear whether they are still alive or residing in Kabul or [District 1].  I have found that the applicant is at substantial risk of homelessness and unemployment in Kabul and of lacking family links there.  I consider it is likely that he would search for his family for support.  In these circumstances, I do not consider it reasonable that the applicant stay only in Kabul given his family may be located in [District 1] and his family have a residence there. 

5. DFAT have recently advised in relation to road travel in Afghanistan:

   2.26 Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly those roads that pass through areas contested by insurgents. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common. Official checkpoints—operated by Afghan National Army (ANA) or Afghan National Police (ANP) with the aim of improving the security on the roads—can be operated by poorly-trained, poorly-paid personnel, and corruption is common. There are reports that, in some cases, Hazara truck drivers are prevented from passing through these checkpoints; only Pashtun drivers are allowed to pass.

   2.27 Criminals and insurgents on roads tend to target people who appear wealthy or are associated with the government or the international community in attacks that can include kidnapping for ransom. People from all ethnic groups are vulnerable to these attacks. It can be difficult to ascertain the motivation for attacks, and to separate criminal attacks from insurgent activity.

   2.28 There have been a series of reported incidents of Hazaras being kidnapped since late 2014, including the February 2015 kidnapping of 31 people—almost all Hazaras—while travelling on two buses through Zabul province (see also the 18 September 2015 DFAT Afghanistan Country Information Report). According to the UNAMA 2015 mid-year report on the protection of civilians in Afghanistan, of the 196 conflict-related abduction incidents country-wide in the first six months of 2015, only ten incidents involved Hazaras. All but one of the kidnappings of Hazaras occurred in areas of mixed Hazara and non-Hazara communities. A total of 97 Hazaras were reported as being abducted, 67 of whom have been confirmed as being subsequently released. The motivations for the abductions reportedly included financial gain, intimidation and extracting concessions from other parties to the conflict such as a hostage exchange. For example, on 14 April 2015 anti-government elements abducted 14 Hazaras in Ghazni province, reportedly to exchange them for insurgents held by pro-government forces. Four of these abductees were reportedly killed when the insurgents’ demands were not met. The remaining ten hostages were later released. DFAT notes that the UNAMA reports only covers abduction incidents that are perpetrated by parties to the conflict, and excludes incidents perpetrated by criminals and tribal or other groups that do not have a connection with the conflict. Incidents of kidnap and ransom tend to be under-reported.

   2.29 There were several incidents of Hazaras being kidnapped in Ghazni Province in the second half of 2015, including a group of seven Hazaras (four men, two women and a nine-year-old girl) who were kidnapped in Ghazni Province in October and later murdered, their bodies being found in neighbouring Zabul Province in early November. The killings led to thousands of people—mostly Hazaras but also Pashtuns, Uzbeks and Tajiks—marching in the streets of Kabul to protest the killings and call for the perpetrators to be punished. There was speculation that the killings were carried out by Da’esh, and local Taliban leaders claimed to have tried and immediately hanged the perpetrators. However, authorities from the Afghan National Directorate of Security (NDS) were reported in the media as suggesting that the Taliban were responsible—it is unclear which faction may have been involved. DFAT notes that the Dadullah-aligned faction of the Taliban is based in Zabul province, but it was effectively destroyed in Taliban inter-factional fighting in November, during which Dadullah himself was killed.

   2.30 The killings of the seven Hazaras followed a number of other kidnappings involving Hazaras in recent months, coinciding with a further deterioration of the general security situation across Afghanistan in the second half of 2015. DFAT concurs with the assessment of other organisations—such as UNAMA in its mid-year report on the protection of civilians in conflict—that the primary motivations for these abductions can include holding hostages for ransom, prisoner exchanges, and a perception that the abductees have links with the government or the international community. For example, four people (three Hazaras and one Pashtun) were kidnapped in Ghazni Province in August 2015, and later killed after the perpetrators were unable to organise a prisoner swap. These four people were reportedly targeted because of their links to the officials claimed they were contractors working on a government-funded construction project— rather than ethnicity. In a separate incident, 12 Hazaras were kidnapped from Ghazni Province earlier in August 2015. Two of the victims escaped, while the remaining prisoners were reportedly released following negotiations led by local tribal elders.

   2.31 While ethnicity is rarely the primary motivating factor in these incidents, DFAT assesses that ethnicity can be a contributing factor, particularly in the choice of victim, in some circumstances. For example, in November 2015, militants stopped a number of buses travelling through Zabul Province on their way to Kandahar from Kabul. The gunmen reportedly asked passengers for identification documents, and only took away the Hazara passengers. Some of the passengers were later released, although around nine remain unaccounted for.

