1408435 (Refugee)

[2015] AATA 3340

1408435 (Refugee) [2015] AATA 3340 (2 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1408435

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:2 September 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 02 September 2015 at 3:59pm

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] December 2012 and the delegate refused to grant the visa [in] April 2014.

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

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

   RELEVANT LAW

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

   Refugee criterion

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

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

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

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

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

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

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

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

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

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

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

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. I have before me material including:

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

    ·Translated copy of the applicant’s taskera;

    ·Protection interview dated [in] September 2013;

    ·Agent’s submission submitted [in] September 2015..

21. The applicant’s claims can be summarised as follows.  He is a Hazara Shia who was born in [Kabul, Afghanistan].  His family originates from Behsud.  His wife and children, parents and siblings live in [Pakistan].  He was employed as a rickshaw driver, panel beater and street vendor.  The applicant’s family resided in Kabul until 1989 when they fled to Pakistan.  The applicant has not returned to Afghanistan since.

22. When the family fled Afghanistan there was a lot of fighting between different factions such as Shura-e Nazar, Hezbe-Wahdat and Arakat.  There was a lot of discrimination and persecution of Hazaras and Shias by extremist Sunni groups.  When the family travelled to Pakistan his father was taken out of the vehicle and beaten.

23. The applicant fears being harmed by the Taliban because he is a Hazara Shia and has lived outside the country since he was a young boy and will be identified as a Pakistani Hazara.  He will be a stranger and not familiar with the country and the way of life.  If it is discovered he has returned from Australia the Taliban will think he supports western countries. He has no familial, property or tribal links in the country and will not know how to support is young family, find a job and accommodation.  In Behsud, there are a lot of Kuchi who are violent towards Hazaras and Shias.

    Country of reference

24. 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 and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.

    Assessment of claims         

    Home area

25. In his statutory declaration and in the agent’s written submission the applicant has maintained that he was born in Kabul and that he lived there for [some] years before he and his family fled to Pakistan.  At the hearing, when I asked the applicant where he was born, he said Kabul and said his parents had told him where he was born.   When I put to him that his submitted taskera said he was born in Behsud, he said that anyone is entitled to receive one from their place of origin. 

26. I have considered that his taskera says he was born in Behsud, however the applicant’s clear and consistent evidence has been that he was born in Kabul and lived there for [some] years before going with his family.  I accept that the applicant’s parents are from Behsud, however the applicant has never lived there nor does his evidence indicate that he has any ongoing contact with family there and I do not consider that this is home area in Afghanistan.  He was born in Kabul and lived there for [some] years and accordingly I have assessed his claims against Kabul as his home area.

    Hazara Shia claims

27. I have considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and Kabul and the overall current security situation.  I have considered whether the applicant has a well-founded fear of persecution in if he returns to Afghanistan on the basis of the general security situation in Afghanistan and the situation for Hazara Shias generally in Kabul.  I have also considered the associated imputed political opinion pro government and anti-Taliban arising from his race and religion. The applicant has claimed that the Hazara Shia face persecution and significant harm at the hands of the Taliban, ISIS and other Sunni extremist groups and other ethnic groups.

28. In making my findings, I have given considerable weight to a number of reports by the Australian Department of Foreign Affairs and Trade (DFAT) as these are authoritative, quite recent and the Department has been specifically charged with the provision of this advice to the Australian government.

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

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

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

    …

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

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

    ...

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

    ...

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

    …

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

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

30. This view of the level of general threat posed to the Hazara community is supported by Professor Amin Saikal of ANU. ^[3]   A Hazara Issues Paper issued by the Department of Immigration (DIBP) 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.[4]

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

    [4] Department of Immigration and Border Protection, Afghanistan: Hazaras Issues Paper, March 2015.

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

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

    …

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

    …

    2.29 The ANSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a strong  deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANSF and international forces concentrated in Kabul are also quick to respond to insurgent attacks when they occur. For example, the ANSF provided a rapid and effective response to an insurgent attack against Kabul airport in June 2013.

    …

    3.1  Overall, DFAT assesses that the Government maintains effective control of Kabul, due to a range of counter-measures put in place to prevent and respond to insurgent attacks. The relatively high level of state protection available in the city, including in formal, informal and illegal areas, has been an important driver of large-scale urban migration to Kabul since 2001. [5]

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

32. Professor Alessandro Monsutti agreed, stating in January 2012 that insecurity in Kabul is the result of indiscriminate attacks and Hazaras are not less safe than any other ethnic group.[6]

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

33. The DIBP report stated that:

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

    In 2014, analysis of attacks in Kabul by insurgents[7] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.[8]

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

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

1. DFAT have also commented:

   3.1 Overall, DFAT assesses that the Government maintains effective control of Kabul, due to a range of counter-measures put in place to prevent and respond to insurgent attacks.

