1411761 (Refugee)
[2015] AATA 3517
•10 September 2015
1411761 (Refugee) [2015] AATA 3517 (10 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1411761
COUNTRY OF REFERENCE: Afghanistan
MEMBER:Christopher Smolicz
DATE:10 September 2015
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 10 September 2015 at 8:03am
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
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).
The applicant who claims to be a citizen of Afghanistan, applied for the visa [in] July 2012 and the delegate refused to grant the visa [in] May 2014.
The applicant appeared before the Tribunal on 3 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has had taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and the following country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration:
·Afghanistan Country Report, 26 March 2014
·DFAT Thematic Information Report - Conditions in Kabul, 3 October 2014
The issues in this case are whether the applicant meets the refugee or complementary protection criteria because of:
· his Shia Muslim religion and Hazara ethnicity (race)
· his family land dispute
· his membership of the particular social group of failed asylum seeker
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s factual claims and the Tribunal’s findings
First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, his entry interview and statements of claim.
The applicant is a [Hazara], Shia Muslim born in [a] village, Uruzgan Khas Province, Afghanistan.
Soon after the applicant was born his father and paternal uncle were involved in a dispute over inheritance of land. The applicant said that his uncle had Pashtun friends who threatened the applicant’s father and assisted his uncle take his share of the land. As a consequence of the land dispute the applicant and his family left Afghanistan and moved to Quetta, Pakistan. From about the age of five years old the applicant resided in Pakistan with his family.
The applicant said that he returned to Afghanistan with his parents to live in Kandahar province for five years. He could not recall the year but said he was still a young boy at the time. His father travelled back to their village in Uruzgan to see if he could reclaim his land. When he returned to his home village he was threatened by the Pashtuns who had reclaimed the land.
The applicant and his family were forced to return to Pakistan where the applicant’s father worked in a coal mine in Baluchistan province. The applicant lived in Pakistan for approximately 30 years with no legal status. The Tribunal questioned the applicant about his legal status in Pakistan. The applicant said he was illegal and did not have any formal documentation apart from his labour card issued by his employer in Pakistan. The applicant said that he did not have any problems with the Pakistan authorities and was never asked for identification documents because he was not a trouble maker. He was aware that other refugees were issued with letters permitting them temporary stay in Pakistan.
In 1984 the applicant married a Hazara woman in Pakistan and has [children] who were all born in Pakistan. The applicant said that his children were brought up in a different way from Hazara children living in Afghanistan and speak Hazaragi with an accent. The applicant said he also speaks Hazaragi with an accent and would easily be recognised as someone who did not grow up in Afghanistan.
The applicant worked in a mine near Quetta working 10 days shifts. His children were unable to attend government school but instead attended religious school where they learnt the Quran.
In about 2007 the applicant left Pakistan with the intention of reaching [Country 1]. He travelled through [Country 2, and another country], He was imprisoned in [the other country] for four months for being there illegally. After he was released he made his way to [a country] where he resided for some time working. In about 2011 he travelled through [other countries] and was smuggled into [Country 1] in a shipping container. Soon after arriving in [Country 1] he was apprehended by the authorities and placed in immigration detention and lodged a protection visa application in June 2011. In November 2011 his application for protection was refused.
In support of his evidence the applicant provided a copy of a laissez passer (temporary travel document) issued by the [Country 1] Immigration Department dated [in] October 2011. The document details the applicant’s nationality as Afghan and his home address as [a village in] Vorozan (Uruzgan).
The Tribunal noted that the document lists his name as “[name]” and his date of birth as [date]. The Tribunal questioned the applicant why his name and date of birth differed to that provided to the Department. The applicant said that his parents were illiterate and he never knew his date of birth and had to make an estimate. He said he did not have a surname and when he arrived in Australia an interpreter told him he needed to have a second name so he used his father’s name “[name]” and the name “[name]”. The applicant said he did not know the precise reasons for the refusal of his [Country 1] protection application and only knew what he was told by a Pashtun interpreter at the time. The applicant said the address on the document was his home village in Afghanistan. The document confirms the applicant was removed back to Kabul, Afghanistan in October 2011. The applicant said he stayed in Kabul for approximately one month before returning to Pakistan.
