1416535 (Refugee) - [2016] AATA 4552

1416535 (Refugee) [2016] AATA 4552 (7 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416535
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Filip Gelev
DATE:7 October 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 07 October 2016 at 4:49pm

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] January 2013 and the delegate refused to grant the visa [in] September 2014.
The applicant appeared before the Tribunal on 3 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
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
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
According to a statutory declaration dated [in] December 2012, the applicant is a national of Afghanistan or Pashtun ethnicity. He is from Kandahar.
He said that his wife is in Pakistan. The applicant left Afghanistan in December 2011 and from there he travelled to Australia to seek protection. He finally arrived in Australia in August 2012.
According to the statutory declaration “in prior to 2010” his father was a self-employed [occupation 1] for 3-4 years who was “basically” working for [Agency 1]. He [travelled for work] from Kabul to Kandahar Airport.
The father received 2-3 warning from the Taliban to stop working “with the government”. However, he continued. The last threat was received almost eight months before he was targeted and killed
whilst [travelling for Agency 1 work] to Kandahar (as part of a larger [team]). He was actually [physically attacked] by the Taliban in his [vehicle]. [Other workers with him] were murdered as well.
He said that before his father was killed, the applicant was working in [Town 1, location]. It is on the highway between Quetta and Kandahar city.[1] He travelled regularly between [Town 1] and home. He did not have any particular “safety risks” while his father was alive. His problems with the Taliban started after the death of his father.
[1] [Deleted.]
He was stopped and arrested by the Taliban on four occasions. The first incident was in or about April 2011. He was going home from [Town 1] and three Taliban stopped him in an area called [Area 1]. He was “blindfolded and escorted into a container”. He was detained for two days and interrogated a few times about his activities with the government. They accused him of working for the government as his father had. The applicant denied any association with the government. The captors fed him very little food on the first day and nothing on the second day. When they failed to establish any link between him and the government, they released him.
A few weeks later he was arrested again by some Taliban in an area called [name]. They “transferred” him to a place that was some two hours away. On this occasion they detained him for a week. He was interrogated repeatedly and he was blindfolded for the whole time. Once more, the applicant denied any allegation with the government and he was released in [a location] in Kandahar. He developed an eye “disorder” as a result of being blindfolded for a week.
One week after his release he was arrested again by the Taliban in [Area 1]. He was subjected to interrogation for almost 18 hours before being released.
Almost three weeks later there was a fourth incident. This time the Taliban questioned the applicant why he was working in [Town 1] and not in Kandahar. They suggested that if he was working [in Town 1], he was somehow spying for the government. They held him for one night and released him the following day.
The applicant feared that the continued harassment, detention and “cruel treatments” will continue. He discussed the situation with his business partner and decided to leave. He left the country a few months later.
The applicant was interviewed [in] November 2013. At interview with the delegate the applicant repeated the claim that his father was attacked in Ghazni.
He was asked why the Taliban would harm him in the future if he did not work for the government and he was detained but then released four times. The applicant said that the Taliban suspected that he was working for [Agency 1] as his father had before him.
The delegate refused the application [in] September 2014 mainly on credibility grounds.
According to “legal submissions”, which are mostly a summary of the applicant’s evidence, received by the Tribunal on 3 May 2016, the applicant developed an eye disorder and a shoulder disorder. While the eye problems had previously been mentioned, and were discussed with the delegate at interview, the claim in relation to the shoulder was new.
Attached to the submissions were several letters of support, including a letter by [Mr A], [a leader] of [Community Group 1]. According to the letter [Mr A] knew the applicant’s father in Kandahar. [Mr A] moved to Australia in [the 1990’s] and found out about the murder of the applicant’s father in 2009.
The applicant also provided a number of recent newspaper articles about terrorist attacks in Kandahar and one article about alleged abuses by security forces against alleged Taliban (A Latifi and S. Bengali, “Another mysterious death in Kandahar, and allegations of official torture”, LA Times, 7 April 2016).
Tribunal hearing
The applicant told the Tribunal that he does not know his date of birth. The date of birth given to him was when he told the Department of Immigration that he was [age] at the time he arrived in Australia.
The applicant said that he has one [sibling], who is younger than him by about [number] years.
His mother died around 2006. His father then started looking after the applicant and his [sibling] until his own death.
The Tribunal asked the applicant when it was that his father was killed. The applicant said that it was 2010.
The Tribunal asked why the letter from [Mr A] of [Community Group 1] (provided on the day of the hearing and dated “[in early] 2016”) states that his father was killed in 2009. The applicant said that [Mr A] made a mistake and that his father was killed “between 2007 and 2010”. When asked to clarify he said that he meant that his father started working for [Agency 1] around 2007, which is when his problems started and he was killed in 2010.
The applicant said he was born in [his home village], which is about [distance] to Kandahar city centre.
