1411073 (Refugee)

[2015] AATA 3618

1411073 (Refugee) [2015] AATA 3618 (16 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411073

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Filip Gelev

DATE:16 October 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 16 October 2015 at 4:25pm

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] June 2014.

3. The applicant appeared before the Tribunal on 8 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto 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.

20. The Tribunal has considered the most recent DFAT Country Information Report on Afghanistan (dated 18 September 2015), the DFAT Thematic Information Report – Conditions in Kabul (18 September 2015) and the DFAT Thematic Information Report – Hazaras in Afghanistan and Pakistan (26 March 2014).

21. The reports which came out in September 2015 post-date the hearing in this matter. [In] September 2015 the Tribunal wrote to the applicant, to his representative’s email address, and attached copies of both reports which were published on 18 September 2015. The Tribunal invited comments within 14 days of the date of the email. As of the date of the decision no comments have been received.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether the applicant has a well-founded fear of persecution for a Convention reason or there is real risk he will suffer significant harm for any reason.

23. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity and country of reference

24. Having regard to the copy of the applicant’s national ID (Taskera) card he provided to the Department of Immigration the applicant’s ability to speak the Pashto language fluently and his oral and written evidence, the Tribunal accepts the applicant’s identity as claimed.

25. The Tribunal further accepts that the applicant is a national of Afghanistan. 

26. Based on the above, the Tribunal finds that the country of reference for the assessment of protection claims in this case is Afghanistan.

27. On the evidence before it, the Tribunal finds the applicant does not have a present right to enter and reside in any other country than Afghanistan. The Tribunal therefore finds the applicant is not prevented from protection in Australia by s.36(3) of the Act.

    Claims

28. The applicant has consistently maintained and the Tribunal accepts that he is a Sunni Muslim and a Pashtun by ethnicity; that he was born [in District 1] an area of Kandahar city Afghanistan; that he is married and has [children]; and that he arrived in Australia by boat from [another country], with his brother [Mr A] (who also applied for protection, AAT case number 1412684) [in] August 2012.

29. The Tribunal further accepts that the applicant is practically illiterate, having only been taught some very basic reading skills by his father; and that he ran a [type of business] with his brother [Mr A] in Kandahar from about 2001 up until the time of their departure from Afghanistan.

30. The applicant set out his claims for protection in a statutory declaration, dated [in] December 2012 (no further statutory declaration was provided either to the Department of Immigration or to the Tribunal). He claimed that he and [Mr A] left Afghanistan because their father-in-law, [Mr B], had been killed by the Taliban for working as a truck driver for the American forces in Afghanistan.

31. He used to transport goods, such as furniture and general living items “between the airports of the foreign forces”.  At the time of his death the applicant’s father-in-law had been doing this job for about two years. The father-in-law was living with the applicant [Mr A] and their respective wives (the two brothers married two sisters which explains why both brothers were [Mr B]’s sons-in-law). The applicant’s father-in-law was at work and he had just left the Kandahar base when he was stopped by the Taliban and brutally murdered. The Taliban set his truck on fire. The authorities found his body and identified him by his taskera, which was in his pocket.

32. At the hearing the Tribunal asked the applicant how many airports Kandahar has. The applicant said in his statutory declaration he might have meant that his father-in-law was driving from Kandahar Airport to another city’s airport. He said that he did not know exactly where his father-in-law used to go for work. The Tribunal acknowledged that the applicant would not necessarily know the details of his father-in-law’s job, but pointed out that it was the applicant’s own statutory declaration which said he was travelling between “the airports” and if he did not know exactly what itineraries his father-in-law completed he should have said so in his statutory declaration.

33. The applicant told the Tribunal that [Mr B] was killed in the middle of the night, about 6-7km from Kandahar airport. He was beheaded and his truck was burned down. The family did not realise that it was the Taliban who killed him until they found two threatening letters from the Taliban (who call themselves he Islamic Emirate of Afghanistan) which the father-in-law had received prior to his death. The first letter said that he should leave his work with the Americans and to join them; the second letter said that having failed to comply with the first letter, he will suffer the consequences.

34. According to the statutory declaration, twenty days after the funeral a letter was received from the Taliban. It said that because their father-in-law was working with the Americans, the Taliban considered the applicant and his brother to be supportive of the foreigners and they would be killed. The next day the applicant called his father-in-law’s friend in Pakistan and told him about the threats. That man “personally made arrangements” for the applicant to flee. That same night the applicant was taken to [a town], (which is [a] town on the Afghan side of the border, on the road from Kandahar to Pakistan) and then Pakistan.

