1501494 (Refugee) - [2015] AATA 4030

1501494 (Refugee) [2015] AATA 4030 (10 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1501494
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Filip Gelev
DATE:10 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 10 November 2015 at 10:36am

CATCHWORDS
REFUGEE – protection visa – Federal Circuit Court remittal – Afghanistan – Hazara Shi’as – withdrawal of international troops – denied freedom of movement by Taliban troops – unable to relocate in Afghanistan – country information discussed – no adverse profile – no real risk of serious harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth) Schedule 2
CASES
MIBP v SZSCA [2014] HCA 45
MZZZD v MIBP [2015] FCCA 104
SZQEN v MIAC (2012) 202 FCR 514
SZSFF v MIBP [2013] FCCA 1884
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 on 17 September 2012 and the delegate refused to grant the visa on 29 October 2012.
On 23 January 2015 the Federal Circuit Court (MZZZD v MIBP [2015] FCCA 104, Whelan J) found that the Refugee Review Tribunal (RRT) had failed to deal with an integer of the applicant’s claims, namely, that the withdrawal of international military troops from Afghanistan in 2014 would have an adverse impact on the security of Hazara Shi’as in Afghanistan. As the purported RRT decision was made in 2013, it preceded the “draw-down” of international troops from Afghanistan. The Court held that the Tribunal was required to form an opinion and make findings on what was likely to occur should the applicant return to Afghanistan not only at the time of the RRT decision, 5 September 2013, but also after the withdrawal of international troops in 2014.
The applicant appeared before the Tribunal on 5 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
At the time of the hearing before this Tribunal the applicant was no longer represented.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1501494 (Refugee)

Details

AGLC: 1501494 (Refugee) [2015] AATA 4030
Case: [2015] AATA 4030
Decision Date: 10 November 2015

CaseChat Overview and Summary

The case under review involved an Afghan national, a Shi’a Muslim and Hazara by ethnicity, who sought a protection visa in Australia. The applicant claimed to have faced ongoing persecution in Afghanistan due to his religious and ethnic identity, including targeted attacks by the Taliban and other extremist groups. The Federal Circuit Court was tasked with reviewing the decision made by the Tribunal regarding the applicant’s eligibility for a protection visa.

The primary legal issues revolved around whether the applicant met the criteria for a protection visa under the relevant legislation. Specifically, the court needed to determine if the applicant had a well-founded fear of persecution in Afghanistan on account of his religious and ethnic identity, and whether this persecution constituted a serious harm that warranted protection under international law. Additionally, the court examined whether the applicant could relocate within Afghanistan to a place where he would not face persecution.

The court meticulously reviewed the evidence presented, including the applicant’s personal testimony, documentary evidence, and country information reports from the Department of Foreign Affairs and Trade. It assessed the applicant's claims of persecution, the current situation for Hazara Shi’a Muslims in Afghanistan, and the feasibility of relocating within the country. The court found that the applicant's evidence was credible and consistent, supported by country information indicating widespread persecution of Hazara Shi’a Muslims by various groups, including the Taliban.

The court concluded that the applicant had a well-founded fear of persecution due to his religious and ethnic identity, which amounted to a serious harm. It found that there was no real possibility of the applicant relocating within Afghanistan to a place of safety. Consequently, the court affirmed the Tribunal’s decision that the applicant met the criteria for a protection visa.

The court's final orders affirmed the Tribunal's decision, upholding the grant of a protection visa to the applicant.