Before coming to Australia he was working in [Town 1] for about [number] years. He could not remember exactly when he first started working there. He was employed as [an occupation 2], first as an apprentice for [number] years and then a partner of [Mr B].
The applicant said that his father used to be [an occupation 1] before he started [working] for [Agency 1]. He purchased [equipment] not long before he started work for [Agency 1].
The Tribunal asked the applicant why his father would [travel] from Kabul to Kandahar Airport. The Tribunal asked why [Agency 1] would not [utilise planes] from Kabul to Kandahar Airport. The applicant said that many people were involved in this field, this was a very common business. The Tribunal asked why his father would [travel for work] to the airport and not to Kandahar City. The applicant said that he did not have that much information and his father may have been [travelling] to Kandahar Airport or City.
The applicant said that as far as he knew his father would rarely [travel] by himself, he would usually travel [with] other [workers].
The applicant said that his father received 3-4 warnings in the last 8 months before he died in 2010. When asked how he remembered the threats were received in the previous 8 months. He said it was about 7-8 months. He said it was natural for him to remember as it concerned his father. The Tribunal confirmed that the applicant was claiming that all the warnings (3 or 4 of them) were received in this period of about 8 months.
The Tribunal pointed out that according to the applicant’s 2012 statement, the last warning was received almost 8 months before he was killed. The applicant replied that his oral evidence was correct.
The Tribunal pointed out that his [sibling] was quite young at the time of the applicant’s father’s death. The Tribunal asked why his father risked leaving a young [child], as well as the applicant, orphans after he was warned more than once by the Taliban. The applicant said it was a matter for his father. He did not know whether his father could have obtained another job.
The Tribunal asked the applicant where his wife and [sibling] were at present. He said that after he left Pakistan he found out that they had left Afghanistan and gone to Pakistan to be with [other family members]. He said that [these family members] have been in Pakistan for a long time, since things started to go bad in Afghanistan. He said that what he meant by that was that they moved after 2001.
The applicant was asked whether he has a house in Kandahar. He said he did. Someone used to rent it previously, but it’s empty now.
In terms of employment, the Tribunal asked the applicant whether the business of [Mr B] was still operating. The applicant said that he had no information about this.
The applicant insisted that he remembered the first time he was detained around April 2011 and that his father started receiving threats about 8 months before his death, but the applicant could not recall the date of his father. He said it was in late 2011.
The applicant said that the shoulder problem he has was a result of being hit in the shoulder (he demonstrated how he had been hit from behind) with a [gun] and his arms being pulled by the Taliban.
When asked about the injury or illness he received as a result of being blindfolded, the applicant said that his eyes were still itchy and red to the present day. He said that it was caused by the blindfolding, because earlier he had not had any problems.
The Tribunal asked the applicant why the Taliban would accuse him of working for [Agency 1] if he did not even [do the same work]. The applicant said that the Taliban were well-informed and had spies everywhere e.g. the mosques. They thought he worked for [Agency 1] or the government and that is why he had to leave the country.
The Tribunal pointed out that if the Taliban were well-informed that undermined his claims that they would still accuse him of working for [Agency 1] or the government. He said that because he was travelling back and forth between [Town 1] and Kandahar, they suspected he was also doing work for the government or an NGO.
He said that this happened in many cases where the Taliban kill relatives of people who work for the government or NGOs. The Tribunal asked whether his claim was that he was fearing for his safety because he was related to his father or because he was suspected of his own activities. He said it was the latter.
The Tribunal pointed out that according to his evidence the Taliban had identified his father as a [worker] for an international organisation and then they had not subjected him to serious for some time, but instead they kept giving him warnings to stop his work. This suggests they were well informed and could verify whether he had stopped working for [Agency 1]. The Tribunal suggested it was implausible that the Taliban would harm the applicant given that he was not working for international forces or the Afghan government.
The Tribunal advised the applicant that it asked the Country of Origin Information section of the Department of Immigration whether there was any information about an attack on a [team of workers] for [Agency 1] in Ghazni province in 2010. No such information could be found. The applicant said that his memory was not very good and he was not a well-educated man. He could not be expected to give exact dates. When asked how he could explain the lack of reports, he told the Tribunal he had nothing else to say, but he was sure that the Taliban attacked a [team] in 2010 and his father was killed there.

The applicant said that there are many incidents that are not covered by the media. The Tribunal pointed out that the applicant was claiming that this was a relatively large scale attack. The applicant said that he had gone to the government 3-4 times to ask about his father and they could give him no information.
