1411699 (Refugee)

[2015] AATA 3564

1411699 (Refugee) [2015] AATA 3564 (28 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411699

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Filip Gelev

DATE:28 October 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 28 October 2015 at 11:48am

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 18 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

   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. 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

18. 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. . 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).

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issues in this case are (1) whether the applicant’s identity, including name, background, ethnicity and religion is as claimed; (2) whether he has a well-founded fear of persecution in his home area; and (3) whether he can relocate to Kabul.

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

    Country of nationality and identity

21. Having regard to the copy of the applicant’s Afghan driver’s licence sighted by the Tribunal, despite the widespread fraud in relation to Afghan identity documents, and further taking into account the applicant’s ability to speak the Hazaragi language fluently, his knowledge of Ghazni province, and his written and oral evidence, the Tribunal accepts the applicant is a national of Afghanistan and he is who he claims to be.

22. Based on the above, the Tribunal finds that the country of reference for the assessment of the applicant’s claims in relation to ss.36(2)(a) in this case is Afghanistan.

23. 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.

24. The Tribunal therefore finds the applicant is not excluded from protection in Australia by s.36(3) of the Act.

    Background and claims

25. The applicant has consistently maintained since his arrival that he is a Hazara Shi’a and he has provided oral and written evidence about his village in [District 1] of Ghazni province, a majority Pashtun district of Ghazni. As already noted above, the Tribunal accepts that he is a Hazara Shi’a and that

26. The applicant sought asylum in [Country 2] in 2008 but was unsuccessful. He was deported back to Afghanistan around June 2009. In early 2010 he travelled to [Country 3] but was deported from there as well.

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.

28. The Tribunal therefore finds the applicant is not excluded from protection in Australia by s.36(3) of the Act.

    Claims

29. In a statutory declaration, dated [in] October 2012, the applicant claims that he feared harm from the Taliban and from a certain [Mr A], who had taken away the applicant’s father’s land. He explained that “ultimately” the reason why he feared for his life was because he is a Hazara by ethnicity and a Shi’a Muslim by religion. The applicant grew up in Ghazni province and speaks Hazaragi, Dari and Pashto.

30. In relation to the Taliban the applicant said that he first fled Afghanistan in about 2008 after receiving a threat letter from them. The Taliban warned him that he should not be working for foreigners at a time when the applicant was working for [Company 4]. He continued to work for the company. In the meantime, the Taliban killed 2 of his colleagues. Fearing that he would be next the applicant fled Afghanistan and went to [Country 2] where his brother was living.

31. In relation to [Mr A], the applicant claimed in the statutory declaration that this man had taken over land belonging to the applicant’s family, but fearing that one day the applicant would seek to reclaim the land, [Mr A] would often target and threaten the applicant. On one occasions [Mr A]’s men attacked the applicant. At interview with the delegate, the applicant claimed that [Mr A] was very well known in his home district of [District 1] and that he has connections both with the government and the Taliban. He also said that [Mr A] had taken away the applicant’s father’s shop and that [Mr A]’s men had attacked him in Kabul.

32. The applicant’s application for protection in [Country 2] was unsuccessful and after being deported from [Country 2], he lived “in hiding” until eventually he fled to [Country 3] where he worked illegally for the next 2 years.

33. The Tribunal accepts that the applicant is barely literate. At the hearing, he was able to read some basic Farsi but he has not received any formal education of any kind. The Tribunal is mindful that an illiterate man from rural Afghanistan can find the detailed questioning of the Tribunal confusing, and that he can find it impossible to provide exact dates in relation to events that happened some years ago.

34. Nevertheless, the Tribunal does not accept his claims of past persecution for the following reasons. There were significant inconsistencies in the applicant’s evidence and he appeared to be adjusting his evidence in order to overcome inconsistencies identified by the Tribunal.

35. For example, at the hearing, the Tribunal asked the applicant how long he spent in Afghanistan between being deported from [Country 2] and going to [Country 3]. He said that he was back in Afghanistan for maybe 20-30 days and he was in hiding during that time. The Tribunal asked the applicant how he obtained the driver’s licence, a copy of which he had showed to the Tribunal at the commencement of the hearing, if he was in hiding. He said that he was hiding from the Taliban and [Mr A], not from the authorities. The Tribunal pointed out that the applicant had previously claimed that [Mr A] who could track him down in Kabul, and therefore he would have known that the applicant has returned to [District 1]. He said that he did not go back to [District 1], he went to Ghazni city to get the licence.

36. As to where the applicant was attacked by [Mr A]’s men, the applicant told the Tribunal initially that he was attacked in Ghazni. He then changed the evidence and said he was attacked in [Town 5], on the road between Ghazni and Kabul. When the Tribunal noted that he had told the delegate that he had been attacked in Kabul (see at p. 6 of the delegate’s decision, a copy of which was provided with the application for review), he said that [Town 5] was very close to Kabul. The Tribunal observes that the applicant told the delegate that he had been attacked in his home in Kabul, not on the road from Ghazni to Kabul.