35. At the hearing the applicant repeated the claim that some 20 days after [Mr B]’s funeral another letter was received from the Taliban. The letter was addressed to the applicant and his brother and again had the letterhead of the Islamic Emirate of Afghanistan. The letter said that the father-in-law had been punished for working for the Americans. It said that the two brothers are also spies for the Americans and they should join the Taliban or they would be killed.

36. The Tribunal pointed out that according to the claims, the father-in-law had been working for the Americans, and in addition he had received warnings to stop working for the Americans. When he did not do so, he was killed. The Tribunal asked why the applicant would be harmed without even getting a threatening letter, if he never worked for the Americans and he had been working as a [certain trade].

37. The applicant advised that his [type of business] was patronised by Afghan government employees and foreigners; both these “groups” are targeted by the Taliban. The Tribunal pointed out that the applicant had had the [type of business] for many years and the Taliban would have known that some of the customers were from the government or foreigners. He said that was true, but this issue came to the surface after his father-in-law was killed. The Tribunal said it needed to consider whether the Taliban would not have even given him a warning given that he was not even working for the Americans. He said that the letter may have been a warning letter, but he was not prepared to take the risk and wait for a second letter (as his father-in-law had waited).

38. The Tribunal noted that it had seen research conducted in relation to this and it was not aware of any reports of beheadings in Kandahar[1] around that time. The Tribunal observed that the Taliban would have an interest in having a beheading reported in order to spread fear and to get people to stop working for the Americans.

    [1] Sources consulted include major government and non-government agencies, local and international media sources and archival search databases such as FACTIVA and the Afghanistan News Centre and European Asylum Support Office 2012, Insurgent strategies: intimidation and targeted violence against Afghans, December, p,88 < Accessed 7 April 2014 <CISNET Afghanistan CISLIB 24804>.

39. The Tribunal noted that there were other reports of beheadings and enumerated the following: In June 2013, the BBC reported that the Taliban had beheaded two boys in Zhari district,[2] in March 2013, Central Asia Online reported that three men had been beheaded in the northern district of Ghorak;[3] in August 2012, Bakhtar News reported that a 12 year old boy had been beheaded in Pajwai district because his brother was a police officer.[4] The applicant replied that there were hundreds of violent incidents and not everything gets reported.

    [2] ‘Afghanistan Taliban behead two boys in Kandahar’ 2013, BBC, 10 June < Accessed 7 April 2014

    [3] ‘Kandahar militants behead 3 men’ 2013, Central Asia Online, 21 March < Accessed 7 April 2014

    [4] ‘A Child beheaded by Taliban in Kandahar’ 2012, Bakhtar News, 31 August < Accessed 7 April 2014.

40. The applicant has provided contradictory evidence in relation to the time of the alleged murder. According to the statutory declaration, the father-in-law was killed in late 2011 (paragraph 4) and the applicant left the country in April 2012 (paragraph 2). This clearly contradicts the timing (made in another part of the same statutory declaration and confirmed at the hearing) that the Taliban sent a letter to the applicant 20 days after [Mr B]’s funeral and the applicant left the country a day later.

41. At the start of the Tribunal hearing, the representative stated that paragraph 4 of the statutory declaration should read “early 2012”, rather than “late 2011”, that is, the father-in-law was killed in early 2012.

42. The Tribunal asked the applicant about this suggested “correction” and the timing of his father-in-law’s murder. He said that the problems had started in the first month of 2012. He was asked how he remembered that it was the first month of 2012. He said he was not sure – it may even have been the beginning of the second month of 2012. When asked again how he remembered the time, he said that the murder had happened about 25 days after the start of the western year (new year’s eve). He explained that because his father-in-law was working for a western company, he could take leave around that time of year. [Mr B] was killed about 25 days after the new year’s eve break.

43. The Tribunal then asked the applicant whether he wanted to change anything else in his previous evidence. He said that he left the country in the second month of 2012 and therefore paragraph 2, which states that he left the country in April 2012, should also be corrected. When asked how he remembered that he left Afghanistan in the second month of 2012, he said it was about 25 days after his father-in-law’s death. He said that he was illiterate and he did not even know the names of the month.

44. The applicant provided to the Department of Immigration a copy of an undated letter in English purporting to be from [Company 2] about the death of his father-in-law. It states that a man by the name of [Mr B], father-in-law of [the applicant], worked as a truck driver for that company and he was killed in the second month of 1391. The letter itself stated that this occurred in May 2012: “2^nd month of 1391 same to May 2012”. The Tribunal accepts that the second month in the Afghan calendar starts on or around 20 April, rather than 1 May.[5]

    [5]

1. At the hearing the applicant was asked about the date on the letter. He said the date was incorrect but he did not know why this date appeared on the letter. The Tribunal pointed out that with his evidence and the [Company 2] letter there were at least three different versions of the date of his father-in-law’s death ranging from late 2011 to May 2012.

