1408815 (Refugee)
[2015] AATA 3375
•31 August 2015
1408815 (Refugee) [2015] AATA 3375 (31 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1408815
COUNTRY OF REFERENCE: Afghanistan
MEMBER:Christopher Smolicz
DATE:31 August 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 31 August 2015 at 11:25am
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 27 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 has had taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and the following country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration:
10. The issues in this case are whether the applicant meets the refugee or complementary protection criteria because of:
·his Shi’a Muslim religion and Hazara ethnicity (race)
·his family land dispute
·his membership of the particular social group of failed asylum seeker from the a Western Country
11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of substantive claims
12. The applicant is a [age] year old Hazara Shia male, born in Mazar-i-Sharif (also known as Mazar-e-Sharif), Balkh province, Afghanistan.
13. In about 1991 the applicant travelled to [Country 1] where he has been living and working with no legal status. He married an Afghan woman from [District 2], in [Country 1]. He has no children and his wife and [sibling] live in [Country 1]. His father passed away when he was [a young child] and he claims his mother is still alive and living in Afghanistan but he has not seen her since his father’s death.
14. Prior to his birth, the applicant’s father had migrated to Mazar-i-Sharif from his birth area of [District 2], Daikundi. When the applicant’s father passed away his [relative] ([Mr A]), took over responsibility for caring for him and treated him like his son. The applicant lived in Kabul for a short period with [Mr A] and then returned to his ancestral home of [District 2], Daikundi.
15. At the hearing the applicant said that [Mr A] travelled to [Country 1] to attend [an event] in about 2008 and unexpectedly died while he was in [Country 1]. The applicant was unable to explain to the Tribunal what was the cause of [Mr A]’s death. He did not return [Mr A]’s body to Afghanistan and [Mr A] was buried in [Country 1].
16. Prior to his death [Mr A] divided the applicant’s grandfather’s land amongst his own children [Mr B] and [Mr C] (the [relatives]), and [Mr D]. The land was divided into three parcels, one for the applicant, one for [Mr D] and one for [Mr B] and [Mr C]. The applicant believes that there is documentation supporting his claims to one third of his grandfather’s land.
17. The applicant said that after [Mr A]’s death he returned to Afghanistan to reclaim his portion of the land. The applicant was told by his [relatives], [Mr B] and [Mr C] that he could not have his portion of the land. The applicant provided inconsistent evidence about when he returned to Afghanistan after [Mr A]’s death.
18. The applicant told [Mr B] and [Mr C] that he would take his case to the authorities in [Daikundi]. [Mr B] and [Mr C] threatened the applicant that they would kill him before he got there, knowing that he had no [male family] to avenge his death. The applicant claims he cannot relocate to Kabul because his [relatives] would find him and kill him anywhere in Afghanistan.
19. It was submitted by the applicant’s representative that:
· since the applicant’s claims were assessed by the Department, there has been a significant deterioration in the security situation in Afghanistan and specifically in areas where the applicant lives and must travel.
· anti-Shia sectarian groups now operate freely throughout Afghanistan which has resulted in an increase in religiously and ethnically-motivated killings targeting Shias, in Kabul, in the Hazarajat and on the roads.
· the applicant’s home province of Daikundi now faces multiple threats from within and on its borders, including commanders affiliated with Islamic State, as well as predatory local commanders.
· the applicant would need to travel by road to return to his home area and to seek ongoing employment, medical assistance and other essentials and his life would be in danger due to threats faced by failed Hazara Shia asylum seekers from the west.
20. 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).
21. The Tribunal also 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.
22. The Tribunal has therefore assessed the applicant’s claims of fear of persecution in Afghanistan against [District 2] district, Daikundi (also known as Daykundi) province as the applicant’s home area.
Land disputes in Afghanistan
23. The Tribunal has had regard to the UNHCR guidelines[1], Danish Immigration Services fact finding mission to Kabul (2012)[2] and accepts that land disputes are common in Afghanistan because there is no systematic registration of land and also because Afghan people who have been displaced by years of conflict often return to find their ancestral land occupied. UNHCR confirm that there is no effective or reliable dispute resolution mechanism and all dispute resolution mechanisms, whether formal or informal, are reported to be afflicted by corruption. Land disputes frequently turn violent in Afghanistan and often have an ethnic dimension.