37. Apart from the inconsistencies in relation to the location of the alleged attack by one of [Mr A]’s men, the Tribunal found the claim that [Mr A] would seek to harm the applicant implausible. The applicant told the Tribunal that when his father passed away in 2005, it was his [uncle] rather than the applicant who inherited the father’s property, i.e., his business. [a store]; the premises are rented. He said that [his] uncle, is still alive, lives in Ghazni and runs the [shop]. The Tribunal asked what would have happened to his father’s shop (the one taken away by [Mr A]) if his father had died while owning the shop in 2005. The applicant confirmed that it would have gone to his uncle, not to the applicant.

38. More importantly, the applicant confirmed to the Tribunal that [Mr A] had taken the applicant’s father’s shop and land a very long time ago – the applicant was too young to remember it – and since then neither the applicant’s father, nor anybody else in the family tried to reclaim the shop or the land, because [Mr A] is very powerful. The applicant’s father died in 2005 of natural causes. He said that as far as he knew no other relative has had any problems with [Mr A].

39. According to the applicant’s evidence at the hearing, he had never been attacked while living in the same district as [Mr A]. The first time he was harmed was in [Town 5] near Kabul or in Kabul after he was deported from [Country 2], while he was living in hiding in Kabul. The applicant explained that [Mr A] is a powerful man and while the applicant’s family did not try to reclaim the shop, [Mr A]’s men attacked him as a warning not to try to claim the shop.

40. On the evidence before it, the Tribunal does not accept the claim that men associated with [Mr A] physically harmed the applicant in the past.

41. However, the Tribunal does accept, as did the delegate before it, that applicant worked for [Company 4]. At interview with the delegate he said that he worked for the company for about 5-6 months, after his father’s death. He said [name] was about half an hour from his home village. He would go to work in the morning and back home in the evening. The applicant told the delegate that [Company 4]’s name was “very difficult” and he could not remember it.

42. The Tribunal asked whether he claimed asylum in [Country 2] on the basis of the work he did for [Company 4]. He confirmed that was the case. The Tribunal asked whether he obtained any evidence that he worked for [Company 4] before leaving Afghanistan. He said he did not, because he was fleeing to save his life. He added that by the time he returned from [Country 2], the company had left the area. People did not know the exact name of the company; in the area it was known as [name] company. He also insisted that he feared for his life and was not in a position to go back to the village in order to gather evidence in support of his case.

43. The Tribunal asked the applicant about the 2 colleagues who were killed. He said one was called [name] and one [name]. The Tribunal asked whether anyone else had been killed other than these two men. He said that many other people were killed, not just these two men. He claimed that many people were “arrested” by extremists and killed for working for [Company 4]. When asked why he had not mentioned this previously, he said that he had not talked about other people being killed because only the two men whose names he mentioned were his friends.

44. At the hearing the Tribunal invited the applicant to say more about something he had discussed at interview with the delegate. The applicant had referred to his brother-in-law having been kidnapped because he was working for a “debt company” or a lender. The applicant told the Tribunal that the Taliban had targeted his brother-in-law because of this “unislamic practice”. The brother in law is still missing. That is why the applicant’s sister lives with the applicant’s brother.

45. The Tribunal found that the applicant was truthful when recounting this aspect of his personal history. The Tribunal accepts that after the applicant left Afghanistan for Australia, his brother in law was kidnapped by the Taliban or other extremists, and subsequently he was probably killed. It indicates to the Tribunal that the Taliban are either in control of the area or at least they can kidnap and harm people in the applicant’s home district with impunity.  

46. The Tribunal then asked the applicant whether he feared any harm from anyone because of what happened to his brother in law. He said it was obvious. When asked to elaborate he said there was a great possibility that the same thing may happen to him as what happened to his brother in law. The Tribunal asked why this would happen if he did not work for a company that lends money. He said he was already on “the list” because of his work for [Company 4].

47. The independent information before the Tribunal indicates that Ghazni is one of the most volatile provinces in Afghanistan.[1] DFAT was of the view in March 2014 that the threat level is low in Hazara majority districts of Ghazni, such as Nawur, Malistan and Jaghori, but at least 11 Pashtun majority districts are not considered to be safe.[2] [District 1] is an ethnically mixed district There are recent reports of the emergence of extremist groups affiliated with Islamic State or ISIS in some districts of Ghazni Province.[3] 

    [1]     See ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015, p.21. 

    [2]     ‘Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan’, DFAT, 26 March 2014.

    [3]     [Information deleted]

1. As noted above, although the Hazara majority districts in Ghazni Province are currently secure, information indicates that Pashtun dominated districts are considered ‘highly insecure’, with an active Taliban presence and, more recently, an emerging presence of groups affiliated with the Islamic State or ISIS.[4] 

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

2. Moreover, the available information demonstrates that recently the Taliban have increased their activities in and around Ghazni and have carried out targeted attacks against civilians who worked with or for the government or foreigners.[5] Indeed, in the past year, 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 Pashtun dominated districts, including [District 1]. The Taliban are reported to control most parts of the districts.[6]

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

   [6]     [Information deleted]

3. Reports also indicate that travel along key roads throughout the Hazarajat, as well as between Kabul and Kandahar, 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, including Hazaras.[7] 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. In March 2013 the director of the Ghazni Rural Support Programme advised the Tribunal that:[8]

   … 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, [District 1], 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.