2. He said the date in his statutory declaration – late 2011 – was likewise incorrect and he could not explain that error either. It may have been due to his lawyer or the interpreter/translator. In relation to the contents of the letter from [Company 2] he said could not be held responsible, because it was his sister’s husband who approached the company and asked them to write the letter.

3. At the end of the hearing, the applicant’s representative offered a new explanation – that the author of the letter from [Company 2] may have meant to write that the father-in-law was killed in the second month of the year in the Gregorian calendar (February), not the second month of the year in the Afghan calendar.

4. At the hearing, the applicant was asked about the location of his wife and [children]. He said that they were in Quetta, Pakistan. He said that they left about two months after he arrived in Australia. He confirmed that he arrived in Australia in August 2012 as noted by the delegate. He was asked why in his statutory declaration, which was prepared in December 2012 – almost four months after he arrived in Australia – he had said that at that time they were still in Kandahar as far as he knew. The applicant then changed his evidence and said that the family had moved to Pakistan about a month after he was released from detention (he specified that he was released in November 2012), rather than two months after he arrived in Australia.

5. The Tribunal asked why his wife and children moved to Pakistan. He said that about a month after he arrived in Australia, some armed men came to the house where his wife and [Mr A]’s wife lived to ask about the applicant and [Mr A]. The Tribunal asked whether he was claiming that for about six months after he left Afghanistan nobody visited his wife in Afghanistan (according to his evidence at the “entry interview” it took him five months to get from Afghanistan to Australia). He changed the claim and said that what actually occurred was that these men visited about a month after he left but he only found out about it a month after he arrived in Australia.

6. He was asked what happened later. He said that some men returned about fifteen days after the first visit, in the middle of the night, broke down the front door and asked where the applicant and his brother were. The two wives told the men that the applicant and his brother were not there. The women and children were really scared and the men would not leave the house. Then the father-in-law’s friend organised for them to leave Afghanistan.

7. The Tribunal asked why they waited for so many months if it was dangerous for them to remain there as they had been visited twice after the applicant and [Mr A] left. He said that women are not allowed to leave the house, let alone travel, by themselves, but the man in Pakistan who eventually organised their departure had his own problems.

8. The Tribunal noted that he and his brother had organised their departure within 24 hours of receiving a threatening letter and that the Tribunal might have difficulty accepting that their wives could not organise their departure for nine months. He said that their wives did not even have mobile phones. The Tribunal said it found it surprising that the applicant and his brother would have “abandoned” their wives and little children by themselves in such a precarious situation, without even a mobile phone.

9. The Tribunal returned to the issue of the timing of the visits by the armed men and the families’ departure from Afghanistan. The applicant confirmed that his wife and sister-in-law were visited twice and then they were not visited from about March 2012 until they left in about December 2012. He said even though there had been no more visits they were still terrified to remain in Afghanistan.

10. The representative said that the Tribunal should take into account that culturally in Afghanistan women and children are not targeted and that explains why they were left by themselves there.

11. The applicant also provided two “verification” letters purporting to be from [Mr C]. Each of the letters is written in Pashto as well as in English (except for the letterheads which are in Pashto).

12. The first letter is about the death of [Mr B]. It relevantly states:

    Late [Mr B] was from [District 1]. … After the death of his wife late [Mr B] started living with [the applicant] in his home. Late [Mr B] was working with foreigners in Kandahar air field as truck driver, Taliban sent several threat messages to [Mr B] but he ignored all the threats and after that in [village] Taliban caught him and burnt his vehicle and also killed him.

13. The applicant said it was his sister’s husband who obtained the letters. The applicant confirmed that the sister’s husband lives in Kandahar. The Tribunal asked why he had asked his brother-in-law to obtain letters for him, but according to his earlier evidence he had not asked his brother-in-law to check on the well-being of his wife and his brother’s [Mr A]’s wife when the two women were left behind in Kandahar. He said that he was not in close contact with his sister’s husband and he did not want the bad news about the problems of his family to spread around. At the end of the hearing, the applicant’s representative pointed out that ordinarily in Afghan culture a man and his sister’s husband would not be close at all.

14. The Tribunal asked why one of the letters from [Mr C] says that the applicant is missing and nobody knows where he is. He said that it was because he was too fearful for his safety and he did not disclose his whereabouts. The Tribunal noted that he had given evidence earlier at the hearing that he instructed his brother-in-law to obtain from [Mr C] letters which would support his case in Australia. He said that [Mr C], who wrote the letter, was not told where the applicant was. The representative said that there were more than 200 hundred families from Kandahar in [city] and news would spread back to Kandahar that he was in Australia. The applicant said that was true and that he would meet a lot of people at social events such as weddings.

