1408576 (Refugee)

[2015] AATA 3252

1408576 (Refugee) [2015] AATA 3252 (28 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1408576

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Christopher Smolicz

DATE:28 July 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 28 July 2015 at 4:13pm

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] January 2013 and the delegate refused to grant the visa [in] April 2014.

3. The applicant appeared before the Tribunal on 28 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal 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.

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has had taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and the following country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration:

    ·     Afghanistan Country Report, 26 March 2014

    ·     DFAT Thematic Information Report - Conditions in Kabul 3 October 2014

11. The issues in this case are whether the applicant meets the refugee or complementary protection criteria because of:

    ·     his Shi’a religion and Hazara ethnicity (race)

    ·     his imputed political opinion -being opposed to the Taliban

    ·     his membership of the particular social group of failed asylum seeker from the a Western Country

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The applicant’s factual claims and the Tribunal’s findings

13. First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, his entry interview and statement of claim.

14. The applicant presented in a manner the Tribunal perceived to be truthful and credible, and his evidence was consistent with the country information applicable to his particular circumstances which are detailed below. The Tribunal has decided to wholly accept the applicant’s evidence.

15. The applicant is a [married] male born in [a village in]Qarabagh District, Ghazni Province, Afghanistan. He is a Hazara, Shia Muslim who has had limited education having only attended a religious school at a young age. At the age of about 7 years old the applicant and his family moved to [a] village in [District 1] because of problems with Pashtun Kuchi nomads who were grazing cattle on his land and ruing their crops.

16. In 2004 the applicant and his family moved back to Qarabagh. He continued to reside in Qarabagh until he departed Afghanistan in 2012.

17. The applicant said that when his family returned to Qarabagh they had to reclaim his family land which was being used by other local villagers. Over time the Taliban increased their presence in his area and eventually took full control over the district and the government had not control or representation in the area. The Taliban would demand that local villagers pay tax. The applicant said that he was not financially able to pay the tax and refused the Taliban’s demands.

18. The applicant said that in early 2011 his brother was traveling in a car to Ghazni with other people. The car was stopped by the Taliban who had s photograph of his brother. The applicant’s brother was abducted and he has only recently heard that his brother wa killed by the Taliban. The applicant said he was not certain why the Taliban targeted his brother but suspect it was because he refused to pay money to the Taliban.

19. After his [brother’s] disappearance [another] brother took his family to [District 1] to stay with his father-in-law and then he fled to [another country].

20. The applicant said that after his [brother]’s death his wife and [children] became his responsibility. The applicant said he was making a stable living by farming and operating a grocery store in his local village. As the only remaining brother from his family in the area the Taliban were putting pressure on him to pay taxes. The applicant said that on one occasion the Taliban came to his family home looking and he was able to escape with the assitance of his son.  The applicant said that live became too dangerous in his home area and he fled to Pakistan with his wife, children, sister-in-law and her [children] of school age.

21. The applicant said he was unable to sell his family land or his belongings when he fled his home village. He had some saving and started a clothing business in Pakistan. His family were living in Quetta illegally and life was becoming dangerous for Hazara people. He could not safely go to his shop, leave his house and could not go back to Afghanistan and decided to flee to Australia.

Does the applicant have a well-founded fear of persecution for a convention reason?

1. The issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings above.

2. The Tribunal finds that in the case of a person who had fled his country of nationality the assessment of well-founded fear of persecution would naturally commence with a consideration of the situation in the area where the person had previously lived (or other home area to which the person had similar or substantial ties).

3. The Tribunal notes DFAT advice that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan, particularly in rural areas. Kinship is central to identity and acceptance in a community, including for finding shelter and employment. As such DFAT concludes that most Afghans prefer to live in areas where their ethnic group constitutes the local majority.

4. The Tribunal has therefore assessed the applicant’s claims of fear of persecution in Afghanistan against Qarabagh District, Ghazni Province as the applicant’s home area.

