1411761 (Refugee) - [2015] AATA 3517

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1411761 (Refugee)

Details

AGLC: 1411761 (Refugee) [2015] AATA 3517
Case: [2015] AATA 3517
Decision Date: 10 September 2015

CaseChat Overview and Summary

In the case of 1411761 (Refugee), the applicant, a Hazara Shia Muslim, sought a protection visa in Australia. The primary issue before the court was whether the applicant met the criteria for a protection visa under the Migration Act, specifically if they qualified under the refugee criterion as defined by the 1951 Convention relating to the Status of Refugees. The applicant's claims were assessed against the backdrop of country information about Afghanistan, including reports on the security situation in Kabul, the challenges faced by returnees, and the socio-economic conditions in the country.

The legal issues centered around the interpretation and application of the refugee criterion in the Migration Act and the Refugees Convention. The court had to determine if the applicant's circumstances, including their lack of family ties, education, assets, and work experience in Afghanistan, made it unreasonable for them to relocate to Kabul, thereby qualifying for protection. The court also had to consider the risks the applicant would face if returned to Kabul, especially given their Hazara and Shia Muslim background.

The court found that the applicant, due to their Hazara and Shia Muslim identity, would face a heightened risk of harm in Kabul. The applicant's lack of family, tribal, or clan connections, limited education, and manual work experience would make it difficult for them to secure employment and housing. Furthermore, having lived outside Afghanistan for most of their life, the applicant would likely struggle to integrate into the local community. The court concluded that it was not reasonable for the applicant to relocate to Kabul to avoid the risk of Convention-based persecution. Therefore, the applicant satisfied the refugee criterion under s.36(2)(a) of the Migration Act.

The court remitted the matter for reconsideration with the direction that the applicant satisfied the criterion set out in s.36(2)(a). This decision recognized the applicant's vulnerability and the risks they would face if returned to Afghanistan.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Christopher SmoliczMember[2012] FMCA 942 FMCA, Cameron FM, SYG 916 of 2012, 18 October 2012

Ratio Decidendi

Legal Principle Established

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