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 of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (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]
The Tribunal accepts the applicant’s claim that he, and his father before him, was born in [a] district of Parwan province (in the application form he said that his mother was born in Bamiyan province, but there is no evidence before the Tribunal that the applicant has ever lived there).
In a statutory declaration dated 17 September 2012 the applicant said that his family relocated to Kabul when he was “very young”. However, in the application he wrote down that all of his siblings were born in Parwan province, except for the youngest two who were born in Kabul. At the time of the application in September 2012, the applicant’s sister [Child 1] (the last one born in Parwan) was said to be [age] and his brother [Child 2] (the first one born in Kabul) was said to be about [age].
The applicant was asked about the place of birth of his siblings who are younger than him in order to establish when he moved to Kabul. He claimed not to be able to remember where they were born.
Therefore, the Tribunal makes its findings based on the written evidence of the applicant. It finds the family moved to Kabul sometime between 2002 and 2004. Therefore, the Tribunal finds that the applicant was about [age or age] years old when the family moved to Kabul.
The applicant gave evidence to the RRT that none of his family has been back to Parwan. He told the RRT they left all their property behind.
The applicant has stated that his family lives in a house they own in an area of Kabul called [Neighbourhood 1]. On the evidence before it, the Tribunal find that the applicant lived in Kabul from about 2002 until he went to Iran in 2006.
The applicant himself said in his statutory declaration of 17 September 2012:
I have family, tribal and community support networks in Kabul… I have no surviving tribal or community support networks in my home province of Parwan.
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.

The applicant has never claimed to have experienced serious or significant harm in the past, although he claims to have witnessed the Ashura Day terrorist attacks in December 2012. The issue before the Tribunal is whether the applicant is at risk of harm in the future
In terms of evidence in support of his case, the applicant provided two articles to the Department of Immigration both of which are about events from 2012.
Lengthy submissions were provided in support of his case before the RRT.[2] In relation to the reasonably foreseeable future and the withdrawal of international troops, the applicant’s submissions referred to reports by Abdul Karim Hekmat (October 2011) according to which after the withdrawal “many fear that the situation will deteriorate, especially for Hazaras”[3] an International Crisis Group report (October 2012) which refers to the possibility of a declaration of state of emergency which may lead to a state collapse;[4] a Minority Rights Group International report (July 2011 and July 2012) which discuss the possibility of return to civil war and dismemberment of the state;[5] an Agence France Press article (March 2011) which describes the fears that Hazaras hold for their future and mentions the views of an anti-Taliban commander that when international troops withdraw the Taliban will return “in a week”; a New York Times article (June 2010) mentions concerns about sectarian and ethnic strife; and an even earlier analysis by the Co-operation for Peace and Unity (April 2009) about the possible re-emergence of ethnic conflicts.
[2] Folios 51-71 of Department’s file.
[3] Folio 51 of Department’s file.
[4] Folio 51 of Department’s file.
[5] Folios 50-51 of Department’s file.
In its purported decision, the RRT referred to many other sources, including the 2013 UNHCR Eligibility Guidelines,[6] and the expert views of Gilles Doronsoro (September 2012)[7], Thomas Ruttig (April 2012),[8] Antonio Giustozzi (April 2012),[9] Katerina Oskarsson (April 2013)[10] and others.
[6] UN High Commissioner for Refugees, 2013, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 6 August, .html Accessed 16 August 2013.
[7] Dorronsoro, G, 2012, Waiting for the Taliban in Afghanistan, September, < .org/files/waiting_for_taliban2.pdf>, Accessed 15 November 2012.
[8] Ruttig, T, 2012, Afghanistan Analysts Network, “Withdrawal in 2012? Myths and Realities”, 2 April, < .com/index.asp?id=2639> Accessed 25 April 2012.
[9] Giustozzi, A, in Behr, T and C Salonius-Pasternak, eds, The Beginning of the End? “Afghanistan towards and after 2014”, April 2012, Finnish Institute of International Affairs.
[10] Oskarsson, K 2013, ‘Prospect for a Crisis in Post 2014 Afghanistan’, Civil Military Fusion Centre, April Accessed 20 August 2013.
After the case was remitted by the Federal Circuit Court, the Tribunal invited the applicant to a hearing. At the outset the Tribunal explained to the applicant the reasons for the court remittal. The Federal Circuit Court held that the RRT had failed to deal with the claim 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. This required the Tribunal to form an opinion and make findings on all relevant matters, including 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.
At the hearing with the present Tribunal, the applicant provided hundreds of pages of articles, reports and photographs, including a report by the United Nations Assistance Mission in Afghanistan (UNAMA) – “Afghanistan Midyear Report 2015. Protection of Civilians in Armed Conflict”.[11]
[11] “Afghanistan Midyear Report 2015. Protection of Civilians in Armed Conflict”, UNAMA, August 2015.