Does the applicant have a well-founded fear of persecution for a convention reason?
[2] Danish Immigration Service 2012, Afghanistan: Country of Origin Information for Use in the Asylum Determination Process, 25 February to 4 March, p. 6 < 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.
25. The Tribunal found aspects of the applicant’s evidence at hearing lacking in credibility and inconsistent with his written claims. For example, there was a clear disparity in dates between the applicant’s original statement of claim and his evidence at the hearing and his agent’s submissions. The Tribunal has had regard to country information and accepts that dates and calendars are rarely used in Afghanistan and there may have been some difficulty converting dates from the Afghan calendar.[3] The Tribunal would however expect the applicant to be familiar with dates that are central to his claims.
[3] On the current situation in Afghanistan, Schuster, Liza Dr, Department of Sociology, School of Social Sciences, City University London September 2014
26. Despite these concerns, the Tribunal accepts the applicant’s claim that land he had inherited from [Mr A] had been misappropriated by his [relatives] during his prolonged period of absence from [District 2] District and that the [relatives] are unwilling to give back his portion of the land in accordance with [Mr A]’s wishes.
27. The Tribunal found however the applicant’s claim that his [relatives] would kill him if he returned to his home area lacking in credibility. The Tribunal questioned the applicant about his relationship with his [relatives]. The applicant said he grew up with [Mr B] and [Mr C] and they were like brothers. The applicant said that after [Mr A]’s death he returned back to [District 2] and had a lot of negotiations with his [relatives] over the ownership of the land. The applicant said that he stayed with his [relatives] in their house at the time. The applicant claims in his written statement that [Mr A] died in 2008 and he did not return to Afghanistan to reclaim the land until 2011. At the hearing the applicant claimed he returned to Afghanistan to reclaim [Mr A]’s land within one year of [Mr A]’s death. The Tribunal finds it surprising the applicant would be unable to recall when he returned to Afghanistan to reclaim his land since this fact is central to his claim.
28. The Tribunal asked the applicant why he thought his [relatives] would kill him. The applicant said the eldest [relative] was a violent man and hit him when he was younger. After further questioning the applicant conceded that he has never been physically harmed by his [relatives] over the land dispute.
29. The Tribunal asked the applicant why he travelled to Australia. The applicant said he did not have a place in Afghanistan and his [relatives] would kill him if he returned to [District 2] or Kabul.
30. The Tribunal accepts that land disputes in Afghanistan are prevalent, difficult to resolve and can result in violence among relatives that festers over generations. However, country information also confirms that not all land disputes result in violence and there are methods of resolution available in some parts of Afghanistan. The Tribunal has had regard to the country information and finds land disputes vary and each dispute needs to be assessed on its own facts.
31. Having regard to the country information and assessing the credibility of the applicant’s evidence, the Tribunal, does not find the applicant’s evidence about the nature of his dispute with his [relatives] to be convincing. The Tribunal finds that the applicant’s claims that his [relatives] will seek to kill him does not establish a clear willingness and capacity to carry out such threats.
32. As stated above, the Tribunal finds the applicant had a close relationship with his [relatives]. The applicant grew up living with his [relatives] and described them as brothers. He left Afghanistan in 1991 and has been living and working in [Country 1] when he returned to [District 2] he would reside with his [relatives] in [District 2]. [Mr A] died in [Country 1] about 2008. Since this time the applicant has never been physically harmed by his [relatives]. The applicant has made no claim to have personally suffered persecution in Afghanistan. When he returned to [District 2] he said that he lived together with his [relatives] and entered into lengthy negotiations regarding his land.
33. He claims he was threatened in May 2011and had to flee Afghanistan to escape from the threats. The Tribunal finds the applicant’s evidence surprising given that he was not living in Afghanistan at the time the threats were made. According to the applicant’s evidence he had been living and working in [Country 1] with his wife. In light of the above, the Tribunal does not accept the applicant’s claim that he had to flee Afghanistan and travel to Australia to avoid persecution from his [relatives].