5. Recent country information confirms[1] Ghazni is among the most volatile provinces in South-Eastern Afghanistan where anti-government armed insurgent groups are actively operating in various districts and frequently carry out insurgency activities. Sources indicate that the Pashtun districts of Ghazni including the mixed district (Qarabagh continue to experience high levels of general insecurity and that the Taliban and other insurgents continue to attack the authorities and contest government control in some areas. In addition there have been recent reports that the ‘Islamic State’ group (IS) has begun to operate in the province.

   [1] Afghanistan: Hazara Issues Paper March 2015 Department of Immigration and Boarder Protection; and EASO Country of Origin Information Report: Afghanistan – Security Situation — p 84

6. A 2011 International Crisis Group (ICG) report on the insurgency in central Afghanistan classified eight districts of Ghazni as ‘insurgent dominated’. These are marked below with an asterisk:

   ·Hazara dominated districts: Jaghori, Malistan, Nawur

   ·Mixed districts: Ghazni, Jaghatu, Khwaja Umari, Qarabagh*

   ·Pashtun districts (Insurgent dominated): Ab Band*, Andar*, Dih Yak*, Gelan*, Giro*, Muqur*, Nawa*

7. The Delegate noted that Qarabagh is populated by both Hazara and Pashtun tribes. Regular insurgent activity has been reported in Qarabagh in recent years, much of which has been centred around the strategically important Kabul to Kandahar road which passes through the district and which is regularly blockaded by the Taliban. [2] The delegate noted that a number of offensives have been launched by the Afghan and international forces in an effort to break the road blocks with varying degrees of success. Country information supports the applicant’s claims that the Taliban have a presence in the applicant’s home area and are relatively free to act with impunity.

   [2] CIS22941, CX279725, CX298127

8. The Tribunal accepts that the applicant’s brother is missing presumed dead and that the applicant has also come to the attention of the Taliban when they visited his home in an attempt to locate him and extort money. Although the applicant has been fortunate not to have been personally harmed the Tribunal notes that the test for determining refugee status is forward looking and must not only assess the persecution the applicant has suffered in the past but also the likelihood of the applicant suffering persecution in the reasonably foreseeable future. In this regard, the Tribunal has considered what is likely to happen to him on his return given his profile as Hazara Shia Muslim from Qarabagh district, Ghazni province.

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

10. DFAT advise that there are some sectarian tensions between Sunni and Shia Muslims in Afghanistan, but other than insurgent attacks, these rarely result in violence. DFAT advise that due to their linguistic and religious links with Iran, Hazaras are sometimes viewed with suspicion by other Afghan groups.

11. Against this, the Tribunal notes the evidence of Professor William Maley and Associate Professor Alessandro Monsutti , both of whom indicate that while some gains have been made by Hazaras, the deep-seated causes of discrimination against Hazaras remain unchanged.  Both Maley and Monsutti indicate that the gains made by some Hazaras have not been enjoyed by all and further, that they may not last. Professor Maley questioned the ability of Australian Embassy staff to conduct field research given the tight security constraints. Professor Maley stated that there was no reason to believe that the underlying ethnic and sectarian factors fuelling hostility towards Hazaras had dissipated. 

12. The UNHCR reports that members of ethnic groups may be at risk of persecution on grounds of their race in areas of Afghanistan where they constitute a racial minority.[3] As stated above the Tribunal notes that Qarabagh has a majority Pashtun population.

    [3]UNHCR Eligibility Guidelines for assessing the international protection needs of asylum seekers from Afghanistan 6 August 2013

13. Having weighed carefully the information outlined above, the Tribunal does not consider the reported absence of “targeted persecution” eliminates the likelihood that a Hazara Shia Muslim with the applicant’s profile would not be harmed for reason of their ethnicity or their religion in his home area.

14. The Tribunal finds the applicant faces a real chance of serious harm if he returns to Qarabagh District, Ghazni Province.