As already noted, the applicant was self-represented at the hearing. However, he had brief written submissions[12] put together by a volunteer from the Asylum Seeker Resource Centre. The submissions drew the Tribunal’s attention to p. 61 of the UNAMA:
Abduction of Civilians of Hazara Ethnicity
UNAMA notes with concern that Anti-Government Elements abducted at least 97 members of the Hazara community in ten incidents in the first half of 2015. All but one incident took place in areas with mixed Hazara and non-Hazara communities in Ghazni, Balkh, Sari Pul, Faryab, Uruzgan, and Ghor provinces. UNAMA has confirmed the release of 67 of the 97 abducted Hazaras. The motives for the abductions varied, and included holding hostages for ransom, exchange of detainees, and suspicion of the hostages being members of Afghan national security forces, while the motive was unknown in some cases. In one incident that garnered significant public attention, Anti-Government Elements abducted 30 Hazara passengers from two public buses in Shajoy district, Zabul province, as they were travelling from Herat to Kabul on 23 February. On 11 May, the Anti-Government Elements released 19 of the abductees in exchange for a group of detainees held by the Government. The fate of the remaining 11 abducted Hazaras remains unknown.
[12] Folios 244-245 of Tribunal file.
At the hearing the Tribunal noted that according to the report itself 67 out of the 97 Hazaras were released, rather than seriously harmed (e.g. killed). The Tribunal noted further that it had seen other country information according to which the purpose of such abductions is to exchange abducted Hazaras in order to release militants. The Tribunal specifically referred to reports about an Uzbek militant group (Islamic Movement of Uzbekistan) which kidnapped Hazaras to get some of its own men freed from government custody.[13] However, having revisited the country information, the Tribunal accepts that some Hazaras have been killed and in any event being abducted may constitute serious harm; clearly, being mistreated while being held by insurgents also can constitute serious harm amounting to persecution.
[13] ‘Afghanistan Hazara kidnapped passengers released’, British Broadcasting Corporation (BBC), 11 May < Accessed 17 June 2015 <CXBD6A0DE6468>.
During the course of the hearing also discussed with the applicant the difference between his case and the situation faced by applicants who come from, for example, Ghazni, because of the dangers they face on the roads. In his case, if his home area is Kabul it may not be necessary for him to travel on the roads outside of Kabul.
In relation to the family composition, he said he has [several siblings](out of those [several]are full siblings). His parents are still alive, but his father is not working because he suffered a back injury.
He said that 3 brothers live in Herat, all the other siblings in Kabul. He told the Tribunal that he did not remember when they moved to Herat; he thought they had moved to Kabul first and then to Herat. He said that he was the fourth eldest in the family (after the 3 brothers in Herat). He said that nothing had happened to any member of his family, but he was told that as of the time of the hearing two of his brothers –[names deleted]– were organising their departure for Europe.
The Tribunal suggested that the fact that they are seeking to leave Afghanistan by itself, without any concrete reasons why they are leaving, does not mean that the applicant is owed protection. The applicant said that the situation continues to deteriorate and a lot of people were killed in recent terrorist attacks. He referred to a large suicide attack there recently. He said that where the family lives in [Neighbourhood 1] is relatively far away from where this occurred. He also referred to an unsuccessful attempt by militants, some time ago, to bomb a Shi’a mosque called [Mosque’s name deleted]; they were “recognised” by security forces and the plot was foiled.
He said that the family lives in one house in [Neighbourhood 1]. When asked if the house was large, he said it was “not bad”.
He said that all the siblings in Kabul were still studying. The eldest brother there is [Mr A], who is about [age] (based on the assessment the applicant made that [Mr A] was [age] in 2012). The applicant said that all his brothers in Kabul are still studying, including [Mr A], who is doing year 12. When the Tribunal pointed out that [age] is a little late to be doing year 12, the applicant said that was what his father told him.
The Tribunal invited the applicant to add any new information in relation to his fears of returning to Afghanistan. The applicant said that he had a photo taken with Julia Gillard in[Australian State 1]. He posted it on Facebook. He said at the time Kevin Rudd was Prime Minister for a second time, in the second half of 2013. He said that photograph was still on [a website]. The applicant said that rumours may be spread about him being a spy because he has been to Australia and because he has a photo with Julia Gillard.
The applicant provided an article about the capture of Mr Zainullah Naseri, a failed asylum seekers (Sydney Morning Herald, 28 October 2014). The Tribunal read to the applicant a reference to Mr Naseri at paragraph 5.22 of the recent DFAT report.
5.22 In 2014 there were news reports that an Afghan Hazara, Zainullah Naseri, from Jaghori District in Ghazni Province, was abducted and tortured by the Taliban following his deportation from Australia. He reportedly escaped from his captors and returned to Kabul. These reports have not been corroborated. DFAT has since been in contact with Mr Naseri, who is not currently pursuing any action regarding this matter.[14]
[14] Country Report Afghanistan, DFAT, 18 September 2015.
