1416996 (Refugee)

[2016] AATA 4772

1416996 (Refugee) [2016] AATA 4772 (5 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416996

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Filip Gelev

DATE:5 December 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 05 December 2016 at 6:23pm

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.

CATCHWORDS

Refugee – Protection visa – Afghanistan – Religion – Conversion from Sunni to Shia –

State protection – Internal relocation – Support system unavailable in Kabul – Embellishment of claims

LEGISLATION

Migration Act ss.36(2)(a)-(c), 499

CASES

RANDHAWA V MILGEA (1994) 52 FCR 437
SZATV V MIAC (2007) 233 CLR 18
SZFDV V MIAC (2007) 233 CLR 51

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 27 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari 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 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

20. 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 matter should be remitted for reconsideration.

    Country of reference

21. The applicant maintains that he is an Afghan national. Prior to interview with the delegate, he provided a copy of his taskera, issued in Afghanistan. After the interview he provided a document purporting to be the original taskera. Based on the applicant’s written and oral evidence, and his taskera, and in the absence of any evidence to the contrary, the Tribunal finds that the applicant is a national of Afghanistan. Therefore, the Tribunal has assessed his claims against that country for the purposes of ss.36(2)(a) and (aa).

    Claims

22. The applicant claims that he was born in [a] village of Kandahar province of Afghanistan. He is a Shia Muslim, because his father converted from Sunni to Shia Islam after marrying the applicant’s mother, who was a Shia Muslim. He belongs to a Pashtun tribe called Barakzai. Most members of the tribe are Sunni Muslims.

23. The applicant told the delegate at interview that the family has land, but no house, in their home area.

24. According to the applicant’s statutory declaration [in] November 2012, the family originally left Afghanistan because the applicant’s father was working as a volunteer [occupation] for Harakat-e-Islami, a Shia political party led by Mohammad Asif Mohseni. In or about 1996 the Taliban found this out and sent the applicant’s father a letter that he must convert back to Sunni Islam. They also demanded that the applicant join the Taliban. The family moved to Quetta, Pakistan, as a result.

25. Many years later, in or around 2009, the applicant was told that the extremist organisation Lashkar-e-Jangavi was watching him. He decided that life for Shias was too dangerous in Quetta and he went back to Kandahar to see if he could live there. He sold his [business] located in [a] Market, Quetta.

26. He was in Kandahar for about 15 days. However, some local members of the Barakzai tribe found out that he had returned to Afghanistan to reclaim the family property. The applicant believes that some Barakzai people “reported” him to the Taliban. The applicant’s friends told him that the Taliban were looking for him. Before the Taliban had a chance to find him, the applicant returned to Quetta.

27. According to the statutory declaration, back in Quetta the applicant could not re-open his [business], because it was too dangerous. He started [another occupation] inside the Shia districts of Quetta. The applicant said that he was in Quetta [in] August 2011 when a bomb exploded in front of one of the Shia mosques in the city, killing [number] people and injuring many others.

28. Country information indicates that the explosion occurred on [address] of Quetta.[1] According to the applicant’s application form, prior to coming to Australia he lived in the same suburb, [address].

    [1] [Information deleted]

29. [In] September 2011 he received a threatening phone call. According to his statutory declaration he believes it was from Lashkar-e-Jangavi. A man speaking in Urdu said that on this occasion his family was lucky, but next time “they” would make sure that the family is killed. Since the attack the applicant’s wife does not permit their children to leave the house.

30. On or about October 2012, the applicant spoke to friends in Quetta and they told him there was a rumour that because the applicant had fled to Australia, he was a Christian convert.

31. At the Tribunal hearing the applicant confirmed that he was born in [a] village, [in a] district of Kandahar province. He said that he did not know how far it is from Kandahar city. He speculated that it may be about [distance]km from the city.

32. The applicant claimed that he has had no formal education. He was asked whether he was of primary school age after the Russians came to Afghanistan. The applicant said that in his village and town there was no school. He said that he had seen the Russians’ cars from a distance.