15. The Tribunal finds the harm the applicant fears from the Taliban is for reasons of his religion and ethnicity. The Tribunal is satisfied the persecution is systematic and discriminatory and amounts to serious harm as it includes threat to life or liberty, significant physical harassment or ill-treatment. 

16. The applicant primarily fears harm from the Taliban, a non-state insurgency group, however, harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the state is unable to provide adequate protection against the harm.

17. The UNHCR reported that state protection in Afghanistan is compromised by high levels of corruption, ineffective governance, a climate of impunity, lack of official impetus for the transitional justice process, weak rule of law and widespread reliance on traditional dispute resolution mechanisms that do not comply with due process standards.  

18. In respect of the ability of the state to protect, the Tribunal has also considered the following DFAT advice, provided in March 2014, before the coalition forces began the pull out:

    5.1      The ongoing insurgency, particularly in the south and east of Afghanistan means that the Government struggles to exercise effective control over many parts of the country. As a result, the Government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in those areas.

    5.2      Despite these challenges, DFAT assesses that the Government maintains effective control in major urban areas, particularly Kabul, all provincial capitals, including Herat, Mazar-e-Sharif and Kandahar, and the majority of other district centres.

19. In view of the unstable security situation in Afghanistan, the Tribunal finds the state cannot meet the level of protection which citizens are entitled to expect, as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal finds, based on the country information, that the applicant would not be able to avail himself of effective state protection against such harm.

Relocation and Kabul

1. The applicant’s feared persecution described above is linked to the risk faced by Shia Hazaras seeking to return to Qarabagh, Jaghori district Ghazni.

2. There remains the question of whether the applicant can find protection from this feared persecution by relocating to a different part of Afghanistan.

3. The Tribunal questioned the applicant about the possibility of him relocating to Kabul to avoid persecution in his home area. The applicant said that he has never travelled to Kabul and has no relatives in Kabul or elsewhere in Afghanistan. The applicant said he had limited skills and would not be able to obtain employment to feed his large family in Kabul.

4. The Tribunal noted that he was able to move to Pakistan start a business and support his family. The applicant said that when he went to Pakistan he had savings which he used to start his business. He has now used up all his savings and had to borrow money from family and friends to finance his trip to Australia.

5. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.

6. Before moving to the question of reasonableness and practicality of relocations, the Tribunal has considered whether there is another part of Afghanistan where the applicant would not face a real chance of persecution for a Convention reason.

7. The Tribunal notes that Kabul has a sizeable Hazara population (which the country information indicates a large proportion of which are also displaced from other areas) and a range of employment options.

8. In October 2014 DFAT provided the following information regarding internal relocation in Afghanistan:

   3.6 Large urban areas in Afghanistan are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas. As Afghanistan’s largest urban centre, Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan. This applies to those internally displaced by conflict and natural disasters, economic migrants and returnees to Afghanistan. This movement to Kabul is largely the result of economic opportunity, but it is often difficult to differentiate between economic migrants and those internally displaced as a result of conflict or natural disasters.

   ….

   3.13 In practice, DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation. This is compounded by Kabul’s relatively high cost of living, particularly the cost of housing.

   3.14 Internal relocation to urban areas is generally more successful for single men of working age. Unaccompanied women and children are least likely to be able to relocate to urban areas without the assistance of family or tribal networks.

1. DFAT provides the following information on the security situation 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. In its Hazara Issues Paper (2015), the Department reports that 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. DFAT advised in March 2014 that 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.”

4. Professor Maley, however, holds the view that it is a mistake to conclude that Kabul is safe for Hazaras. Most recently Professor Maley has provided an expert opinion on the safety of return to Afghanistan for members of the Hazara minority in which he made the following conclusions: 

   First, it is essential to appreciate that the situation in Afghanistan is extremely fluid, and assessments of the situation made even a year ago do not necessarily provide an accurate picture of the situation in the first half of 2015. Roads that may have been safe to traverse in 2012, 2013 or 2014 may be unusable in 2015. In July 2014, 14 Hazara passengers on two minibuses in Ghor province were massacred by the Taliban (see ‘Afghanistan: Taliban Kill at Least 14 Bus Passengers’, Reuters, 26 July 2014). ….Given this fluidity, it is a serious mistake to conclude that Afghanistan is safe for Hazaras. The disposition of extremists to strike at them has not disappeared.