The Tribunal noted that in any case both Mr Naseri and another man who was in Afghanistan, Mr Mousawi, were harmed on the roads outside of Kabul, whereas the applicant is from Kabul. He said that he might want to travel to Parwan, but then conceded that he has no concrete reason to go to Parwan other than generally because his family owns land there.
The Tribunal referred to the size of Kabul – some 3, 4 or even 5 million people, and the large number of Hazaras who live in Kabul.[15] Later on during the hearing, the Tribunal also referred to country information that some 5.8 million refugees returned to Afghanistan between 2002 and 2013.[16]
[15] The most recent DFAT Thematic Report, “Conditions in Kabul” estimates the population of Kabul and surrounding areas at more than four million, at 2.1; a 2011 joint UNHCR/World Bank report on Kabul cited a 2009 source, when it noted that the population of Kabul was 2.9 million and estimated that by 2015, the population will be 5.13 million. See < , p 11; a 2013 Danish Refugee Council report puts the population of the city at 5 million: < p. 7; a 2014 Afghan Government report that surveyed living conditions in Kabul cites 2011 data when it states that Kabul’s population is 4.2 million. See < p. 11.
[16] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015 at 5.19.
The Tribunal noted that as far as it was aware, there have been no high-profile attacks on Shi’as or Hazaras in Kabul since the Ashura Day bombing which happened almost 4 years ago, in December 2011. The attacks were reported to be the work of Lashkar-e-Jhangvi, a Pakistani terrorist group.[17] A planned attack on Ashura Day in 2012 was prevented.[18] The applicant said that if the Tribunal was following the news, there were Hazaras killed in Herat and there were another 31 Hazaras killed in another part of Afghanistan. When the Tribunal reminded the applicant that it was discussing the situation in Kabul, he conceded that there had been no large scale terrorist attacks targeting Hazaras and Shi’as in Kabul since 2011.
[17] R. Nordland, IRare Attacks on Shiites Kill Scores in Afghanistan”, NY Times, 6 December 2011, accessed at on 1 October 2015.
[18] UPI.com, 2012, “Suicide bombers foiled in Kabul”, 23 November, Accessed 20 august 2013.
Mohammad Bakir Shaikzada, the top Shi’a cleric in Kabul, said in the wake of the 2011 bombing that it was the first time that Shi’as in Kabul had been attacked in decades. He said he could not remember a similar attack having taken place.[19] The Tribunal acknowledges that there have been attempts to carry out attacks on Shi’as in Kabul, but they have been unsuccessful. In September 2013, heavily armed members of the LEJ attempted to attack another Shi'a mosque during Friday prayers in Kabul, but were intercepted and killed by Afghan security forces outside the mosque.[20]
[19] Boone, J 2011, ‘Kabul shrine worshippers killed in Afghan sectarian attack’, The Guardian, 6 December
[20] US Commission on International Religious Freedom (USCIRF) 2014, USCIRF Annual Report 2014 – Tier 2: Afghanistan, 30 April
The Tribunal referred to an article from the applicant’s former representatives about sectarian violence at Kabul University in 2012 where Sunni and Shi’a students were involved in clashes and one student was killed. The police intervened to stop the violence and the article states that “[w]hile the Shiite minority, many of them ethnic Hazaras, suffered violent discrimination under the Taliban before 2001, ethnic violence has been muted in recent years.”[21]
[21] A. Ahmed, “Student Killed in Melee at Afghan University”, NY Times, 24 November 2012, accessed at on 1 October 2015.
In September 2012 there was fighting between Tajiks and Hazaras, an incident the applicant mentioned in his 2012 statutory declaration. The Tribunal put to the applicant that according to a report in the Wall Street Journal stated that “Afghan leaders quickly stepped in to quell the tensions” and that “[e]thnic violence in Kabul is unusual”.[22] The applicant replied that earlier this year Tajiks celebrating Massoud’s death, the same commemoration as in 2012, led to the death of a doctor. The applicant said that he had an article about this but that the doctor was not a Hazara, a Shi’a or a returnee. He then said that the police force in Kabul was controlled by Tajiks and they would not do anything to protect Hazaras. He acknowledged that he personally had never encountered any problems with Tajiks.
[22] N. Hodge and Z. Sultani, “Rival Ethnic Groups Clash on Streets of Afghan Capital”, Wall Street Journal, 9 September 2012, accessed at on 1 October 2015.
The Tribunal discussed with the applicant country information from the website of Minority Rights Group International. It states the following about Hazaras in Afghanistan:[23]
Since the overthrow of the Taliban in 2001 the situation of Hazaras in Afghanistan has improved considerably. Hazaras are one of the national ethnic minorities recognized in the new Afghan constitution and have been given full right to Afghan citizenship. Only two Hazaras gained seats in President Hamid Karzai’s initial cabinet, and the only representative of their main political party, Hizb-e Wahdat gained the position of vice president. But in the most recent parliamentary election Hazaras (who make up around 9 per cent of the population) gained 25 per cent of seats. However, Hazaras still face persistent discrimination in many areas of the country.
