1415574 (Refugee)

[2016] AATA 3292

1415574 (Refugee) [2016] AATA 3292 (5 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415574

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:5 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 05 February 2016 at 12:16pm

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] January 2013 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 4 February 2016 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.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has 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 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. I have before me material including:

    ·Application for protection visa and accompanying statutory declaration dated [in] December 2012;

    ·Interview with the delegate dated [in] December 2013;

    ·Agent’s submission dated 15 January 2014;

    ·Agent’s submission dated 28 January 2016.

21. The applicant’s claims can be summarised as follows.  He is a Hazara Shia born in [year] in [District 1], Parwan province, Afghanistan.  He lived there until [year range] when he went to Kabul to live.  He left Kabul in April 2012 for Pakistan before coming to Australia where he arrived in August 2012.  His wife and [children] reside in Kabul.  He worked as [an occupation] in Parwan and [two other occupations] in Kabul.

22. The applicant was forced to leave his village in Parwan due to a conflict with neighbours who are Sunnis and members of the [Tribe 1] and [Tribe 2] tribes.  These neighbours thought that local Hazara Shias were supporting Hezbe Wahdat against the Taliban and wanted the applicant’s land.  In 2000, the [Tribe 2] killed the applicant’s brother at the applicant’s house as they thought he was a support of Hezbe Wahdat.  The applicant fled the area but the [Tribe 2] pursued him to Kabul.  Two of the houses he lived in Kabul were broken into by people looking for him, but he was able to hide from them.  The applicant is now responsible for his brother’s children.  His home in Parwan was burnt down after he left the area.

23. The applicant fears the Taliban, the [Tribe 2] and other anti-Shia groups.  He also fears harm as a member of a particular social group of failed Afghan asylum seekers who fled to the West.

    Country of reference

24. The applicant claims to be an Afghani national.  He speaks Hazaragi and has been consistent in his claims that he is from Afghanistan.  Accordingly, I find (as did the delegate) that Afghanistan is his country of nationality for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.

    Assessment of claims

    Home areas

25. I accept that the applicant was born in [District 1] and that his family had owned land there and that he lived there for approximately the first [number] years of his life and I consider this to be a home area of his in Afghanistan.  However, the applicant has also provided considerable evidence of his time and connection to Kabul.  He lived and worked there for approximately [number] years before coming to Australia and he told the Tribunal that he had no other family outside Kabul and that his wife and children were living there (though he had not been able to make telephone contact with them in the last three months).  He also said that he had not returned to [District 1] since he left for Kabul though on one occasion in 2012 he did visit the capital of Parwan to apply for his passport.  The applicant also told the Tribunal that he had not made any attempts to get the family land back in [District 1] though his deceased father had when the family had moved to Kabul.  Given his high level of connection to Kabul as a resident over a long period of time and all the circumstances, I consider this area also constitutes a home area for him and accordingly I have assessed his claims against this home area.

    Credibility of claims

26. I accept that the applicant is a Hazara Shia from [District 1], Parwan province.  I accept that in about 2000, the Taliban came to power in his area and that they united with the [Tribe 2] and [Tribe 1] tribes in this area.  I accept that fighting occurred between the Sunni tribes and Hezb-e-Wahdat and Hazara Shias in the area and that the Sunnis threatened his brother to abandon the family’s land or be killed.  I accept that they did kill his brother and that later they threatened the applicant to abandon the land.  I accept that the applicant and his family fled to Kabul and that the land has been taken over by [Tribe 2] neighbours and the family house was burnt down.  I accept that his father complained to the authorities about the death of the brother and the seizure of the land but that they did do anything about it and that the father later died in around 2003.  I accept that the applicant has not returned to the district though he did go to [a town in] Parwan province in 2012 to make an application for a passport.  The applicant has been generally consistent concerning these claims and they generally accord with country information concerning the behaviour of the Taliban prior to its loss of government in Afghanistan.