   [7]     ‘DFAT Report 1450 – RRT Information Request: AFG41196’, DFAT, 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.

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

4. The Department’s Country of Origin Information Service report from March 2015 entitled ‘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.[9]  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’.[10] 

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

   [10]    ‘Insurgent Risks Leave Ghazni Villagers Stranded In City, Tolo News, 21 April 2015, available at >

   With regard to what might happen in the foreseeable future in Afghanistan, the independent evidence before the Tribunal including from United Nations Secretary-General,[11] UNAMA,[12] the International Crisis Group,[13] the Institute for the Study of War, the Brookings Institute,[14] indicates a significant likelihood that, in the wake of the handover from international to Afghan security forces in late 2014, the Taliban will continue to increase their power and control over most parts of the country. 

   [11]    ‘The situation in Afghanistan and its implications for international peace and security: report of the Secretary-General’, UN General Assembly, 9 December 2014, available at    ‘Afghanistan Annual Report 2014: Protection of Civilians in Armed Conflict’, United Nations Assistance Mission in Afghanistan (UNAMA), 18 February 2015. 

   [13]    ‘Afghanistan’s political transition’, International Crisis Group, 16 October 2014, available at

   [14]    ‘Post-ISAF Afghanistan: The early months’, Brookings Institute, 6 May 2015, available at

5. Sources agree that the Taliban and other insurgents target people associated with the international community. DFAT in its most recent report states:[15]

   3.34 Insurgent and terrorist groups, including the Taliban, openly target government officials and people associated with the international community. These individuals are often subject to intimidation, threats, abduction and killing. These attacks occur throughout Afghanistan, including Kabul.

   3.35 The UN has reported that around 11 per cent of all civilian casualties of the conflict in 2014 were as a result of civilians being directly targeted, predominantly because of their perceived affiliation with the government or opposition to anti-government elements.

   [15] ‘Afghanistan: Country Information Report’, DFAT, 18 September 2015.

6. In relation to the situation in Afghanistan as a whole, in September 2015, DFAT advised that:[16]

   2.31 According to the UNAMA Annual Report on the Protection of Civilians in Armed Conflict, the conflict in Afghanistan resulted in 10,548 civilian casualties (3,699 deaths and 6,849 injured) in 2014, a 25 per cent increase in civilian deaths and a 21 per cent increase in civilian injuries compared to 2013. The number of civilian casualties is the highest recorded since the UN began tracking civilian casualties in 2009. According to the UN, anti-government elements were responsible for 72 per cent of civilian casualties in 2014, with 12 per cent attributed to the ANDSF, two per cent to international military forces, and 14 per cent to a mixture of incidents where casualties could not be attributed to a particular party to the conflict (this includes unattributed incidents caused by explosive remnants of war, and cross-border shelling from Pakistan into Afghanistan). In its 2015 mid-year update, UNAMA recorded a further one per cent increase in civilian casualties in the first six months of 2015 compared to the same period in 2014. Soon after the release of this update, on 7 August 2015, a series of attacks in Kabul resulted in an estimated 355 civilian casualties (deaths and injuries), which is the largest number of civilian casualties in a single day since data collection started in 2009.

   2.32 The significant rise in casualties in 2014 reflects an increase in the frequency and intensity of ground engagements across Afghanistan. Casualties from ground engagements increased by 52 per cent in 2014, coinciding with the withdrawal of international military forces and combat air support. Casualties are expected to continue to rise in 2015. UNAMA reportedly documented 2,937 civilian casualties (974 deaths and 1,963 injured) in the first four months of 2015, a 16 per cent increase on the same period in 2014.

   2.33 Insurgent forces contest many areas of the country and no part of the country can be considered free from conflict-related violence. The situation remains fluid. While the government retains control of much of the country, particularly in the provincial and district centres, some areas are openly contested, with varying levels of control exerted by the government and by insurgents. The security situation across the country deteriorated significantly over the last 12-18 months, as anti-government groups intensified their efforts and the international military contingent gradually withdrew. The security situation is better in areas where government forces maintain strong control, such as major urban areas like Kabul, but attacks remain a common occurrence even in these areas.

   [16]    ‘Afghanistan: Country Information Report’, DFAT, 18 September 2015.

7. It is clear that Afghanistan remains in a highly volatile and unpredictable phase, and that despite the international community’s efforts Afghanistan has not achieved durable peace and security. It appears likely that insurgent activity will increase in the reasonably foreseeable future, as the Taliban seek to expand their sphere of control. The Tribunal observes that in recent weeks a provincial capital, Kunduz, was briefly overrun and controlled by the Taliban. According to reports they destroyed government offices and facilities, seized military hardware, hunted down opponents and freed prisoners from the city prisons..[17]

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

8. In light of the widely pessimistic outlook for Afghanistan’s security situation, the Tribunal considers it prudent to adopt a cautious approach in making predictions as to the relative safety for a person in the applicant’s situation. As the independent information demonstrates, areas once thought to be relatively free of Taliban influence may not necessarily be so in the reasonably foreseeable future. 