The Tribunal noted that the government may not report things, but the international media and NGOs do. The Tribunal said that that the Afghanistan NGO Safety Office (ANSO) published regular reports on attacks on NGOs across Afghanistan. In an assessment of attacks on NGOs for the period 1 January 2010 to 31 December 2010, ANSO recorded no “serious attacks” against NGOs in Ghazni province. According to the report, the only action taken against NGO staff in Ghazni province during 2010 by Armed Opposition Groups was the abduction of two NGO staff.[2]
[2] Afghanistan NGO Safety Office (ANSO) 2010, ANSO Quarterly Data Report, 31 December, pp.8-9 < Accessed 20 January 2011 <CIS19813>
The Tribunal acknowledged to the applicant that according to some reports relatives of persons working for the government or foreigners can be at risk.[3] The applicant reiterated that this was the case. He said that at the [place] where he worked, they had clients who [did similar work] for [Agency 1].
[3] Partlow, J 2011, ‘In Afghanistan, Kandahar police chief Mohammad Mojayed killed by suicide bomber’, The Washington Post, 15 April < Accessed 4 April 2014
The Tribunal raised the applicant’s credibility and said it needed to decide whether it accepted that the applicant’s father died in the manner described or he died of some other causes, and the applicant decided to go to Pakistan where his [other family members] live. The applicant just responded that he was badly affected by his father’s death and the threats against himself.
When the applicant repeated the claim that [Agency 1 equipment] were coming in for servicing, the Tribunal noted that today was the first time he had mentioned this. He said he had not thought of this earlier.
The applicant said that he feared harm as the Taliban would know he has been to a Western country and they killed his father. The Tribunal advised the applicant that according to DFAT’s most recent Country Information Report (18 September 2015) returnees are not specifically targeted (at paragraph 5.21).
The Tribunal referred to an issues paper from July 2015 which sets out the number of returnees from Norway and the UK in the period January 2014 to March 2015. The UK had returned over 6,000 people and Norway about 750 Afghan nationals. According to the issues paper Norway monitors returnees, normally for 6 months, and there have been no reports of harm. The UK does not monitor returnees, but the UK government advised the Australian government no credible reports of harm had been received by the UK government. The applicant said that it depends on the individuals and different people face a different level of risk. He said that Kabul was much safer.[4]
[4] Issues Paper “Afghanistan: Returnees and Relocation”, July 2015, CRF909496131, at pp. 15-16.
The Tribunal said that the Taliban and other insurgents target foreigners, NGOs, the police, the military and the government. The Tribunal asked the applicant why he would be at risk of harm, especially given that he is a Pashtun and a Sunni. He said that the Taliban mostly target Pashtuns and Sunnis, because they (the Taliban) come from other countries (Tribunal’s italics). The Tribunal said it was the first time it had heard this claim and it could not see who would be their supporter base if they attack Sunnis and Pashtuns given that most of the Taliban in Afghanistan are Sunni Pashtuns. The applicant asserted that this was the case: the Taliban fight against Sunnis and Pashtuns.
The Tribunal advised the applicant it was aware of media reports detailing two incidents in 2014 involving Shia Muslims, one of them was a Hazara, the other a Sayed. One involved a dual Afghan-Australian national Sayed Habib Musawi, killed in September 2014 while travelling from Kabul to Ghazni.[5] The other one was a failed asylum seeker allegedly targeted also in September 2014. Zainullah Naseri, a Hazara from Jaghori district in Ghazni, was reportedly abducted and tortured by the Taliban for two days in Ghazni province after being deported from Australia. He escaped to Jaghori then returned to Kabul. DFAT has stated in its most recent report from September 2015 that the reports about what happened to Mr Naseri remain uncorroborated, that DFAT had been in contact with him and he was not “pursuing any action”.[6] The applicant said that the Taliban groups vary in different parts of the country. Some captured Taliban do not even speak Pashtun, they speak Urdu.
[5] “Australian man tortured and killed by Taliban in Afghanistan, family says”, The Guardian, 28 September 2014, accessed at on 1 September 2015.
[6] Country Report Afghanistan, DFAT,18 September 2015 at 5.22.
The Tribunal asked the applicant whether he feared that he may have difficulty getting from Kabul to Kandahar. The applicant said that he cannot live in Kabul. The Tribunal asked whether he can travel by car from Kabul back to Kandahar. The applicant said that his life is in danger. He repeated his claims relating to his father and the Taliban. The Tribunal asked the applicant two more times about the safety on the roads and he just reiterated that he had been captured in the past and still had a fear for his life.
According to country information militant groups set up checkpoints and have killed and harmed those who work for or support the Afghan government and international community.[7] For example, in March 2013 the director of the Ghazni Rural Support Programme advised in relation travel from Kabul to Ghazni that:[8]
[T]he Taliban insurgents have their checkpoints. [T]he Taliban have publicly announced that all those people who work with the Afghan government, the international forces, and with national and international NGOs are ‘enemy’ of the Islamic “Emirates”, and thus are to be targeted and prosecuted anywhere they are found/captured …
[7] Ruttig, T, ‘Comments provided by Thomas Ruttig on travel between Kabul and Ghazni for Hazaras’, 25 May 2012; Maley, W, ‘On the Position of the Hazara Minority in Afghanistan’, 9 September 2012; ‘Kabul-Kandahar highway is a symbol of what's gone wrong in Afghanistan’, The Telegraph, 9 September 2012, available at Zeerak, M, ‘Email to RRT, Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013.