15. The representative urged the Tribunal to give the applicant the benefit of the doubt also because of the use of interpreters and translators, that is, some of the errors may be due to that rather than to the applicant. In relation to the letter from the Taliban to the applicant and his brother, this could be seen as a letter of warning rather than a letter that they would be killed immediately. They were given the choice to stop being spies for the Americans and suffer the consequences, or join the Taliban.

16. The Tribunal has assessed the applicant’s evidence carefully and has concluded that the claims in relation to his father-in-law are not true.

17. At the hearing the Tribunal noted that apart from the incident of a person who obtained asylum in Canada and whose relatives were targeted in Afghanistan,[6] the country information suggests that the Taliban do not target family members of people who work for the foreigners or the government; they only target the people who work for the government or foreigners. The applicant said he did not know. He knew that the Taliban had targeted his father-in-law and that foreigners and government people were patronising his [type of business] (implying that he might be perceived by the Taliban to be a person who works for the government or foreigners).

    [6] In May 2013, The Star reported that the Taliban in Kandahar had murdered five family members of an Afghan interpreter named Sharifi previously employed by the Canadian military. According to the report, the Taliban had chosen to target the interepreter’s family, after he had relocated to Canada. The people who were killed were two women and three children. “Afghan Interpreter’s family killed by Taliban near Kandahar”, The Star, 21 May 2013, >

    After the hearing, the Tribunal re-visited the country information and acknowledges that there have been some reports of relatives of persons working for the government or foreigners who have been targeted. In April 2011, The Washington Post reported on the assassination of Kandahar’s police chief, Mohammad Mojayed. The article referred to comments by Mohammad Mojayed’s brother that the Taliban can target his children, his women and his family members whenever they wish.[7] Similarly, a more dated report in June 2010 by The Telegraph claims that in Helmand province the Taliban murdered a seven year old boy because his grandfather and father were suspected of being spies for the international military forces.[8]

    [7] Partlow, J 2011, ‘In Afghanistan, Kandahar police chief Mohammad Mojayed killed by suicide bomber’, The Washington Post, 15 April < Accessed 4 April 2014

    [8] Farmer, B 2010, ‘Life under the Taliban: how a boy of seven was hanged to punish his family’, The Telegraph, 12 June < Accessed 4 April 2014

18. In 2008, a report by the Afghanistan Independent Human Rights Commission (AIHRC) on insurgent abuses against Afghan civilians noted that the Taliban had abducted family members of those working for the government, as part of a general intimidation campaign against the civilian population;[9] the report noted that there have been reported cases in which the Taliban have beheaded civilians with ‘only the remotest of connections to the Government or international community’.[10] According to a 2012 report by the Danish Immigration Service (DIS). DIS on its fact finding mission to Kabul included comments from local NGO’s on the likelihood of family members of Afghan civilians employed by the international security forces being targeted by the Taliban. Oddly, the report cited comments by the AIHRC which claimed that whilst they were aware of examples where the Taliban had intimidated the families and acquaintances of civilian employees, in their view the real risk was for the person employed by the international forces.[11]

    [9] Afghanistan Independent Human Rights Commission (AIHRC), Insurgent Abuses against Afghan Civilians, December 2008, p.18 < Accessed 4 April 2014

    [10] Afghanistan Independent Human Rights Commission (AIHRC), Insurgent Abuses against Afghan Civilians, December 2008, p.24 < Accessed 4 April 2014

    [11] Danish Immigration Service 2012, Report from Danish Immigration Service’s fact finding mission to Kabul, Afghanistan, 25 February – 4 March, p. 18 < Accessed 8 April 2014

19. The Tribunal is prepared to accept, based on the country information, that the Taliban and insurgents may target a person (in this case the applicant) simply because the person is related to another person (the applicant’s uncle and father-in-law) who works for the US military. However, the Tribunal does not accept that in this case the applicant’s father-in-law was working for US troops.

20. First, the Tribunal has been unable to find any reports from independent sources about the claimed beheading of the applicant’s father-in-law. The Tribunal considers that the beheading of a driver who works for the US forces would have been reported, although it is mindful that not every single murder in Afghanistan is reported.

21. Secondly, the applicant provided three different versions in relation to the time when his father-in-law was killed ranging from late 2011 (in his first statutory declaration), January 2012 (evidence at the hearing) and May 2012 (letter purportedly from the father-in-law’s employer). In assessing the applicant’s evidence, the Tribunal is mindful that he is virtually illiterate. However, at the hearing the applicant was adamant that the murder had happened [in] January 2012, whereas the letter from the employer states it occurred in May 2012 or the second month of 1391 which starts on 20 April. The Tribunal rejects the suggested explanation by the applicant’s representative that the author of the letter may have meant to say second month in the Gregorian calendar, not second month in the Afghan calendar. The letter clearly states: “2^nd month of 1391 same to May 2012”.