33. The applicant said that his father was killed about two weeks ago (prior to the hearing). He said that his father was old and frail and visiting his village. He was targeted by unknown persons and killed. The applicant said that he did not know exactly how his father was killed. He said that his father was too old to drive himself. The applicant did not think that any other person travelling with his father had been harmed. He said that he was waiting for the police report. He said that the family suspects it was the Barakzai or the Taliban who did it, because he had no other enemies.

34. The applicant confirmed that he and all his siblings are Shia Muslims. He belongs to the Barakzai tribe. He said he could not explain exactly why his father had decided to convert to Shia Islam rather than for his mother to convert to Sunni Islam. He said that in his culture he could not question his parents’ decision.

35. The applicant was asked how it was possible to hide from the Barakzai even though they were living in the same village. The applicant said that initially his father did not disclose his conversion. The villagers thought that it was the applicant’s mother who had converted to Sunnism after the marriage.

36. The Tribunal said that it thought that the applicant had earlier claimed that his father was hiding from other Barakzai. The applicant said that it was when his father joined the Herakat-e-Islami that other people realised that it was he who had converted (to Shia Islam) rather than the applicant’s mother (to Sunni Islam).

37. In Afghanistan the father was doing work for Herakat-e-Islami. In 1996 his father moved his family to Pakistan and a few days later he himself moved. The applicant said that when he was disclosed that the family became Shia and his father was with Herakat-e-Islami they had to move. The applicant said that it was not a strong party or group and his father was at risk from the Taliban when the information was disclosed.

38. The applicant said he did not know who identified him as a Shia in Pakistan, but someone did and Lashkar-e-Jangavi started threatening him. He said that his friend told him that these people who were threatening him were from Lashkar-e-Jangavi.

39. The applicant expressed his frustration about the fact that the Tribunal was asking so many questions about his father that he (the applicant) could not answer. The Tribunal explained to the applicant that it needed to be satisfied that his father did indeed decide to convert to his mother’s sect, even though women have less rights than men (the applicant himself said that women do not go to the mosque) and the father’s conversion caused problems for the applicant and possibly caused the father’s own death. The applicant said he could not speak on behalf of his father as to what motivated his father to change his religion.

40. The applicant claimed that in Quetta during the week he would pray at a Sunni mosque and pretend to be Sunni but at night or on Fridays he would go to the Shia mosque.

41. The Tribunal asked the applicant who he stayed with when he went back to Kandahar in 2009. He stayed with friends whom he had met in Quetta. They warned him about the Barakzai looking for him. He said that he was considered by them to be an infidel and the passage of time (1996-2009) did not matter. He said that they were after him because of his religion.

42. The applicant was asked what he meant in his statutory declaration where he said that the Barakzai were after him because he may try to reclaim his family property. He said that they were “stubborn” people and that is why they wanted to harm him. He did not remember saying in 2012 that the Barakzai wanted to harm him because of land. He said that maybe his father had told him about the land back in 2012. He said that as far as he knew neither he nor his father had any agricultural land in Afghanistan. It was possible that they inherited some land from the grandfather (he drew a distinction between “land” meaning agricultural land as opposed to “house” which his father bought after the family moved to Quetta).

43. The Tribunal noted that the trip to Afghanistan and the bombing in Quetta were more than two years apart. Prior to going to Afghanistan he thought that he had already been identified as a Muslim. He said that he stayed in [suburb] for two years and worked there as a [occupation].

44. The Tribunal noted that it might find that the mosque bombing in August 2011 was not targeting him at all, but was targeting Shias in this neighbourhood ([suburb]) who were attending the mosque. He said that the bomb was near his house, a few hundred metres from the mosque. If the bomb had exploded in front of the mosque hundreds of people would have been killed.

45. The applicant confirmed the claim that there was a rumour in Quetta that he is a Christian. He said that was true but he was not as worried about this as much as he was worried about the view that he is a Shia. When asked if people in Kandahar might also think that he is a Christian, he said he did not know.