Hazaras are concerned about the rising power of the warlords, who they feel pose a direct threat to their community... Due to the severity of their persecution under the Taliban, Hazara leaders have insisted … that they be included in all negotiations with the Taliban.
[23] “Hazaras”, Minority Rights Group International, 19 June 2015, accessed at on 1 October 2015.
The Tribunal noted that the information appeared to indicate that the Hazaras are not completely powerless and they want to be part of any negotiations with the Taliban to make sure that they are not harmed by the Taliban. He said that the Taliban had targeted Hazara politicians; when all the foreign troops move out, Afghanistan will turn into another Syria or Iraq.
When the Tribunal suggested that insurgents mainly target foreigners and government officials, the applicant referred to the recent fall of Kunduz to the Taliban. The Tribunal pointed out that Kunduz was rather small compared to Kabul and there was no indication Kabul might suffer a similar fate.
The applicant claimed that on return to Afghanistan he will be subjected to “an extraordinary level of discrimination that will threaten his ability to subsist”. In a submission to the RRT his then representative submitted that the applicant may suffer physical abuse, be denied access to essential services and an opportunity to earn a living because of his race and religion. The applicant submitted to the RRT a statement from 2012 by Niamatullah Ibrahimi “On the current situation for Hazaras in Afghanistan”, which argues that Hazaras continue to face many problems and they are discriminated against by other ethnic groups.
The applicant gave evidence about these claims to the RRT. The applicant told the RRT that when you go to an office to get some paperwork done, the won’t do what you ask them to do unless you pay a bribe. In terms of his ability to subsist, he said that it’s almost impossible for a Hazara to get a position they want. The RRT discusses these issues with the applicant, including country information which does not support his claim of systematic denial of access to essential services or employment. The applicant referred to the case of two Hazara women who trained in America to be pilots, but when they returned to Afghanistan they could not get work.
The Tribunal referred to a Hazara Issues Paper issued by the Department of Immigration in March 2015:
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 Shi’a mosque in 2011 where many of the victims were Hazaras.[24]
…
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 Shi’as are being disproportionately targeted by these attacks.
In 2014 analysis of attacks in Kabul by insurgents[25] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.[26]
[24] Department of Immigration, Afghanistan: Hazaras Issues Paper, March 2015.
[25] see European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January,

The applicant said that these attacks kill a lot of civilians, such as the attack that he had referred to earlier.
DFAT also specifically reported in relation to Kabul in September 2015. The report acknowledges (at 2.29) that there has been an increase in security incidents in 2015 compared to 2014 but the targets 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, not Hazaras, Shi’as or returnees.[27]
[27] Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015.
The Tribunal asked the applicant whether he could work in [a certain role]as he had in the past. The applicant said he could not return to Kabul and repeated the claim in relation to the risk he will face because of the [a website] photos with Julia Gillard and Kevin Rudd.
The Tribunal is mindful that according to some country information, such as the Danish Immigration Service, people can be tracked down and harmed in Kabul if they are of adverse interest to militants. The Tribunal put to the applicant that it did not consider that he would be of interest to the Taliban or other extremists. The applicant said he was also concerned about Da’esh and other insurgents these days (Da’esh is the Arabic name of the Islamic State of Iraq and Al-Sham (ISIS) also known in English as the Islamic State of Iraq and the Levant (ISIL)).
The Tribunal returned to the question whether returnees from the West are at risk of harm. It referred to the fact that Norway had returned some 275 (in the period January 2014 to June 2015) people and the UK had returned 6,111 (in the period January 2014 to March 2015) and there have been no reports of harm on return that these two governments are aware of.[28] The applicant asked how these incidents would be known. The Tribunal noted that incidents were reported even in distant provinces of Afghanistan and the applicant had himself referred to reports of harm to people in remote parts of the country.
[28] “Issues Paper, Afghanistan: Returnees and Relocation”, DIBP, July 2015, CRF90949687.
The applicant said that when foreign troops leave Afghanistan, insurgents will target Shi’as. That always happens and has happened in Syria and Iraq. He referred to Da’esh once more. He said they were sending people to Afghanistan in response to Iran sending “70 Afghan boys to fight against Da’esh”.