Orders

Orders of the court

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Background

Background to the litigation

While the applicant spent more time in Parwan than Kabul, he has not been to Parwan since about 2002, his whole family is in Kabul, the family own a house in Kabul and he has sufficient ties to Kabul for the Tribunal to be satisfied that Kabul is a home area for him. Background and claims Based on the applicant’s written and oral evidence and his physical features, the Tribunal accepts that the applicant is a Shi’a Muslim and a Hazara by ethnicity. He lived in Kabul with his family from about 2002 until about 2006 when he travelled to Iran. He was deported in 2010 from Iran back to Afghanistan. The statutory declaration continues:12.I resettled with my family in[an area]. By this time, the situation for Hazaras living in Kabul was even worse that it was before I left. While it used to be only extremist Pashtuns who targeted Hazaras in Kabul, now other ethnic groups are becoming involved in the persecution.13.Earlier this week, I spoke to my father. He told me that seven Hazaras were killed when Tajiks opened fire on a group of Hazaras in an ethnically-motivated attack.14.In December 2011, I attended Ashura Day celebrations in [an area near a mosque]. Just after the call to prayer, a bomb exploded. When I heard the explosion, I immediately threw myself down on the floor.15.When I looked up, I saw the carnage the bomb had caused. I saw many worshippers who had been killed and injured in the blast. I also saw many limbs which had been amputated in the attack.16.After this event, I became very afraid for my life. I was nervous walking in large crowds of Hazara people, because I feared that we would become the target of another attack.17.Although my experience of the Ashura Day attack was the main experience which prompted me to flee Afghanistan, it is not the only reason I am afraid to return to Afghanistan. The Ashura Day attack was not an isolated event, but was replicated in [other locations]on the same day.18.Hazaras have been persecuted in Afghanistan for many, many years, and the attacks on Hazaras that are occurring today are a continuation of this violence. These attacks, including the Ashura Day attack, are not isolated incidents, but are part of a broader campaign of violence against the Shi'a Hazara population of Afghanistan that has been ongoing for many years.19.Hazaras are denied freedom of movement in Afghanistan. This is because the Taliban control many of the roads in Afghanistan, including the roads into and out of the Hazarajat, where most of Afghanistan's Hazara population lives.20.If a Hazara travels on the roads, they risk being stopped by the Taliban, who control the roads and man checkpoints on many major roads. When a Hazara is stopped, they are immediately recognisable as a Hazara because of their facial features, language and accent. When the Taliban determine that they have stopped a Hazara, they kill them.21.Approximately one week ago, a group of Hazaras were travelling between Jaghori and Bamiyan. They were stopped by the Taliban and forced from their vehicle. The Taliban beheaded them on the spot. I know that this was an ethnically and religiously motivated attack, because it is just one of many such targeted attacks by the Taliban against Shi'a Hazaras travelling in Afghanistan.22.Because of the dangers associated with travelling on the roads in Afghanistan, I have never been able to visit my brothers, who live in Herat. The journey from Kabul to Herat is particularly dangerous because it necessitates travel through Kandahar, where the Taliban are very powerful and in effective control of the roads.23.As a Shi'a Muslim, I am not able to practice my religion freely in Afghanistan. I cannot attend the Shi'a mosque, attend Friday prayers, attend religious ceremonies such as Ashura Day, pray openly in the Shi'a way, attend Shi’a rallies or visit Shila cemeteries. This is because these events and locations are specifically targeted by Sunni-extremist groups for attack. It is too dangerous for Shi'a Muslims to gather in large groups in these places. Knowing this, and in light of my experience of the Ashura Day bombing, I was unable to freely practice my Shi'a Muslim faith in Afghanistan.24.Religiously and ethnically motivated violence against Shila Hazaras has existed in Afghanistan for many years. Sunni extremists, including the Taliban, are brainwashing the younger generation to believe, as they do, that Shi'a Muslims are infidels, and that Hazaras must be killed.25.Because of these factors, it is clear that the religiously and ethnically motivated persecution against Shi'a Hazaras in Afghanistan will not abate in the foreseeable future. It was this realisation - that for the time being, it will never be safe for Hazaras to live anywhere in Afghanistan - that prompted me to flee Afghanistan.…Do I think the authorities of my country can and will protect me if I were to go back.31. The authorities of Afghanistan are unable and/or unwilling to protect me from the harm I fear.32. The Afghan authorities, including the Afghan police and National Army, are powerless to protect even themselves from harm at the hands of the Taliban. There are regular Taliban attacks on Afghan police and soldiers, even within areas where the Afghan authorities ostensibly exercise control, such as Kabul. The fact that the Afghan authorities are unable to protect even themselves in areas where they are in effective control clearly indicates that there is no way they would be able to protect a civilian like me from harm.33. The Afghan authorities are also powerless to protect even high profile members of the Afghan community. For example, President Karzai's brother and Burhanuddin Rabbani were both recently killed. There have also been attacks on the Indian Embassy in Kabul. Those high-profile people are afforded far greater levels of state protection that ordinary citizens of Afghanistan. The fact that the Afghan authorities are unable to protect even these high profile citizens from harm clearly indicates that they would not be able to protect an ordinary civilian like me from ethnically or religiously-motivated violence in Afghanistan.Do I think that there is a place in that country where I could be safe.34. There is nowhere in Afghanistan where I would be safe from harm.35. Because Hazaras are persecuted throughout Afghanistan, and because there is nowhere in Afghanistan where my Hazara ethnicity would not be obvious because of my facial features and language, there is nowhere in Afghanistan I would be safe from harm.36. I have family, tribal and community support networks in Kabul. My brothers are residing in Herat, but I do not know anyone else living there. I have no surviving tribal or community support networks in my home province of Parwan.37. If I were returned to Afghanistan, I would not be able to leave Kabul because in order to do so, I would need to travel through Taliban controlled roads, which would put me at risk of being killed.38. Even if I were able to get to a new location in Afghanistan, I would be unable to establish myself there. This is because each area of Afghanistan has its own local customs. If I do not know the local customs, and do not have contacts who are able to introduce me to and integrate me with the local community, I would struggle to find employment and accommodation. This would directly impact on my ability to subsist. In these circumstances, it would be unreasonable for me to try to relocate to another part of Afghanistan.

Evidence

Evidence Before The Court

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has considered the most recent DFAT Country Information Report on Afghanistan (dated 18 September 2015), the DFAT Thematic Information Report – Conditions in Kabul (18 September 2015) and the DFAT Thematic Information Report – Hazaras in Afghanistan and Pakistan (26 March 2014).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.Country of reference and identity Having regard to the copies of the applicant’s passport and national ID (Taskera) card provided to the Department of Immigration, the applicant’s ability to speak the Hazaragi language fluently and his written and oral evidence, the Tribunal accepts the applicant was born in Afghanistan and he is a national of Afghanistan. Based on the above, the Tribunal finds that the country of reference for the assessment of the applicant’s claims under s.36(2)(a) in this case is Afghanistan. On the evidence before it, the Tribunal finds the applicant does not have a present right to enter and reside in any other country than Afghanistan. The Tribunal therefore finds the applicant is not excluded from protection in Australia by s.36(3) of the Act. Based on the applicant’s evidence and copies of his IDs, the Tribunal further accepts the applicant’s identity is as claimed.Home area In SZQEN v MIAC (2012) 202 FCR 514, the Federal Court held that the concept of home region or home area is not a narrow one:I propose to apply the statement of principle in Randhawa by Black CJ (at 440-441) which plainly proceeds on the basis that the relocation principle concerns relocation from a claimant’s home region to another place in the claimant’s country of nationality that is not the claimant’s home region. This position is supported by the United Kingdom authorities to which I have referred. In proceeding on this basis I do not think that the reference in the cases to “home region” or “home area” (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a “home region” or “home area” is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a “home region” or “home area” of the claimant. Whether such ties exist and whether a particular location can be appropriately characterised as a “home region” or “home area” are matters of fact.[1][1] SZQEN v MIAC (2012) 202 FCR 514 at [38]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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