46. The Tribunal discussed with the applicant the available country information about the security situation in Afghanistan. The Tribunal noted that according to the DFAT Country Information Report (18 September 2015) Shia Muslims in Afghanistan may experience societal discrimination “more accurately described as a positive preference for members of one’s own family, tribal or ethnic group, rather than negative discrimination against others” (at 3.25). The applicant said that there would be no problem with the general public (he did not fear discrimination in general), but he would be targeted by insurgents or the Berakzai tribe.

47. The Tribunal said that according to the same Country Information Report (at 3.26) all groups in Afghanistan are vulnerable to attacks by insurgents and terrorist organisations. DFAT is not aware of any credible evidence that everyday Shia Muslims are systematically targeted on the basis of their religion. He said as he had already reiterated if insurgents do not attack him but his own tribe (the Barakzai) will.

48. When the Tribunal referred to DFAT’s assessment in this Report that sectarian violence in Afghanistan is infrequent, he gave the same answer for the third time – he feared that his own people (tribe) will get him.

49. The Tribunal advised the applicant at the hearing that it accepts the risk to people associated with the Afghan government or the international community, both military personnel and NGOs. The September 2015 DFAT Country Information Report supports this proposition (3.34, 3.37 and 3.38). When the Tribunal asked whether he feared harm from the Taliban, IS or other insurgents who target government officials and security forces. He said he did not know. When asked whether he thought that people will target him because he comes from Australia and Australia participated in the invasion of Afghanistan by international forces, he said “maybe”.

1. In terms of relocation inside Afghanistan, the applicant said that he did not know anyone in Kabul. He said that he knows that people in Kabul hate Pakistanis. He said that he had heard of Kabulis attacking the Pakistani embassy and Pakistanis. He said that his children do not speak proper Dari, they speak Urdu, the language spoken in Pakistan.

   Well-founded fear of persecution

2. The delegate accepted that the applicant is a Shia. With considerable hesitation the Tribunal also accepts this claim and it further accepts that the applicant’s father converted away from Sunni Islam.

3. The Tribunal finds that the applicant has embellished his claims of past harm and threats in so far as they relate to Pakistan. The Tribunal does not accept that some 20 years after leaving Afghanistan, the applicant continued to go to a Sunni mosque in Quetta every week in order to keep the appearance of being a Sunni. The Tribunal also does not accept that Muslim extremists were making threatening phone calls against the applicant in Quetta or that they targeted him by placing a bomb near his house in 2011. There is country information to indicate that Shia Muslims are targeted by extremists in Quetta.[2] However, it is implausible that extremists would have taken a particular interest in the applicant, who had left Afghanistan as a young boy and had not become a religious or political leader in the Shia community in Quetta. In relation to the “rumours” that he has become a Christian, the Tribunal notes that the population of Quetta is estimated at more than a million,[3] and Sunni and Shia communities live segregated from each other. The Tribunal therefore considers it highly implausible that in a city of this size, Sunni extremists will even know of the applicant’s existence and they would be spreading rumours that he has now converted (again) away from Shia Islam and become a Christian.

   [2] “Pakistan; Rampant Killings of Shia by Extremists”, Human Rights Watch, 29 June 2014, accessed at on 2 December ; M. Azhar, “’Hell on Earth’: Inside Quetta’s Hazara community”, BBC, 1 May 2013 accessed at on 5 December 2016.

   [3] accessed on 5 December 2016.

4. While the Tribunal finds that the applicant has exaggerates some of his claims, these are peripheral matters about Pakistan and not determinative of the issue in this case. The Tribunal respectfully adopts the following general statement about the assessment of evidence (Member Bagaric, case number V0214392, 6 September 2004):

   The probative value of the evidence produced by the applicant in support of his claim that he will be persecuted …was not high. Most of the evidence came from a self-serving source (the applicant) and was littered with hearsay statements in support of his case. Nevertheless the direct evidence given by the applicant was on oath and is the only evidence in relation to such matters. There is no contrary evidence. This is not an atypical situation in a forum where the rules of evidence do not apply. The objective of providing a mechanism of review that is fair, just, economical, informal and quick militate further against the capacity to investigate thoroughly the applicant’s claims. Against this background (where the applicant’s claims are not self-contradictory and are not patently contrary to country information and there are no obvious credibility issues) the rational approach to take is to accept the claims – no matter how strongly they may conflict with one’s `hunches’. It is cardinal that determinations of this nature are determined on a forensic basis as opposed to intuition.