   …

   3.15     …DFAT assesses that because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion.[9]

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

2. I accept that there are insurgent attacks in Kabul but these need to be seen in the context that Kabul has a population of up to seven million people (with up to two million Hazaras).[10]  I am of the view that the available country information indicates that the chance or risk of the applicant being seriously or significantly harmed in such a circumstance would be best described as remote, and not a real chance or real risk.

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

3. I accept that there have been some incidents where Hazara Shias have been targeted, and where ethnicity and religion would appear to be a factor and that ISIS have started operating in Afghanistan. I also have taken into account submitted country information concerning the dangers on the roads in Afghanistan outside Kabul and the major centres.  However, I do not accept that all Hazara Shias in Kabul face a real chance of persecution or significant harm now or in the reasonably foreseeable future from these Sunni groups or anyone else.  I accept that the applicant is a Shia and will attend mosque and religious events; however, given the country information, I find that the chance or risk he will be seriously harmed or significantly harmed is remote.

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

   Since the end of the summer period, the Government has faced a sustained and determined challenge in securing key districts that remained under insurgent pressure. The post-elections political impasse and the delayed signing of the security agreements with the United States and NATO created an environment of uncertainty, which appeared to embolden anti-Government elements in their actions across the country to undermine public confidence in the Government and its security forces. During the reporting period, multiple attacks took place on district administrative centres, security force checkpoints and major roads. Apart from their apparent intent to project insurgent strength and generate media attention, none of the attacks succeeded in permanently capturing the intended targets.[11]

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

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

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

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

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

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

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

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

   Many rural areas remain contested and not in government hands. Most have not benefited in a lasting way from the “clear, hold, build” paradigm recommended by standard counterinsurgency logic and advocated by Gens. Stanley  McChrystal and David Petraeus . Yet there are only a few significant swaths of territory where the central Taliban organization truly controls an area, as in parts of Helmand, Kunduz, Wardak, Kunar, Nangahar and Khost provinces.[12]

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

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

7. I accept that when the applicant and his family fled Afghanistan that his father was pulled out of a car by a Sunni group and beaten by a Sunni group Shura-e Nazar.  However these events are now over 25 years ago (when the applicant was just a young boy) and I have placed more weight on the recent independent country information about the circumstances of Hazara Shias and the situation in Kabul.  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.  The country information further indicates that there is societal discrimination on the basis of ethnicity and that the most common form is in terms of nepotism in favour of particular ethnic and religious communities.  It indicates however that although Hazaras do face societal discrimination by other ethnic groups, equally those groups face discrimination in Hazara-dominant areas.  I have also taken into account that there are two million Hazaras in Kabul representing a very substantial community in which the applicant would be able to return to and live in and seek employment and housing.

8. I accept that the applicant is illiterate and that he has no family, tribal or social contacts in Kabul or in Afghanistan and has a wife and [children] to support and that life in Kabul would be difficult for him and his family.  Country information indicates that unemployment is widespread in Kabul and that rents are comparatively high and that many who live in Kabul have no other option than to live in informal settlements.[13] The applicant has work experience in panel beating and driving rickshaws and I note that DFAT have commented that men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children without the assistance of family networks.[14]  Whilst the applicant may face unemployment due to a lack of contacts and difficulties affording housing, the country information considered as a whole does not indicate that this will be a result of discriminatory conduct for any of the Convention reasons as required by s.91R(1)(a) and (c) of the Act.

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

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

9. Whilst the applicant may face unemployment due to his lack of contacts and difficulties obtaining housing in Kabul due to the cost, the country information considered as a whole does not indicate that there is the necessary element of intention for these circumstances to constitute either cruel or inhuman treatment or punishment or degrading treatment or punishment.  I do not accept that any of these circumstances constitute torture, the arbitrary deprivation of life or the carrying out of the death penalty.

10. Considering the country information as a whole and his individual circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of his race, religion, his membership of a particular social group consisting of his family and actual or imputed political opinion arising out of his race and religion at the hands of the Taliban, ISIS, Shura-e Nazar, Lashkar-e Jhangvi, other ethnic groups, the government or anybody else. 

11. Considering the country information as a whole and his individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm on these bases.