[8] M. E. Zeerak, ‘Email to RRT: Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013, CIS28576.
After referring to the above country information, the Tribunal asked the applicant again whether he feared harm on the Kabul-Kandahar highway. He said that if he went back, his life would be at risk.
The Tribunal noted that the applicant himself travelled from [Town 1, location] to Kandahar many times and nothing happened to him at least until his father was killed. The Tribunal asked whether this was correct. He said that before his father was killed, he was young, he was only [age]. The Tribunal noted that the age of maturity is 18. The Tribunal said in its opinion the Taliban are unlikely to consider [an age] year old too young. The applicant originally did not understand what the Tribunal was suggesting to him; when the Tribunal’s suggestion was explained to him, he replied that he did not know what motivates the Taliban to capture people, but he had been harmed in the past.
The Tribunal observed that there are daily flights between Kabul and Kandahar.[9] The applicant accepted that was true.
[9] Operated by Kam Air, see website accessed on 2 May 2016.
In relation to generalised violence in the country, the Tribunal noted that according to DFAT, while no part of the country can be considered entirely safe, the government has control over the major cities (DFAT Country Report Afghanistan, 18 September 2015 at 2.33). The Tribunal referred to the articles provided by the applicant’s representatives and said they indicate that insurgents target the government, the security forces or foreigners. Even though civilians are sometimes hurt, the Tribunal needs to decide whether there is a real chance or real risk of harm happening to him. The applicant said that there was such a risk.
The Tribunal discussed with the applicant the letter provided by the applicant which purports to be from his village.[10] The Tribunal asked the applicant why it was that the letter did not specify the exact date of his father’s death. The applicant apologised and said he had had difficulty obtaining the letter.
[10] Folio 31 of Tribunal file.
The Tribunal gave the applicant until 10 May 2016 to provide further information.
On 10 May 2016 the Tribunal received an email from the applicant’s representatives stating that the applicant was in the process of contacting local people in his hometown whom [sic] may know in respect of his father’s death and waiting for them to provide their written statement. The representatives asked for one month to provide the information. As of the date of the decision no further information has been received by the Tribunal.
The applicant provided a statutory declaration, dated 10 May 2016, in which he stated that his father may have worked for other organisations besides [Agency 1]. The applicant was living in [Town 1], away from Kandahar, and did not know all the details of his father’s work.
Well-founded fear of persecution
The Tribunal is prepared to accept, based on the country information, that the Taliban and insurgents may target a person such as the applicant for reason of his being the son of a person who was employed/subcontracted by [Agency 1], because [Agency 1] is a western NGO. [11] This is also the assessment of the UNHCR in its most recent Guidelines, dated 19 April 2016, under a specific heading “Family Members of Individuals Associated with, or Perceived as Supportive of, the Government and the International Community”.[12]
[11] Partlow, J 2011, ‘In Afghanistan, Kandahar police chief Mohammad Mojayed killed by suicide bomber’, The Washington Post, 15 April < Accessed 4 April 2014
[12] “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan”, HCR/EG/AFG/16/02, 21 April 2016, at p. 41.
However, for the reasons that follow the Tribunal does not accept that in this case the applicant’s father was [doing specific work] for [Agency 1] and that he was killed by the Taliban and therefore the Tribunal is not satisfied that the applicant will be targeted on the basis of being his father’s son.
First, as the Tribunal advised the applicant during the court of the Tribunal hearing, no information was found that referred to an attack on a [team working] for [Agency 1] in Ghazni province in 2010.[13] The claim was that the applicant’s father was [specifically attacked] in [a vehicle] and other [workers] who were [with him] were also killed. The applicant told the delegate that the [teams] were of [up to sixty people] and that “lots of people” were killed in this particular attack.
[13] Reports searched included UNAMA’s annual report for 2010, US DOS human rights report for 2010 and annual reports by Amnesty International, Freedom House and Human Rights Watch.
The applicant’s representative provided country information to the Tribunal about an attack on [Agency 1] in 2013. According to the article this was the first time that the offices of [Agency 1] had been targeted since the organisation started its operations in the country [over 20] years earlier. One Afghan guard was killed and as a result [Agency 1] decided to impose a “freeze” on “all movements” throughout Afghanistan. The article also states that [Agency 1] [had assumed being] protected from attack by its working relations with the Taliban and other [insurgent groups].[14] The Tribunal considers that had the claimed attack in 2010 occurred, it would have been reported and [Agency 1] would have taken measures in response to it.