   With some reluctance, I accept the core material claims made by the applicant. … I do not accept that the warrant for his arrest is genuine. … This suggests that the applicant exaggerated his claim, but logically this does not undermine the whole substratum of his case. It is understandable that asylum seekers at times are prone to exaggerate and that this may lead to an inclination to fabricate evidence.

5. At the hearing in May 2016 the applicant said that he was waiting on documentary evidence in relation to his father’s death. He has not provided anything further to the Tribunal. Nevertheless, the Tribunal accepts, based on the applicant’s evidence at the hearing, and with some hesitation, that the applicant’s father is deceased and that he may have been killed by the Taliban or the Barakzai tribe.

6. The Tribunal does accept that because of the deterioration of the situation of Shias in Quetta, he sold his business in Quetta and travelled to Afghanistan in 2009 to explore the possibility of a permanent return to his home country. The Tribunal further accepts that the applicant heard rumours, whether true or not, that he would be targeted and that it is not safe for him to remain there. As a result, he went back to Pakistan.

7. The Tribunal observes that the word Taliban has become synonymous with a Muslim fundamentalist in Afghanistan and it is not necessary for the purposes of this decision to explore further whether the person or persons, who were threatening to kill the applicant in Kandahar in 2009 were actual Taliban or not. There may have been members of the Barakzai tribe or they may have been Sunni extremists who were told by members of the Barakzai tribe about this “infidel” (the applicant), who had returned to the area after an absence of more than 20 years.

8. The current UNHCR Guidelines on Afghanistan state the following:[4]

   …UNHCR considers that persons perceived as contravening Sharia law, including persons accused of blasphemy and converts from Islam, as well as members of minority religious groups, may be in need of international refugee protection on the ground of religion or other relevant grounds, depending on the individual circumstances of the case.

   [4] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 16 April 2016, at 5d (Members of religious minority groups and persons perceived as contravening Sharia law).

9. As the UNHCR points out:[5]

   conversion from Islam is considered apostasy; under the courts’ interpretation of Islamic law it is punishable by death. While Afghanistan’s Penal Code does not explicitly mention apostasy as a crime and the Constitution provides that no deed shall be considered a crime unless defined as such by law, the Penal Code states that egregious crimes, including apostasy, should be punished in line with the Hanafi jurisprudence of Islamic law and should be handled by the Attorney General’s office.

   [5] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 16 April 2016, at p. 53.

10. Apostasy is the crime of converting away from Islam to another religion. However, it is well-known that many fundamentalist Sunnis consider Shias to be infidels and not real Muslims. The Civil War in Syria, much of the fighting in Iraq, the Civil War in Lebanon from 1975 to 1990, the Iran-Iraq War of the 1980s all contain some elements of this intra-faith dispute.

11. More relevantly, the hatred of Hazara Shias by the Taliban in the past[6] and the targeting of Shia Muslims in Pakistan in more recent times is well-known.[7]

    [6] DFAT Country Information Report Afghanistan (18 September 2015) at 2.2 and 3.13.

    [7] “Pakistan; Rampant Killings of Shia by Extremists”, Human Rights Watch, 29 June 2014, accessed at on 2 December 2016. M. Azhar, “’Hell on Earth’: Inside Quetta’s Hazara community”, BBC, 1 May 2013 accessed at on 5 December 2016. More generally, see O. Crowcroft, “Kabul protests: Who are the Hazara and why do Isis and the Taliban hate them?”, IB Times, 11 November 2015, accessed at on 2 December 2016.

