1415373 (Refugee)

[2016] AATA 4371

1415373 (Refugee) [2016] AATA 4371 (30 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415373

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Rea Hearn Mackinnon

DATE:30 August 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 30 August 2016 at 3:37pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Afghanistan and [Country 1], applied for the visas [in] August 2013 and the delegate refused to grant the visas [in] August 2014.

3. The applicants appeared before the Tribunal on 30 August 2016 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

9. The issue in this case is whether the first named applicant will be harmed on return to Afghanistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

10. The first named applicant is the mother of the second named applicant. The first named applicant will be referred to as the applicant in this decision.

11. The applicants arrived in Australia on [temporary] visas [in] September 2012 and have not departed. The applicant’s [Sibling A] came to Australia in about 2000. Her mother and [number] other siblings came to Australia in about 2006 on [permanent] visas and are all now Australian citizens. The applicant has claimed and the Tribunal accepts the history set out below.

12. The applicant was born in [Village 1] in Jaghori district of Ghazni Province, Afghanistan. She is of Hazara ethnicity and a Shia Muslim.  She and her family moved to Mazar-e Sharif in for a period of time, she can’t remember how long, then fled to [City 1] in [Country 2] in about 1998 when the Taliban took Mazer- Sharif. She has not returned to Afghanistan. Her father died in [Country 3] in 2004.

13. The applicant does not know if her family still own any land or property in [Village 1]. Her father did have a house in Mazar-e Sharif but not now. She does not know of any family members living in Afghanistan. Her father had [half-siblings] from a different mother but she does not know where they are. She does not know anything about her mother’s family. 

14. The applicant’s birth date has been given as [date] making her now [age] years old. The applicant believes she is several years younger than this.

15. In 2004, the applicant’s family arranged for her to marry a distant relative of her father, [number] years older than her, who is a [Country 1] citizen. Her husband arranged paperwork for her to enter [Country 1] which stated that she was [age] years old. She believes she was only about [age] years old at the time, based on [a younger sibling’s] birth date. This makes the applicant now about [age] years old.

16. The applicant’s marriage in [Country 1] ended in 2010 due to domestic violence. The applicant has provided police and court documents which indicate that her ex-husband was sentenced to a period of imprisonment for the violence. The divorce was finalised [in] 2012. The applicant has sole custody of her daughter. Her ex-husband threatened to kill her and kidnap their daughter if she did not drop her complaint against him and he agreed to allow her to bring their daughter to Australia in return for the applicant withdrawing her complaint.

17. The applicant married again in Australia in 2013. The applicant’s family knew her husband’s family and again arranged the marriage. She agreed to the marriage because, as a single mother, she thought she had limited options for remarriage. She never actually lived with her second husband. He remained with his family in [Town 1]. He intended to move to [City 2] but could not find employment. He also had a [specified condition] and constantly asked her for money or put pressure on her to ask her [siblings] for money. He was hospitalised after [an accident] in [Town 2]. The applicant realised she could not continue with the marriage and divorced him in 2016 with the support of her family.

18. The applicant has been [receiving support] at [an agency] every two weeks for the past two years and her daughter is also [receiving support there].

    Nationality

19. The applicant has provided a copy of her Afghan passport and the Tribunal is satisfied that she is a national of Afghanistan. The applicant did apply for [Country 1] citizenship but this application was refused [in] 2011 as she was no longer married to a [Country 1] citizen and did not meet the other criteria for citizenship.

20. The applicant did have an entitlement to reside permanently in [Country 1] but this right ceased [in] 2015. She may be able to apply for a visa to enter and reside in [Country 1] as the mother of a [Country 1] citizen but as she has to apply and have her eligibility assessed, the Tribunal is satisfied that she does not have a current right to enter and reside in [Country 1]. The Tribunal is satisfied that the applicant lived illegally in [Country 2] and does not have a right to enter and reside in [Country 2].

21. The applicant’s daughter has provided a copy of her [Country 1] passport and the Tribunal is satisfied that she is a national of [Country 1].

    Claims

22. The applicant’s claims as set out in her protection visa application related to the domestic violence she suffered from her husband in [Country 1] and her fears that he will harm her again or abduct their daughter if the applicants were to return to [Country 1]. As the applicant no longer has a right to enter and reside in [Country 1] and as Afghanistan is her country of nationality, the Tribunal has assessed her claims against Afghanistan.

23. When asked what she fears in Afghanistan, the applicant stated that she does not remember Afghanistan, she has no family there, she is Hazara and Shia, she is a single mother with a daughter and therefore vulnerable to sexual or other violence and she has no income and no accommodation.

24. The Tribunal accepts that the applicant is a young, divorced woman with no family support in Afghanistan, no accommodation to return to, limited education (she completed year [number] in [Country 1]) and no work experience.

25. Country information indicates that women and particularly single women have a very precarious position in Afghan society.