34. The Tribunal also finds the applicant’s claim that he would always pose a threat to his [relatives], surprising in light of the fact he has no children or heirs that would be a threat to his [relatives] in the future.
35. The Tribunal also notes that the Danish fact finding missions did not report that it was impossible to settle land disputes in Afghanistan. The report also found that a person who had lost his land would not necessarily still be harmed by the other party to the conflict wanting to permanently eliminate him. For example, the report refers to the the Cooperation for Peace and Unity (CPAU) which found it improbable that a powerful party to a land dispute would try to track down the other party in other areas of Afghanistan in order to eliminate him. As CPAU explained, most of the killings which have been carried out in connection with land disputes, have taken place spontaneously on the spot, and in a very few cases the killing has been a planned action carried out in other places.
36. According to CPAU, the shura/jirga is a socially coherent and socially well‐founded institution whose decisions generally are respected by everyone in the community, including the parties to the conflict. Besides, it often takes several days before a shura/jirga arrives at a decision on a land dispute and it is primarily because the shura/jirga intends to adopt a solution that is accepted by all parties.[4] The Tribunal finds that the applicant had not taken his dispute to the shura/Jirga and this option is still available to him if he returns to his home area.
[4] Danish Immigration Service 2012, Afghanistan: Country of Origin Information for Use in the Asylum Determination Process, 25 February to 4 March, p. 44
37. In conclusion, it may well be that the applicant’s [relatives] do not want to relinquish control over his portion of the land and have verbally threatened the applicant, however, having regard to the applicant’s inconsistent, evidence, the nature of his relationship with his [relatives] and the time since [Mr A]’s death, the Tribunal is not satisfied that they will resort to tracking him down and killing him.
38. The Tribunal does not accept there is a real chance the applicant will be persecuted by his [relatives] because of the land dispute should he return to [District 2] in the reasonably foreseeable future. The Tribunal finds the applicant’s fear of persecution because of the land dispute and his fear of his [relatives] [Mr B] and [Mr C] is not well-founded.
39. For the same reasons, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm.
40. Next, the Tribunal has considered whether the applicant as a Hazara Shia Muslim would face a real risk of serious harm traveling by road from Kabul to his home area.
Security for Hazaras in Daikundi
41. According to country information, Daikundi is a mountainous province situated 460 kilometres west of Kabul and it is a Hazara majority province. Due to heavy snowfall in the winter, the roads remain blocked for months, cutting off communication with the rest of the country. Regarding the security situation, the EASO stated “Daikundi is among the more peaceful provinces of Afghanistan. However, the province is neighbouring the volatile southern Helmand province where insurgents occasionally carry out activities”. [5]
[5] European Asylum Support Office Country of Origin Information Report Afghanistan January 2015 (p.62-63)
42. The delegate referred to a 2010 DFAT report which stated that the Taliban was not strong in Daikundi and that “ethnically motivated targeting of Hazaras was not practiced”. The delegate noted that according to this report Hazaras in Daikundi are more likely to have a “complicated and detailed personal history and circumstances which place them in that situation”. In 2011 and 2012 DFAT confirmed that there were no protection issues for the Hazara population and the challenges facing the Hazara community in Daikundi were economic rather than security related. The delegate noted however that there were problems in travelling outside the province which were associated more with infrastructure than security issues.
43. DFAT advice on the Hazarajat from March 2012 stated that ‘[t]ravel into and out of most districts, and all three provinces [Bamyan, Daykundi and Ghazni], could still be dangerous in the context of broader security in Afghanistan’[6]
[6] Department of Foreign Affairs and Trade 2012, Afghanistan – Hazara Community Update, 12 March <CX283654>
44. It was submitted that the security situation in Daikundi has changed since the delegate’s decision. The applicant’s reprasentative referred the Tribunal to a transcript of an interview she conducted with [Mr E] of the Afghanistan Independent Human Rights Commission Office, Daikundi and Afghanistan Independent Human Rights Commission staff member [in] August 2012 in [Daikundi].