   2.32 Multiple credible sources informed DFAT that some bus companies are refusing to sell tickets to Hazaras because of the risk to their vehicles and drivers of being stopped by insurgents or criminals because of the possibility of Hazaras being on board. There are also credible anecdotal reports of ‘spotters’ being used at bus stations to call ahead and alert insurgents as to which buses are carrying Hazara people. It is unclear whether this targeting is being conducted because of the Hazaras’ ethnicity, because of a perceived association with the government or international community (see below), or because Hazaras can often appear wealthy, making them an attractive target for kidnap and ransom. Furthermore, Pashtun kidnappers may be less likely to kidnap other Pashtuns, partly due to the risk that this could create a cycle of inter-tribal violence and retribution; Hazaras may represent a lower risk target from the kidnappers’ perspective.

   2.33 While no ethnic group is immune from kidnappings, DFAT assesses that Hazaras travelling by road between Kabul and the Hazarajat face a greater risk than other ethnic groups. It is unclear whether this is due to ethnic targeting or is a result of the high numbers of Hazaras travelling on this route. On the basis of consultations in Kabul with government authorities, international agencies and civil society organisations, DFAT assesses that, if a bus with a mixture of ethnic groups on board is stopped in these areas, ethnic Hazaras (and other non-Pashtuns) are more likely to be selected for kidnapping or violence than are Pashtun passengers. While ethnicity may not be a primary motivation for an abduction incident, it may have an influence on the selection of victims.[25]

   [25] Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016.

6. DFAT have reported that returnees from Western countries are almost exclusively returned to Kabul and they have stated that Hazaras who are initially returned to Kabul who then seek to travel by road to the Hazarajat may face a heightened risk of violence or kidnapping along these roads.[26]  They have also said that with the exception of those travelling by road between Kabul and the Hazarajat, low-profile Hazaras who have spent time in western countries face a low risk of violence as a result of those international links.[27]  DFAT have noted that unemployment and underemployment are high across Afghanistan and that Hazaras from across Afghanistan regularly travel outside the Hazarajat for employment opportunities.[28]

   [26] Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016.

   [27] Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016.

   [28] Department of Foreign Affairs and Trade, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016.

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

   The Kabul-Behsud Highway which is used by Hazaras travelling between the Behsud districts and Kabul has been frequently targeted by insurgent groups. In July 2013, DFAT provide an update on the security situation for Hazaras in Afghanistan which noted an increasing number of abductions and killings on this route by Taliban and Haqqani groups. It suggests that some of these attacks may be attributed to criminal groups rather than insurgents. According to DFAT, travel on the section of the highway through the districts of Maidan Shahr, Jalrez and Behsood I and II is particularly dangerous for all civilians. Although the report cites sources that claim ‘dozens’ of Hazaras have been killed on roads between Kabul and the Hazarajat in 2013 – DFAT concludes that ‘it remains extremely difficult to state with any degree of certainty that the victims' ethnicity was the prime criteria for targeting’. A 2014 AP report states that the road has ‘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.’[29]

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

8. Given that there is a strong prospect that the applicant will need to travel to [District 1] and then outside it for employment opportunities and the country information set out above that indicates that Afghan [roads] are insecure and have a substantial Taliban presence and that Hazaras particularly those who have spent time in western countries are at a greater risk of harm than the general population, I cannot dismiss as remote that the applicant will be seriously harmed on these roads for reasons on account of being a Hazara Shia who has returned from a Western country and his imputed political opinion.

   State protection

9. DFAT have recently commented:

   5.1 The ongoing insurgency across the country means that the government struggles to exercise effective control over many parts of the country, particularly areas outside major urban centres. 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. Despite these challenges, DFAT assesses that the government maintains effective, but not absolute, control in major urban centres, particularly Kabul. While violent attacks still occur and there are major concerns over the capacity of law enforcement and judicial systems, security in these urban centres is typically better than in rural areas.[30]

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

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

    Relocation

11. Having regards to the security situation overall in Afghanistan referred to in the reports cited in this decision and the applicant’s individual circumstances (including his lack of family or tribal links outside Kabul and [District 1]), I do not consider it reasonable that he relocate to any other area in Afghanistan.

    Overall Assessment

12. Having regard the country information overall and the applicant’s individual circumstances, I find that the applicant faces a real chance of persecution in the reasonably foreseeable future in Afghanistan on account of being a Hazara Shia, his imputed political opinion and for membership of particular social group consisting of “Hazara returnees from a western country” at the hands of the Taliban.

    Third Country Protection

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

    Conclusions

14. 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

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

    David Corrigan
    Member