9. The sources consulted by the Tribunal agree that the Taliban are predominantly Sunni and Pashtun, and that the Taliban and Pashtuns have a historical hatred of Hazaras based on ethnicity and religion. In addition, the applicant worked for a foreign company which had a contract with the government.

10. For the applicant to meet the refugee criterion, the Tribunal must be satisfied that there is a real chance he would be singled out for serious harm in a ‘systematic and discriminatory’ manner for the ‘essential and significant’ reason of one or more of the Convention grounds.

11. He has claimed that he is at risk of persecution because of his Hazara race and his Shi’a religion, as well as his association with foreigners and the government, which would lead the Taliban or other armed Sunni group to impute him with an adverse political opinion.

12. Assessing the risks to the applicant in the current unstable and uncertain conditions in the country is a difficult task. In the Tribunal’s view, the independent information supports the adoption of a sceptical view towards the proposition that the risk of harm to a person in his circumstances living in [District 1] is remote, and will continue to be so in the reasonably foreseeable future.

13. In these circumstances, the Tribunal is unable to make a confident finding that the chance of him suffering serious harm while residing in his home area is remote or far-fetched, or that it is based on mere speculation, and, accordingly, accepts there is a real chance he would suffer serious harm in [District 1] of Ghazni, in the reasonably foreseeable future.  

14. Having carefully considered the information and evidence before it, including the September 2015 DFAT reports, the Tribunal finds that, in his individual circumstances as a clearly identifiable Hazara Shi’a Muslim, who is known to have worked for a foreign organisation/the government, there is a real chance the applicant would be singled out for harm by the Taliban or some other Sunni insurgent group either in his home area or while travelling on the roads surrounding [District 1] in the reasonably foreseeable future.

15. The Tribunal finds that the applicant will be subjected to physical ill treatment or he will be killed, that is, he will suffer serious harm amounting to persecution for the purposes of s.91R(1)(b).

16. The Tribunal finds that the essential and significant reasons that the applicants risk persecution in his home are of Afghanistan would be the Convention reasons of race, religion and imputed political opinion for the purposes of s.91R(1)(a).

17. Finally, the Tribunal is satisfied find that the persecution would involve systematic and discriminatory conduct for the purposes of s.91R(1)(c).

    State protection

18. It is clear from the country information set out above, and from the DFAT assessment in particular, that the government is unable to exercise effective control over parts of the country and it lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators.

19. DFAT advised in 2014, and the same advice has been repeated in its most recent assessment of September 2015, that[18]

    [t]he ongoing insurgency, particularly in the south and east of Afghanistan means that the Government struggles to exercise effective control over 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.

    [18]    ‘Thematic Report Afghanistan, ‘Hazaras in Afghanistan and Pakistan’, DFAT, 26 March 2014 at 5.1-5.4 and Country Report Afghanistan, DFAT,18 September 2015 at 5.1. 

20. In its most recent Eligibility Guidelines the UNHCR notes 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’.[19] 

    [19]    ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UNHCR, 6 August 2013 at 23-25. 

21. On the basis of its comprehensive assessment of the available sources at that time, it was UNHCR’s recommendation that, ‘to the extent that the harm feared is from non-State actors, State protection is on the whole not available in Afghanistan’. There is nothing in the information before the Tribunal to indicate or suggest that there has been any improvement in the underlying conditions that caused UNHCR to form that view in mid-2013. 

22. Indeed, in view of the prevailing unstable security situation in Afghanistan and the potential for further deterioration in the context of the draw-down of international forces, the Tribunal finds that the applicant would be unable to access state protection, in accordance with the principles in MIMA v Respondents S152/2003, from the serious harm he faces from the Taliban and other armed militants.

    Relocation

23. Having found that the applicant faces a real chance of serious harm for reasons of his race, religion and imputed political opinion, if he returns to his home area, the Tribunal must consider relocation to another part of Afghanistan. The internal relocation principle[20] was accepted by the Full Federal Court in 1994 in Randhawa v MILGEA on the basis that ‘[t]he focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country’.[21] The Chief Justice reasoned that:

    If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.[22]

    [20] Also known as the ‘internal flight alternative’ and ‘internal protection alternative’.

    [21] Randhawa v MILGEA (1994) 52 FCR 437 at 440-1.

    [22] (1994) 52 FCR 437 at 441.

24. The High Court has confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[23] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[24]  Therefore, in determining whether an applicant is a person in respect of whom Australia has protection obligations, it may be necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country, free of the risk of persecution.

    Risk of harm on the basis of the applicant’s race or religion

    [23] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.

    [24] MIBP v SZSCA (2014) 314 ALR 514.

25. In the applicant’s circumstances Kabul is the only realistic option, particularly as reports indicate that there is an increasingly large community of Hazaras in Kabul,[25] with relatively few reported incidents of Hazaras being targeted in the capital. 

