1415785 (Refugee)

[2016] AATA 4268

1415785 (Refugee) [2016] AATA 4268 (11 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415785

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Rea Hearn Mackinnon

DATE:11 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 11 August 2016 at 6:02pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Afghanistan, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 11 August 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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. 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’).

9. 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.

10. The issue in this case is whether the applicant will be harmed because of his ethnicity, religion, imputed political opinion of support for the west and/or his membership of particular social groups comprising returnees from the west or perceived wealthy returnees from the west. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Nationality

11. The applicant has claimed to have been born in [a village] in [a district] of Uruzgan province of Afghanistan in about [year] and to have resided in Quetta, Pakistan since about [year].

12. He provided a copy of a taskera however he told the Tribunal that he paid a person in [Quetta] to produce the taskera for him because he wanted to take an identity document when he left Pakistan in 2012. The Tribunal therefore places no weight on the taskera as evidence of his nationality. The applicant told the Tribunal that his details on the taskera are true and correct.

13. The applicant has consistently claimed to have been born in Afghanistan however and to have lived in Pakistan as a refugee with no legal residence rights. As noted by the delegate, there are approximately 2.6 million Afghan refugees in Pakistan and many have been living in Pakistan for many years.

14. In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Afghanistan and that he has no legal right to enter or reside in Pakistan or any other country.

    Background

15. The applicant left Afghanistan when he was very young and has no memory of his circumstances there. He told the Tribunal that he travelled to Pakistan with his parents. He has no memory of his grandparents. His father has no [siblings] that he is aware of. His mother had [siblings] who went to [another country] many years ago. He has no relatives that he is aware of in Afghanistan.

16. The applicant told the Tribunal that his father worked as a [occupation] in Quetta. The applicant did not attend school as he was not entitled to. He began training as a [occupation] when he was about [age] or [age] years old. In about 2005, he began working in a [store] and subsequently ran his own store in different locations within [suburb], a Hazara area of Quetta. He closed his store in 2008 due to the poor security in Quetta and resumed working as a [occupation].

17. The applicant married in 1998 and has [a child] born in about [year]. His wife, [child] and [siblings] are residing in Quetta. He sends them money to support themselves.

18. The applicant claims that he left Quetta in 2012 because of the targeted killings of Hazaras which have been occurring in Quetta. The Tribunal accepts that Hazaras have been targeted in Quetta by extremist anti Shia groups such as Lashkar-e Jhangvi and that these killings are the basis for the applicant’s departure from Pakistan. The Tribunal has not considered the applicant’s claims about specific incidents in Quetta as the Tribunal has accepted that he is a national of Afghanistan.

19. The applicant told the Tribunal that his father went back to Afghanistan when the applicant was about [age] or [age] years old (so in about 2004) to see his land which had been taken over by Pashtuns when the applicant and his family left Afghanistan. The applicant has no details about his father’s land. The applicant was not able to identify any specific reason why his father went back to Afghanistan then other than that his father was uncomfortable with his illegal status in Pakistan and had some hope that it would be good for him to return to Afghanistan. The Tribunal notes that the applicant’s father appears to have returned to Afghanistan after the fall of the Taliban regime in 2001 and considers it likely that his father thought it might be safe to return at that time and that he might have a chance of reclaiming his land.

20. The applicant told the Tribunal that his father did not return from Afghanistan. He and his family made inquiries of people travelling between Pakistan and Afghanistan and surmised from information obtained from these people that his father had been killed in [their home district].

21. The Tribunal notes that [that district] is an area of mixed ethnicity with a majority Pashtun population (70%) and minority Hazara population. [1]

    Claims

    [1] [Source deleted].

22. The applicant claims to fear harm in Afghanistan because of his race, religion, imputed political opinion and as a returnee from the west. For the reasons set out below, the Tribunal is satisfied that the applicant’s fears are well founded.

    Security situation in Afghanistan

23. The security situation in Afghanistan is extremely poor with Afghanistan currently ranked second in the World Security Risk Index after Syria.[2] In its recent report, the European Asylum Support Office (EAS0) noted that insurgents have increasingly taken control of territory and attacked administrative centres and security installations and that the overall trend is one of decreasing government control outside the larger towns and cities, escalating violence and more insurgent attacks. EASO reported that the insurgents operate in fronts of several hundred fighters; and that, although the ANSF has repelled most attacks and regained control over district administrative centres and security installations, it has not been able to curtail the insurgents’ presence and freedom of movement, especially in remote districts.[3]