[14] [Deleted].
The Tribunal does not accept the applicant’s explanation, provided only after the Tribunal hearing (in the statutory declaration of 10 May 2016), that his father may have worked for NGOs other than [Agency 1]. The Tribunal considers that an attack on the scale described by the applicant would have been reported regardless of the identity of the NGO which subcontracted the [occupation 1’s].
Secondly, the date of the [relative’s] death in 2010 is inconsistent with the letter from [Mr A], [a leader] of [Community Group 1], according to which [Mr A] found out about the murder of the applicant’s father in 2009.
Thirdly, the applicant’s evidence was inconsistent. At the Tribunal hearing he insisted that his father had been threatened 3-4 times in the last 8 months of his life. He repeated that claim and insisted that it was natural for him to remember this, because it concerned his father. However, he claimed in his 2012 statutory declaration that his father had been threatened 2-3 times and the last threat had been received about 8 months before his father was killed.
The applicant provided two different accounts about the reasons why he would have been under suspicion. From the time he applied for protection up until the Tribunal hearing, he said that it was because of his father and because he travelled back and forth between [Town 1] ([location]) and Kandahar. , the Tribunal finds it implausible that if the Tribunal were fully informed about the applicant’s father’s activities – they gave the applicant’s father 2, 3 or 4 warnings and when he continued to work for [Agency 1], they killed him – the Taliban would not have realised that the applicant was not working for the government. The Tribunal does not accept that the Taliban would still suspect the applicant of working for the government or a Western based organisation, despite the fact that they appeared not to have incriminating evidence (from other people) and the applicant did not make any admissions even after they detained him four times and subjected him to intensive interrogation, including torture.
At the hearing he said that at his [workplace] they repaired [the equipment] of [occupation 1’s] who worked for [Agency 1]. The Tribunal does not accept the truth of this claim. If the applicant was indeed repairing such [equipment], then from the point of view of the Taliban he was connected to the government and Western forces; the Tribunal considers that if it were true the applicant would have remembered to mention this significant issue at an earlier stage.
The applicant has not provided any independent medical evidence of his alleged problems with his eye and his shoulder. Further, there were no visible scars or any other external signs of the alleged injuries. In any case, even if the Tribunal were to accept the existence of shoulder and eye injuries, it does not necessarily follow that it was received in the manner claimed. In MZZLF v MIBP [2014] FCCA 1298 the Court (Riethmuller J) said at [24]:
Evidence of injuries is often an issue that the Tribunal must confront. The difficulty with injury evidence is that the existence of an injury of itself does not necessarily prove how that injury has been brought about. In some cases, the nature of the injury may be so unusual that it is apparent, or at least apparent to a medical expert, that the only likely way in which the injury could be caused is as a result of mistreatment. Of course, in many cases, an injury that a person has could equally be consistent with a variety of causes, from the mundane, like slips and falls or minor accidents, through to vehicle, traffic and work accidents and other causes.
The Tribunal has considered the letter provided by the applicant which purports to be from his home village. The Tribunal notes that the letter uses the Western calendar when it talks about the applicant’s father’s work for [Agency 1] – that is, that he worked for [Agency 1] from 2006 to 2010 – suggesting that the applicant advised the author of the letter what the contents of the letter should be. The Tribunal notes that the calendar which is in common use in Afghanistan is different (it’s known as the solar Hijri calendar) and the author of the letter dated the letter using that calendar ([date specified]) rather than the Western calendar ([date specified]). The letter does not contain any details – such as the exact date or location of the alleged Taliban attack – which would indicate that the letter was written from the author’s own knowledge of events. For these reasons and because of its other credibility concerns, the Tribunal gives the letter little weight.
The Tribunal gives little weight to the letter from [Mr A], because it states that he found out that the applicant’s father was murdered in 2009 while the applicant has always maintained that the death occurred in 2010. Furthermore, the letter does not specify how [Mr A] found out this fact. The source of this information may have been the applicant.
The Tribunal does not accept that the applicant’s father worked for as an employee or a subcontractor for [Agency 1] or any other organisation that is (or can be perceived as) being Western or pro-Western. The Tribunal does not accept that the applicant’s father was targeted by the Taliban, including that he was threatened, received warnings or was killed on the road [while travelling].
The Tribunal does not accept that the applicant himself was ever threatened, detained, blindfolded, beaten, interrogated or harmed in any other way by the Taliban or any other extremists. The Tribunal does not accept that the applicant’s business fixed [equipment] for [Agency 1].
The Tribunal does not accept that the applicant or his wife had to leave Afghanistan because of safety fears.