12. According to the European Asylum Support Office Country of Origin Information Report on the security situation in Kandahar (January 2016):[8]

    Kandahar is among the most volatile provinces in southern Afghanistan, where anti-government armed militant groups are operating and frequently carry out insurgency activities. Kandahar traditionally accounts for a large share of the security incidents recorded nationwide. Military operations, insecurity and clashes between AGEs and ANSF are common in Kandahar.

    [8] "EASO COI Afghanistan Security Situation 2016", EASO, 20 January 2016, CIS38A8012395 at p. 70.

13. Based on the applicant’s own evidence and the country information cited above, the Tribunal accepts that if the applicant were to return to his home area in Kandahar Province, he faces a real chance of serious harm (significant physical ill-treatment or threat to life or liberty, instances of serious harm as per s.91R(1)(b) and 91R(2)) at the hands of the Barakzai tribe in the area.

14. The Tribunal considers that this systematic and discriminatory conduct, as required by s.91R(1)(c), will take place, because the applicant’s father was a convert from Sunni Islam to Shia Islam. Therefore the harm to the applicant will be for a Convention reason – religion or membership of a particular social group (members of the applicant’s father’s family).

15. The persecutors may in part be motivated by their desire to prevent the applicant from claiming back land that belongs to the family. However, the Tribunal considers that the Barakzai’s tribe’s enmity against the applicant in his family, and the desire not to allow the applicant’s return, ultimately stems from the family’s conversion to Shia Islam, a Convention reason (s.91R(1)(a)).

    State protection

16. It is clear from the country information that the government is unable to exercise effective control over parts of the country, including Kandahar province, and it lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators.

17. The available information also indicates that there is an absence of effective state protection outside major urban areas. Given this information, the tribunal finds that the applicant would not be able to access state protection in accordance with the principles in MIMA v Respondents S152/2003.

    Relocation

18. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country.

19. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

20. The Tribunal has considered whether it is reasonable in the applicant’s individual circumstances for him to relocate within the country to avoid the real chance of persecution in his home area in Kandahar province.

21. The Tribunal discussed with the applicant the most recent DFAT Country Information Report on Afghanistan (18 September 2015). Relevantly it states:

    5.14 According to UNHCR, there were more than 850,000 internally displaced persons (IDPs) in Afghanistan in March 2015 …

    5.15 Resettlement and reintegration in areas of origin can be difficult because of the ongoing security situation. As is commonly the case in developing countries, the bulk of internal movement within Afghanistan is from rural areas to urban areas. … Large urban areas such as Kabul are home to mixed ethnic and religious communities, and offer relatively better opportunities for employment, access to services and state protection than rural areas. Nonetheless, Kabul remains one of the poorest and most dangerous cities in the world (see the 18 September 2015 DFAT Thematic Report on Conditions in Kabul). Goods and services, including accommodation, can be significantly more expensive in urban areas, making it difficult for some people to relocate there, particularly unaccompanied women and children. The recent slowdown in economic growth is also having an impact on the availability of employment opportunities.

    5.16 … Large groups of internal migrants often live in informal settlements in poor conditions, with high rates of unemployment and under-employment, limited access to water and a lack of basic infrastructure.

22. The DFAT Thematic Report on Conditions in Kabul (18 September 2015) states at 3.6 under the heading Internal Relocation that Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan. This applies to those displaced by conflict and natural disasters, economic migrants and returnees to Afghanistan. Motivations for migration to Kabul include the greater level of security available as well as better employment opportunities.

23. The Tribunal noted that according to DFAT it is generally easier for single men to relocate to Kabul compared to married men or men with families. The applicant is married and has [number] [children]. He has been out of the country since 1996 (even if, according to his own evidence he has travelled back to Afghanistan from time to time).

24. The applicant has no formal education. There is no doubt that he will find difficult to find work in Kabul.

25. The most recent UNHCR Guidelines state that decision makers must pay particular attention to the following factors when determining the reasonableness of relocation:[9]

    (i) the effective availability of traditional support mechanisms, provided by members of the applicant’s extended family or members of his or her ethnic group;

    (ii) access to shelter in the proposed area of relocation;

    (iii) the availability of basic infrastructure and access to essential services in the proposed area of relocation, such as potable water and sanitation, health care and education;

    (iv) the presence of livelihood opportunities, including access to land for Afghans originating from rural areas; and

    (v) the scale of internal displacement in the proposed area of relocation.

