1411657 (Refugee)

[2015] AATA 3296

1411657 (Refugee) [2015] AATA 3296 (11 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411657

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Amanda Goodier

DATE:11 August 2015

PLACE OF DECISION:  Perth

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 11 August 2015 at 6:21pm

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] November 2012 and the delegate refused to grant the visa [in] June 2014.

3. The applicant appeared before the Tribunal on 3 July 2015 to give evidence and present arguments. The Tribunal also took oral evidence from [a] friend of the applicant. 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 Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Afghanistan for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.   In considering these issues, the Tribunal has applied the law set out in Annexure “A” and has carefully considered all of the applicant’s claims and evidence in light of the independent material referred to by the applicant, referred to in the delegate’s decision which was provided by the applicant as well as the independent country information referred to in this decision. 

6. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for further reconsideration.

   Country of reference and home area

7. The applicant claims to be a citizen of Afghanistan and provided copies of various documents as evidence of his citizenship.  The applicant was fluent in Hazaragi and was familiar with Afghanistan.  The delegate accepted that the applicant was a citizen of Afghanistan.

8. In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Afghanistan and that Afghanistan is his country of nationality and receiving country.

9. The Tribunal is satisfied on the evidence before the Tribunal, the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is  not excluded from Australia’s protection obligations under s36(3).

   Home area

10. The applicant has consistently claimed to have been born in [a village in] Jaghori, Ghazni Province in Afghanistan where he lived until his departure in March 2012. The Tribunal finds that Jaghori in Ghanzi Province is his home area for the purposes of the Convention.

Assessment of claims

Summary application, delegate’s decision and Tribunal hearing

1. The applicant indicates in his Form 866 and attached sworn statement that he is a Hazara and Shia Muslim born in [year].  He is married with [children].  He received about [stated] years of education as well as about 1 year of religious education.  When he was young he worked with his father before becoming self-employed [in] a shop in [Town 1].  About 2008 he purchased a taxi and operated as a taxi driver until his departure from Afghanistan.

2. The applicant fears returning to Afghanistan as he worked as a taxi driver, carrying government officials. He regularly changed his number plate to avoid the Taliban.  A friend of his organised for him to transport some government officials.  The Taliban stopped his car and started questioning him.  He changed his number plates and stopped driving for 10 days.  He resumed driving his taxi and was taking 5 passengers, including 2 government officials and an interpreter who had been working for the American Army [when] he was stopped by 4 Taliban.  They found his fake number plates and took them to the Taliban base where they were held.  He was bashed and pretended to be unconscious.  While they were taking the interpreter and government officials away, he escaped and did not return to his home but left Afghanistan.  He claims the Taliban want to find him as he was transporting government officials.

3. The delegate accepted that the applicant was a Hazara Shia from the Jaghori, Ghazni area.  The delegate accepted that the applicant had a [store] in [Town 1].  The delegate accepted this on the basis of the applicant’s evidence and recounting of the running of his store, the country information that indicated one in five households in rural areas derive income from trade and services and [Town 1] is one of the main market towns after Sangi Masha.

4. The delegate noted that the applicant was able to describe his taxi, fare rates, routes taken and places he waited for fares.  However the delegate found that the applicant’s provision of a taxi driver’s licence that was not a credible document together with the fact he knowingly provided it to the department, was for the sole purpose of strengthening his protection claim and caused the delegate to question the applicant’s overall claims.  The delegate found that the applicant was not a taxi driver.  The delegate did not accept he was of interest to the Taliban, had ever been stopped by the Taliban or kidnapped by the Taliban and was therefore of no interest to the Taliban.  The delegate did not accept that the applicant faced harm for returning to Afghanistan as a failed asylum seeker or would be considered a spy.  The delegate did not accept the applicant would face harm because of his ethnicity or religion.

5. Prior to hearing the Tribunal received a substantial submission addressing the credibility concerns of the delegate, and providing additional information, including additional country information as to the future of Hazara Shias in Afghanistan.

6. While the applicant indicated he could read and write, he also stated that he had only [a certain number of] years of education and could only read and write to that level.  The Tribunal considers that only having [those] years formal education indicates that he would have limited literacy and numeracy skills.  The applicant was visibly nervous during the hearing, despite being reassured as to it informality.  He was able to tell the Tribunal about his family in Afghanistan, his occupation as a storekeeper, his reasons for driving a taxi and about his routes, fares and other details about driving a taxi in Afghanistan.  He discussed the difficulties the family had because of the drought in Afghanistan and there was no water to grow things.  He indicated their land holding was small but they had in the past been able to grown food.  The applicant discussed the trouble he had with the Taliban, indicating that he kept driving because he needed the money to support his family. He told the Tribunal that his brother drove a taxi and when he died, the applicant took over his taxi and drove as it made money to support his family. He told the Tribunal that there was no other job and the shop was not making money and he had a family to support.  He indicated that his friend organised people for him to transport, he also collected people from the rank in Kabul and also organised his own passengers so that he always had a full cab.  He also indicated that some passengers he knew while others he did not.  The applicant told the Tribunal that if he returns to Afghanistan he will continue to drive a taxi as that is how he will make money to support his family.  He told the Tribunal that his family sold the shop as they needed the money after he left for Australia.  He works while he is here and sends money home to the family when he can for their support. 