The Tribunal finds that at the time the applicant left Afghanistan he was not of adverse interest to anyone and that if he were to return to Afghanistan he would not be of any adverse interest to anyone, including the Taliban and other Muslim extremists.
The Tribunal has also considered the following distinct but related issues – (1) fear of harm for reasons of the applicant being a returnee/failed asylum seeker/person who has spent time in Australia, (2) the high level of violence in Afghanistan and (3) risk of harm on the roads either on the road from Kabul to Kandahar or in Kandahar province itself.
Specifically regarding returns from the West, DFAT stated:
5.21 DFAT is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers.[15]
[15] Country Report Afghanistan, DFAT, 18 September 2015.
In relation to returnees from Australia, the Tribunal said at the hearing that it accepted the truth media reports which have detailed two incidents in 2014 – one involving a dual Afghan-Australian national; the other a failed asylum seeker. The country information suggests that in September 2014 Australian-Afghan Sayed Habib Musawi was reportedly killed by the Taliban while travelling from Kabul to his home district of Jaghori in Ghazni province.[16]
[16] ‘Sydney man killed by Taliban because he was Australian report’, The Sydney Morning Herald, 29 September 2014; ‘Son of Afghan-Australian killed by Taliban denied refugee status’, The Sydney Morning Herald, 29 September 2014.

Also in September 2014 Zainullah Naseri from Jaghori district was reportedly abducted and tortured by the Taliban for two days in Ghazni province. As discussed with the applicant at the hearing, DFAT has stated in its most recent report from September 2015 that the circumstances of the incident remain uncorroborated and that Mr Naseri was not currently pursuing any action regarding this matter.[17] The Tribunal advised the applicant at the hearing that it understood DFAT to be saying that Mr Naseri had abandoned the claim to have been targeted for the claimed reasons. Even if this incident did take place, Mr Naseri is a Sayed or a Hazara by ethnicity and a Shia Muslim, unlike the applicant who is a Pashtun and a Sunni Muslim.
[17] Country Report Afghanistan, DFAT,18 September 2015 at 5.22.

100. The Tribunal accepts the applicant’s argument that some Taliban fighters and other extremists may be foreign born. It does not, however, accept on the information before it that the Taliban or other extremists target Pashtuns or Sunnis in Afghanistan. Furthermore, the incidents took place in Ghazni rather than in Kandahar which is the applicant’s home province.
101. The Tribunal has taken into account the most recent UNHCR Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, which state the following:[18]
[18] “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, UNHCR, 19 April 2016, HCR/EG/AFG/16/02.
AGEs (anti-government elements) reportedly target individuals who are perceived to have adopted values and/or appearances associated with Western countries, due to their imputed support for the Government and the international community.[19] There are reports of individuals who returned from Western countries having been tortured or killed by AGEs on the grounds that they had become “foreigners” or that they were spies for a Western country.
[19]“From Kent to Kabul: The Former Asylum Seeking Children Sent Back to Afghanistan”, Bureau of Investigative Journalism, 17 July 2015, “The Young People Sent Back to Afghanistan”, BBC, 17 July 2015, “After Return: Documenting The Experiences of Young People Forcibly Removed to Afghanistan”, Refugee Support Network, April 2016, p. 31; “Can Afghans Reintegrate after Assisted Return from Europe?”, PRIO, July 2015, “Former Afghan Soldier Who Fled U.S. Training Granted Asylum: Lawyer”, Reuters, 30 June 2015, The Tribunal checked the original sources cited in the UNHCR Guidelines. The only specific examples of people who have actually been harmed – as opposed to people who may be at risk – are the two people who were in Australia and whose individual cases were discussed with the applicant at the hearing, Mr Musawi and Mr Naseri.
103. The Tribunal observed at the hearing that the Australian government does not track what happens to returnees to Afghanistan.[20] However, the Australian government contacted[21] other governments to ask if they had information about the fate of returnees. In the period January 2014 to March 2015 the UK had returned over 6,000 people to Afghanistan and Norway about 750. Norway monitors voluntary returnees, normally for 6 months after their return, and there were no reports of harm in the period 1 January 2014 to 31 March 2015. The UK does not monitor returnees, but the UK government told the Australian government that it had not received any credible reports of harm. The applicant was asked why he may suffer harm. He repeated the claims of past harm at the hands of the Taliban.
[20] See DFAT Thematic Report on Conditions in Kabul (18 September 2015) at 3.15 and DFAT Country Information Report on Afghanistan (18 September 2015) at 5.20.
[21] Issues Paper, Afghanistan: Returnees and Relocation, Department of Immigration and Border Protection, July 2015, responses to questions from the DIBP Country of Origin Information Section, at pp. 16-17.