    Failed asylum seekers and returnees from the West

12. It has been submitted that the applicant faces harm due to his membership of a particular social groups consisting of “failed asylum seekers”, “returnees from the West” and as an individual who has resided outside Afghanistan for a prolonged period.  I have considered the reports referred to by the applicant’s agents including reports of two Hazara returnees from Australia being targeted.  However, the submitted reports concern individuals who were targeted outside Kabul and there is no recent information before me that returnees or failed asylum seekers or those who have spent time outside Afghanistan have been seriously or significantly harmed in Kabul.  I have had regard to the media release of the Edmund Rice Centre (cited in submissions) in regards to returnees, however in making my findings, I have given more weight to reports by DFAT as it they are authoritative, more recent and the Department has been specifically charged with the provision of this advice to the Australian government. DFAT have commented:

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

    ...

    3.41 More broadly, many Afghans—including Hazaras—regularly travel abroad, to Iran, Pakistan and also to Europe and other western countries to seek work and greater economic or educational opportunities. Even under the Taliban regime, Afghans continued to travel abroad to work or study, and then returned to the country.[15]

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

13. Independent country information also indicates that a large number of Afghan refugees have returned from Pakistan in recent times.  Between 2002 and 2014, the UNHCR has supported the return of 3.8 million registered Afghans from Pakistan.[16]  In the first two months of 2015, 7,721 registered and 44,256 un-registered Afghan refugees left Pakistan for Afghanistan according to estimates provided by the UNHCR and IOM. The Afghanistan Analysts Network maintained that the number of registered and un-registered Afghan refugees departing Pakistan for Afghanistan, during January and February was double the number recorded leaving Pakistan in all of 2014.[17]  The surge of returnees from Pakistan continued in March and April 2015. According to the UNHCR, in the first four months of 2015 some 20,576 registered Afghan refugees voluntarily returned to Afghanistan from Pakistan. A number that the UNHCR has described as ‘significantly higher’ than the 2,231 Afghan refugees that returned to Afghanistan from Pakistan during the same period in 2014.[18]  The Tribunal has no evidence before it that these returnees from Pakistan are being seriously or significantly harmed.[19]

    [16] UNHCR 2014, Global Appeal 2015 Update: Pakistan, 14 November, p.1 < Accessed 18 May 2015 

    [17] Roehrs, C 2015, ‘The Refugee Dilemma: Afghans in Pakistan between expulsion and failing aid schemes’, Afghanistan Analysts Network, 9 March < Accessed 18 May 2015 

    [18] United Nations High Commissioner for Refugees 2015, Volrep and Border Monitoring Monthly 01 January – 30 April, 30 April, p.1 < Accessed 28 May 2015; The UNHCR publishes a monthly update on voluntary returns to Afghanistan from Pakistan and Iran. 

    [19] The DFAT reports referred to in this decision, for example, do not refer to this happening.

14. I accept that the applicant will be identified as having a Pakistani influenced accent but considering the country information as a whole (including the large number of Afghan refugees who have returned from Pakistan) and his individual circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of his membership of a particular social groups of “failed asylum seekers”, “returnees from the West” and “individuals who have resided outside Afghanistan for a prolonged period” or due to any imputed political opinion as being a supporter of the West. 

15. Considering the country information as a whole and his individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm on these bases.

    Conditions in Kabul

16. I have considered information contained in the agent’s submissions and that contained in the DFAT Thematic Report, Conditions in Kabul, 3 October 2014.  I accept based on the available information that there is poor sanitation, lack of clean water, poor infrastructure and limited health care.  However, I do not accept that any of these matters creates a real risk that the applicant will suffer significant harm.  Whilst public health services are poor and there is poor sanitation, lack of clean water and poor infrastructure, the country information does not indicate that there is the necessary element of intention for these circumstances to constitute either cruel or inhuman treatment or punishment or degrading treatment or punishment.  Whilst public health medical care is limited this is due to a lack of resources with DFAT stating that the health care system has greatly improved since 2001 and though basic they are better in Kabul than the rest of the country. 

17. I do not accept that any of these circumstances constitute torture, the arbitrary deprivation of life or the carrying out of the death penalty. I have also had regard to the Department’s Complementary Protection Guidelines which provide that the absence or inadequacy of medical treatment in the country of return will not generally meet the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment.  Accordingly, I find that the applicant does not face a real risk of significant harm due to any of these factors.

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

    Cumulative assessment

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

20. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm.

    Conclusions

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

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

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

    DECISION

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

    David Corrigan
    Member