7. The applicant discussed the difficulties he had with the Taliban and stated they took his taxi licence and other documents that were in his car when they took it.  They can identify him and went to the shop before it was sold looking for him.  They know he drove government people.  If he goes back they will know he has been in Australia.  The applicant told the Tribunal there were lots of spies, including in Jaghori, who report to the Taliban. He told the Tribunal that after the last incident with the Taliban he did not go home but immediately fled in fear of his life.  He knew the Taliban had his identity documents and he knew what they did to those who opposed or they thought opposed them.  He is also a Hazara and can be easily identified as a Hazara and that increased his difficulties. 

8. The applicant told the Tribunal that his family lived in their village or nearby in Jaghori.  He had not family or friends living anywhere else in Afghanistan.

9. The applicant indicated that he did not need to obtain a taxi driver’s licence in Afghanistan, but he did.  He renewed when it required renewing.  However it was with his taxi when the Taliban took it and he lost it.  After his arrival in Australia, he asked a friend in Afghanistan to obtain a copy for him and send it to him.   This is the document he gave to the department.  While the Tribunal understands there are issues relating to the credibility of this document, the applicant’s evidence as to being a taxi driver in Afghanistan has been consistent and the Tribunal found his evidence in this regard credible. 

   Credibility

10. The applicant’s sworn statement was consistent with that provided in his entry interview dated [in] July 2012, to the delegate [in] March 2013 and to the Tribunal. The applicant gave his evidence to the Tribunal despite displaying visible signs of nervousness in a clear, direct and sincere manner and it was consistent with his previous oral and written evidence.  The nature of his claims is consistent with the independent information and, while in some respects certain aspects of his evidence appeared on its face to be, at least to some degree, enhanced and implausible, the independent evidence about the mistreatment experienced by persons who come to the adverse attention of the Taliban on the roads in Ghazni Province gives credence to their plausibility.  Having carefully considered all of the evidence and information before it, the Tribunal formed the view that the applicant’s evidence with regard to his family background and what occurred to him in Afghanistan was based on his personal experience, and for all of these reasons, finds the applicant a credible witness. 

11. His overall recall of the various incidents was consistent.  The Tribunal found the applicant’s evidence as to being a taxi driver in Afghanistan credible and accepts that he was a taxi driver in Afghanistan.  The Tribunal accepts that the applicant took passengers amongst other places to and from Ghazni and Kabul.  The Tribunal accepts that he carried a variety of passengers, including those working for government.  The Tribunal accepts that he regularly drove roads considered to be hazardous as well as carried passengers who worked for the government because he needed to earn an income to support his family and he knew no other occupation. 

12. The Tribunal accepts as plausible that he would change his number plates to avoid detection by the Taliban on the roads he frequently travelled.  The delegate referred to there being no country information to support the frequent changing of number plates.  However the Tribunal considers that this may be a method adopted by the applicant to avoid detection rather than one publicised or adopted by many. The delegate also referred to there being no country information to support the applicant’s claim as to an incident between him, the interpreter and [an army officer].  However the Tribunal does not accept that because there is no country information to support such an incident occurring, it does not mean that it did not occur. 

    Is there a real chance the applicant would be seriously harmed if he returned?

13. The applicant claims he would be subjected to serious harm by the Taliban because he was a taxi driver carrying government workers and as such is viewed by the Taliban as being pro-government and anti-Taliban and this is compounded by the fact he is Hazara and a Shia Muslim.  He claims he has already come to the adverse attention of the Taliban who will learn of his return and seek him out for harm. 

14. The issue for determination is whether, on the basis of the circumstances that exist now, his fears of future harm are well-founded. 

15. The Tribunal accepts based on the consistent evidence of the applicant the following:

    ·The applicant is a Hazara and Shia Muslim;

    ·He is from [a village in] Jaghori District, Ghazni Province,

    ·His family continue to live in their village in Jaghori where they own a small plot of land which they have had difficulty cultivating due to the lack of rainfall,

    ·He owned a shop in [Town 1] which has now been sold and that it made insufficient income to support the family which is why he drove a taxi,

    ·He has been working [while] in Australia, sending funds home to his family,

    ·He received minimal formal education and has limited skills,

    ·He has no family or networks outside his home area,

    ·The applicant drove a taxi in Afghanistan, taking routes inside Jaghori as well as outside to areas like Kabul and that he carried passengers who worked for the government,

    ·He was stopped by the Taliban, his car confiscated along with his taxi driver’s licence and other documents and the Taliban have on occasion looked for him,

    ·If he returns to Afghanistan he will continue to drive a taxi as that is how he will be able to make money to support his family and this will necessitate him travelling regularly on roads outside of Jaghori, including to Kabul and return as required by his passengers.