Well-founded fear of persecution
The Tribunal accepts that the security situation across the country, including in Kabul, has deteriorated in the wake of the withdrawal of most international troops in 2014-2015. In mid-October 2015 it was reported that President Obama had decided to halt the withdrawal of US troops and, in the President’s own words “instead of going down to a normal embassy presence in Kabul by the end of 2016, [the US] will maintain 5,500 troops at a small number of bases, including at Bagram, Jalalabad in the East and Kandahar in the South.”[29] At present, there are some 9,800 troops, which is not an insignificant number, but in 2011 there were more than 100,000 troops and as late as last year, there were almost 40,000.[30]
[29] M. Liasson, “Obama Announces Decision to Delay Withdrawal of U.S. Troops from Afghanistan”, NPR, 15 October 2015, accessed at on 30 October 2015.
[30] “US troops to stay in Afghanistan in policy shift”, BBC, 15 October 2015, accessed at on 30 October 2015.
The Tribunal does not consider that the withdrawal of further troops, from 9,800 to 5,500 and eventually to 1,000, would lead to a considerable change in the security situation in Afghanistan in general and in Kabul in particular.
The Tribunal does not accept on the evidence there is a real chance that the applicant will be persecuted for reasons an imputed political opinion or membership of the particular social group of Western returnees or failed asylum seeker or any particular social group arising out of the applicant’s long stay in Australia / outside of Afghanistan, either alone or in combination with the applicant’s Hazara ethnicity and Shi’a religion.
In reaching this view, the Tribunal has considered the applicant’s claims, which the Tribunal accepts, that he had his photograph taken with Julia Gillard and Kevin Rudd and that these photographs are still on [a website]. The UK Home Office in a report on those perceived to be supporting the government or international forces[31] provided the following information about civilians accused of spying.
2.2.37 The EASO report provided the following information about people accused by the Taliban of being spies:
Civilians accused by the Taliban of being a spy face a high risk of being targeted in areas under the sustained control of the Taliban, which will very often result in the death of the victim. This risk is low in the cities of Kabul, Herat and Mazar. However, individual and specific circumstances might lead to an increased risk. If a low profile civilian accused of being a spy can flee the area and resettle in a safer area, he can normally escape targeting by insurgents, unless there are specific individual circumstances which would preclude this possibility.[32]
[31] Country Information and Guidance Afghanistan: persons supporting or perceived to support the government and/or international forces
[32] European Asylum Support Office (EASO) Insurgent strategies - intimidation and targeted violence against Afghans (Executive summary), December 2012.
On the evidence before it, the Tribunal is not satisfied that the Taliban or other extremists would become aware of photographs of the applicant on social media, which would elevate his profile. Further, there is no evidence before the Tribunal that the Taliban or other extremists in Kabul target someone who has no political profile but is an ordinary returnee from a Western country, because of the returnee’s brief engagement with Western politicians (e.g. having one’s photograph taken with a Western politician).
The Tribunal acknowledges that two of the applicant’s brothers have recently decided to leave Afghanistan and seek asylum in Europe. However, the applicant did not claim that his relatives had recently been harmed. His brothers’ actions were in response to their perception that the situation in the country is deteriorating.
In relation to Da’esh, the Tribunal notes that many of the articles provided by the applicant refer to the emerging threat from Da’esh, it is difficult to establish with any level of certainty how many fighters, based in the country belong to Da’esh. Rumours first began to circulate about Da’esh’s arrival in Afghanistan in late 2014.[33] One article[34] states that according to the UN to “up to 70” Da’esh fighters have gone from Iraq and Syria into Afghanistan and that Afghan security officials do not consider that Da’esh poses an “immediate increased threat”. In early September 2015 there was an unconfirmed claim by a district governor in Nangarhar province that Daesh had killed “as many as 600 people” in that province alone.[35]
[33] See article provided by the applicant at folio 322 of Tribunal file.
[34] Folio 348 of Tribunal file.
[35] Folio 328 of Tribunal file.
The Tribunal acknowledges that in recent weeks a provincial capital, Kunduz, was briefly overrun and controlled by the Taliban. According to reports they destroyed government offices and facilities, seized military hardware, hunted down opponents and freed prisoners from the city prisons.[36] However, the Tribunal is not satisfied that the Taliban have the ability to mount a similar attack on Kabul.
[36] R. Nordland, “Taliban End Takeover of Kunduz After 15 Days”, New York Times, 13 October 2015, accessed at on 16 October 2015.
Despite the applicant’s claims that Hazaras and Shi’as are specifically targeted in Kabul for reasons of their ethnicity, religion, imputed pro-government political opinion or a combination of all three, the Tribunal is not satisfied that this proposition is supported by the country information. The Tribunal discussed with the applicant several sources of independent country information and the applicant conceded that since 2011 there have not been any large scale attacks on Hazaras or Shi’as in Kabul.[37]
[37] See also EASO Country of Origin Information Report: Afghanistan – Security Situation — January 2015, which referred to an attack on an Ismaili cultural centre and commented that it was “is an exception in a conflict that does not, so far, feature the sectarianism associated with the violence in Syria, Iraq or neighbouring Pakistan.” accessed at on 1 October 2015, at p 36.