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

26. The Tribunal has considered whether the applicant has a well-founded fear of persecution in the reasonably foreseeable future if he returns to Afghanistan on the basis of the general security situation in Afghanistan and the situation for Hazara Shi’as generally in Kabul. The applicant has claimed that the Hazara Shi’a face systematic discrimination and persecution at the hands of the Taliban, including that there is a historical enmity towards the Hazara from the Taliban.

1. Specifically regarding Kabul, DFAT stated:

   The security situation for Hazaras in Kabul does not differ significantly from that experienced by the general population of the city and Hazaras are not disproportionately targeted by criminals or insurgents in Kabul. The bombing of the Shi’a Abu Fazl mosque in Kabul during Moharram in December 2011 reportedly killed at least 70 people, many of whom were Shi’a Hazaras. DFAT assesses this to be an isolated incident and has no information about other recent attacks against the Shi’a or Hazara community in Kabul.[26]

   [26] ‘Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan’, DFAT, 26 March 2014.

2. The September 2015 DFAT Thematic Report Conditions in Kabul assessed that travelling to Kabul from other parts of Afghanistan, particularly the Hazarajat, can be dangerous. Hazaras face a greater risk than other ethnic groups, although this may be due to the higher number of Hazaras travelling on the roads. However, in Kabul itself ethnic violence is rare. Notwithstanding concerns about the situation on the roads, members of most ethnic and religious minorities can relocate to Kabul. [27]

   [27] ‘Thematic Report Afghanistan, Conditions in Kabul, DFAT, 18 September 2015, 3.9-3.11.

3. Professor Alessandro Monsutti agreed, stating in January 2012 that insecurity in Kabul is the result of indiscriminate attacks, and Hazaras are not less safe than any other ethnic group.[28]

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

4. Regarding the attacks on Shi’a in Kabul, it was noted that on 6 December 2011 a suicide bomber exploded a bomb among Shi’a worshipers celebrating Ashura at a Shi’a shrine in Kabul. The attack, which was the bloodiest single incident against Afghan civilians since 2008, killed 55 people, most of who were Hazaras, and wounded around 150. The shrine was located in Murad Khane, a mainly Shi’a neighbourhood along the Kabul river, in the center of Kabul. A Pakistan-based militant group, Lashkar-e-Jhangvi al-Almi, a splinter group of Lashkar-e-Jhangvi (LeJ), reportedly claimed responsibility for the attack, though the Taliban condemned the bombing.[29] Mohammad Bakir Shaikzada, the top Shi’a cleric in Kabul, said that it was the first time that Shi’as in Kabul had been attacked in decades. He said he could not remember a similar attack having taken place.[30] In September 2013, heavily armed members of the LEJ attempted to attack another Shi'a mosque during Friday prayers in Kabul, but were intercepted and killed by Afghan security forces outside the mosque.[31]

   [29] Boone, J 2011, ‘At least 55 dead in Kabul suicide attack on Shi’a pilgrims’, The Guardian, 6 December

   [30] Boone, J 2011, ‘Kabul shrine worshippers killed in Afghan sectarian attack’, The Guardian, 6 December

   [31] US Commission on International Religious Freedom (USCIRF) 2014, USCIRF Annual Report 2014 – Tier 2: Afghanistan, 30 April 

5. The UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (6 August 2013) advised that the position of members of minority ethnic groups including Hazaras requires a particularly careful examination of the possible risks.  It reports that while overt discrimination by Sunnis against the Shi’a community is decreasing, violent attacks targeting the Shi’a population continue to occur.

6. In contrast to the assessments of DFAT and UNHCR, Professor William Maley indicated in a paper dated 9 September 2012 that Hazaras in Afghanistan continue to experience abuse. Professor Maley claims that security assessments by DFAT and non-government agencies such as the UNHCR tend to under-report the scale of abuse experienced by Hazaras due to the danger of conducting first hand field research.[32] In a paper entitled ‘On Return to Kabul of Members of the Hazara Minority in Afghanistan 3 February 2014’, Professor Maley expressed the view that it was a serious mistake to conclude that Kabul is safe for Hazaras.  He states that this is demonstrated by the Ashura Day bombings referred to above.  He opines that this should not be seen as an isolated incident. 

   [32] Maley, W 2012, ‘On the Position of the Hazara Minority in Afghanistan’, 9 September.

7. However, despite the nature of these attacks, and other attacks on Shi’as such as an attack on a Shi’a mosque by two Pakistani nationals on 5 September 2013 when at least three worshippers were injured;[33] and an attack on a Shi’a cultural centre in Kabul on 12 February 2014 by a suicide bomber which killed one person,[34] the Tribunal is of the view that the available country information indicates such attacks have been relatively rare, and as such the chance or risk of the applicant being harmed in such a circumstances would be best described as remote, and not a real chance or real risk. 

   [33] “Shia mosque attacked in Kabul by men in police uniforms”, BBC,5 September 2013, accessed at on 12 October 2015.

   [34] “Suicide bomber targets Shi’a cultural centre in Kabul”, Radio Free Europe/Radio Liberty, 20 February 2014, accessed at on 12 October 2015.