22. Thirdly, the Tribunal finds it implausible that the applicant and his brother would have been so scared of the Taliban that they would have escaped within 24 hours of receiving a threatening letter but they would have left their wives and young children behind for several months even after two terrifying visits in the middle of the night by unknown armed men. The Tribunal finds it implausible that the applicant could not find any relatives, friends or neighbours (e.g. his sister’s husband whom he asked to procure letters of support) to lead his wife and [Mr A]’s wife to safety.

23. Fourthly, the Tribunal did not find the applicant’s evidence in relation to the Taliban’s (armed men’s) visits of the house to be persuasive. There is no mention of this incident in the applicant’s statutory declaration from December 2012. At the hearing, he provided two versions: initially he said that a visit took place about a month after he arrived in Australia (as noted above, he arrived in Australia in August 2012). Later on he said that these men had come to the house about a month after he left Afghanistan in February 2012.

24. Finally, the Tribunal found the applicant’s evidence about the work that his father-in-law did and where he drove to and from to be rather vague. The applicant sought to resile from the statement in his statutory declaration that his father-in-law was driving “between the airports” or he sought to “clarify” that his father-in-law might have been driving between Kandahar airport and another airport in another unspecified city. The Tribunal notes that it makes no sense for goods to be transported by plane to an airport and then by truck from that airport to another airport, rather than directly by plane to the second airport.

25. Because of the Tribunal’s above mentioned credibility concerns, the Tribunal gives little weight to the letters of support and the letter purportedly from the father-in-law’s employer. All the letters were “commissioned” by the applicant. Further, the applicant himself accepted that the letter from the employer contains an incorrect date (May 2012) as the date of the father-in-law’s death.

26. The Tribunal does not accept that the applicant’s father-in-law worked or works for US forces, that he was threatened or killed by the Taliban or other insurgents; that the applicant or his brother or anybody else in the family received threats or visits by the Taliban or other insurgents; that the applicant or his brother were imputed with pro-government or pro-western political views by virtue of the fact that they operated a [type of business]  sometimes frequented by government officials or foreigners. The Tribunal finds that the applicant has made up the claim that he and his brother had to flee Afghanistan because their lives were at risk. The Tribunal finds that the applicant, his brother and their families did not experience any type of harm in the past and they were not of any interest to any anti-government elements.

27. The Tribunal does accept that the applicant’s parents died when caught in the cross-fire between [certain] troops and some insurgents. However, the Tribunal considers that this was a tragic accident which does not create a real chance of persecution or real risk of significant harm. The Tribunal finds that the applicant’s wife and children, and his brother’s wife and children, remain in Kandahar.

    Well-founded fear of persecution, the security situation in Afghanistan

28. At the hearing, the Tribunal noted that according to the most recent DFAT report (as already noted above that report was superseded by a subsequent report dated 18 September 2015, a copy of which was provided to the applicant for comment) Afghan security forces maintain effective control over most of Afghanistan, in particular major urban centres, including Kandahar.[12] At the end of the hearing the representative insisted that the authorities did not have “effective control” of cities such as Kandahar, contrary to the DFAT country information recited by the Tribunal. The representative asserted that as a result of the withdrawal of international forces, there was an increase in the violence in Afghanistan and refugees leaving once again to go to Pakistan, Iran and other countries. That was why recently 25 donor countries have decided to contribute money to improve the security of the country.

    [12] Country Report: Afghanistan, DFAT, 26 March 2014 at 2.28, 5.1 and 5.2.

29. The applicant asked rhetorically if the country information was correct, how it was possible for the Taliban to have killed his father-in-law. The Tribunal said that it had not decided whether it accepts that his father-in-law had been killed. The Tribunal asked whether anything had happened to the applicant prior to his father-in-law’s death. The applicant said that he had not been harmed, but this was because whenever there was a bomb or a shooting in Kandahar, he would hide. The Tribunal asked the applicant whether the applicant knew personally anyone (other than his father-in-law) who had been harmed. He said he knew many people but he could not name anyone right now.

30. The Tribunal said that it accepted that in the 1990s the Taliban originated from the area near Kandahar[13] and they are active in Kandahar province and the highway from Kabul to Kandahar. But it does not mean that every person who is from Kandahar is owed protection. He said that may be true – if nothing has happened to someone they may not be at risk; if something does happen, as it did happen to him, the person would be at risk.