27. I do not find the applicant’s claims to have been the subject of home invasions by members of the [Tribe 2] tribe affiliated with the Taliban in 2012 prior to him leaving Afghanistan to be credible.  The applicant had left [District 1] a long period of time before and the [Tribe 2] tribe had taken control of his land.  The applicant told the Tribunal he had not returned to [District 1] and he had not made any efforts to reclaim the land.  He said his father had complained to the authorities soon after they arrived in Kabul but these had not succeeded and his father had died a year or two later.   It was submitted that members of the [Tribe 2] tribe had seen the applicant in Kabul and that 10-15 days after that the first attack happened, but I consider it far-fetched and implausible in the circumstances that such persons would have been motivated to target the applicant in the manner he described.  The applicant had been living and working in Kabul for [number] years and he had not been targeted or harmed in that long period of time.  He had not made any efforts to reclaim the land and his deceased father’s efforts were a long time previously.  The applicant had not returned to [District 1] since 2001.  The applicant’s evidence was that he had not seen the men who came to his homes on these two occasions but they had not said anything at the time but his wife had and the men on both occasions had their faces covered.  I consider it highly speculative and far-fetched in these circumstances that such men would have been members of the [Tribe 2] tribe targeting the applicant and the applicant’s evidence was that they did not take anything on these occasions which would have been a motivation for robbers.  The applicant has claimed that the [Tribe 2] were affiliated with the Taliban and country information indicates that it is not likely that the Taliban would not make it a priority or have the capacity to track down low profile persons in Kabul.[1]  Kabul’s very large size (over 4m population[2]) also supports that he would not have been targeted as he claimed.  Accordingly, I do not accept that on two occasions in 2012 the applicant’s homes were invaded by members of the [Tribe 2] tribe, other Sunnis, the Taliban or anybody else.  I do not accept that the applicant is of any adverse interest to the [Tribe 2], the Taliban, other Sunnis or anyone else in Kabul and I do not accept that after he left Afghanistan, the [Tribe 2] asked his wife about his whereabouts.  I accept that he has not been able to make telephone contact with his family in Kabul in the last three months, but I do not accept that it is because they have been targeted by any of these groups.

    Hazara Shia in Kabul

    [1] Danish Immigration Service, Afghanistan Country of Origin Information for Use in the Asylum Determination Process, May 2012.

    [2] Australian Department of Foreign Affairs and Trade, DFAT Thematic Report Conditions in Kabul, 18 September 2015.

28. I have considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and Kabul and the overall current security situation in Afghanistan and Kabul.  In making my findings, I have given considerable weight to reports by the Australian Department of Foreign Affairs and Trade (DFAT) as these are authoritative, recent and the Department has been specifically charged with the provision of this advice to the Australian government.  DFAT have stated that they are not aware of any credible evidence that everyday Shia Muslims are systematically targeted on the basis of their religious affiliation and that they assessed that Sunni-Shia sectarian violence is infrequent, although occasional violence does occur.  They also stated that Hazaras had made significant gains (albeit from a small base) since the Taliban were removed from power in 2001.  They stated that while conditions for Hazaras had greatly improved since 2001, they still face some societal discrimination.  They stated that they had no evidence to suggest that Hazaras are systematically targeted in insurgent attacks on the basis of their ethnicity alone and that with the exception of kidnappings, Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan.  They assess that Hazaras travelling by road between Kabul and the Hazarajat face a risk that is greater than other ethnic groups though it is unclear whether this is due to ethnic targeting or as a result of the high numbers of Hazaras travelling on this route.  They state though that kidnappings of Hazaras are relatively rare in a country-wide context.[3]   This overall view of the level of general threat posed to the Hazara community is supported by Professor Amin Saikal of ANU. ^[4] 

    [3] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

    [4] Saikal, Amin 2012, ‘Afghanistan: The Status of the Shi'ite Hazara Minority’, Journal of Muslim Minority Affairs, March, Vol.32, No.1, pp.80-87.

29. A Hazara Issues Paper issued by the Department of Immigration in March 2015 stated:

    Hazaras in Kabul have not been systematically targeted by insurgent attacks or other ethnic groups since 2001 because of their ethnicity or religion, apart from one deadly attack aimed on a Shia mosque in 2011 where many of the victims were Hazaras.[5]

    …

    Although the reports note a high level of attacks in and around Kabul, most target government and international personnel and no reports suggest that Hazaras and Shias are being disproportionately targeted by these attacks.