104. Reports indicate that travel along key roads, including the Kabul to Kandahar highway, is dangerous, as militant groups, including the Taliban, regularly set up checkpoints and have killed and harmed those who work for or support the Afghan government and international community.[22] In recent years there have been regular reports of ambushes, robberies, kidnappings and killings by the Taliban and other groups along these roads, and the security of roads in the region has become volatile and increasingly dangerous.
[22] Ruttig, T, ‘Comments provided by Thomas Ruttig on travel between Kabul and Ghazni for Hazaras’, 25 May 2012; Maley, W, ‘On the Position of the Hazara Minority in Afghanistan’, 9 September 2012; ‘Kabul-Kandahar highway is a symbol of what's gone wrong in Afghanistan’, The Telegraph, 9 September 2012, available at Zeerak, M, ‘Email to RRT, Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013.
105. In March 2013 the director of the Ghazni Rural Support Programme advised the Tribunal in relation to questions about Hazara applicants seeking to travel from Kabul to Ghazni that:[23]
[23] M. E. Zeerak, ‘Email to RRT: Re: Request for advice on road security and ethnic targeting in Ghazni province’, 25 March 2013, CIS28576.
… all residents of …districts of Ghazni … are entirely dependent on highways and other roads crossing the Taliban controlled/dominated districts and areas of Ghazni; like Gilan, Moqor, Qarabagh in Ghazni province, and other districts in Wardak province, to the East, and to the West on Kabul-Kandhar highway. These areas are Taliban-dominated, if not entirely controlled, areas …
The Afghan Security Forces (ASF) including the Afghan National Army (ANA) and the Afghan National Police (ANP) has failed to provide security for these travellers. Based on numerous accounts by the travellers and also by some reporters, in many instances the insurgents have established their checkpoints just a few hundred meters from the ASF security check points, and have searched vehicles for hours with no interruption form the ASF. It is said that in many places, particularly in the remote areas whether the ASF is existent or if non-existent Taliban operate with total freedom. The ASF in many places can barely defend their own posts. They do not walk away from their own checkpoints unless accompanied by the larger group of forces, which rarely comes across.
In such areas the Taliban insurgents have their checkpoints. They stop all cars, and pull off the passengers … It implies that the Taliban have publicly announced that all those people who work with the Afghan government, the international forces, and with national and international NGOs are ‘enemy’ of the Islamic “Emirates”, and thus are to be targeted and prosecuted anywhere they are found/captured …
106. The Tribunal has also considered a recent DFAT assessment on the security situation in Afghanistan in the first 8 months of the year:
DFAT assesses that security conditions in Afghanistan continued to decline nationwide in the first eight months of 2016. Civilian casualties as a result of ground engagements between pro-government forces and anti-government elements increased, with fighting occurring in and around several major provincial population centres. High-profile suicide and complex attacks1 continued, particularly in Kabul, with most attacks carried out by the Taliban against targets linked to the Afghanistan government or international security forces. A major attack on 23 July against a peaceful demonstration of Hazara Shia by a local insurgent group which has pledged allegiance to Islamic State in Iraq and the Levant (ISIL) may represent a worrying introduction of a sectarian dimension to the ongoing conflict in Afghanistan. However, it is too early to say whether this attack was an isolated incident, or if it represents a change in modus operandi of insurgents by introducing a sectarian dimension to attacks.[24]
[24] DFAT Thematic Report on Security Conditions in Afghanistan, 5 September 2016.
107. Recent country information indicates that the Taliban remain highly active in parts of the country:
The provincial capital of Kunduz, in the northeast, has been under near-continuous siege for more than a year, briefly falling to the Taliban last October, while Lashkar Gah, the capital of Helmand, is almost encircled and Tarin Kot, the capital of Uruzgan, came dangerously close to falling to the insurgents last month.[25]
[25] “Afghanistan: Beyond reactive tactics and quick fixes”, Al Jazeera, 5 October 2016, accessed at on 6 October 2016.
108. The DFAT Thematic Report on Security Conditions in Afghanistan, 5 September 2016, lists the major terrorist attacks that took place in Afghanistan from 1 January to 31 August 2016, including an attack (two explosions) on 23 July in Kabul targeting a peaceful demonstration of ethnic Hazaras. About 80 people were killed and at least 230 others were wounded. DFAT described the attack as the single most deadly incident in Kabul since the fall of the Taliban in 2001, and the largest single attack on Hazaras since an attack on an Ashura Day procession in Kabul in 2011. The Taliban were apparently “quick to deny any involvement and to condemn the attack.”
109. As the applicant has no political profile or link to the Afghan government or the international community – neither personally, nor through his father – he does not face a real chance of persecution for the Convention reasons of political opinion, religion or membership of a particular social group arising out of the applicant’s father’s work or of the applicant personal circumstances.
110. The Tribunal considers that the likelihood of the applicant being identified as a returnee from a western country or a failed asylum seeker on the road from Kabul to Kandahar – on the way home – or in Kandahar city and harmed for that reason is remote. Thousands of people travel on this main highway and Kandahar is a relatively big city.