    [2] Global Intake, World Security Risk ( 12 November 2014

    [3] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January

24. The Department of Foreign Affairs and Trade (DFAT) noted in its most recent report that “insurgent forces contest many areas of Afghanistan and no part of the country can be considered free from conflict related violence. The situation remains fluid. While the government retains control of much of the country, particularly in the provincial and district centres, some areas are openly contested with varying levels of control exerted by the government and by insurgents. … The security situation is better in areas where government forces maintain strong control, such as major urban centres like Kabul, but attacks remain a common occurrence even in these areas”.[4] 

    [4] DFAT, 2015, DFAT Country Information Report Afghanistan, 18 September

25. The UNHCR noted in its most recent guidelines that that “the security situation deteriorated markedly in 2015 as the Taliban and other AGEs [anti-government elements] conducted aggressive campaigns and increasingly advanced towards major population centres. At the end of 2015, the Taliban reportedly held more territory than in any year since 2001… A proliferation of AGEs with various goals and agendas, including notably the emerging threat from ISIS-affiliated groups [and the re-emergence of Al-Qaeda], combined with intra-insurgent violence has further complicated the security situation”.[5]

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

26. The UNHCR noted that the ANSF has been generally adept at holding the major urban centres but has suffered substantial casualties; has been forced into a reactive position as the Taliban has strengthened their hold in rural areas; that the nature of the conflict has changed since the withdrawal of the international troops in 2014 with increased attacks by AGEs, including complex and suicide attacks, targeted attacks on civilian leaders and a general campaign of intimidation aimed at controlling local communities; and that AGEs continue to carry out high profile attacks in Kabul and other cities.

27. In March 2016, it was reported that Afghan forces had begun to withdraw from Uruzgan and had abandoned two districts to the Taliban.[6] In June 2016, it was reported that the Taliban were contesting four districts in Uruzgan and controlled one more.[7]

    [6] Harooni, M, ‘Australian troops fought and died in Uruzgan, now Afghan troops are pulling back’, The Age, 3 March 2016

    [7] Roggio, B and c Weiss, 2016, Taliban seizes a district in Uruzgan, Long War Journal, 15 June

28. In 2014, the number of civilian casualties documented by the United Nations Assistance Mission of Afghanistan (UNAMA) increased to 11,002, the highest recorded since the UNAMA began recording casualties in 2009.[8]  The increase was said to result mainly from increased ground engagements involving high explosive weapons systems such as mortars, rockets and grenades in civilian-populated areas; increased use of improvised explosives and an increase in suicide and complex attacks.[9] The Afghan Analysts Network reported that targeted attacks on civilians including aid workers, tribal elders, government officials, mullahs and places of worship were the biggest cause of civilian deaths (28%).[10]

    [8] UNAMA, Afghanistan Annual Report 2015: Protection of Civilians in Armed Conflict, February 2016

    [9] UNAMA, Afghanistan Annual Report 2014: Protection of Civilians in Armed Conflict, 18 February 2015

    [10] Clark, K, 2015, ‘War and peace, Highest Civilian Casualty Figures Ever: UNAMA details deaths by mortar, IED, suicide attack and targeted killing’, Afghan Analysts Network, 5 August

29. EASO reported in 2015 that a number of different anti governments groups are operating in Afghanistan including the Taliban, the Haqqani Network, Hezb-e Islami Afghanistan (led by Gulbuddin Hekmatyar), the Islamic Movement of Uzbekistan, Al Qaeda and IS.[11] According to another source, large numbers of Taliban fighters have switched their allegiance to IS and IS flags have been hoisted in Ghazni and Nimroz provinces.[12] As well, there are a number of local militias, aligned to local warlords who are not necessarily opposed to the government but act to protect their own interests.[13]

    [11] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January; Department of Foreign Affairs and Trade, 2015, DFAT Country Information Report Afghanistan,18 September

    [12] Roul, A, 2015, ‘Wilayat Kurusan’: Islamic State Consolidates Position in AfPak Region, The Jamestown Terrorism Monitor, 3 April

    [13] DFAT, 2015, DFAT Country Information Report Afghanistan, 18 September

30. The most common targets for insurgents in Afghanistan are government and security institutions, political figures, foreign missions, international organisations and recently in Kabul, foreign civilians.[14]  The method of attack can be indiscriminate and result in a high number of civilian casualties.[15]  Attacks in Kabul have increased. In April 2016, a bomb attack targeting the National Security Directorate killed at least 40 people and injured more than 300 and a second bomb attack, also targeting the security forces killed dozens of people and injured hundreds more.[16]  In July 2016, a suicide attack on a Hazara protest march in Kabul killed more than 80 people and wounded over 200.[17]

    [14] European Asylum Support Office, 2015, EASO Country of Origin Information Report: Afghanistan - Security Situation, January

    [15] DFAT, 2015, DFAT Country Information Report Afghanistan, 18 September

    [16] Smith J and Shalizi H, ‘Dozens killed in Taliban attack on Afghan capital Kabul’, The Age, 20 April 2016

    [17] ‘Kabul explosion: Islamic State admits attack on Hazara protest’, BBC News, 23 July 2016

31. The UNHCR has noted that the increased violence is occuring in the context of a deteriorating economic situation, 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. 

