1420197 (Refugee)

[2016] AATA 3924

1420197 (Refugee) [2016] AATA 3924 (6 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420197

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:David Corrigan

DATE:6 May 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 06 May 2016 at 3:16pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

3. The applicant was represented in relation to the review by his registered migration agent.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 425(2)(a) of the Act.

   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.

    State protection

16. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Relocation

17. 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. 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.

    Complementary protection criterion

18. 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’).

19. ‘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.

20. 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

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. I have before me material including:

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

    ·Copy of entry interview dated [in] September 2013;

    ·Copies of the applicant’s  taskera, Afghan drivers licence and marriage certificate;

    ·Copies of the applicant’s father’s taskera and military certificate;

    ·Interview with the delegate dated [in] November 2013.

23. The applicant’s claims can be summarised as follows.  He is a Hazara Shia who was born in [year] in [his home] village, [in District 1 in] Uruzgan province, Afghanistan. 

24. In 1994, the Taliban came to the applicant’s village and tried to take his father’s livestock.  His father tried to stop them and he was beaten to death.  One month later the applicant was captured by the Taliban and questioned whether he had weapons.  He released after a few days.  Shortly afterwards the Taliban came to his house and took his car.  The applicant fled illegally to [Country 1].  He was deported about four times back into Afghanistan, the last time being in 2001. His home area was not safe, so he went and lived in Kandahar and found a job as [an occupation] at [a location].  His neighbour received a threatening letter from the Taliban saying they would be killed if they did not leave.  The applicant and his family fled to [Country 2] after a few weeks in Kandahar.

25. In 2008, the applicant returned to his home area in Uruzgan for four days but found it was not safe and returned to [Country 2].  In 2010 he started [commuting] between [Country 2] and Afghanistan for [an employer] which he did [several] times, but stopped this because the [business owner] was captured by the Taliban.

    Country of reference

26. The applicant has claimed to be a citizen of Afghanistan. There are some concerns about this given he has claimed that he knew nothing about the UNHCR registration of Afghan refugees in [Country 2] despite the benefits of this and the large numbers of Afghans who have registered according to country information set out in the delegate’s decision   His claim that he left [Country 2] through an airport without a passport but being accompanied by smugglers also appears implausible in the light of country information set out in the delegate’s decision.  The Document Examination Unit of the Department have also opined that his Afghan drivers licence is counterfeit.  However, the applicant speaks Hazaragi, has submitted a copy of his and his father’s taskera and has provided consistent evidence in his entry interview, protection visa application and at the interview with the delegate about his history.  During the interview with the delegate, he answered in detail several questions about the geography and recent history of his home area in Afghanistan that were in accord with country information.  I accept that he was born and lived in Afghanistan in [District 1], Uruzgan until 1994.  Accordingly, I find (as did the delegate) that he is a national of Afghanistan for the purposes of the Convention.

    Assessment of claims         

27. In making my findings, I have given considerable weight to a number of reports by the Australian Department of Foreign Affairs and Trade (DFAT) as these are authoritative, recent and the Department has been specifically charged with the provision of this advice to the Australian government.  In February 2016, DFAT commented:

    2.10 Hazaras have made significant social and economic gains in Afghanistan since the fall of the Taliban in 2001, albeit from a very low base. This has been driven in part by the general improvement in living conditions across Afghanistan over this period, and in part by the end of the Taliban regime, which had routinely discriminated against Hazaras.

    2.11 Nonetheless, the general slowdown in economic growth across Afghanistan since 2014, driven partly by the gradual withdrawal of the international community, raises questions about whether these gains can be maintained or extended. DFAT assesses that uncertainty about the future security, economic and political situation in Afghanistan is an important factor driving emigration from Afghanistan, including for Hazaras.

    …

    2.12 There are many areas of Afghanistan that are contested by insurgent forces, and no part of the country can be considered free from conflict-related violence. While the government retains control over much of the country, particularly in the provincial and district centres, some districts are openly contested, with varying levels of control exercised by the government and insurgents.

    …

    2.17 DFAT assesses that, in the current environment, people from all ethnic groups are at risk of violence from anti-government elements, but no particular group is systematically targeted solely on the basis of ethnicity. Although ethnicity or religion is sometimes a contributing factor, especially in the kidnappings of civilians travelling by road between Kabul and the Hazarajat, insurgent groups typically target people associated with the government and the international community, or those who appear wealthier than other Afghans, rather than targeting specific groups (such as Hazaras) on the basis of ethnicity (see below).

    …

    2.24 Most areas of Afghanistan outside of Kabul and the Hazarajat generally have high levels of insecurity, and are considered dangerous for people of all ethnicities, including Hazaras. DFAT assesses that Hazara minorities living in Pashtun-majority areas across Afghanistan are less safe than those living in Kabul or Hazara-majority areas.[1]

    [1] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan, 8 February 2016.