He departed Pakistan again in January 2012 and with the assistance of people smugglers travelled to Australia by boat arriving in Australia as an irregular maritime arrival in April 2012. His wife and children remain in Pakistan and are being supported by the applicant’s brother-in-law.
The Tribunal questioned the applicant why he left Pakistan and travelled to Australia. The applicant said Lashkar-e-Janghvi (LeJ) began to target Hazara people in Pakistan. He found it dangerous to travel by road from Quetta to his place of work because the Taliban would stop cars and buses and target Hazara people. The Tribunal questioned the applicant if he had ever been personally targeted by the LeJ. The applicant said that when he was travelling to work in a lorry with other Hazaras they were shot at. The applicant said there is no future for his children in Pakistan and his purpose of traveling to Australia was to secure a future for them. The applicant said he has no family or relatives left in Afghanistan. He has not travelled to Afghanistan since he was a young boy. The applicant said that as a Hazara Shia Muslim from Pakistan he would be easily identified and targeted by the Taliban if he returned to Afghanistan.
The Tribunal questioned the applicant if he would relocate to Kabul. The applicant said that he has only spent one night in Kabul when he was deported from [Country 1]. He has no family or tribal connections in Kabul to help him obtain employment or accommodation.
Does the applicant have a well-founded fear of persecution for a convention reason?
The issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings above.
Credibility
The delegate found aspects of the applicant’s evidence lacking in credibility. The delegate based her finding on inconsistencies in the applicant’s evidence regarding his name, date of birth and whether the applicant held Pakistani citizenship given his length of residence in Pakistan. The Tribunal questioned the applicant about the delegate’s concerns at the hearing and found him to be a credible witness. The Tribunal considers his claims are plausible in light of country information and finds these factors do not detract from the overall credibility of his claims.
Country information confirms that dates and calendars are rarely used in Afghanistan and the Tribunal accepts that there may have been some difficulty converting dates from the Afghan calendar[1] The Tribunal considers that inconsistencies referred to by the delegate may be explained by cultural differences and lack of any formal education. The Tribunal accepts the applicant’s explanation that he was not aware of exact dates of events and gave his best estimates. For example it was evident at the hearing the applicant was unable to give his date of birth without referring to documentation.
[1] On the current situation in Afghanistan, Schuster, Liza Dr, Department of Sociology, School of Social Sciences, City University London September 2014
The Tribunal also gives the applicant credit for being upfront about his past claim for asylum in [Country 1]. The Tribunal notes that the Department verified the applicant’s testimony however no information was provided to the Tribunal regarding the reason why his claims were rejected by the [Country 1] authorities.
In considering the applicant’s past migration history, the Tribunal is conscious that since he was refused asylum in [Country 1] in 2011 the political and security environment has deteriorated in Afghanistan.
The United Nations has reported that 2014 was the deadliest year in Afghanistan since 2007 with over 10,000 civilian casualties. This high casualty rate has been attributed to increased ground battles between Anti-Government Elements and the Afghan government as well as a drastic decrease in the number of Western troops within the country:
The [UNAMA] report also found that for the first time since 2009, more Afghan civilians were killed and injured in ground engagements than improvised explosive devices (IEDs). Civilian deaths and injuries from ground operations surged 54 per cent in 2014. Parties to the conflict are increasingly using mortars, rockets and grenades, sometimes indiscriminately, in civilian areas.[2]
[2] >
In a March 2015 update on the situation of Hazaras in Afghanistan, Graeme Swincer OAM summarised the following developments of concern:
· The arrival of foreign Islamic State forces in support of the Taliban, especially in the southern and central areas, apparently with national government support.
· Resurgence of Taliban activity in previously “safe” areas.
· Shift of Taliban focus from mainly government and “western links” targets to increased persecution of Shia Muslims (essentially Hazaras).
· Continuing evidence of abduction and mistreatment of Hazaras on a selective basis – including murder and torture.
· A surge in the flight of Hazaras from Afghanistan in the face of escalating persecution.
· Targeting of Hazara returnees from Western countries, both voluntary and involuntary.