16. The Tribunal also accepts that the fact he is currently in Australia and has been for around 3 years will be known in his home area, especially as he is sending funds back to his family.  The Tribunal finds that information about returnees is likely to travel fast, as noted by the UNHCR in relation to internal relocation:  “[e]ven in a city like Kabul, which is divided into neighbourhoods (gozars) where people tend to know each other, the risk remains, as news about a person arriving from elsewhere in the country or abroad may reach potential agents of persecution.”[1]

    [1] UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, July 2009, Rev, 4a6477ef2.html Accessed 3 October 2012

17. The Tribunal accepts the applicant’s evidence that he has come to the adverse attention of the Taliban.  The Tribunal accepts that the Taliban are aware that he has been transporting people who work for or are associated with the Afghani Government and that as a Hazara he has been imputed as being pro-government which is consistent with the country information as referred to below.

18. The Tribunal accepts that if the applicant returns to Afghanistan he will return to his home village which will require him to travel by road from Kabul. 

19. Jaghori had an official population of 168,800 in 2012, making it the most populated district in Ghazni province, as well as in the Hazarajat. The population is almost exclusively Hazara. The Tribunal also notes that DFAT confirm that Hazara-majority areas in Hazarajat are the safest areas for internal relocation. DFAT also advise that the threat level in Hazara-majority districts of Ghazni, which include Jaghori remain low.[2] The Tribunals 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 conclude that most Afghans prefer to live in areas where their ethnic group constitutes the local majority.

    [2] Hazaras in Afghanistan and Pakistan, 26 March 2014 paragraphs 4.11 and 5.7.

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

21. In March 2014 DFAT assessed that Hazaras “are not currently at any greater risk of violence than other ethnic groups in Afghanistan” but that  [t]he security situation in Afghanistan remains fluid and varies from district to district within individual provinces”, noting that “any categorical assessment on the security in a particular area could be rendered quickly inaccurate.”[3] In a somewhat analogous assessment the Department’s 2015 COIS Paper on Afghanistan states:

    Although the Taliban leadership and the group as a whole has not been anti-Shia or anti-Hazara, the sporadic killings of Hazaras in remote regions since 2001 seems to indicate that a small number of Taliban commanders in various parts of Afghanistan do hold either anti-Shia or anti-Hazara views. The Taliban is made up of individuals with a wide range of motivations – some join for religious, political or ideological reasons, others join for financial reasons, others to solve local problems or pursue personal causes, such as revenge, and yet others are criminals who use the cover of the movement to prey on the population.[4] As Van Biljert states: ‘The variety within the Taliban movement also illustrates that the movement has a spectrum of enemies, and that not all Taliban fighters will attack the whole range.’[5]

    [3] DFAT 2014, DFAT Thematic Report: Hazaras in Afghanistan and Pakistan, 26 March, s.4.4 and 4.5

    [4] Bijlert, M 2009, ‘Unruly Commanders and Violent Power Struggles: Taliban Networks in Uruzgan’ in A Giustozzi (ed), Decoding the New Taliban: Insights form the Afghan Field, Colombia University Press, NY, pp.160-161

    [5] DIBP, COIS,  2015, “Afghanistan: Hazaras Issues Paper”, March, p. 49.

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

23. Against this, the Tribunal notes the evidence of Professor William Maley[6] and Associate Professor Alessandro Monsutti[7], both of whom indicate that while some gains have been made by Hazaras, the deep-seated causes of discrimination against Hazaras remain unchanged.  Both Maley and Monsutti indicate that the gains made by some Hazaras have not been enjoyed by all and further, that they may not last. Professor Maley questioned the ability of Australian Embassy staff to conduct field research given the tight security constraints. Professor Maley stated that there was no reason to believe that the underlying ethnic and sectarian factors fuelling hostility towards Hazaras had dissipated

    Travel security

    [6] 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

1. In assessing his claims, the Tribunal has considered the issue of ‘road security’ in and around Jaghori, because, were he to return to his home area in Afghanistan, he would need to travel by road from Kabul, and, once home, he would need to travel by road to regional areas and centres, including Ghazni City and Kabul, for work and for other matters such as medical treatment and supplies. 

2. Although the Hazara majority districts in Ghazni Province are currently secure, information indicates that they are surrounded by or adjacent to Pashtun dominated districts, which are considered ‘highly insecure’, with an active Taliban presence and, more recently, an emerging presence of groups affiliated with the Islamic State or ISIS.[8]  Moreover, the available information demonstrates that, the areas in which the Taliban has had access, influence or control, has fluctuated over the past 10 years, consistent with efforts by international and Afghan forces to restrict its sphere of influence, and that, more rrecently, an ascendant Taliban has increased its operations in and around Ghazni, including in the districts surrounding Jaghori, and has carried out targeted attacks against civilians who worked with or for the government or foreign forces.[9]  In the past 12 months, the Taliban and other Sunni insurgent groups have carried out numerous targeted attacks against police stations, military barracks, schools and organisations associated with international forces, foreign governments and international NGOs, in the Pashtun dominated districts to the east of Jaghori, including Qarabagh, Gilan and Moqor, and to the districts to the west and south, including the Khas Uruzgan district of Uruzgan, the Gizab district of Daykundi and the Ajristan district of Ghazni, with recent reports indicating the Taliban now control most parts of those districts.[10]

   [8] See ‘Taliban fears over young recruits attracted to ISIS in Afghanistan’, The Guardian, 7 May 2015, available at

   [9]     ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UNHCR, 6 August 2013, page 67-68. 