28. In September 2015, DFAT had commented:

    2.32 The significant rise in casualties in 2014 reflects an increase in the frequency and intensity of ground engagements across Afghanistan. Casualties from ground engagements increased by 52 per cent in 2014, coinciding with the withdrawal of international military forces and combat air support. Casualties are expected to continue to rise in 2015. UNAMA reportedly documented 2,937 civilian casualties (974 deaths and 1,963 injured) in the first four months of 2015, a 16 per cent increase on the same period in 2014.

    2.33 Insurgent forces contest many areas of the country and no part of the country can be considered free from conflict-related violence. The situation remains fluid. While the government retains control of much of the country, particularly in the provincial and district centres, some areas are openly contested, with varying levels of control exerted by the government and by insurgents. The security situation across the country deteriorated significantly over the last 12-18 months, as anti-government groups intensified their efforts and the international military contingent gradually withdrew.[2]

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

29. The United Nations High Commissioner for Refugees has recently reported:

    Hazaras have been reported to face continuing societal discrimination, as well as to be targeted for extortion through illegal taxation, forced recruitment and forced labour, and physical abuse. Hazaras have historically been marginalized and discriminated against by the Pashtuns. While they were reported to have made significant economic and political advances since the 2001 fall of the Taliban regime, more recently there has reportedly been a significant increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban and other AGEs.[3]

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

30. The population of [District 1] is [greater majority] Pashtun and [minority] Hazara.[4]

    [4] [Deleted.]

31. The European Asylum Support Office reported in January 2015:

    Uruzgan is among the relatively volatile provinces where AGEs are active in a number of its districts and frequently carry out insurgency activities. According to the AIHRC, cases of human rights violations in the province have increased by 40 percent in the past year in comparison to the previous year.[5]

    [5] European Asylum Support Office, EASO Country of Origin Information Report Afghanistan Security Situation, January 2015.

32. Considering the country information as a whole and the applicant’s individual circumstances (including that he is from a Pashtun majority area), I find that he faces a real chance of serious harm amounting to persecution in the reasonably foreseeable future at the hands of the Taliban in his home area of [District 1], Uruzgan for reason of being a Hazara Shia.

    State protection

1. DFAT have recently commented:

   4.1 The ongoing insurgency and deteriorating security situation across the country mean that the government does not exercise uniformly effective control over all parts of the country. Government control tends to be better in major urban centres; insurgents operate more freely in rural and remote areas. As a result, the government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in some (particularly rural) areas of the country. In rural areas, many Afghan groups—including Hazara groups—maintain their own local militias to protect themselves from criminals and insurgents, in the absence of effective state protection mechanisms.[6]

   [6] Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan, 8 February 2016.

2. Given this authoritative information, I find that the applicant in his home area would not be able to access state protection in accordance with the principles in MIMA v Respondents S152/2003.

   Relocation

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

   Hazaras in Kabul have not been systematically targeted by insurgent attacks or other ethnic groups since 2001 because of their ethnicity or religion, apart from one deadly attack aimed on a Shia mosque in 2011 where many of the victims were Hazaras.[7]

   …

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

   In 2014, analysis of attacks in Kabul by insurgents[8] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.[9]

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

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

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

4. DFAT specifically reported in relation to Kabul in September 2015:

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

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

   2.31 The ANDSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANDSF are quick to respond to insurgent attacks when they occur. Nonetheless, violent attacks within the city are common.[10]

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

5. I have taken into account the reports of regular insurgency attacks on Kabul taken place but these need to be seen in the context that Kabul has a population of four million and that the government maintains effective control of Kabul and has a range of counter-measures in place to prevent and respond to insurgent attacks.[11]  I am of the view that the available country information considered as a whole indicates that the chance of the applicant being seriously harmed in such a circumstance would be best described as remote, and not a real chance.  Based on the whole of the country information, I do not accept that all Hazara Shias in Kabul face a real chance of persecution now or in the reasonably foreseeable future from Sunni groups or anyone else.  I accept that the applicant is a Shia and will attend mosque and religious events; however, given the country information viewed overall, I find that the chance he will be seriously harmed is remote.

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

6. The independent country information indicates that there is no official policy of discrimination pursued by the government on the basis of ethnicity.[12] The country information further indicates that though there is societal discrimination on the basis of ethnicity it is most commonly manifested in forms of nepotism within ethnic and religious communities and that positive societal discrimination in favour of family, tribal or ethnic group members is common.[13]  DFAT have also commented that ethnic based violence in Kabul is rare.[14]  I find that the chance that he will suffer discrimination or treatment amounting to serious harm is remote.

   [12] Department of Foreign Affairs and Trade, DFAT Thematic Report, Hazaras in Afghanistan , 8 February 2016.