· The February 2015 message from the Afghanistan Minister for refugees and repatriation requesting relevant governments to stop the deportation of asylum seekers to Afghanistan and confirming the policy that intended returnees who arrive in Kabul will be sent back to the deporting countries.[3]
[3] Graeme Swincer OAM, Blue Mountains Refugee Support Group, ‘Hazara asylum seekers from Afghanistan: the increasing dangers they would face if they return – Supplementary update March 2015’, 2 March 2015, p 2,
The Tribunal has had regard to the country information and accepts that there has been a significant increase in violence against the civilian population. For Hazaras, who have historically been persecuted and faced discrimination, the situation is even more dangerous than for the general population. The Tribunal also accepts that growing presence Islamic State (Daesh) in neighbouring Pakistan and Afghanistan pose new risks for Hazara Shia Muslims.[4]
Findings
[4] Frud Bezhan, Radio Free Europe Radio Liberty, ‘Mass Abduction Of Hazaras In Afghanistan Raises Fears Of Islamic State’, 25 February 2015,
The applicant claims to be a citizen of Afghanistan. The Tribunal has considered the evidence he provided regarding his nationality and it accepts that he is a citizen of Afghanistan. The Tribunal has considered the applicant’s immigration status in the countries where he lived and travelled, and it is satisfied that he has no automatic or enforceable right to enter and reside in any of those countries.
Over three decades, millions of Afghans have fled Afghanistan. Most settled in Pakistan, followed by Iran. Approximately 1.6 million registered Afghans remain in Pakistan and 935,000 in Iran.[5] In July 2010 DFAT reported that unregistered Afghans may be arrested and deported at any time and that Pakistani officials regularly blame Afghan refugees for terrorist attacks.[6] In March 2015, the Afghanistan Analysts Network indicated that police raids against unregistered Afghan refugees in Pakistan were still in progress and causing more than 500 people to cross the border into Afghanistan every day.[7]
[5] CX246371: Conditions for asylum caseloads: Afghan refugees, Australia: Department of Foreign Affairs and Trade, 19 July 2010; CX247378: Reports of Afghan asylum seekers currently being deported from Iran. Treatment of Afghan asylum seekers in Iran, Ireland: Refugee Documentation Centre, 28 July 2010; see also CIS19678: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers From Afghanistan, UNHCR, 17 December 2010, p6.
[6] CX246370: Conditions for asylum caseloads: Afghan refugees, Australia: Department of Foreign Affairs and Trade,
19 July 2010.
[7] Roehrs, C 2015, ‘The Refugee Dilemma: Afghans in Pakistan between expulsion and failing aid schemes’, Afghanistan Analysts Network, 9 March <
A KPK government official is reported to have indicated to the Pakistan news source Dawn that:
‘The arrests of Afghan refugees residing illegally in the province are legal and under the law of the land, as is the case around the world. But registered refugees are permitted by the Government of Pakistan to stay here till December 31, 2015 and the policy on this is clear’.[8]
[8] ‘Illegal Refugees: No Instructions to halt crackdown against Afghans’ 2015, Dawn, 11 March <
The Tribunal is satisfied the applicant has no right of entry to Pakistan or any other country.
The Tribunal is satisfied that the only country where he has those rights is Afghanistan. Accordingly, the country of reference in this matter is Afghanistan. The Tribunal is satisfied the applicant is a citizen of Afghanistan. His claim to refugee status is therefore assessed against Afghanistan as his country of nationality. The Tribunal accepts the applicant is Hazara and a Shia Muslim.
The applicant has made no claim to have personally suffered persecution in the past in Afghanistan. The Tribunal is mindful it must consider the applicant’s risk of harm not only currently but into the reasonably foreseeable future.
The Tribunal finds that in the case of a person who had fled his country of nationality the assessment of well-founded fear of persecution would naturally commence with a consideration of the situation in the area where the person had previously lived (or other home area to which the person had similar or substantial ties).
In a case such as the present, where the applicant left Afghanistan as a young child, there is an issue as to whether there is an area within Afghanistan that could be characterised as the applicant’s home area and, if so, what it is.[9]
[9] SZQZN v MIAC [2012] FMCA 939 FMCA, Barnes FM, SYG 2967 of 2011, 11 October 2012, see also SZRKY v MIACThe delegate accepted that the applicant had spent most of his life living in Pakistan. The delegate did not consider his family’s past claims to land in Uruzgan represent any viable link to the applicant’s place of origin and assessed the applicant’s claims of fear of persecution against Kabul.