8. In the Tribunal’s view, DFAT’s March 2014 and September 2015 assessments that violence against Hazara Shi’a and associated sectarian violence is infrequent in Kabul appear to be correct. The Tribunal finds that Hazara Shi’a do not face systematic persecution at the hands of the Taliban or other insurgent groups.

9. The Tribunal has considered the submissions of the applicant in relation to the general security situation and the situation for Hazara Shi’as. Considering the available information, the Tribunal accepts that there are some incidents where Hazara Shi’as have been targeted, and where ethnicity and religion would appear to be a factor. However, and notwithstanding the views of Professor Maley, the Tribunal does not accept that all Hazara Shi’as in Kabul face a real chance of persecution now or in the reasonably foreseeable future.

10. The Tribunal finds that the applicant does not face a real chance of serious harm for these reasons, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.

    Returnee from the West, failed asylum seeker and imputed political opinion

11. The Tribunal notes the following country information about returnees from outside of Afghanistan.

    5.17 Between 2002 and 2013, an estimated 5.8 million refugees—25 per cent of Afghanistan’s estimated population—returned to Afghanistan, predominantly from Pakistan and Iran. There are currently an estimated three million Afghans living in Iran, and another three million in Pakistan; not all of these people are refugees, and a large number of them are not registered and are living illegally. There are smaller populations of Afghan refugees living in a range of other countries, including India.

    5.18 The number of displaced people moving in and out of Afghanistan has ebbed and flowed in recent years. Rates of returnees reportedly fell in 2014 as the conflict in Afghanistan worsened, but 2015 saw a rapid increase in returnees from Pakistan following a terrorist attack on a school in Peshawar and subsequent efforts by Pakistani authorities to return undocumented migrants to Afghanistan. According to the IOM, more than 70,000 undocumented Afghans returned from Pakistan in the first four months of 2015 alone. In addition, more than 150,000 undocumented Afghans returned from Iran over the same period, although this is more consistent with normal migration flows, including for economic purposes. There is no available information on how many undocumented Afghans cross the border the other way into Iran or Pakistan.

    5.19 Returnees from Pakistan are often unable to return to their home communities—in some cases the ‘returnees’ were born in Pakistan and have not previously lived in Afghanistan. As with IDPs, most returnees from Pakistan travel in large groups of multiple families as a social protection mechanism. They may spend long periods of time in temporary accommodation in camps with limited infrastructure and economic opportunities.

    5.20 Returnees from western countries are almost exclusively returned to Kabul. While some families are returned, most tend to be single men travelling alone. While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. The relatively better economic opportunities available mean returnees often choose to remain in Kabul. There are no tracking mechanisms for these returnees, so it is difficult to assess the conditions they face, particularly some time after their return. There are plausible, but anecdotal, reports of returnees from western countries often turning up in drug communities. DFAT assesses that, because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion.[35]

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

12. 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.

    5.22 In 2014 there were news reports that an Afghan Hazara, Zainullah Naseri, from Jaghori District in Ghazni Province, was abducted and tortured by the Taliban following his deportation from Australia. He reportedly escaped from his captors and returned to Kabul. These reports have not been corroborated. DFAT has since been in contact with Mr Naseri, who is not currently pursuing any action regarding this matter.[36]

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

13. 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. In these cases, it is the threat of serious harm with its implications that constitutes the persecutory conduct.

14. 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.[37] 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.[38]

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

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

15. 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”.

16. The Tribunal has considered the issue of being from the West more generally. The Tribunal notes the reports, as mentioned above, of two men being harmed after returning to Afghanistan from Australia. Even if the Tribunal were to accept that Mr Naseri was targeted for being a returnee, both he and the other man were harmed outside of Kabul, travelling back to their home region. The Tribunal noted that in relocating to Kabul, where the Tribunal was assessing the prospect of being harmed, the country information was available that the applicant would not be targeted for harm because of his living in the West.

17. The Tribunal does not accept that the applicant faces harm because of his residing outside of Afghanistan (a Western country) or because he sought asylum in Australia (a Western country). The Tribunal considers that the applicant will be able to reside in Kabul, a location where many Afghanis have returned to in recent years, and would not be targeted because of his residence in the West or outside of Afghanistan.

18. The Tribunal has already rejected the applicant’s claims that he was ever harmed by men sent by [Mr A] to Kabul (or on the road from Kabul to Ghazni). The Tribunal finds that the applicant is not at risk of harm from [Mr A] or anyone associated with him in Kabul.

19. In relation to the Taliban who may harm the applicant in Ghazni, the Tribunal is not satisfied that they will learn that the applicant

20. The Tribunal finds that the applicant does not face a real chance of serious harm for this reason, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

    Reasonableness of relocation

21. Reports on the economic situation for Hazaras in Kabul are mixed. The Department’s March 2015 Country of Origin Information Service report provides a helpful presentation of a range of views and analyses.  Most commentators appear to agree that the overall socio-economic situation for Hazaras in Afghanistan has improved significantly, and that many Hazaras have been able ‘embrace and create’ work and business opportunities in Kabul. 