There have been reports that Hazaras and Shi’as are singled out for harm on the roads, outside of Kabul. Among others, there have been reports of harm inflicted on two men linked to Australia, one a dual national, the other a failed asylum seeker.
On 20 September 2014 - Australian-Afghan Sayed Habib Musawi, a Hazara from Jaghori district in Ghazni, was reportedly killed by the Taliban (while travelling from Kabul to his home district of Jaghori), because he was an Australian, but the fact that he was also a Hazara may have been relevant.[38] According to the most detailed report the minibus in which he was travelling was stopped by the Taliban in Larga, a village in the Muqur district, and one of the Taliban ordered him by name to get off the bus. Another passenger heard one of the Taliban asking him, ‘Did you come from Australia?’ They found his wallet, which had an Australian flag design, and also his driver’s licence and Medicare card. According to the Department’s recent Country of Origin Information Service he was killed in the Jaghori district.[39]
[38] ‘Sydney man killed by Taliban because he was Australian report’, The Sydney Morning Herald, 29 September 2014; ‘Son of Afghan-Australian killed by Taliban denied refugee status’, The Sydney Morning Herald, 29 September 2014.
[39] ‘Programme summary of Afghan Bost Radio news in Pashto, 28 Sep 14’, BostNews (Bost Bastan), 28 September 2014, CX1B9ECAB7743; ‘Programme summary of Afghan Sharq TV news in Pashto, 28 Sep 14’, Sharq Magazine, 28 September 2014, CX1B9ECAB7744.
On 16 September 2014 - Zainullah Naseri, a Hazara from Jaghori district in Ghazni, was reportedly abducted and tortured by the Taliban for two days in Ghazni province after being deported from Australia. He escaped to Jaghori then returned to Kabul. DFAT has stated in September 2015 that the reports remain uncorroborated and that DFAT has been in contact with Mr Naseri “who is not currently pursuing any action regarding this matter”.[40]
[40] Country Report Afghanistan, DFAT,18 September 2015 at 5.22.
As discussed with the applicant at the hearing, all the reported incidents took place outside of Kabul.
Furthermore, and this issue was also discussed with the applicant at the hearing, not all independent observers agree that Hazaras and Shi’as are singled out for harm. Afghanistan Analysts Network (AAN) in an online article published in April 2015 analysed 8 recent incidents, from the 23 February 2015 kidnappings in Zabul to the alleged beheadings in Ghazni in April 2015:[41]
On 15 March 2015, another ‘Hazara kidnapping’ was reported … Taleban stopped a car coming from Jaghori district .and took ten passengers, all of whom were Hazaras. However, they released them only hours later, after the Taleban had interrogated the travellers and warned the women to wear “proper Islamic attire”, meaning burqas rather than the large headscarves or chadors favoured by many Hazara women. This kind of road block is common across the country, including in insecure Qarabagh district where there is little Afghan National Army (ANA) presence. With both districts having large Hazara communities, chances are that Hazaras will often face such incidents, but such road blocks also hit the local Pashtun population.
…
On 17 March 2015, another ‘Hazara kidnapping’ was reported, this time from Farah province. …[A]ccording to Farah governor Asef Nang there had not been a kidnapping of Hazaras; rather, he said Afghan soldiers “went missing” on the way from Farah to Herat province…It also remains unclear how many of the potential victims were Hazara, with local media reporting, for example, four out of the six being Hazara…. It seems likely that if the six had indeed been abducted, insurgents took them because they were soldiers. AAN, talking to locals and security officials, could not find evidence for this incident being specifically Hazara-related.
…
…[O]n 25 March 2015, Afghan media reported another ‘Hazara kidnapping’, with the Taleban abducting “20 Hazaras” in Daikundi province as they travelled from Kandahar. On the same day, the Taleban rejected the report and said that they had only stopped the vehicle, not detaining anyone, because of the ongoing fighting between them and ANSF in the area and would allow the travellers to pass as soon as the area was safe. They did so on 28 March 2015.
At this point, the BBC also found out that the travellers who had been affected, had not been Hazaras, but rather (Shi’a) Baloch.
…
Finally, the most recent ‘crime against Hazaras’ was reported on 14 April 2015 in Ajrestan district of Ghazni province … Four Hazaras (from Malestan district) were kidnapped and, soon after, killed. AAN spoke to local Hazaras in Malestan who said they were at a loss as to why such a thing had happened, “We have not had tensions between Pashtuns and Hazaras here in 25 years,” they said. Here too, the perpetrators appear to have had goals other than ethnically-motivated ones. Ghazni’s deputy governor, Muhammad Ali Ahmadi, told Deutsche Welle that the Taleban had taken the four as leverage in an attempt to negotiate the release from jail of their commander and his men, who had been arrested the day before in Jaghori district. The Taleban released a statement condemning the killing and rejecting any involvement, though. They blamed “Kabul’s spies,” meaning the NDS [National Directorate of Security], of trying to “cause ethnic and sectarian violence.”