45. The Tribunal notes that according to [Mr E], the security situation in Daikundi was comparatively normal but now it has decreased and is in decline due to the increased insurgency activity in bordering areas such as [District 2].
46. The Tribunal discussed the country information with the applicant. The applicant agreed that Daydkundi was safer for Hazaras than other parts of Afghanistan. The applicant said that [District 2] was close to the border with [a certain] district which made it dangerous.
47. The Tribunal agrees with the agent’s submissions that the situation in Afghanistan has deteriorated further since that time of the delegate’s decision. For example there has been a significant increase in violence against the civilian population since the announcement of a new Taliban leader.[7]
[7] type="1">
The United Nations has reported that 2014 was the deadliest year in Afghanistan since 2007 with over 10,000 civilian casualties. This high casualty rate has been attributed to increased ground battles between Anti-Government Elements and the Afghan government as well as a drastic decrease in the number of Western troops within the country:
The [UNAMA] report also found that for the first time since 2009, more Afghan civilians were killed and injured in ground engagements than improvised explosive devices (IEDs). Civilian deaths and injuries from ground operations surged 54 per cent in 2014. Parties to the conflict are increasingly using mortars, rockets and grenades, sometimes indiscriminately, in civilian areas.[8]
[8] >
The Tribunal also accepts that the growing presence of Islamic State (Daesh) in neighbouring Pakistan and Afghanistan pose new risks for Hazara Shia Muslims.[9]
[9] Frud Bezhan, Radio Free Europe Radio Liberty, ‘Mass Abduction Of Hazaras In Afghanistan Raises Fears Of Islamic State’, 25 February 2015,
For Hazaras, who have historically been persecuted and faced discrimination, the situation is even more dangerous than for the general population. The Department has identified the following list of security incidents where Hazaras were specifically targeted in the recent past:
·15 March 2015: A bus was stopped travelling between Ghazni and Jaghouri. Ten Hazaras were abducted. After some hours nine were released with one continuing to be held at the time of writing. Unconfirmed reports believe the remaining captive worked for the government.
·23 February 2015: Masked men stopped two vehicles traveling on the highway near Zabul and identified and abducted 30 Hazaras. The Hazaras were reported to be Afghan refugees returning from Iran. Different reports identified the abductors as possibly foreign and either members of the Taliban or ISIS. As of the time of publication, the men had not been found, although one Hazara escaped on 25 February.
·20 January 2015: Eight or nine Hazaras were killed in Gilan district in Ghazni when their van was exploded by a remote controlled bomb. The Hazaras were travelling from Kabul to Jaghori district. The pro-Hazara source Kabul Press claimed that ‘These victims were civilians who were going from Kabul to Jaghori, did not work for any government offices and did not have any connection with any of Afghanistan’s political parties’, though other sources do not give such details about the victims.
·20 September 201: Australian-Afghan Sayed Habib Musawi, a Hazara from Jaghori district in Ghazni, was reportedly killed by the Taliban while travelling from Kabul to his home district of Jaghori. He was reportedly killed as he was an Australian, but the fact that he was also a Hazara may have been relevant.
·16 September 2014: Zainullah Naseri, a Hazara from Jaghori district in Ghazni, was reportedly abducted and tortured by the Taliban for two days in Ghazni province after being deported from Australia. He escaped to Jaghori then returned to Kabul. DFAT was unable to confirm the report.
·25 July 2014: Suspected Taliban fighters halted two minibuses in Lal-o-Sar Jangal district in the western province of Ghor, identified 14 Shia Hazara passengers, including three women and a child, bound their hands, then shot them dead by the side of the road.
·28 June 2014: The Taliban killed (Hazara sources say ‘beheaded’) between 14 and 17 people, usually described as policemen or ex-policemen, in Gizab district of Uruzgan Province. This incident was little reported and reports do not give much detail. According to Hazara sources, the victims were Hazaras, mostly students and workers, though other sources do not mention their ethnicity. Other information tends to support the assertion that the victims were Hazaras: Hazaras comprised a disproportionately large part of the police force in Uruzgan and particularly in Gizab, according to a 2010 NGO report on Uruzgan, and one of the Page 56 of reports mentions that one of the victims was the nephew of Governor Amanollah Timuri who is elsewhere reported to be a Hazara.