    In 2014, analysis of attacks in Kabul by insurgents[6] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.[7]

    [5] Department of Immigration, Afghanistan: Hazaras Issues Paper, March 2015.

    [6] see European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January

    [7] European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January,

30. DFAT stated in September 2015 that the government maintains effective, but not absolute control in major urban areas, particular Kabul.[8]  DFAT also specifically reported in relation to Kabul in September 2015:

    2.29 Insurgents regularly conduct high-profile attacks in Kabul. DFAT assesses that the primary targets for insurgent attacks are government institutions, political figures, Afghan National Defence and Security Forces (ANDSF), personnel from the Resolute Support mission (the NATO-led mission that replaced the International Security Assistance Force or ISAF on 1 January 2015), other security services, and international organisations. Such attacks often cause significant casualties amongst civilian bystanders in addition to those being targeted. Kabul has seen a marked increase in the number of incidents in 2015 compared to the corresponding period in 2014. According to a Resolute Support mission report for January-April 2015, insurgent attacks in Kabul have increased by around 60 per cent compared with the same period in 2014.

    2.30 Representative examples include the series of bombings against employees (including prosecutors and judges) of the Ministry of Justice in May 2015, which killed at least 11 people and injured dozens more; an attack on the Park Palace guesthouse in May 2015 that killed five people, including foreigners; and a car bomb attack near the Ministry of Finance in Kabul which killed eight people and wounded 37 more. Kabul International Airport has been attacked on a number of occasions, with a rocket attack in 2014 landing on the runway apron. Attacks also occur in the vicinity of the airport, including in May 2015 when a European Union vehicle was hit by a vehicle-borne improvised explosive device, killing at least three people and injuring 18 others. On 22 June 2015, the National Parliament building in Kabul was attacked by the Taliban. A suicide vehicle detonated outside the building, followed by gunfire. Twelve people were reportedly killed, including six Taliban gunmen and the suicide bomber, with at least 21 more people injured in the attack. In August 2015, a series of attacks resulted in an estimated 355 civilian casualties (deaths and injuries), the largest number of civilian casualties in a single day since data collection started in 2009.

    2.31 The ANDSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANDSF are quick to respond to insurgent attacks when they occur. Nonetheless, violent attacks within the city are common.[9]

    [8] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

    [9] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

1. I have taken into account the reports of regular insurgency attacks on Kabul taken place but these need to be seen in the context that Kabul has a population of four million and that the government maintains effective control of Kabul and has a range of counter-measures in place to prevent and respond to insurgent attacks.[10]  I have taken into account that the primary targets for insurgent attacks are government institutions, political figures, military, other security services and international organisations and that such attacks often cause significant casualties amongst civilian bystanders.  I have taken into account that the applicant has worked in [an occupation] previously and that he is likely to do so again and that much of the [work] is for government and the international community; however I am of the view that the available country information considered as a whole indicates that the chance or risk of the applicant being seriously or significantly harmed in such a circumstance would be best described as remote, and not a real chance or real risk.  Furthermore, on the available country information, I consider the risk of getting harmed in an attack by insurgents is one faced by the population generally and not the applicant personally: s.36(2B)(c) of the Act.

   [10] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

2. The independent country information indicates that there are no laws or Government policies that discriminate against Shias and that broadly speaking, there is little community prejudice (i.e. societal discrimination) that would limit opportunities for Shias in daily life on the basis of their Shia religion.[11]  The country information further indicates that though there is societal discrimination on the basis of ethnicity it is most commonly manifested in forms of nepotism within ethnic and religious communities and that positive societal discrimination in favour of family, tribal or ethnic group members is common.[12]  DFAT have also commented that ethnic based violence in Kabul is rare.[13]  DFAT have also reported that the number of active ISIS (Daesh) militants remain low and that they assessed that ISIS currently has limited capacity and influence in Afghanistan and that civilians in Afghanistan face a low risk of violence from groups affiliated with ISIS compared to the risk of violence generally in the country.[14]

   [11] Department of Foreign Affairs and Trade, DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 26 March 2014.