    [13] “EASO Country of Origin Information Report: Afghanistan – Security Situation”, EASO, January 2015, accessed at on 16 October 2015, at p.68.

31. The Tribunal asked whether the applicant feared harm because he has lived in Australia and he would be a returnee from Australia and because he sought asylum in Australia. He said that was the case – if previously the chances of harm were 50%, now there were 100%. When asked how people would know that he has been to Australia, given that the letter from [Mr C] says that nobody knows where he is. He says now his brother-in-law knows and everyone else would know.

32. At the hearing, the Tribunal asked the applicant whether he could relocate to Kabul. He replied with a rhetorical question: if the Taliban could target the Afghan Parliament, what chance did he stand.[14] The Tribunal noted that the Taliban often chose high profile targets, such as the parliament building, and it did not follow that he would be targeted. He is a Sunni and a Pashtun and so are the Taliban. He said that hundreds of people were being killed, ordinary people and people who work for foreign forces or the government.

    [14] There were reports that the Taliban attacked the Afghan parliament building on 22 June 2015. At least 7 attackers and 5 other people were killed. See “Taliban states deadly attack on Afghan Parliament”, Al Jazeera, accessed at on 8 September 2015.

1. The country information indicates that the Afghan authorities retain control over urban centres, including Kandahar city.[15]

   [15] “EASO Country of Origin Information Report: Afghanistan – Security Situation”, EASO, January 2015, accessed at on 16 October 2015.

2. The latest DFAT report acknowledges an increase in the level of violence across Afghanistan. However, it states:[16]

   The security situation is better in areas where government forces maintain strong control, such as major urban centres like Kabul, but attacks remain a common occurrence even in these areas.

   [16] Country Report: Afghanistan, DFAT, 18 September 2015, at 2.33.

3. At the hearing the Tribunal noted that millions of people have returned to Afghanistan since the fall of the Taliban.[17] The Tribunal said accepted that the applicant only left Afghanistan more recently, but it needed to consider whether people in Kandahar, including the Taliban, would know that he was in Australia. The applicant said that he did not know what had happened to his [type of business]. The Tribunal asked what would prevent him from opening a [type of business] in another part of Kandahar, and if asked where he has been, say that he was in Pakistan. He said that if he is not even safe in Kabul, how could he be safe in Kandahar.

   [17] Country Report Afghanistan, DFAT, 26 March 2014.

4. In relation to returnees from Australia, the Tribunal said at the hearing that it accepted the truth of media reports which have detailed two incidents in 2014 of Afghans who have been in Australia suffering harm on return. On or around 20 September 2014 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), because he was an Australian, but the fact that he was also a Hazara may have been relevant.[18] 

   [18]    ‘Sydney man killed by Taliban because he was Australian report’, The Sydney Morning Herald, 29 September 2014; ‘Son of Afghan-Australian killed by Taliban denied refugee status’, The Sydney Morning Herald, 29 September 2014.

5. On or around 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 has stated in its most recent report from September 2015 (not available to the Tribunal at the hearing) that the reports remain uncorroborated and that DFAT has been in contact with Mr Naseri “who is not currently pursuing any action regarding this matter”.[19] This sentence in the DFAT report is rather cryptic and the Tribunal is prepared to accept that Mr Naseri may have been targeted by the Taliban.

   [19] Country Report Afghanistan, DFAT,18 September 2015 at 5.22.

6. At the hearing, the Tribunal noted that out of the two people who returned from Australia one was Hazara or Sayed; the other one was Hazara by ethnicity. They were both Shia. He said the Taliban targeted people based on who they worked for, not just Shias. The Tribunal pointed out that the applicant had never worked for the government or foreigners. The applicant repeated once more that his father-in-law, who was also his uncle, did work for the foreigners.

7. As noted above, the Tribunal accepts that two men have been harmed on return to Afghanistan and it is possible that they were harmed not only because of their religion and ethnicity (Hazara/Shi’a/Sayed) but because of their link to Australia.

8. Reports indicate that travel along key roads, including the Kabul to Kandahar highway, is dangerous, as militant groups, including the Taliban, regularly set up checkpoints and have killed and harmed those who work for or support the Afghan government and international community.[20] In recent years there have been regular reports of ambushes, robberies, kidnappings and killings by the Taliban and other groups along these roads, and the security of roads in the region has become volatile and increasingly dangerous.

   [20]    Ruttig, T, ‘Comments provided by Thomas Ruttig on travel between Kabul and Ghazni for Hazaras’, 25 May 2012; Maley, W, ‘On the Position of the Hazara Minority in Afghanistan’, 9 September 2012; ‘Kabul-Kandahar highway is a symbol of what's gone wrong in Afghanistan’, The Telegraph, 9 September 2012, available at Zeerak, M, ‘Email to RRT, Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013.