[41] Suroush, Q 2015, ‘Hazaras in the Crosshairs? A scrutiny of recent incidents’, Afghanistan Analysts Network, 24 April < Accessed 18 June 2015 <CXBD6A0DE5323> .
The AAN article draws the following conclusions:
…[T]he reaction to the reporting – and sometimes the reporting itself – clearly shows that Hazaras feel very vulnerable. Hazaras generally live in areas where traveling means navigating passes through high, otherwise impassable mountains and through areas where other groups predominate. Hazaras are easily identifiable and, although there are some Sunni and Ismaili Hazaras, the group is largely perceived as Shi’a. Afghanistan has experienced ethnic-based bloodshed in the past during the war, with Hazaras as both victims and perpetrators – although sectarianism of the kind seen in Pakistan, Iraq and now Syria has been rare. Nevertheless, there is a fear that insurgents and other groups might change tactics.
The reasoning sounds like this: The Taleban, although currently presenting themselves as a national movement for all Afghans regardless of sect or ethnicity, are largely made up of Sunni Pashtun mullahs. Also, this year has seen an increase in foreign fighters moving into Afghanistan after Pakistani operations drove them out of their stronghold in North Waziristan last summer. These fighters tend to be more vicious and more reckless than the Taleban (it is not their country, after all) and potentially more sectarian-minded. The savagely sectarian Islamic State might also gain ground in the country…. Moreover, other countries in the region with previously harmonious intra-ethnic and intra-sect relations (such as Syria and Yemen) have recently descended into bloody, sectarian chaos.
The recent trend of reporting kidnappings as aimed at Hazaras , for the moment, appears to say less about the actual dynamics and trends within the insurgency (or among criminal elements), but a great deal about how vulnerable Hazaras feel about their safety.
Notwithstanding the deteriorating of the security situation across the country and the ability of the Taliban and other insurgents to carry out attacks in Kabul, the Tribunal does not consider that the applicant faces a real chance of serious harm. As discussed with the applicant at the hearing, Kabul is a very large city and Hazaras and Shi’as constitute a rather significant minority in the city. The Tribunal is not satisfied either that someone with the applicant’s profile will be of adverse interest to the Taliban or other militants, nor that the applicant faces a real chance of serious harm because of the increase in terrorist attacks in the city.
The Tribunal accepts that the applicant has had rather limited formal education. However, he has been able to find work despite some relatively brief periods of unemployment.[42] He worked as a tiler and stone mason and some of that work is seasonal. It is natural to expect that there will be less work during the cold winter months.
[42] According to the application form, the applicant was continuously employed in Afghanistan and [Country 1] from 1999 to 2010 and there were only “periods of unemployment” in 2011-2012.
Apart from the fact that he was in close proximity to the bombing on Ashura Day in 2011, the applicant has not claimed to have suffered harm in the past. He has not claimed to have been physically ill-treated, denied employment or access to essential services. The Tribunal accepts that the applicant remains, and may for the rest of his life be, fearful of becoming the victim of a terrorist attack, because of his personal experience in 2011. However, the Tribunal is not satisfied on the evidence before it that there is a real chance the applicant will be physically ill-treated, denied employment that is sufficient for him to subsist or denied access to essential services for any reason, if he returns to Afghanistan now or in the reasonably foreseeable future.
The applicant has claimed that the Taliban can kill or harm people not only on roads outside of Kabul, but also on roads inside the capita. Further, he has stated that he may wish to travel out of Kabul for work or to visit relatives in Herat or Parwan province. The Tribunal finds on the applicant’s evidence that – with the exception of some of his brothers – the applicant’s large family is based in Kabul.
In MIBP v SZSCA [2014] HCA 45, the High Court that the RRT in that case had failed to consider whether it would be unreasonable for a truck driver to remain in Kabul in circumstances where there was evidence that he made regular trips outside of Kabul in the course of his business. Unlike in the present case, a question that clearly arose on the facts was SZSCA’s ability to earn an income from other sources – if he were not to drive a truck in and out of Kabul. In the present case the Tribunal discussed the applicant’s ability to travel to Herat with him. His evidence was that he has never visited them and that they moved to Herat a long time ago; he did not remember how long ago. As a result of this separation, the applicant is not very close to his brothers who are married and have their own families in Herat. Prior to travelling to Australia, the applicant lived and worked in Kabul. As already noted, he has a large family in Kabul. Although it may be very unlikely that he would be able to see his brothers in Herat on a regular basis, the Tribunal does not consider that it would be unreasonable for the applicant to remain in Kabul and not travel to Herat.