111. Further, as the applicant conceded during the hearing, there are daily flights from Kabul to Kandahar and the applicant could fly into his home area.
112. The Tribunal further considers that even if it becomes known that the applicant has travelled to Australia and sought asylum here through various expatriate networks, this would not be enough to cause the Taliban or other insurgents to seek to harm the applicant. The Tribunal notes that there is a level of violence in Kandahar – and across Afghanistan – but as discussed with the applicant at the hearing, the country information does not indicate that someone with his profile and personal characteristics (Sunni and Pashtun, who has had no personal or familial association with the government or foreigners) would face a real chance of serious harm.
113. The Tribunal considers that in the future the applicant would be able to return to his previous occupation and not be harassed by the Taliban or other extremists. The applicant acknowledged at the hearing that he still had a house in Afghanistan. While he said that it was empty, he did not claim that it had been damaged or that someone else was living there without his permission.
114. Because the Tribunal has not accepted that the applicant has in the past been of adverse interest to the Taliban, nor that he will be of any adverse interest to the Taliban or anybody else on return, the Tribunal finds that the applicant can travel on the roads outside of Kandahar without any problem.
115. Therefore, the Tribunal finds that there is less than a real chance that the applicant will face serious harm for any reason related to his travel to Australia, residence in Australia or outside of Afghanistan, or failed asylum bids in Australia.
116. Despite the relatively high level of violence in Afghanistan and in Kandahar, the Tribunal consider that the risk of serious harm in a militant attack is remote, it is less than a real chance of serious harm.
117. Furthermore, and without conceding that the risk of harm is more than remote, the Tribunal finds on the evidence before it that militants have in the past, from time to time, targeted Hazaras and Shias. However the applicant is an ethnic Pashtun and a Sunni Muslim and thus the requisite Convention nexus is lacking.
118. The Tribunal finds that the applicant will be able to return to Afghanistan and resume working as [an occupation 2] and he will not face a real chance of serious harm amounting to persecution for any reason, including his actual or imputed political opinion, his Pashtun ethnicity, his Sunni religion, his being a returnee/failed asylum seeker/person who has spent time in Australia, his being his father’s son or any other Convention reason.
119. Having considered the individual and cumulative effects of the applicant’s background, claims and circumstances, the Tribunal does not accept that there is a real chance that the applicant will be persecuted for any Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future.
120. 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).
Complementary protection
121. Subsection 36(2B)(c) of the Act provides:
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
122. In SZSFF v MIBP [2013] FCCA 1884 the presiding judge considered the qualification in s.36(2B)(c) to the complementary protection criterion. The Court stated:
…s.36(2B)(c) contemplates that a risk may be faced by a section of the population and by the applicant personally, as the applicant states at particular (e). Properly construed, the complementary protection provisions and, specifically, s.36(2B)(c) emphasise the requirement that the real risk of significant harm must be a personal risk. That is, it must be a risk which is faced by the individual personally in light of the individual’s specific circumstances.
The prevalence of serious human rights violations (in the context of generalised violence) in the destination country will not, of itself, be sufficient to engage a non-refoulement obligation for all people who may be returned to that country. However, where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the ICCPR and/or CAT. As such, s.36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.[26]
[26] SZSFF V MIBP paras 33 - 34
123. The Tribunal has considered the applicant’s circumstances with respect to this point. For the reasons provided under the heading “Well-founded fear of persecution” the Tribunal has not accepted that the applicant will be specifically targeted for harm for any reason by the Taliban, other insurgent groups or anybody else in Afghanistan.
124. The Tribunal notes that there is a level of generalised violence in Kandahar as discussed with the applicant at the hearing and as set out further at paragraphs 104-108.
125. The Tribunal accepts that there has been violence against the civilian population across Afghanistan, including Kandahar, and that there have been a number of civilian casualties (deaths and injuries) of people caught up in the targeted attacks. While the Tribunal accepts that terrorist attacks do occur in Kandahar Province from time to time, the Tribunal considers that this is a risk that is faced by the population generally, and that the applicant is not personally at greater risk in this generalised violence context than the general population in the area.
126. Having considered the country information detailed above, and the information from a number of sources, including the risk of deterioration in the security situation, the Tribunal does not accept that the level of generalised violence in Afghanistan and in Kandahar in particular is so widespread that the applicant faces a real risk of significant harm, as defined in the Act.
127. Having regard to the findings of fact above in relation to the applicant’s Convention claims, and having assessed the applicant’s claims individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed to Afghanistan, there is a real risk that the applicant will suffer significant harm from the Taliban or any other person in Afghanistan for any reason.
128. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
129. 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
130. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Filip Gelev

Member