9. In March 2013 the director of the Ghazni Rural Support Programme advised the Tribunal in relation to questions about Hazara applicants seeking to travel from Kabul to Ghazni that:[21]

   … all residents of …districts of Ghazni … are entirely dependent on highways and other roads crossing the Taliban controlled/dominated districts and areas of Ghazni; like Gilan, Moqor, Qarabagh in Ghazni province, and other districts in Wardak province, to the East, and to the West on Kabul-Kandhar highway.  These areas are Taliban-dominated, if not entirely controlled, areas …

   The Afghan Security Forces (ASF) including the Afghan National Army (ANA) and the Afghan National Police (ANP) has failed to provide security for these travellers.  Based on numerous accounts by the travellers and also by some reporters, in many instances the insurgents have established their checkpoints just a few hundred meters from the ASF security check points, and have searched vehicles for hours with no interruption form the ASF.  It is said that in many places, particularly in the remote areas whether the ASF is existent or if non-existent Taliban operate with total freedom. The ASF in many places can barely defend their own posts. They do not walk away from their own checkpoints unless accompanied by the larger group of forces, which rarely comes across.

   In such areas the Taliban insurgents have their checkpoints.  They stop all cars, and pull off the passengers … It implies that the Taliban have publicly announced that all those people who work with the Afghan government, the international forces, and with national and international NGOs are ‘enemy’ of the Islamic “Emirates”, and thus are to be targeted and prosecuted anywhere they are found/captured …

   [21]    M. E. Zeerak, ‘Email to RRT: Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013, CIS28576. 

10. Specifically regarding returns from the West, DFAT stated:

    5.21 DFAT is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers. As noted above, people who are identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent groups such as the Taliban. Returnees from western countries, however, face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assesses that returnees from western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile. (italics added).[22]

    [22] Country Report Afghanistan, DFAT, 18 September 2015.

11. The Tribunal observes that this paragraph, and in particular the sentence in italics at 5.21, is somewhat inelegantly phrased. It is well established under Australian law, at least the law as it stood prior to the changes to the Act which came into effect on 16 December 2014, that to require an applicant to live discreetly is wrong and irrelevant to the task of determining refugee status. Where an applicant has acted in the way he or she did only because of the threat of harm, the well-founded fear of persecution held by the applicant is the fear that unless he or she acts to avoid harmful conduct, he or she will suffer harm.

12. However, the mere fact that a particular right is denied is not necessarily enough to establish refugee status. It is important to ascertain the importance that an applicant places upon the exercise of that particular right.[23] As the Federal Court, Madgwick J, said:

    … a denial of such civil rights would amount to persecution when that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity. It is not fatal to such a claim of persecution that the claimant fails to show that he or she is a leading exponent of a claim to, or the wish to, exercise such rights … The Convention aims at the protection of those whose human dignity is imperilled, the timorous as well as the bold, the inarticulate as well as the outspoken, the followers as well as the leaders in religious, political or social causes… But, of course, the Convention did not aim at providing a universal right to change countries for every inhabitant of every oppressively ruled society on earth, however important civil and political rights may, as a matter of mere intellectual persuasion, be to such an inhabitant. The Convention was intended to relieve against actual or potentially real suffering.[24]

    [23] Win v MIMA [2001] FCA 132 (Madgwick J, 23 February 2001) at [15].

    [24] Win v MIMA [2001] FCA 132 (Madgwick J, 23 February 2001) at [20].

13. The Tribunal is not satisfied that the applicant’s travel to Australia and his unsuccessful application for asylum are matters that he ought to be free to disclose to the world at large. Disclosing these matters might increase the risk of harm to the applicant. It is, however, a circular argument to say that because disclosing them might lead to harm therefore disclosing them is a fundamental human right of the kind protected by the Convention. The Tribunal finds that taking steps to conceal his association with Australia cannot be said to be a denial of a civil right “so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity”.

14. The Tribunal gives the applicant the benefit of the doubt and accepts that some people in Kandahar might know that he has been to Australia, because of his contact in Australia with Afghani nationals. It does not follow that the Taliban or insurgents would come to know the applicant and his brother have travelled to Australia and sought asylum here, and that they would target the applicant as a result.

15. The Tribunal finds that as the applicant is a Sunni and a Pashto by ethnicity, the same religion and race as the vast majority of Taliban and most of the other insurgent groups, and as he has no political profile or link to the Afghan government or the international community, he does not face a real chance of persecution for any Convention reason. The Tribunal considers that the likelihood of the applicant being identified as a returnee from a western country or a failed asylum seeker on the road from Kabul to Kandahar – on the way home – or in Kandahar city and harmed for that reason is remote. Therefore, the Tribunal finds that there is less than a real chance that the applicant will face serious harm, and less than a real risk of significant harm, for any reason related to his (and his brother’s) travel to Australia, residence in Australia or outside of Afghanistan, or failed asylum bids in Australia.