    Current situation for Hazaras in Afghanistan

32. DFAT has noted that there are 3 million Hazaras in Afghanistan, (approximately nine percent of the population) living mostly in the central highlands area of Afghanistan known as the Hazarajat. There has been strong enmity between Hazaras and the dominant Pashtun population since the killing or displacement of approximately 60% of the Hazara population under the Pashtun Emir Abdur Rahman Khan in the late 19^th century.  The takeover of Kabul and most of Afghanistan by the Taliban in 1996 resulted in a period of repression and conflict for Hazaras. Thousands of Hazara fighters and civilians were killed in fighting in Kabul and Mazar-e-Sharif where at least 2000 Hazaras were killed in reprisal for earlier killings of Taliban fighters. Hazaras experienced ongoing systematic official and societal discrimination and violence under the Taliban regime.[18]

    [18] DFAT, 2014, DFAT Thematic Report: Hazaras in Afghanistan and Pakistan, 26 March

33. DFAT has reported that, since the removal of the Taliban regime, Hazaras have made “significant gains albeit from a low base” but still suffer some societal discrimination, mostly in relation to nepotism involving tribal and ethnic connections: and that the historical enmity between Hazaras and Pashtuns contributes to a perception amongst Hazaras of ongoing discrimination and targeted violence.[19]

    [19] DFAT, 2015, DFAT Country Information Report Afghanistan,18 September, DFAT, 2016, DFAT Thematic Report Hazaras in Afghanistan, 8 February

34. DFAT noted in February 2016 that all Afghans are vulnerable to violent attacks by insurgent groups and that no group is solely targeted on the basis of ethnicity although ethnicity and religion are a factor in kidnappings  on the road between Kabul and the Hazarajat. DFAT details a number of kidnappings and killings of Hazaras in its report and notes that some bus companies are refusing to sell tickets to Hazaras because of the risk of their vehicles being stopped by insurgents because of the possibility of Hazaras being on board.[20]

    [20] DFAT Thematic Report Hazaras in Afghanistan, 8 February. A number of other sources have also reported on the kidnapping of Hazaras.

35. DFAT has reported that, although ethnicity and religion may be a factor, insurgents generally target persons associated with the government or the international community or who appear wealthier that other Afghans; [21] and that, as Hazaras have taken full advantage of the opportunities available to them since the removal of the Taliban regime and due to the improvement in their circumstances, Hazaras are widely perceived to be affiliated with both the government and the international community.[22] In October 2014, a Hazara asylum seeker returned to Afghanistan from Australia was reportedly kidnapped by the Taliban in Ghazni Province and tortured after the Taliban found his Australian licence.[23] Another Hazara dual Afghan-Australian citizen was killed by Taliban in Ghazni in September 2014 reportedly because of his association with Australia.[24]

    [21] Ibid

    [22] DFAT, 2014, DFAT Thematic Report: Hazaras in Afghanistan and Pakistan, 26 March

    [23] Donelly, B, ‘Government to investigate torture claims of deported asylum seeker Zainullah Naseri’, The Sydney Morning Herald, 28 October 2014; also referred to in DFAT, 2015, DFAT Country Information Report Afghanistan, September

    [24] ‘Australian man Sayed Habib ‘tortured and killed by Taliban’, The Australian, 29 September 2014

36. The DFAT report pre-dates the attack on Hazaras in Kabul in July 2016 for which IS has claimed responsibility. IS has described the attack as a “martyrdom attack” on Shias.[25]

    [25] Mashal M and Z Nader, ISIS Claims Deadly Bombing at Demonstration in Kabul, Afghanistan’, The New York Times, 23 July 2016

37. The UNHCR noted in April 2016 that Hazaras are subject to continuing societal discrimination and are targeted for extortion through illegal taxation, forced recruitment, forced labour and physical abuse and that, whilst they have made significant economic and political progress since 2001, there has been a significant recent increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban and other AGEs.[26]

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

1. More generally, the UNHCR has noted that ethnic divisions remain strong in Afghanistan and that ethnicity and religion are often inextricably linked, particularly in the case of Hazaras who are Shia; that it is therefore not always possible to distinguish between ethnicity or religion as the motivating factor behind specific incidents or tensions; and that political allegiances and imputed political opinions are often also linked to ethnicity.[27]

   [27] Ibid

2. The UNHCR has also noted that AGEs target persons who are perceived to have adopted western values or appearance due to their imputed support of the government and the international community and has referred to the reports of Hazaras returned from Australia who were tortured or killed on the grounds that they had become foreigners or spies.[28]

   Future harm

   [28] Ibid

3. The country information above indicates a worsening security situation with the Taliban in control of large parts of Afghanistan, other AGEs including IS and Al Qaeda active and numbers of disaffected Taliban fighters moving their allegiance to IS. The ANSF have been weakened, Uruzgan is falling to the Taliban and there have been an increased number of attacks in Kabul, including an attack targeting Hazaras, with a high level of civilian casualties. It is not possible to say with certainty at this time that the ANSF will continue to hold Kabul.