26. The UNHCR has reported that:

    Despite Government efforts to promote gender equality, women continue to face pervasive social, political and economic discrimination due to persistent stereotypes and customary practices that marginalize them. Women who are perceived as transgressing social norms continue to face social stigma, general discrimination and threats to their safety, particularly in rural areas and in areas under the control of AGEs. Such norms include requirements that restrict women’s freedom of movement, such as the requirement to be accompanied by a male relative chaperone when appearing in public. Women without male support and protection, including widows, are at particular risk. They generally lack the means of survival, given existing social norms imposing restrictions on women living alone, including limitations on their freedom of movement and on their ability to earn a living. Detention for breaches of customary or Sharia law is reported to disproportionately affect women and girls, including detention on the ground of perceived “moral crimes” such as being improperly unaccompanied, refusing marriage, engaging in sexual intercourse outside of marriage (which is considered adultery) or “running away from home” (including in situations of domestic violence). Over half of the girls and women detained in the country have been charged with “moral crimes”. Since accusations of adultery and other “moral crimes” may elicit “honour killings”, in some instances the authorities are reported to have sought to justify the detention of women accused of such acts as a protective measure…….In areas under the effective control of the Taliban and other AGEs, women and men accused of immoral behaviour risk being tried by these AGEs’ parallel justice structures and being given harsh sentences, including lashings and death.[1]

    [1] UNHCR, 2016, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 19 April

27. The UNHCR has also noted that sexual and gender-based violence against women, including ‘honour’ killings, abduction and rape, remains widespread. Women seeking to report violence are further hampered by the fact that women police officers constitute less than two per cent of all police officers in the country and are themselves at risk of sexual harassment and assault in the workplace, including rape by male colleagues. Impunity for acts of sexual violence persist due to the fact that in some areas of the country, alleged rapists are powerful commanders or members of armed groups or criminal gangs or have links to such groups or to influential individuals who protect them from arrest and prosecution.[2]

    [2] Ibid

28. The UK Home Office has reported that violence against women is still a serious human rights problem in Afghanistan, that life for many Afghan women is controlled under a strictly patriarchal society resulting in restricted freedom of movement and limited access to healthcare services, justice and employment; that local customs and practices discriminate against women; and that unaccompanied women may face arrest and prosecution under the offence of Zina (adultery).[3]

    [3] UK Home Office, 2016, Country Information and Guidance Afghanistan: Women Fearing Gender-Based Harm\Violence, February

29. The US Department of State has reported that cultural prohibitions on free travel and leaving the home unaccompanied prevent many women from working outside the home and reduce their access to education, healthcare, police protection and other similar services; and that women who cannot be with their families or remarry or work are compelled to live in shelters indefinitely because unaccompanied women are not commonly accepted in society. [4]

    [4] US Department of State, 2015, Country Report on Human Rights Practices for 2014 - Afghanistan, 26 June

30. The Department of Foreign Affairs and Trade (DFAT) has also reported that women in Afghanistan have very limited economic independence and face a high level of societal discrimination and a very high risk of violence. Victims of sexual and domestic violence have often themselves been charged with crimes and, in 2013, around 80% of female prisoners were held for “moral crimes” including women in situations of abuse and rape. Women tend to.

31. Having regard to the country information above, the Tribunal accepts that the applicant faces a real chance of suffering serious harm in Afghanistan in the form of physical or sexual violence and possibly incarceration as an unaccompanied woman, without the protection of a male relative. Further, the Tribunal accepts that the applicant will not be able to move around freely or secure accommodation or employment thus threatening her ability to subsist and making her even more vulnerable to other forms of harm. The Tribunal notes that the applicant’s home area of [Village 1] is a rural area where traditional norms prevail, and that, whilst [Village 1] is in the Hazarajat, it is located in Ghazni province which is highly insecure. The country information above indicates that unaccompanied women alone at heightened risk of harm in areas controlled by anti-government groups.

32. The Tribunal is satisfied that unaccompanied women are a particular social group in Afghanistan because of the patriarchal nature of Afghan society, the subjugated place of women in that society and the inability of such women to live freely in Afghanistan. The Tribunal is satisfied that the applicant’s status as an unaccompanied woman will be the essential and significant reason for the harm and that the harm is systematic and discriminatory in nature.

33. The UK Home Office has reported that government officials have been implicated in human rights abuses of women, that police are sometimes unwilling or unable to provide protection and that corruption in the judiciary allows perpetrators to escape punishment. Women in need of shelter often end up in prison either for their own protection or accused of running away.[5] The Institute of War and Peace reporting has noted that women are sometimes sexually abused by police when they go to the police to make a complaint.[6] The UNHCR has reported that Afghanistan is characterised by endemic corruption, limited government authority, continuing weaknesses in the rule of law, an underperforming judicial system, high crime levels, widespread human rights violations and a general climate of impunity.[7] 

    [5] UK Home Office, 2016, Country Information and Guidance Afghanistan: Women Fearing Gender-Based Harm\Violence, February

    [6] ‘Tackling gender-based violence in Afghanistan’, Institute of War and Peace Reporting, 9 June 2014

    [7] UNHCR, 2016, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 19 April

34. Having regard to the country information above, the Tribunal is satisfied that the applicant will not be able to access effective or adequate state protection. The Tribunal is satisfied that the harm the applicant fears is present across Afghanistan and that relocation is not available to the applicant.

35. Having regard to the evidence and findings above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Afghanistan now or in the reasonably foreseeable future because of her membership of a particular social group of unaccompanied women.

    CONCLUSION

36. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

37. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that [the applicant’s daughter] is the daughter of the first named applicant and is therefore a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

38. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Rea Hearn Mackinnon
    Member