   [10]    See ‘The Taliban Resurgent: Threats to Afghanistan’s Security’, Institute for the Study of War, March 2015, available at ‘Insurgents kill 12 Afghan policemen in Uruzgan: official’, Dawn, 20 May 2015, available at ‘Taliban return to Afghan town that rose up and drove out its leaders: Insurgents now control about 80% of Gizab District in Uruzgan Province four years after successful revolt’, The Guardian, 28 October 2014, available at >

   Reports also indicate that travel along key roads throughout the Hazarajat, as well as between Kabul and Kandahar, are 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, including Hazaras.[11]  In recent years there have been regular reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads, and the security of roads in the region has become volatile and increasingly dangerous.  In March 2013 the director of the Ghazni Rural Support Programme advised the Tribunal that:[12]

   … all residents of Jaghori, Malestan, Qarabagh and other Hazara-Populated districts of Ghazni, like all other Hazara-populated districts of other provinces, 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 …

   The only roads that are secure are the roads inside Jaghori and other districts where the entire population of the district is Hazara.  But since people are totally dependent on procuring their daily needs, (including food and fuel) they need to travel to Ghazni city, to Kandahar and to other places outside their districts.  The same applies to students who have to travel to Kabul and Ghazni for taking exams and attending universities. Number of students have been killed and beheaded on their way to Kabul.  So even if inside Jaghori is secure it does not help the people, and does not make any difference on the safety of Hazaras.

   [11]    See ‘DFAT Report 1450 – RRT Information Request: AFG41196’, Department of Foreign Affairs and Trade, 5 November 2012; ‘Country Information Report No. 11/56 – CIS Request No.AFG12298: Road security in Ghazni’, DIAC Country Information Service, 21 September 2011; 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.

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

3. In March 2014, DFAT advised that:[13]

   4.23 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.

   4.24 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.

   4.25 Hazara MPs and several credible civil society contacts have told DFAT that ‘dozens’ of Hazaras were killed on roads to and from Hazarajat in 2013. However, DFAT has no reliable evidence to indicate that insurgents disproportionately target Hazaras on roads in Afghanistan. Hazaras are often the main travellers on roads to Hazarajat, so higher numbers of victims could also reflect the higher volume of traffic …

   4.32 There are two well-established routes from Kabul to Ghazni city. One is short and insecure, via Maidan Wardak. The other passes through parts of Parwan Province on the Bamiyan–Charikar Highway. This is more secure, but long and arduous.

   4.33 There are three routes from Ghazni city to the Hazara-majority Jaghori district. The most frequently used road passes through Nawur district, and is considered secure. The second route through Qarabagh district is considered less secure. A third through Muqur is insecure due to a Taliban presence, with occasional checkpoints and security incidents. DFAT understands that local residents with ties to the province and knowledge of the area—including Hazaras—are generally able to travel between Ghazni City and Hazara districts without incident and thousands of vehicles use these roads daily.

   [13]    ‘Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan’, DFAT, 26 March 2014 at 4.22-25.

4. Sources indicate the increasing presence of the Taliban in neighbouring districts to Jaghori have impacted on the districts isolation from the rest of Ghazni province and on Jaghori citizens ability to travel to and from the district.  The Kabul-Kandahar road is the traditional and key route for those travelling from Ghazni province to Kabul.  The most recent UNHCR Eligibility Guidelines relating to asylum-seekers from Afghanistan note that “Jaghori district is increasingly isolated given that some access routes to and from the district, including large stretches of the strategic Kabul-Kandahar road, are reportedly under Taliban control”.[14] 

   [14] UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010, HCR/EG/AFG/10/04, UNHCR Refworld <  

5. The Department’s Country of Origin Information Service report from March 2015 on ‘Afghanistan: Hazara Issues Paper’, refers to reports of the Taliban ‘block[ing] all routes to Malestan, Jaghori, Nawur and Ajrestan’ in or around September 2014.[15]  Similarly, Tolo News recently reported in April 2015 on residents from these districts being stranded in Ghazni City for the past month, unable to return to their home areas ‘due to high security threats on the roads in the area’.[16]  A Kabul newspaper editorial wrote in 2013 about what it perceived to be the targeting of ethnic Hazaras on the roads between Kabul and Ghazni.[17]

   [15] ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.46-47.