   …

   A recent study of returnees to Afghanistan highlights how difficult reintegration can be even if people do have associates in the region to which they are returned (Liza Schuster and Nassim Majidi, ‘What happens post-deportation? The experience of deported Afghans’, Migration Studies, vol.1, no.2, 2013, pp.1-19). Of course, an Hazara returned from abroad with no ties in areas they can safely access would be in an even more perilous position. This ties in directly with the issue of livelihood opportunities. Again, serious research in this area highlights the importance of social relations. A recent study by Kantor and Pain emphasises the centrality of relationships to livelihoods in rural Afghanistan, and the points they make apply equally to urban areas (Paula Kantor and Adam Pain, Securing Life and Livelihoods in Afghanistan: The Role of Social Relationships (Kabul: Afghanistan Research and Evaluation Unit, December 2010). The mere fact that there may be people of similar ethnic background living in a potential relocation destination does not overcome this problem, since ethnic identities do not in and of themselves give rise to the ties of personal affinity and reciprocity that arise from family connections. (Indeed, one mistake that observers — even Afghan observers — on occasion make is to underestimate the degree of differentiation amongst groups such as the Hazaras, including distinctions between elite and non-elite figures, distinctions based on district of origin and tribe, and distinctions based on values and ideology.) An Hazara who is returned to a region in which he lacks social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation.[4]

   [4] On the Returns of Hazaras to Afghanistan, Professor William Maley AM, FASSA Professor of Diplomacy Australian National University 16 February 2015.

5. The Tribunal also notes that there is a huge Hazara underclass in Kabul that does not have access to clean water or electricity. It is also reported by the UNHCR that there is widespread unemployment in urban areas that limit the ability of a large number of people to meet their basic needs. There is also evidence of the deaths of children in refugee camps and the inadequate response of government and aid agencies.

6. The country information emphasises given the lack of social security infrastructure in Afghanistan, people typically rely on traditional family and clan networks for support.

7. The 2013 UNHCR Guidelines provide the following comments when considering the question of relocation (at p.75):

   Where the proposed area of relocation is an urban area where the applicant has no access to preidentified accommodation and livelihood options, and where he or she cannot reasonably be expected to be able to fall back on meaningful support networks, the applicant would likely find him- or herself in a situation comparable to that of other urban IDPs. To assess the reasonableness of such an outcome, adjudicators need to take into account the scale of internal displacement in the area of prospective relocation, and the living conditions of IDPs in that location. Relevant considerations in this regard include the fact that IDPs are considered to be among the most vulnerable groups in Afghanistan, many of whom are beyond the reach of humanitarian organizations; as well as available information to the effect that urban IDPs are more vulnerable than the non-displaced urban poor, as they are particularly affected by unemployment; limited access to adequate housing; limited access to water and sanitation; and food insecurity.

8. DFAT also reports that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan. Kinship is central to identity and acceptance in a community, including for finding shelter and employment.

9. The Tribunal finds the applicant has no family, tribal or clan ties in Kabul to assist or protect him. The country information supports a conclusion he has little prospect of being employed or finding accommodation without such connections. Albeit this would be easier for him initially on his own, it is reasonable to expect he would seek to be re-united with his wife and children and extended family from Pakistan, making securing suitable accommodation and sufficient income considerably more difficult.

10. In summary, having regard to the applicant’s individual circumstances, in particular his lack of family or social network in Kabul, his limited employment skills, his limited education and lack of financial support the Tribunal finds it is not reasonable for the applicant to relocate to Kabul to avoid the risk of Convention based persecution.

11. For the reasons outlined above, the Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason in Afghanistan.

12. 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.

13. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Christopher Smolicz
    Member