As discussed with the applicant at hearing, country information does not support his claim that the Taliban control the roads inside Kabul. Having regard to the country information cited above, including the May 2013 advice of Professor Monsutti and information about the “ring of steel” in the UK Home Office advice of March 2011 together with the fact that the Afghan central government remains established in Kabul, the Tribunal does not accept that the Taliban control the roads inside Kabul. The Tribunal does not accept that the applicant faces a real chance of persecution while travelling by road within Kabul if he returns to Afghanistan in the reasonably foreseeable future.
The Tribunal does not accept on the evidence before it that there is a real chance that the applicant has a well-founded fear of persecution in Kabul by the Taliban, other insurgent groups or criminal elements because he is a Hazara, a Shi’a Muslim, a returnee from Australia or a Western returnee, because there are online photographs of him with Australian politicians or for any other Convention reason, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal does not accept that, if the applicant returns to Afghanistan now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his race (Hazara), his religion (Shi’a Muslim), his actual or imputed political opinion (being pro-government, pro-Western, supportive of the foreign presence in Afghanistan or against the Taliban) or his membership of any particular social group related to his presence in Australia, contact with Australian politicians, failed asylum bid or absence from Afghanistan, his race and religion.
The Tribunal has considered the applicant’s claims individually and cumulatively, and it does not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Complementary protection
Further to the claimed Refugees Convention fears analysed above, the applicant raised the issue that he may be significantly harmed in the generalised violence in Kabul. It was argued that because of the particular circumstances of the applicant – including the fact that he has been in Australia, he is a Shi’a and a Hazara – he was a greater risk of harm than the general population.
Subsection 36(2B)(c) of the Act provides:
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
…
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

100. In SZSFF v MIBP [2013] FCCA 1884 the presiding judge considered the qualification in s.36(2B)(c) to the complementary protection criterion. The Judge stated:
…s.36(2B)(c) contemplates that a risk may be faced by a section of the population and by the applicant personally, as the applicant states at particular (e). Properly construed, the complementary protection provisions and, specifically, s.36(2B)(c) emphasise the requirement that the real risk of significant harm must be a personal risk. That is, it must be a risk which is faced by the individual personally in light of the individual’s specific circumstances.
The prevalence of serious human rights violations (in the context of generalised violence) in the destination country will not, of itself, be sufficient to engage a non-refoulement obligation for all people who may be returned to that country. However, where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the ICCPR and/or CAT. As such, s.36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.[43]
[43] SZSFF V MIBP paras 33 - 34

101. The Tribunal has considered the applicant’s circumstances with respect to this point. For the reasons provided under the heading “Well-founded fear of persecution”, the Tribunal has not accepted that the applicant will be specifically targeted for harm in his personal circumstances by the Taliban or other insurgent groups in Kabul. The Tribunal notes that there is a level of violence in Kabul, but as discussed with the applicant at the hearing, the country information shows that the Taliban are at present targeting individuals and locations that are associated with government and foreign related interests. Recent attacks, such as those that took place on 8 August 2015 are no exception: the targets were said to be NATO troops and contractors, a police academy and another government target.[44]
[44] G. Toppo, ‘Afghan capital hit by wave of deadly terror attacks’, USA Today, 8 August 2015, accessed at on 17 August 2015.
102. The Tribunal accepts that there has been violence against the civilian population in Kabul, that there have been a number of civilian casualties (deaths and injuries) of people caught up in the targeted attacks.
103. While, as noted above, the Tribunal accepts both that the security situation has deteriorated in 2015 compared to 2014 and that terrorist attacks do occur in Kabul, the Tribunal considers that this is a risk that is faced by the population generally, and that the applicant is not personally at greater risk in this generalised violence context than the general population in Kabul. The Tribunal does not accept that there is any particular attribute of the applicant that would lead him to be at a greater risk of harm in the generalised violence in Kabul, now and in the future.
104. Having considered the country information detailed above, and the information as provided by DFAT regarding the level of security in Kabul, including the risk of deterioration in the security situation, the Tribunal does not accept that the level of generalised violence in Kabul, now and in the future is so widespread that the applicant faces a real risk of significant harm, as defined in the Act.
105. The Tribunal finds that the applicant does not face a real risk of significant harm arising from the generalised violence in Kabul.
106. The Tribunal has considered the applicant’s claims individually and cumulatively. He is a Hazara and a Shi’a Muslim who will be returning to Afghanistan from Australia as a failed asylum-seeker. As already noted, the Tribunal further accepts that he has had contact with senior Australian politicians and he posted photographs of himself online.
107. However, even taking into account the cumulative effect of these circumstances, the Tribunal does not accept, having regard to the findings of fact above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Afghanistan, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined.
108. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.
109. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
110. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
111. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Filip Gelev

Member

[13] Suroush, Q 2015, ‘Hazaras in the Crosshairs? A scrutiny of recent incidents’, Afghanistan Analysts Network, 24 April < Accessed 18 June 2015 <CXBD6A0DE5323> .

February 2015