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

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

7. Having regard to the country information concerning the overall situation for Hazara Shias and the country information that indicates that the Government maintains effective control of Kabul and the applicant’s individual circumstances, I do not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future in Kabul on account of being a Hazara Shia at the hands of the Taliban and other insurgent groups or anybody else. 

8. DFAT have recently commented:

   2.14 Although there are no reliable statistics, unemployment is widespread in Kabul and underemployment is also common. The influx of IDPs and returnees to the city has put pressure on the local labour market. The decrease in the international presence and the tight budgetary situation of the Afghan government have further reduced the availability of quality employment opportunities.

   …

   2.20 The health care system in Afghanistan has improved greatly since 2001. Basic public health care is free, but medicines are not, which excludes the poor from treatment for common illnesses. Medical facilities in the public system, while still basic, tend to be better in Kabul than in other areas of Afghanistan, particularly remote rural areas. Better quality services are provided by private practices, but many residents cannot access these services because of their high cost.

   …

   2.22 Access to electricity is highly variable, even in formal areas of the city. Electricity ‘load shedding’ is common, causing blackouts (including scheduled blackouts) that can last up to 15 hours. For many residents of Kabul’s informal areas, electricity is supplied by a community generator for which a fee is charged by the operator, a relatively expensive form of supply. According to the World Bank and the United Nations High Commissioner for Refugees (UNHCR), although most established residents have access to some electricity, up to 84 per cent of IDPs lack access to any electricity.

   2.23 Most informal and illegal areas do not have reliable access to municipal water supply, relying instead on wells and water deliveries. Sanitation in these areas is poor. Waste collection is better in informal areas than illegal areas. Many communities burn their waste which contributes to high levels of air pollution.

   …

   3.6 Large urban areas in Afghanistan are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas. As Afghanistan’s largest urban centre, Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan.

   …

   3.8 Traditional extended family and tribal community structures are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence. People tend to move and settle in large groups, often with several other families, for this reason. As a consequence, large groups of people can arrive in a particular area, resulting in rapid population growth and a strain on infrastructure and services.

   …

   3.10 Kabul’s size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city. Given the growth of Kabul’s population since 2001, many individuals may have members of their extended family in Kabul who can assist with their relocation. Ethnic-based violence in Kabul is rare.

   3.11 DFAT assesses that, notwithstanding road safety concerns and the security situation in Kabul, there are generally options available for members of most ethnic and religious minorities to relocate from other parts of Afghanistan to relative safety in Kabul. This relocation is more likely to be successful where the individual travels as part of a larger group, or has established networks that can assist with the provision of basic necessities.

   ...

   3.12 In practice, DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation. This is compounded by Kabul’s relatively high cost of living, particularly for housing.

   3.13 Internal relocation to urban areas is generally more successful for single men of working age, provided they are able to make use of family or tribal networks. Unaccompanied women and children are least likely to be able to successfully relocate to urban areas, particularly if these networks are lacking.[15]

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

9. I have had regard to the information in this recent DFAT report that suggests generally there are options available for members of most ethnic and religious minorities to be able to relocate from other parts of Afghanistan to relative safety in Kabul.  I have taken into account that the applicant can speak Hazaragi, Pashtu, Urdu and a little English and that he and his family have been able to relocate in the past to [Country 1], Kandahar and [Country 2].  However, there are a number of factors that in my opinion outweigh this evidence and make it unreasonable for the applicant to relocate to Kabul to avoid the real chance of persecution in his home area.  These are:

   • DFAT have emphasised family and tribal networks as being important factors for successful relocation.  They state that internal relocation to urban areas is generally more successful for single men of working age, provided they are able to make use of family or tribal networks.  However, the applicant has not lived in Kabul and has no family located there.  The applicant also has a large family consisting of a wife and several young children to support. 
   • There is a huge Hazara underclass in Kabul that does not have access to clean water or electricity and rents are very high.  DFAT have also referred to unemployment being widespread in Kabul and underemployment common.  The applicant has rather limited work skills having worked only in farming and labouring and [in several diverse occupations].  He also has no education.
   • Notwithstanding, Kabul is safer than other parts of the country there is evidence of a number of insurgent attacks that target government institutions, political figures and Afghan National Security Forces, other security services and international organisations.  Though this is not sufficient in itself to establish a real chance that the applicant would face serious harm, the existence of these attacks and the danger that the applicant may be caught up in them contributes to the unreasonableness of relocation.

10. I therefore do not consider it reasonable for the applicant to relocate to Kabul and factors set out above (e.g. limited family networks, widespread unemployment limiting the ability to meet his basic needs and the general lack of security) would also be applicable to other areas.  I therefore consider his fear of persecution is well-founded.

    Third Country Protection

11. The evidence does not establish that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.

    Conclusion

12. 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

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

    David Corrigan
    Member