On the other hand the Tribunal notes DFAT advice that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan, particularly in rural areas. Kinship is central to identity and acceptance in a community, including for finding shelter and employment. As such DFAT concludes that most Afghans prefer to live in areas where their ethnic group constitutes the local majority. The Tribunal also notes that the applicant has previously identified his home village as Uruzgan when he lodged his asylum claim with the UK Border Agency in 2011.
The Tribunal has therefore assessed the applicant’s claims of fear of persecution in Afghanistan against Uruzgan Khas Province as his home area.
The Tribunal has regard to recent information provided by the Department in regarding the security situation for Hazaras in Uruzgan. The Department confirms that the province is more dangerous than in other provinces and Hazaras have been targeted by insurgents because of their ethnicity. [10]
[10] Afghanistan: Hazaras Issues Paper DIBP issued March 2015.
In 2014 DFAT provided the following assessment for Hazaras in Uruzgan:
DFAT assesses that Hazara minorities living in Pashtun-majority areas in Uruzgan, Helmand and Kandahar are less safe than those living in Kabul or Hazara-majority areas of Hazarajat. These Pashtun-majority areas typically experience higher levels of violence, which affects all Afghans in these areas, including Hazaras. Hazaras living in these areas typically avoid travel outside their immediate communities.
Martine Van Biljert of the Afghanistan Analysts Network provides the following overview of ethnic relations in Khas Uruzgan:
Khas Uruzgan's Hazara-Pashtun relations have long been precarious. Local people often refer to the fierce open conflict that ravaged the district for almost a year in the 1980s. … This has become increasingly difficult as many communities have found themselves on opposite sides of the post-2001 counterinsurgency campaigns. The US military established an auxiliary force early on: the Afghan Security Guards (ASG) … In the mixed district of Khas Uruzgan, the ASG was a solely Hazara group (largely from the Nasr faction of the Hezb-e Wahdat), with their loyalty and anti-Taleban stance considered beyond doubt by the Americans. This complicated ethnic relations. The ASG have long been accused - by the Pashtun population but also by other Hazara leaders - of abusing their power, being overly violent and providing the US SOF with exaggerated and sometimes fabricated intelligence. Many Hazaras feel uneasy with the power that has been given to their fighters, who are often considered out of control even by their own communities.
…The steady stream of confrontations and killings - often with blurred lines between combatants and civilians - has left the population on both sides feeling exposed and vulnerable. Such incidents that have led to low points in the Hazara-Pashtun relations have included: the killing of two young Hazaras from neighbouring Malestan in 2007 (the bodies were returned, but the killers were never identified - the Malestan Hazaras hold the local Pashtuns responsible for this and consider the case still open for revenge); an ASG raid in 2010 that allegedly involved the rape of several Pashtun women (in the end the case fizzled out in a haze of confusion, with several of the mobilised elders concluding that the allegations may have been fabricated, exaggerated or, at the very least, instrumentalised); a complicated case of inter-ethnic elopement - or kidnapping, depending on whom you ask - of a Pashtun girl with a Hazara boy that flared up in early 2010 and resulted in a retaliatory kidnapping of a Hazara girl and an armed stand-off that threatened to reverberate throughout the whole region (the case cooled down, but was not resolved); and the gruesome killing of seven Pashtuns by the ASG in the summer of 2010, which led to an equally gruesome retaliatory killing of nine Hazaras in Bagh o Char by the Taleban (the victims on both sides were either innocent civilians or Taleban fighters and government informants, depending on whom you talk to).
The Liaison Office, an independent non-government organisation, provided an analysis in of Uruzgan following a four year assessment of the province from 2006 – 2010. It specifically highlights Uruzgan Khas as having ‘greater problems with insecurity’ and to be losing ground to the many insurgent groups in the district. In June 2010, 11 Hazara males were discovered beheaded in Khas Uruzgan. According to the 2011 United States Commission on International Religious Freedom Report, police officials stated that they were killed by the Taliban ‘because they were ethnic Hazaras and Shiite Muslims.’ The Pajhwok Afghan News reported that the bodies were ‘found in the Baghchar area of Khas Uruzgan district, where a notorious Taliban commander, Juma Khan, was killed a month back during a clash with coalition troops’. Other reports indicate the Hazaras were killed to avenge the gruesome killing of seven Pashtuns by a notorious Hazara commander from Ghazni province.