   [16] ‘Insurgent Risks Leave Ghazni Villagers Stranded In City, Tolo News, 21 April 2015, available at Outlook (Afghanistan)[17], 2013, “Taliban Bullying In Ghazni”, 6 July >

   The Australian Hazara Foundation in its website report of the killing of Australian Sayed Habib remarks on the blocking by the Taliban of the road into Nahoor, Qarabagh, Jaghatu, Malistan and Jaghoori, affecting the availability and price of “food, medicine and other daily necessities” in those districts, and describes how the local Hazaras “are completely reliant on this road to obtain their food and other daily necessities from Ghazni and Kabul” and need to travel to Kabul and Ghazni for medical treatment.[18] 

   [18] Australian Hazara Foundation, 2014, “An Australian resident has killed by the Taliban”, 24 September >

   There are conflicting views among external sources consulted on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. Advice by DFAT, Qayoom Suroush of Afghanistan Analysts Network and the Afghanistan Development Association indicates that there is no evidence of ethnic targeting on roads in Ghazni.  In contrast, Thomas Ruttig, Professor Alessandro Monsutti, Professor William Maley and a Ghazni based NGO, the Ghazni Rural Support Program, maintain that travel for Hazaras is dangerous on roads passing through Pashtun districts.

6. The Department’s March 2015 Country of Origin Information Service report summarises the differing views regarding the safety of road travel for Hazaras:[19]

   Most security concerns for Hazaras in the Hazara districts of Ghazni relate to travel outside the district, as most roads travel through Pashtun districts where insurgents are active. There are conflicting views among external sources consulted by the RRT on whether Hazara travellers travelling to Ghazni City or Kabul are being targeted because of their ethnicity. In 2014-5 there have been three reported incidents involving Taliban attacks on Hazaras travelling into Jaghori from Kabul …

   [19]    ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.46-47.

7. There have been further reports of attacks on Hazaras on the roads around Ghazni in Afghanistan since COIS published its paper.  According to media reports six Hazaras were abducted by armed masked men on the Herat-Farah highway in Farah province on 16 March 2015.[20]   Five Hazaras were reportedly abducted in Ghazni as they were travelling out of their home district then beheaded on or around 15 April 2015. In its report of the incident the newspaper states their bodies were found in Malistan district.[21]

   [20] The Daily (Afghanistan), 2015, “Another 6 Hazara Passengers Abducted”, March 18.

   [21] The Express Tribune (Pakistan), 2015, “Five abducted Hazaras beheaded in Afghanistan: officials”, 17 April, >

   The Tribunal notes that security concerns in Afghanistan, particularly for Hazaras, have increased in recent months with the addition of a growing Islamic State (IS) presence in the country. The Afghan President recently acknowledged that the Islamic State is gaining influence in Afghanistan[22].  The Associated Press recently reported on not only the emergence of an IS presence in Afghanistan but also of the “Taliban spreading their own influence to areas where they have not had a significant presence in the past.”[23] Some of the reported recent attacks on Hazaras have been attributed to IS fighters - foreign fighters and/or defectors from the Taliban. For example a March RFE/RL article states:

   The mass kidnapping of members of Afghanistan's Hazara minority has raised concerns that Islamic State militants are entering a new, active, phase in the country. Details about the mass abduction, which took place in Zabul Province on February 23, remain murky, with claims that it was carried out by Islamic State militants countered by denials that the group is present in the southeastern province.

   … Provincial government official Abdul Khaliq Ayubi blamed the abduction on IS, which has a strong anti-Shi'ite agenda. He said the gunmen all wore black clothing and black masks. Eyewitnesses who spoke to ToloNews said the gunmen spoke in a foreign language. Other Afghan officials have expressed skepticism about the involvement of IS in the abduction, however. Islam Gul Sayal, the spokesman for Zabul’s governor, told RFE/RL’s Radio Free Afghanistan that he believes the Taliban was behind the abduction. "These gunmen were antigovernment forces," he said. "It’s possible that they were [Pakistani] Taliban. But the Islamic State group does not have a presence here. They are simply Taliban who have changed their flags."  Nevertheless, the incident has fueled suspicions that IS militants are moving beyond the recruitment phase in Afghanistan….[24]

   [22] See Khaama Press (Afghanistan ), 2015, “ISIS promotes training camp in Logar province in Afghanistan’, 29 April.

   [23]Associated Press 2015, “Taliban Announce Their Spring Offensive In Afghanistan”, 22 April RFE/RL, 2015, “Mass Abduction Of Hazaras In Afghanistan Raises Fears Of Islamic State”, 9 March

8. Reports are speaking of ‘competition’ between IS and the Taliban resulting in increasing brutality and  sectarianism. The Afghan Khaama Press, reported in February 2015 that:

   … Being attracted by even [more] radical group, the Taliban are continuously losing their men to ISIL. In contrast, the ISIL is rapidly maximizing its man power, ammunitions and financial resources. For example, since the announcement of the Khorosaan Province, covering modern day Pakistan, Afghanistan, India, Bangladesh, and part of neighboring central Asian countries, in January 2015, the ISIL had not only convinced commanders of Pakistani Taliban to declare their allegiance to Al-Baghdadi, the Group had also nominated the Pakistani Taliban commander Hafez Saeed Khan as the emir of the Khorosaan. Other well-known Taliban figures who had recently joint ISIL are Shahidullah Shahid, Sa’aad al Emarati, Sheikh Muhsin, Dolat Khan, Khalid Mansoor, Abdul Rauf Khadim and dozens/hundreds others. ...