22. However, it is also reported that the experiences of individual Hazaras differ greatly, and that not all Hazaras have benefited from the increased economic opportunities, that patronage and connections are still a critical element in a person’s survival, and that the Hazaras are still described as amongst the poorest communities in Afghanistan, with an ‘underclass’ of Hazaras present in Kabul.  UNHCR has reported of the widespread unemployment in Kabul that limits the ability of a large number of people to meet their basic needs.  DFAT has also referred to unemployment being widespread in Kabul and underemployment common, with some reports indicating that more than one third of Kabul’s residents are unemployed and another 36% earn less than $1 a day, with most having little access to clean water and sanitation, adequate housing, health services or education. 

23. The recent DFAT ‘Thematic Report: Conditions in Kabul’, advises that traditional extended family and tribal community structures are ‘the main protection and coping mechanisms for people in Afghanistan, who rely on these for their safety and economic survival, including access to accommodation and adequate level of subsistence. DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation.

24. Both DFAT and UNHCR stress that internally displaced Afghans rely on these networks. ^[39] The difficulty of relocation is exacerbated by Kabul’s relatively high cost of living, particularly the cost of housing. Returnees generally have lower household incomes and higher rates of unemployment than established community members. Although DFAT assesses that men of working age are more likely to be able to return and reintegrate successfully, UNHCR has highlighted the importance of employment skills. While DFAT has stated that internal relocation to urban areas is more likely to be successful for single men of working age, other reports indicate that accessing that support is dependent on having a contact point from an existing network, which usually comes from the person’s village or tribe, which the applicant does not have.   

    [39]    ‘Thematic Report: Conditions in Kabul’, DFAT, 18 September 2015, at 3.8-3.16; ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UNHCR, 6 August 2013, p 72-75.  See also Majidi, N., ‘Urban Returnees and Internally Displaced Persons in Afghanistan’, Middle East Institute & Foundation pour la. Recherche Strategique, 25 January 2011, available at afghanistan/pdf/01_majidi.pdf; Saito, Mamiko, Searching For My Homeland: Dilemmas Between Borders, Experiences of Young Afghans Returning “Home” From Pakistan and Iran, AREU Synthesis Paper Series, July 2009, available at org.af/index.php?option=com_docman&Itemid=&task=doc_download&gid=686

25. In addition, even though reports indicate that Kabul is safer than other parts of the country, there is evidence of a number of insurgent attacks against government institutions, political figures and Afghan National Security Forces, as well as other security services and international organisations, they have often involved significant civilian casualties.[40] DFAT’s September 2015 Thematic Report: Conditions in Kabul observes that insurgents regularly conduct high profile attacks in Kabul. It notes that Kabul has seen a marked increase in the number of incidents (attacks) in 2015 compared to 2014. The Report refers to the coordinated series of attacks in August 2015 that led to an estimated total tally of 335 civilian casualties (dead and injured).[41]

    [40]    See ‘Afghanistan: Hazara Issues Paper’, Department of Immigration and Border Protection, Country of Origin Information Service, March 2015; ‘Afghanistan Annual Report 2014: Protection of Civilians in Armed Conflict’, United Nations Assistance Mission in Afghanistan (UNAMA), 18 February 2015.

    [41] Thematic Report: Conditions in Kabul, DFAT, 18 September 2015, at 2.29-2.30.

100.   According to a United Nations Assistance Mission in Afghanistan report, there was an overall increase of 22% in civilian casualties in Kabul in 2014 compared to 2013. In late 2014, the Washington Post referred to a recent report of the IHS Jane’s Terrorism and Insurgency Center that there had been over 80 reported insurgent attacks in Kabul in 2014, and quoted a respected Afghan journalist, who lived in the capital, that Kabul ‘city is now the front line of the war’.[42] 

[42] ‘Taliban brings war to Afghan capital, Washington Post, 29 November 2014, available at  Though this is not sufficient in itself to establish that in Kabul the applicant will face a real chance of persecution or real risk of significant harm, the existence of these attacks and the danger that the applicant may be caught up in them, contributes to the unreasonableness of relocation. Further, in the Tribunal’s view, the available information indicates that it is reasonable to anticipate the possibility that increased levels of insecurity and instability throughout the country will cause further large-scale displacements, with Kabul receiving increasing numbers of new residents, placing further pressure on the city’s already over-stretched infrastructure. 

102.   The Norwegian Refugee Council Report: Still at Risk: Security of tenure and the forced eviction of IDPs and refugee returnees in urban Afghanistan, February 2014, found the following:[43]

[43] ‘Still at Risk: Security of tenure and the forced eviction of IDPs and refugee returnees in urban Afghanistan’, Norwegian Refugee Council, February 2014, accessed 8 July 2015 at

The arrival of large numbers of IDPs and refugee returnees in Afghanistan’s cities presents the government and the international community with both a protection and an urban development challenge. Informal settlements in Afghanistan can make up entire neighbourhoods. Some are now several decades old. Informal settlements are frequently characterised by insecure tenure, poor sanitation, lack of safe drinking water, high vulnerability to disasters and lack of investment in services and infrastructure.