4. The Taliban has a history of killing Hazaras, because of their ethnicity or religion or both. Al Qaeda and IS are strongly anti-Shia and have engaged in the killing of Shias in other countries and now in Afghanistan. There is a level of intra-insurgent violence amongst the AGEs and it is not clear at this time which force will emerge as dominant.  Whilst Hazaras have made some gains since 2001 the reports above indicate that they are being increasingly targeted for harm. DFAT has noted that Hazaras are being targeted and kidnapped on the road between Kabul and the Hazarajat; that Hazaras are vulnerable to harm outside the Hazara areas; and that Hazaras are more likely to be imputed with a political opinion of support for the government and the international community which adds to their level of risk.

5. The applicant is Hazara and Shia. His home area is in [a certain district] which is predominantly Pashtun area and in a province contested by the Taliban and from which the Afghan security forces appear to have largely withdrawn. Further, the applicant’s family land in [his village] has been taken over by Pashtuns and his father appears to have been killed when he returned to Afghanistan to try to reclaim his land. Having regard to all of the country information above, the Tribunal is satisfied that the applicant faces a more than remote and therefore a real chance of serious harm now or in the reasonably foreseeable future in [his district] because of his race, his religion and/or his imputed political opinion. The Tribunal is satisfied that this harm is systematic and discriminatory in nature.

6. Whilst the perpetrators of the harm are insurgents and non-State actors, the country information above makes clear n that the Afghan government and security forces are struggling to exercise effective control over large parts of Afghanistan and have lost effective control of Uruzgan. The Tribunal is satisfied that state protection will not be available to the applicant.

   Relocation

7. The Tribunal has considered whether the applicant could live safely in a different part of Afghanistan and whether it would be reasonable for him to relocate.

8. The country information above indicates a high level of insecurity across large sections of Afghanistan with large urban centres under the control of the government, such as Kabul, being the most secure. In view of the country information above, the Tribunal is not satisfied that the applicant could live safely in a rural part of Afghanistan.

9. Kabul is a diverse city with an estimated population of between 5 and 7 million people of which Hazaras comprise about one third.[29] There have been an increasing number of targeted attacks in Kabul but, up until July 2016, these have not been sectarian in nature since the bomb attack on the Shia Abu Fazi Mosque during an Ashura celebration in December 2011 which was attributed to Lashkar-e Jhangvi.  The increased presence of IS in Afghanistan and the attack by religiously motivated attack by IS on Hazaras in Kabul in July 2016 indicates that Hazaras are a target and that relocation to Kabul is not safely available to the applicant.

   [29] Ibid

10. Further, the Tribunal is satisfied that relocation to Kabul is not reasonable. The UNHCR has noted that the reasonableness of relocation in Afghanistan depends on the availability of traditional support structures such as family and tribal support networks, access to shelter, the availability of infrastructure and access to essential services such as sanitation and health care, livelihood opportunities and the scale of internal displacement in the area.[30] DFAT notes that unemployment is widespread in Kabul and that new arrivals are at a disadvantage because they lack skills and a family network to assist them to obtain employment. DFAT notes that many new arrivals work as relatively poorly paid day labourers or have to beg or work as street sellers. DFAT notes that the cost of living and rents are relatively high in Kabul and that many residents live in “informal settlements” with no electricity, water or sanitation.[31]

    [30] UNHCR, 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 6 August

    [31] DFAT, 2015, DFAT Thematic report Conditions in Kabul, 18 September

11. DFAT also notes that insurgents regularly conduct high profile attacks in Kabul which have caused significant civilian casualties.[32]  A series of attacks in August 2015 killed an estimated 355 civilians in a single day.[33]

    [32] Ibid; EASO also noted a number of attacks which targeted foreign civilians

    [33] Ibid

12. The evidence before the Tribunal is that the applicant has no family or support network in Kabul. He has no education. He has a job skill ([occupation]) but no family network or support in Kabul to assist him with employment or accommodation. In view of these circumstances and the poor security situation in Kabul, the Tribunal finds that relocation to Kabul is not reasonably practicable.

    CONCLUSION

13. 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

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

    Rea Hearn Mackinnon
    Member