16. The Tribunal finds that the applicant will be able to return to Afghanistan and resume his former occupation of [a certain trade] and he will not face a real chance of serious harm amounting to persecution for any reason.

17. Having considered the individual and cumulative effects of the applicant’s background, claims and circumstances, the Tribunal does not accept that there is a real chance that the applicant will be persecuted for one or more of the Convention reasons if he returns to Afghanistan.  The Tribunal does not accept on the evidence before it that the applicant has a well-founded fear of being persecuted for one or more of the Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future.

18. 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).

    Complementary protection and generalised violence

19. Subsection 36(2B)(c) of the Act provides:

    (2B)  However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

    (c)  the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

20. In SZSFF v MIBP [2013] FCCA 1884 the presiding judge considered the qualification in s.36(2B)(c) to the complementary protection criterion. The Court stated:

    …s.36(2B)(c) contemplates that a risk may be faced by a section of the population and by the applicant personally, as the applicant states at particular (e). Properly construed, the complementary protection provisions and, specifically, s.36(2B)(c) emphasise the requirement that the real risk of significant harm must be a personal risk.  That is, it must be a risk which is faced by the individual personally in light of the individual’s specific circumstances.

    The prevalence of serious human rights violations (in the context of generalised violence) in the destination country will not, of itself, be sufficient to engage a non-refoulement obligation for all people who may be returned to that country. However, where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the ICCPR and/or CAT.  As such, s.36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.[25]

    [25] SZSFF V MIBP paras 33 - 34

21. The Tribunal has considered the applicant’s circumstances with respect to this point. For the reasons provided under the heading “Well-founded fear of persecution, the security situation in Afghanistan”, the Tribunal has not accepted that the applicant will be specifically targeted for harm in his personal circumstances by the Taliban or other insurgent groups in Kandahar. The Tribunal notes that there is a level of violence in Kandahar, but as discussed with the applicant at the hearing, the country information does not indicate that someone with his profile and personal characteristics (Sunni and Pashtun, not related to the government or foreigners) would be targeted.

22. The Tribunal accepts that in late September and early October 2015, after the hearing with the applicant, the Taliban took over the city of Kunduz and controlled if for about 15 days. According to reports they destroyed government offices and facilities, seized military hardware, hunted down opponents and freed prisoners from the city prisons. Even though the operation was unexpected and impressive, the total number of people killed was relatively low (57 people) and nearly half of the fatalities were caused by a US airstrike on a hospital. Otherwise, the number of civilians killed was low: it was reported that of the 57 dead, 31 were police officers.[26]

    [26] R. Nordland, “Taliban End Takeover of Kunduz After 15 Days”, New York Times, 13 October 2015, accessed at on 16 October 2015.

100.   The Tribunal has also considered recent country information about the rise of ISIS or Da’esh in Afghanistan, including reports that the veteran Afghan warlord Gulbuddin Hekmatyar, the leader of Hezb-e-Islami, has aligned himself with ISIS.[27]

[27] K. Sengupta, “Taliban problem hasn’t gone away – and it has new extremists to contend with”, The Independent, 23 July 2015, accessed at on 16 October 2015.

101.   The Tribunal accepts that there has been violence against the civilian population across Afghanistan, including Kandahar, and that there have been a number of civilian casualties (deaths and injuries) of people caught up in the targeted attacks. While the Tribunal accepts that terrorist attacks do occur in Kandahar from time to time, the Tribunal considers that this is a risk that is faced by the population generally, and that the applicant is not personally at greater risk in this generalised violence context than the general population in that city. The Tribunal does not accept that there is any particular attribute of the applicant that would lead him to be at a greater risk of harm in the generalised violence on his return.

102.   Having considered the country information detailed above, and the information from a number of sources, including the risk of deterioration in the security situation, the Tribunal does not accept that the level of generalised violence in Afghanistan and in Kandahr in particular is so widespread that the applicant faces a real risk of significant harm, as defined in the Act.

103.   Further, having regard to the findings of fact above in relation to the applicant’s Convention claims, and having assessed the applicant’s claims individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed to Afghanistan, there is a real risk that the applicant will suffer significant harm from the Taliban or any other person in Afghanistan, because of his race and religion, actual or imputed political opinion, his or his brother’s being in Australia and seeking asylum, his or his brother’s absence from Afghanistan or any other reason.

104.   The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

105.   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

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

Filip Gelev
Member