In December 2011 the Wakht News Agency reported that the local police commander and local police in the district of Khas Uruzgan were actively helping the Taliban to kill Hazaras and seize their lands. Reports indicate that confrontations continued in 2013-14 between the Hazara Afghan Local Police (ALP) units and the Taleban. In May 2014, a group of 50 Afghan Local Police (ALP) members fled from Khas Uruzgan to ethnically-Hazara communities in Ghazni, after their commander was summoned to the provincial capital for questioning over his behaviour.
In 2014 DFAT provided the following assessment relevant to the applicant’s home area:
There are many areas of the country contested by insurgent forces and no part of the country can be considered totally free from conflict-related violence. The situation remains fluid and any categorical assessment on the security in a particular area could be rendered quickly inaccurate. Although this list is not exhaustive, contested areas are mainly in the south Helmand, Kandahar, Uruzgan and Zabul) and east of the country (including in parts of Ghazni, Paktika, Khost, Paktia, Nangarhar, Kunar and Nuristan). Insurgents are also present in areas of western, central and northern provinces. [11]
[11] DFAT Country Report: Afghanistan, 26 March 2014 (pages 6-7).
The Tribunal has had regard to country information detailed above and finds that Hazaras have been targeted by insurgents because of their Hazara ethnicity in the applicant’s home area. [12] The Tribunal also accepts the applicant’s evidence that he has no continuing family ties or support networks in Uruzgan. The applicant will need to try and reclaim his family’s land, find work and accommodation which will require him to travel and as such putting himself at even greater risk given his Hazara appearance.
[12] Afghanistan: Hazaras Issues Paper DIBP issued March 2015.
Having considered the applicant’s particular profile as a Hazara who has lived in Pakistan for most of his life, which further distinguishes him from other Hazara Shia returnees, the Tribunal finds the applicant faces a real chance of serious harm if he returns to his home area of Uruzgan.
The Tribunal finds the harm the applicant fears from the Taliban is for reason of his religion and ethnicity. The Tribunal is satisfied the persecution is systematic and discriminatory and amounts to serious harm as it includes threat to life or liberty, significant physical harassment or ill-treatment.
The applicant primarily fears harm from the Taliban, a non-state insurgency group, However, harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the state is unable to provide adequate protection against the harm.
The UNHCR reported that state protection in Afghanistan is compromised by high levels of corruption, ineffective governance, a climate of impunity, lack of official impetus for the transitional justice process, weak rule of law and widespread reliance on traditional dispute resolution mechanisms that do not comply with due process standards.
In respect of the ability of the state to protect, the Tribunal has also considered the following DFAT advice, provided in March 2014, before the coalition forces began the pull out:
5.1 The ongoing insurgency, particularly in the south and east of Afghanistan means that the Government struggles to exercise effective control over many parts of the country. As a result, the Government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in those areas.
5.2 Despite these challenges, DFAT assesses that the Government maintains effective control in major urban areas, particularly Kabul, all provincial capitals, including Herat, Mazar-e-Sharif and Kandahar, and the majority of other district centres.
In view of the unstable security situation in Afghanistan, the Tribunal finds the state cannot meet the level of protection which citizens are entitled to expect, as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal finds, based on the country information, that the applicant would not be able to avail himself of effective state protection against such harm.
Relocation and Kabul
The applicant’s feared persecution described above is linked to the risk faced by a Hazara Shia seeking to return to his home area.
There remains the question of whether the applicant can find protection from this feared persecution by relocating to a different part of Afghanistan.
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.
The Tribunal notes that Kabul has a sizeable Hazara population (which the country information indicates a large proportion of which are also displaced from other areas) and a range of employment options.
In relation to relocation DFAT 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.”
Professor Maley holds the view that it is a mistake to conclude that Kabul is safe for Hazaras. He cites the December 2011 suicide bombing attack against Shia Afghans, mostly Hazaras, who were commemorating the Ashura festival in downtown Kabul which killed at least 55 people, with Pakistani Sunni extremist group Lashkar-e Jhangvi claiming responsibility.