    [9] “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, UNHCR, 19 April 2016, HCR/EG/AFG/16/02.

26. The Tribunal observes that the applicant has no support mechanisms in Kabul, he has no access to shelter, there is a very good chance that he and his family would end up in an IDP camp with limited or no basic infrastructure and access to essential services, the applicant’s employment opportunities are relatively limited; and the scale of internal displacement is enormous as millions of people have moved to Kabul since 2001.

27. The UNHCR urges decision makers to pay particular attention to the bests interests of the child as primary consideration in all decision-making affecting children; due consideration is to be given to the fact that what is considered merely inconvenient for adults may constitute undue hardship for a child. As already noted, the applicant has [number] children.

28. The Norwegian Refugee Council Report: Still at Risk: Security of tenure and the forced eviction of IDPs and refugee returnees in urban Afghanistan, February 2014, found the following:[10]

    The arrival of large numbers of IDPs and refugee returnees in Afghanistan’s cities presents the government and the international community with both a protection and an urban development challenge. Informal settlements in Afghanistan can make up entire neighbourhoods. Some are now several decades old. Informal settlements are frequently characterised by insecure tenure, poor sanitation, lack of safe drinking water, high vulnerability to disasters and lack of investment in services and infrastructure.

    Indeed, three quarters of Afghans affected by conflict have faced some form of displacement and in cities such as Kabul most of the urban poor have been IDP s or refugees at some point in their lives. Poverty, informality and marginalisation are a reality for the majority of urban dwellers in Afghanistan and much of the wider urban poor lack access to adequate housing and secure tenure.

    [10] ‘Still at Risk: Security of tenure and the forced eviction of IDPs and refugee returnees in urban Afghanistan’, Norwegian Refugee Council, February 2014, accessed 8 July 2015 at

29. The Oxford Refugee Studies Centre report entitled Afghanistan Afghanistan’s Displaced People: 2014 and Beyond, found the following:[11]

    Return not as successful and sustainable as hoped: Though it is unclear exactly how many Afghans have returned home (some more than once) since 2001, 5.7 million is a recent estimate.1 Added to this are the 2.7 million who are still in Pakistan and Iran, and who are unlikely to return home unless there is a strong forced incentive from the host countries, namely deportation. But return has been unsustainable for many, if not a majority, due to the struggle to obtain a place to live and make a living, let alone access basic services and enjoy security and protection. Many returnees already live in secondary displacement.

    Added demographic stress: With its exceptionally high birthrate (2.4%), fghanistan’s population is predicted to exceed 40 million by 2030, with ever greater competition for resources such as land, services and employment in a country that already struggles to provide for the current population of around 28 million. More stresses and vulnerabilities are likely to produce displacement and, with a larger population, any future displacement will mean larger numbers of refugees and IDPs.

    Insecurity as a key driver of displacement: The recent sharp increase in violence in Afghanistan does not inspire much confidence that the push factors will be resolved any time soon. Security incidents and the killing of civilians have been steadily on the rise over the last few years, and the trend is already continuing into 2014. Civilian casualties, however, only tell us part of the story, and should be considered along with the increase in threats, intimidation and human rights violations, the rise in instances of impunity, and the lack of protection provided by the Afghan government and its security forces.

    [11] The Oxford Refugee Studies Centre, Forced Migration Review, Issue 46, May 2014, accessed 29 May 2015 at:

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    In his individual circumstances, including his lack of family and social links outside of his home area in Kandahar, the fact that he has a wife and four children, and his very long absence from Afghanistan, the Tribunal does not consider it reasonable for the applicant to relocate to Kabul or anywhere else in Afghanistan.

30. 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

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

   Filip Gelev
   Member