   … The ISIL soon began to expand their influences towards southern province of Afghanistan, mainly towards major provinces of Loya Paktia, Ghazni and Helmand. In the late September 2014, just few weeks after the release of ISIL’s first propaganda message in Peshawar, the group killed about 100 people in Ajristan district of Ghazni province; among them 12 persons were women and children who were brutally beheaded. The Taliban spokesperson Zabihullah Mujahid rejected claims for such mass killing; however, local inhabitants witnessing the scene considered Taliban militants, who were carrying the black flag of ISIL with them, responsible for such murders. According to local Afghan news, Wahdat news, the Taliban militants carrying ISIL’s flag not only killed dozens of people in Ajristan, they had also blocked communication roads to other districts of Ghazni province including Jaghori, Qarabagh and Nahoor.

   … When the ISIL men riding on horse with black ISIL’s flags on hand maneuvered in front of the cameras got attentions of Afghan local TVs and newspapers, the group was already involved in hanging Taliban’s militants in Nuristan and recruiting men in east, south and Northern provinces of Afghanistan. Around the country, the ISIL commanders recruited men from eastern provinces of Badakhshan, Nuristan and Nangarhar; South and Eastern provinces of Paktia, Logar, Ghazni, Helmand and Zabul; and Northern provinces of Jawzjan, Kunduz and Parwan. By expanding their presence in almost all major provinces of Afghanistan, today the ISIL is … considered a powerful rival against the Taliban…. According to local Afghan Medias, like Abdul Rauf Khadim, dozens and hundreds other Taliban fighters are joining ISIL to make new align with a group that is notoriously growing in the country and region.[25]

   [25] Khaama Press, 2015, “Clash between radicals: ISIL vs Taliban in Afghanistan”, 26 February. See also Oslo Times, 2015, “Taliban, ISIS announce war against each other in Afghanistan”, 20 April.

9. According to a recent New York Times article there is speculation the Taliban is becoming increasingly brutal to Hazaras to try to combat the growing popularity of IS and the defection of its fighters to IS.[26]

   [26] The New York Times, 2015, “Taliban Are Said to Target Hazaras to Try to Match ISIS’ Brutality, 22 April.

1. Most recently Professor Maley has provided an expert opinion on the safety of return to Afghanistan for members of the Hazara minority in which he made the following conclusions: 

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

   …

   A recent study of returnees to Afghanistan highlights how difficult reintegration can be even if people do have associates in the region to which they are returned (Liza Schuster and Nassim Majidi, ‘What happens post-deportation? The experience of deported Afghans’, Migration Studies, vol.1, no.2, 2013, pp.1-19). Of course, an Hazara returned from abroad with no ties in areas they can safely access would be in an even more perilous position. This ties in directly with the issue of livelihood opportunities. Again, serious research in this area highlights the importance of social relations. A recent study by Kantor and Pain emphasises the centrality of relationships to livelihoods in rural Afghanistan, and the points they make apply equally to urban areas (Paula Kantor and Adam Pain, Securing Life and Livelihoods in Afghanistan: The Role of Social Relationships (Kabul: Afghanistan Research and Evaluation Unit, December 2010). The mere fact that there may be people of similar ethnic background living in a potential relocation destination does not overcome this problem, since ethnic identities do not in and of themselves give rise to the ties of personal affinity and reciprocity that arise from family connections. (Indeed, one mistake that observers — even Afghan observers — on occasion make is to underestimate the degree of differentiation amongst groups such as the Hazaras, including distinctions between elite and non-elite figures, distinctions based on district of origin and tribe, and distinctions based on values and ideology.) A 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.[27]

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

2. The Tribunal considers that, in the event the applicant returned to Jaghori, he would face a number of risks in travelling to the district from Kabul, along roads that are increasingly dangerous and volatile, due to checkpoints and ambushes from the Taliban and other armed militants.  Even if he was able to safely travel to Jaghori, it is reasonable to assume that, he would be required to travel to Ghazni City or to Kabul for work, to obtain supplies and access certain services, including medical treatment.  The evidence before the Tribunal clearly indicates that the applicant has a family to support and would continue to work as a taxi driver as he has done in the past, despite the danger associated with this.  Even if he chose not to continue his work as a taxi driver, the evidence before the Tribunal clearly indicates that employment for those with limited education and skills is limited in the Jaghori District and the majority of men living in the district are required to travel for employment purposes.  The Tribunal considers that it would be unreasonable to expect, or to assume, that he would simply return to his home village and remain there, especially as he has a family to support.