   [12] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

   [13] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

   [14] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

3. DFAT have commented that Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city and that returnees are unlikely to be discriminated against or subjected to violence on account of their ethnicity or religion.  They have commented that there are many Shia mosques in the city.[15]  This information suggests that there is a large Hazara Shia community which the applicant can reintegrate into.  Though the applicant may lack family links in Kabul, he lived and worked in Kabul for [number] years and would have a strong familiarity with life there which would assist him to reintegrate. I find given the country information about Kabul and taking into account my findings that he has never been targeted or harmed in Kabul, that he does not face a real chance or real risk of serious harm or significant harm now or in the reasonably foreseeable future in Kabul.

   [15] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

4. Considering the country information as a whole, I do not accept that all Hazara Shias in Kabul face a real chance of persecution or significant harm now or in the reasonably foreseeable future from the Taliban, members of the [Tribe 2] tribe, ISIS, other Sunni groups, or anyone else.  Considering his individual circumstances I find that the chance or risk he will be seriously harmed or significantly harmed by any of these actors is remote on account of being a Hazara Shia, his imputed political opinion and due to his membership of a particular social group consisting of his family.

5. I have considered the guidance as provided by the High Court in the case of MIBP v SZSCA [2014] HCA 45 (SZSCA). This case is relevant as it discusses the reasonableness of expecting the applicant to remain in Kabul, with the majority of the Court determining that the same considerations as are relevant to relocation apply when the Tribunal identifies an area where the visa applicant may be safe, so long as he or she remains there.  The applicant’s personal circumstances can be distinguished to the circumstances of the applicant in SZSCA, in that in the SZSCA case the applicant had some claim to be a truck driver, which potentially could require the applicant in that case to be required to drive outside of Kabul.  I accept that the applicant’s family had owned land in [District 1], however he did not return there in the last [number] years he was in Afghanistan and he did not make any attempt to reacquire the land.  He told the Tribunal that he has no family outside Kabul and that his family had lived there (though he had recently lost contact with them).  Kabul has better economic opportunities than the rest of the country[16] and the applicant (who has worked [in two different occupations]) has not claimed that he would face better employment opportunities outside Kabul.  In 2012, he travelled on one occasion to the capital of Parwan (and was not harmed) to apply for his passport but he did not claim he had to travel outside Kabul otherwise.  In all these circumstances, I find it is reasonable that the applicant remain in Kabul to re-establish his life and to seek employment.

   Failed asylum seekers/returnees from the West

   I do not accept that the applicant faces a real chance or real risk of serious harm or significant harm in Kabul on account of his membership of a particular social groups of failed asylum seekers or failed Hazara Shia asylum seekers or of returnees from the West.  I have considered the reports submitted by the agents but there is no recent information before me that returnees or failed asylum seekers or those who have spent time outside Afghanistan have been seriously or significantly harmed in Kabul.[17]  DFAT have stated that because of Kabul’s size and diversity returnees are unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion.[18]  Whilst DFAT say there are aware of occasional reports of returnees from western countries alleging that they have been kidnapped or otherwise targeted on the basis of having spent time in a western country they assess that in general returnees from western countries are not specifically targeted on the basis of their being failed asylum seekers.[19]  

   Cumulative assessment

   [16] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

   [17] For example, Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015 and United States Department of State, Country Reports on Human Rights Practices for 2014, Afghanistan do not refer to this happening in Kabul. 

   [18] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

   [19] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 18 September 2015.

6. Having regard the country information overall and the applicant’s individual circumstances, I find that the applicant (even when considered cumulatively) does not face a real chance of persecution in the reasonably foreseeable future in Kabul on account of being a Hazara Shia or an imputed political opinion or for membership of particular social groups consisting of “failed Hazara Shia asylum seekers”, “returnees from the West” or “failed asylum seekers” at the hands of the Taliban, ISIS, members of the [Tribe 2] tribe or anybody else. 

7. Having regard cumulatively to the country information and his individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm in Kabul.

   Conclusions

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    David Corrigan
    Member