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· In January 2014, an AP report stated that the Maidan Shahr-Behsud road had ‘seen many beheadings, kidnappings and other Taliban attacks in recent years against members of the minority ethnic Hazara community’ and ‘nearly all drivers avoid it.’ This report does not mention any particular attacks.[10]
[10] Afghanistan: Hazara Issues Paper, Department of Foreign Affairs and Trade (DFAT), March 2015, p 56.
In a March 2015 update on the situation of Hazaras in Afghanistan, Graeme Swincer OAM summarised the following developments of concern:
· The arrival of foreign Islamic State forces in support of the Taliban, especially in the southern and central areas, apparently with national government support.
· Resurgence of Taliban activity in previously “safe” areas.
· Shift of Taliban focus from mainly government and “western links” targets to increased persecution of Shia Muslims (essentially Hazaras).
· Continuing evidence of abduction and mistreatment of Hazaras on a selective basis – including murder and torture.
· A surge in the flight of Hazaras from Afghanistan in the face of escalating persecution.
· Targeting of Hazara returnees from Western countries, both voluntary and involuntary.
· The February 2015 message from the Afghanistan Minister for refugees and repatriation requesting relevant governments to stop the deportation of asylum seekers to Afghanistan and confirming the policy that intended returnees who arrive in Kabul will be sent back to the deporting countries.[11]
[11] Graeme Swincer OAM, Blue Mountains Refugee Support Group, ‘Hazara asylum seekers from Afghanistan: the increasing dangers they would face if they return – Supplementary update March 2015’, 2 March 2015, p 2,
In March 2014 DFAT provided the following summary of the security situation in Afghanistan:
Insurgent groups, including the Taliban, the Haqqani Network, Hezb-e-Islami Gulbuddin Hekmatyer and others, remain engaged in a violent armed conflict against the Government and its international partners. In addition to these anti-government insurgent groups, there are also a number of other local non-state militias operating within Afghanistan that exist for the protection of particular groups and are not necessarily hostile to the Government.
The ANSF, with the support of international forces, maintains effective control over most provinces and districts, particularly major urban areas such as Kabul, Herat, Mazar-e-Sharif, Kandahar and all other provincial capitals. In June 2013, the ANSF—including the Afghan National Army (ANA), the Afghan National Police (ANP), Afghan Local Police (ALP) and the National Directorate of Security (NDS)—assumed the lead responsibility for security across all of Afghanistan. However, in some parts of Afghanistan, government control is weak or absent, in part due to ANSF capacity constraints (see ‘State Protection’, below).
There are many areas of the country contested by insurgent forces and no part of the country can be considered totally free from conflict-related violence. The situation remains fluid and any categorical assessment on the security in a particular area could be rendered quickly inaccurate. Although this list is not exhaustive, contested areas are mainly in the south (including in parts of Helmand, Kandahar, Uruzgan and Zabul) and east of the country (including in parts of Ghazni, Paktika, Khost, Paktia, Nangarhar, Kunar and Nuristan). Insurgents are also present in areas of western, central and northern provinces.
Insurgent Groups
Insurgents regularly conduct high-profile attacks in many parts of Afghanistan. DFAT assesses that the primary target for insurgent attacks are government institutions, political figures, ANSF, ISAF, other security forces and international organisations. These attacks can include direct attacks using small arms, suicide bombings, car bombs, improvised explosive devices and complex attacks involving a combination of these methods. Although these attacks are frequently directed against specific targets, the methods used are often indiscriminate and result in the deaths of civilian bystanders. For example, a complex attack by insurgents against a restaurant in Kabul during January 2014 killed at least 21 people, including 13 foreigners. The restaurant was known to be popular with foreigners and government officials. An attack against Kabul’s Serena Hotel in March 2014 killed at least nine people, including four foreigners.