The Tribunal has also had regard to recent reports that confirm a decline in the security situation in Kabul which has impacted on the civilian population. Tolo news reported August has been a deadly month for Kabul after the Afghan capital saw several suicide attacks and bombings that mainly targeted civilians. The biggest of them was the Shah Saheed truck bombing that left at least 15 dead while 400 others sustained injuries. However, the Taliban denied having links to Shah Shaheed bombing.[13] On 22 August 2015 a suicide car bombing left 12 people, including three foreigners dead and up to 80 wounded.
[13] >
Recent media reports detail an attack by a Taliban suicide bomber on a check point near the entrance to the international airport in Kabul killing five people. The report goes on to state:
Monday's Taliban attack came after three deadly attacks on Friday that killed at least 50 people. A suicide bomber blew himself up near the city's police academy on Friday evening, killing about 20 recruits. A short while later, gunmen launched an attack on Camp Integrity, a Nato base that houses US special forces near the airport. Eleven people, including an American soldier and eight contractors, were killed in the attack on the base. Earlier on Friday, a truck carrying explosives was detonated near an army base in the Shah Shahid area of the capital, claiming 15 lives. A top UN official said the attacks were likely to be the product of a Taliban power struggle following the death of the group's leader Mullah Omar. "We suspect the upsurge in violence may be triggered by the succession battle within the Taliban," Nicholas Haysom, the head of the UN mission in Afghanistan, told the BBC on Saturday. Last week, the Taliban released a video in which they showed members of the group pledging allegiance to the new leader, Mullah Akhtar Mansour.[14]
[14] >
The Tribunal also notes that there is a huge Hazara underclass in Kabul that does not have access to clean water or electricity. It is also reported by the UNHCR that there is widespread unemployment in urban areas that limit the ability of a large number of people to meet their basic needs. There is also evidence of the deaths of children in refugee camps and the inadequate response of government and aid agencies.
The Tribunal has also had regard to an interview with Professor Maley in which he highlights difficulties and vulnerability faced by returnees which is relevant to the applicant’s situation as someone who has lived away from Afghanistan for many years:
…People who are seen as being in some respect outside the social norm for whatever reason are less likely to find that they secure the sort of assistance that they would need in order to access the labour market because there could be potential costs for the middle man in being seen to assist somebody who has, in the eyes of others, moved outside the realm of traditional social norms…There are all sorts of matters that can be as simple as one bearing one’s degree of deference to other people that can bring about antagonisms without a person who has lived in Australia for some years even appreciating why those antagonisms might be there…
And something that might almost have slipped from the memory of a person who has lived in Australia for four or five years could still be terribly important and salient to a person they might encounter and thus I suspect that the greatest danger for young people who have been here for quite some time and being sent back to Afghanistan is not that they would be consciously offensive to Afghan norms but that they would by this stage have assimilated Australian ways of behaviour to the extent that their grasp of Afghan norms would be fragile and in that way they would end up offending somebody very dangerous without even realising that they were in the process of doing it…[15]
[15] (Maley, Professor William 2005, Transcript of Seminar on Afghanistan, 30 September 2005 more recently quoted in Research Response, AFG33041, 29 February 2008 available at
The country information also emphasises given the lack of social security infrastructure in Afghanistan, people typically rely on traditional family and clan networks for support.
As stated above, DFAT advise that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan. Kinship is central to identity and acceptance in a community, including for finding shelter and employment.
The applicant left Afghanistan as a young child and has lived and worked all of his adult life in Pakistan with his wife and [children]. The Tribunal finds the applicant has no family, tribal or clan ties in Kabul to assist or protect him. The country information supports a conclusion he has little prospect of being employed or finding accommodation without such connections. Albeit this would be easier for him initially on his own, it is reasonable to expect he would seek to be re-united with his wife and [children] from Pakistan, making securing suitable accommodation and sufficient income considerably more difficult.
In summary, the Tribunal finds that the applicant, as a Hazara and Shia Muslim, is at a heightened risk of harm if he were to relocate to Kabul, because of the following factors:
·he has no relatives or tribal connection in Kabul
·he has not completed any formal education
·his work experience is limited to manual mining work
·he does not possess any assets to assist in his return to Afghanistan
·he has lived outside of Afghanistan for most of his life making it more difficult to successfully adapt to and integrate into the Hazara community.
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 the risk of Convention based persecution.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christopher Smolicz
Member
[2012] FMCA 942 FMCA, Cameron FM, SYG 916 of 2012, 18 October 2012
0
4
0