3. In September 2014, a dual Afghan-Australian citizen who came to Australia by boat in 2000, Sayed Habib Musawi, was abducted and killed by the Taliban when he was on his way back to Kabul after visiting relatives in his village in the Jaghori district of Ghazni province.[28]  According to the most detailed report the minibus in which he was travelling was stopped by the Taliban in Larga, a village in the Muqur district, and one of the Taliban ordered him by name to get off the bus.  Another passenger heard one of the Taliban asking him, ‘Did you come from Australia?’  They found his wallet, which had an Australian flag design, and also his driver’s licence and Medicare card.  His body was subsequently found in the Qarabagh district.[29]  However, the Department’s recent Country of Origin Information Service report indicates he was killed in the Jaghori district.[30]  According to the most detailed Australian news report, although Mr Musawi was a Hazara his family believe that he was killed because he was an Australian citizen.  The news report quotes Bashi Habib, the head of the security forces in Jaghori, as stating that the fact that Mr Musawi was an Australian citizen was reported to the Taliban by an informant in his area.

   [28]    ‘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.

   [29]    Abdul Karim Hekmat, ‘Hazaras face death on return to Afghanistan’, The Saturday Paper, 8 November 2014.

   [30]    ‘Programme summary of Afghan Bost Radio news in Pashto, 28 Sep 14’, BostNews (Bost Bastan), 28 September 2014, CX1B9ECAB7743; ‘Programme summary of Afghan Sharq TV news in Pashto, 28 Sep 14’, Sharq Magazine, 28 September 2014, CX1B9ECAB7744.

4. The Tribunal notes the available country information of the network of informers, including amongst the Hazara population itself,[31] which provide information about the identity of travellers to the Taliban.  In this context, the Tribunal has also considered the following report by a Hazara academic describing how the Taliban operate in Ghazni:[32]

   The Taliban usually arrest people through their informants embedded in the Afghan community.  It is not so much the physical presence of the Taliban that threats people’s lives but the role of these informants.  The informants usually report a person, for instance, who may be working for the government or the ISAF or an NGO when travelling outside Jaghori, by passing specific information to the Taliban such as the kind of passenger car the person is travelling in, and what kind of clothes they wear.

   [31] See for example reports such as Nazari Foundation, 2010, “Security Update”, 10 January ; and Abdul Karim Hekmat, “Unsafe Haven: Hazaras in Afghanistan and Pakistan”, Cosmopolitan Civil Societies Research Centre, UTS, Sydney, October 2011, p.19

   [32]    Abdul Karim Hekmat, Unsafe Haven: Hazaras in Afghanistan and Pakistan, Cosmopolitan Civil Societies Research Centre, UTS, Sydney, October 2011, p.19.

5. When considering the applicant’s particular circumstances, he has already come to the adverse attention of the Taliban who are aware of his identity.  He would be a returnee from Australia and the Tribunal accepts that it would be known within his village that he has returned from Australia which the Tribunal considers would elevate the risk he faces. 

6. As recent reports referred to above suggest, Hazaras have been targeted by groups affiliated with Islamic State or ISIS in Afghanistan, and the New York Times has reported that the Taliban is adopting a new campaign of brutality towards Hazaras in order to ‘compete’ with ISIS. 

7. 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 his ethnicity or his religion when traveling by road. While it appears the main focus of Taliban activity has been directed against perceived supporters or associates of the Afghan national government or the international forces, Hazaras are nevertheless at an increased risk if they come to the attention of the Taliban in the course of such activity, even if it is primarily directed at different targets, particularly as some sources suggest that Hazaras are perceived to be associated with the government and the West, or associated with government or Western institutions.[33]  Given the evidence about the historic enmity towards Hazaras in Afghanistan, and the current targeting of Hazaras in both Afghanistan and Pakistan for reasons of their religion and ethnicity by Sunni fundamentalist groups linked with the Taliban,[34] the Tribunal considers the weight of recent evidence indicates that, in his individual circumstances as a clearly identifiable Hazara Shia Muslim, there is a real chance the applicant would be singled out for harm by the Taliban or some other Sunni insurgent group in the reasonably foreseeable future for the essential and significant reasons of his race, religion and imputed political opinion, while travelling on the roads surrounding Jaghori. 

   [33]    ‘Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan’, DFAT, 26 March 2014 at 3.40; ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015; Foschini, F, The Social Wandering of the Afghan Kuchis, Afghanistan Analysts Network, 1 November 2013, p.19 available at

   [34]    ‘Pakistan: Targeting Hazaras – Analysis’, Eurasia Review, (source: South Asia Terrorism Portal), 29 April 2013, available at ‘Pakistan: Authorities must do more to protect Hazara community from deadly attacks’, Amnesty International, 18 February 2013, available at >

   The Tribunal, on the evidence before it, finds the applicant faces a real chance of serious harm if he returns to Afghanistan now or in the reasonably foreseeable future. Specifically, the Tribunal finds that the need to find 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 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.

   State protection

8. 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.

9. 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.  

10. 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.

11. 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

12. The applicant’s feared persecution described above is linked to the risk faced by Shia Hazaras seeking to return to and live in Jaghori District, Ghazni Province. There remains the question of whether the applicant can find protection from this feared persecution by relocating to a different part of Afghanistan.