In 2013, the UN Assistance Mission in Afghanistan (UNAMA) documented 2959 civilian deaths and 5656 injuries due to conflict, a 14 per cent increase in total civilian casualties compared to 2012. UNAMA attributed 74 per cent of civilian deaths and injuries to anti-government elements, 11 per cent to Government and ISAF forces, 10 per cent to engagement between pro- and anti-government forces and five per cent to other sources.
In some cases, violence perpetrated by criminal groups and insurgents can be difficult to differentiate. There have been documented cases of abduction and killings by both criminals and insurgents, including while travelling by road. Wealthy or high-profile individuals, or those openly identified as working for the Government, are at higher risk of kidnap for ransom.
DFAT assesses that a lack of internal security and perceived insecurity in Afghanistan act as primary ‘push factors’ for both internal relocation and emigration from Afghanistan.
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Hazaras
In general, DFAT’s current assessment is that there is currently a low risk of criminal or insurgent violence for Hazaras in Afghanistan. Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan (see also the March 2014 DFAT Thematic Report ‘Hazaras in Afghanistan and Pakistan’).
Against this, the Tribunal notes the evidence of Professor William Maley[12] and Associate Professor Alessandro Monsutti, [13] both of whom indicate that while some gains have been made by Hazaras, the deep-seated causes of discrimination against Hazaras remain unchanged. 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] Maley, W 2011, ‘On the Position of the Hazara Minority in Afghanistan’, 7 December < Associate Professor, Anthropology and Sociology of Development, at the Graduate Institute of International and Development Studies in Geneva, Switzerland
DFAT’s Thematic Report provides the following information regarding travel by road in Afghanistan:
Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly those roads that pass through areas contested by insurgents. Taliban and criminal elements target the national highway and secondary roads, setting up arbitrary armed checkpoints. Official ANP and ANA checkpoints designed to secure the road are sometimes operated by poorly-trained officers known to use violence to extort bribes. More broadly, criminals and insurgents on roads target all ethnic groups, sometimes including kidnapping for ransom. It is often difficult to separate criminality (such as extortion) from insurgent activity.
Individuals working for, supporting or associated with the Government and the international community are at high risk of violence perpetrated by insurgents on roads in Afghanistan. Carrying documentation that would indicate employment or another connection with the Government is dangerous. Because Hazaras are perceived to be affiliated with either the Government or international community, those Hazaras travelling these routes who work for the Government or international community frequently take precautions to ensure that, if they are stopped, they could not be identified as such.
55. 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.
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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.[14]
[14] On the Returns of Hazaras to Afghanistan, Professor William Maley AM, FASSA Professor of Diplomacy Australian National University 16 February 2015.
The UNHCR in December 2010 released a report on guidelines for assessing protection needs of Afghan asylum-seekers that commented on the issue of safety for travellers in Ghazni province. The report explained that “[n]otwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts, the security situation in the remainder of the province, including on access routes to and from these districts, has been worsening”.
The Tribunal has considered country information on the security situation for Hazaras on roads in Afghanistan detailed above. The Tribunal notes that DFAT’s advice is based on the assumption that those travelling by road in Hazarajat are local residents with ties to the province and knowledge of the area.
As stated above, the applicant has lived in [Country 1] since 1991. He is no longer a local resident with local knowledge of his home area and has only returned to Afghanistan on two or three occasions since he moved to [Country 1].
He does not have access to a family network for support and guidance in making decisions on road security and when it is safe to travel. The Tribunal finds the applicant would be easily recognised as Hazara and an outsider by his clothes, mannerisms and his lack of familiarity with local cultural practices, further putting his life at risk.
The Tribunal has also had regard to comments made by the Edmund Rice Centre in April 2012 regarding the dangers faced by Afghanistan asylum seekers deported from Australia being targeted as being favourable to the West.[15]
[15] Edmund Rice Centre, ‘ERC research in Afghanistan uncovers grave dangers faced by deportees from Australia’, Media Release, April 2012, >
The Tribunal accepts the applicant’s evidence that apart from his hostile [relatives] in [District 2] he has no continuing family ties or support networks in Daikundi. The applicant will need to find work and find accommodation which will require him to travel and as such putting himself at even greater risk given his Hazara appearance.