Indeed, three quarters of Afghans affected by conflict have faced some form of displacement and in cities such as Kabul most of the urban poor have been IDP s or refugees at some point in their lives. Poverty, informality and marginalisation are a reality for the majority of urban dwellers in Afghanistan and much of the wider urban poor lack access to adequate housing and secure tenure.

103.   The Oxford Refugee Studies Centre report entitled Afghanistan Afghanistan’s  Displaced People: 2014 and Beyond, found the following:[44]

[44] The Oxford Refugee Studies Centre, Forced Migration Review, Issue 46, May 2014, accessed 29 May 2015 at:

not as successful and sustainable as hoped: Though it is unclear exactly how many Afghans have returned home (some more than once) since 2001, 5.7 million is a recent estimate.1 Added to this are the 2.7 million who are still in Pakistan and Iran, and who are unlikely to return home unless there is a strong forced incentive from the host countries, namely deportation. But return has been unsustainable for many, if not a majority, due to the struggle to obtain a place to live and make a living, let alone access basic services and enjoy security and protection. Many returnees already live in secondary displacement.

Added demographic stress: With its exceptionally high birthrate (2.4%), Afghanistan’s population is predicted to exceed 40 million by 2030, with ever greater competition for resources such as land, services and employment in a country that already struggles to provide for the current population of around 28 million. More stresses and vulnerabilities are likely to produce displacement and, with a larger population, any future displacement will mean larger numbers of refugees and IDPs.

Insecurity as a key driver of displacement: The recent sharp increase in violence in Afghanistan does not inspire much confidence that the push factors will be resolved any time soon. Security incidents and the killing of civilians have been steadily on the rise over the last few years, and the trend is already continuing into 2014. Civilian casualties, however, only tell us part of the story, and should be considered along with the increase in threats, intimidation and human rights violations, the rise in instances of impunity, and the lack of protection provided by the Afghan government and its security forces.

104.   This is a finely balanced case. At the hearing the applicant said he was more worried about his safety than about his ability to find a job in Kabul. However, the applicant’s employment experience is as unqualified labourer and his own view that he should be able to find work may not be realistic given the high level of unemployment in the city. As already noted, the applicant has virtually no formal education.

105.   The applicant is not disputing that he lived for a few months in [Country 2 and in Country 3] for over a year. He has been in Australia for about 3 years. He lived in Kabul for some time – although it was impossible to establish exactly how long – both before he left for [Country 3] and after he was deported from [Country 3]. While in Kabul, the applicant was not employed and he did not settle into long term accommodation.

106.   The applicant is single and has no children. DFAT and the UNHCR reports indicate that young single males can relocate more easily than families or women. However, the Tribunal accepts that his [siblings] are financially dependent on the applicant.

107.   In the Tribunal’s view, when considered in the context of the overall pessimistic outlook for Afghanistan’s foreseeable future,[45] the general insecurity, the widespread unemployment in Kabul, its general high costs of living, poor general living conditions for IDPs, the evidence that the applicant has no family or relatives or known tribal or clan ties in Kabul, that [some] of his siblings are financially dependent on him, that he has been outside the country for most of the last seven years since he travelled to [Country 2] in 2008, that he has limited financial means and few employment-related skills, gives the Tribunal little confidence in finding that, as a matter of practical reality, it would be reasonable to expect him[46] to relocate to Kabul, and, accordingly, finds that relocation is not a reasonable option for the applicant. 

[45]    See ‘Post-ISAF Afghanistan: The early months’, Brookings Institute, 6 May 2015; ‘The situation in Afghanistan and its implications for international peace and security: report of the Secretary-General’, UN General Assembly, 9 December 2014; ‘The Taliban Resurgent: Threats to Afghanistan’s Security’, Institute for the Study of War, March 2015; ‘Afghanistan’s political transition’, International Crisis Group, 16 October 2014.

[46]    See SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.

CONCLUSION

108.   For the above reasons, the Tribunal is satisfied that the applicant has a well-founded fear of being persecuted by non-state actors, from which the state would not be able to protect him, if he returned to Afghanistan now or in the foreseeable future, and that, in the circumstances, it would not be safe or reasonable for him to relocate to another part of the country. 

109.   The Tribunal considers that the persecution which the applicant is at risk of suffering involves ‘serious harm’ as required by s.91R(1)(b) of the Act, in that it involves significant physical harassment or ill-treatment. The Tribunal finds that the applicant’s race, religion and imputed political opinion, are the essential and significant reasons for his fear of persecution as required by s.91R(1)(a). 

110.   The Tribunal is satisfied that the persecution he is at risk of suffering involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason. 

111.   As the Tribunal has found the applicant faces a well-founded fear of persecution by the Taliban, or other Sunni extremists, now or in the reasonably foreseeable future in Afghanistan for Convention reasons, it is not necessary for the Tribunal to consider whether the applicant meets the criteria for complementary protection.

112. The Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations and that he satisfies the criterion set out in s.36(2)(a) for a Protection visa.

DECISION

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

Filip Gelev
Member