13. The Tribunal has considered whether it would be reasonable for the applicant to relocate to another area of Afghanistan, and thereby avoid the harm he faces in his home area. Given the applicant’s circumstances, the Tribunal considers that Kabul is the only place to which relocation could realistically be considered. DFAT assesses that the Government maintains effective control over major urban areas, particularly Kabul, although there have been an increased number of security incidents there in recent months.

14. The 2010 UNHCR Guidelines[35] state that it is unlikely that an Afghan would be able to lead a relatively normal life without undue hardship upon relocation to an area where he or she is not fully protected by his/her family, community or tribe, including in urban areas of the country; this is because traditional extended family and community structures of Afghan society constitute the main protection and coping mechanism, and Afghans rely on these structures. The Guidelines state that for a person without familial or social networks and the associated support system, relocation to Kabul would be extremely difficult. The most recent 2013 Guidelines are in similar terms, and state that the mere presence of members of the same ethnic background in the proposed area of relocation does not mean that an applicant would benefit from meaningful support from that community; and even if an extended family network is present it cannot be assumed that they would be in a position to assist. The 2013 Guidelines suggest that unless a person has access to “pre-identified accommodation and livelihood options”, their situation may be difficult .[36] This assessment was shared by DFAT in its July 2013 Country Report, and its October 2014 Thematic Report - Conditions in Kabul alluded to these difficulties while assessing that there are “generally options available for members of most ethnic and religious minorities to be able to relocate from other parts of Afghanistan to relative safety in Kabul”, despite constraints caused by a lack of financial resources and employment opportunities, compounded by the high cost of living, particularly housing; DFAT assesses that single men of working age are most likely to be able to successfully  relocate, and notes that returnees from Australia may have access to cash assistance.[37] 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.

    [35] The United Nations High Commissioner for Refugees, ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’ 17 December 2010, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 6 August 2013, Pages 74-5,

    [37] DFAT Thematic Report, Conditions in Kabul, 3 October 2014, at 3.10 – 3.14

15. In relation to relocation DFAT advise 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, including 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.”

16. There is other information documenting the extremely difficult conditions faced by displaced persons, including Hazaras, in Kabul, which include overcrowding and associated violent clashes over resources such as running water; inadequate housing; high unemployment and a lack of formal jobs; extremely low wages and widespread exploitation in the informal employment sector; and a lack of access to basic services such as electricity and health care.[38] A report by Amnesty International describes conditions for displaced persons, including returning refugees, in Kabul as unrelentingly miserable.[39]  

    [38] “Sanctuary in the city? Urban displacement and vulnerability in Kabul”, V Metcalfe and S Haysom, with E Martin, Overseas Development Institute, Humanitarian Policy Group Working Paper, June 2012, 

    [39] Fleeing war, finding misery, The plight of the internally displaced in Afghanistan, Amnesty International, February 2012,

17. 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. Further, Kabul is reportedly a very expensive city to live in, outside of the slum and ghetto areas.

18. The country information emphasises given the lack of social security infrastructure in Afghanistan, people typically rely on traditional family and clan networks for support. As stated above in the DFAT advice 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.

19. The Tribunal finds the applicant has no family, tribal or clan ties in Kabul to assist or protect him. The country information supports a conclusion he has little prospect of being employed 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.

20. Given the absence of family and social links in Kabul, his lack of education and his limited employment history, the Tribunal does not consider it reasonable for the applicant to relocate to Kabul. While he has demonstrated considerable resilience during the periods that he has spent in Australia, where he appears to have managed well, in Kabul he would be competing with many similarly unqualified displaced Hazaras for limited job opportunities without a family or social network to assist him to find work. Country information indicates that work in the construction industry or selling [products] - occupations the applicant has some experience with - is the recourse for many displaced Hazaras in Kabul and obviously cannot provide a living for all of them. The Tribunal finds that as a person with no family or social network in Kabul, a limited skill base, and with a family to support, the applicant could not reasonably be expected to relocate there. In addition, the country information indicates that there is an atmosphere of generalised insecurity in Kabul, with the Taliban and other armed insurgent groups increasingly carrying out attacks in the city.[40]  While the Tribunal does not consider that this establishes that Hazaras have a well-founded fear of persecution in Kabul, it considers that it is an additional factor that renders relocating to Kabul neither a reasonable nor practicable option for this applicant. The Tribunal does not consider that there is any other part of Afghanistan to which it would be viable for the applicant to relocate.

    [40] See for example, Washington Post, Taliban brings war to Afghan capital”, 29 November 2014, at accessed 24 April 2015.

1. 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.

2. The Tribunal is satisfied the applicant has a well-founded fear of persecution due to the overlapping Convention reasons of his race, religion and imputed political opinion if he returns to Afghanistan now or in the reasonable foreseeable future.

   CONCLUSION

3. 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

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

   Amanda Goodier
   Member

   
   

   ANNEXURE A

   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.[41]

    [41] DFAT Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014; DFAT Country Report Afghanistan, 26 March 2014; DFAT Thematic Report Conditions in Kabul 3 October 2014; COIS Issues Paper, Afghanistan: Returnees and Relocation, July 2015.