Having weighed carefully the information outlined above, the Tribunal does not consider the reported absence of “targeted persecution” eliminates the likelihood that a Hazara Shia Muslim with the applicant’s profile would not be harmed for reason of their ethnicity or their religion when travelling by road.
Having considered the applicant’s particular profile which clearly distinguishes him from other Hazara Shia returnees, the Tribunal finds the applicant faces a real chance of serious harm if he returns to Afghanistan. Specifically, the Tribunal finds that the need to find accommodation, work and potentially to travel out of his home area would place the applicant at a real chance of serious harm from the Taliban.
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.
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.
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.
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.
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
The applicant’s feared persecution described above is linked to the risk faced by Shia Hazaras seeking to return to and live in Daikundi province. There remains the question of whether the applicant can find protection from this feared persecution by relocating to a different part of Afghanistan.
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.
In relation to relocation, DFAT advises that “large urban areas such as Kabul are home to mixed ethnic and religious communities. Urban areas offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas as a result of a higher degree of anonymity for returnees. In practice, internal relocation to urban areas can be limited by a lack of financial resources. Internal relocation to urban areas is generally more successful for single men of working age. Unaccompanied women and children are least likely to be able to relocate to urban areas without the assistance of family or tribal networks.”
Professor Maley holds the view that it is a mistake to conclude that Kabul is safe for Hazaras. He cites the December 2011 suicide bombing attack against Shia Afghans, mostly Hazaras, who were commemorating the Ashura festival in downtown Kabul which killed at least 55 people, with Pakistani Sunni extremist group Lashkar-e Jhangvi claiming responsibility.
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.
The Tribunal has also had regard to recent reports that confirm a decline in the security situation in Kabul which has impacted on the civilian population. Tolo news reported August has been a deadly month for Kabul after the Afghan capital saw several suicide attacks and bombings that mainly targeted civilians. The biggest of them was the Shah Saheed truck bombing that left at least 15 dead while 400 others sustained injuries. However, the Taliban denied having links to Shah Shaheed bombing.[16] On 22 August 2015 a suicide car bombing left 12 people, including three foreigners dead and up to 80 wounded.
[16] >
A current BBC report detailed an attack by a Taliban suicide bomber on a check point near the entrance to the international airport in Kabul killing five people. The report goes on to state:
Monday's Taliban attack came after three deadly attacks on Friday that killed at least 50 people. A suicide bomber blew himself up near the city's police academy on Friday evening, killing about 20 recruits. A short while later, gunmen launched an attack on Camp Integrity, a Nato base that houses US special forces near the airport. Eleven people, including an American soldier and eight contractors, were killed in the attack on the base. Earlier on Friday, a truck carrying explosives was detonated near an army base in the Shah Shahid area of the capital, claiming 15 lives. A top UN official said the attacks were likely to be the product of a Taliban power struggle following the death of the group's leader Mullah Omar. "We suspect the upsurge in violence may be triggered by the succession battle within the Taliban," Nicholas Haysom, the head of the UN mission in Afghanistan, told the BBC on Saturday. Last week, the Taliban released a video in which they showed members of the group pledging allegiance to the new leader, Mullah Akhtar Mansour.[17]
[17] >
The country information also emphasises given the lack of social security infrastructure in Afghanistan, people typically rely on traditional family and clan networks for support.
As stated above DFAT advises 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.
The applicant gave evidence that he was last in Kabul in about [year] as a young boy. 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 that he has little prospect of being employed without family or tribal ties in Kabul. The country information also suggests that he would be unable to readily find accommodation in Kabul without such connections.
In these circumstances, and having regard to the applicant’s personal situation as set out above, the Tribunal accepts that it is not reasonable for the applicant to relocate to Kabul to avoid his risk of Convention based persecution.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
Decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christopher Smolicz
Member
Protection Needs of Asylum-Seekers from Afghanistan, p. 68-69Key Legal Topics
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Citations1408815 (Refugee) [2015] AATA 3375
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