1504646 (Refugee)

[2017] AATA 170

1504646 (Refugee) [2017] AATA 170 (17 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504646

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Shahyar Roushan

DATE:17 January 2017

PLACE OF DECISION:  Sydney

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 17 January 2017 at 11:16am

CATCHWORDS

Refugee – Protection visa – Afghanistan – Race – Hazara – Religion – Shia – Baghlan Province – Murder of family members – Physical assaults – Militant groups – Internal relocation – Lack of family or tribal links

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

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).

   Background, Claims and Evidence

2. The applicant is a citizen of Afghanistan, a Shia Muslim and of Hazara ethnicity. He is [age] years old. He arrived in Australia in November 2008 on a [temporary] visa as a dependant of his stepmother, [name]. The applicant, subsequently, sponsored a partner visa application lodged by [his wife] on the basis of her marriage to the applicant.

3. [In] November 2013, the Department cancelled the applicant’s [temporary] visa and the then Migration Review Tribunal (MRT), differently constituted, affirmed the cancellation.

   Protection Visa Application

4. [In] September 2014, the applicant applied for a protection visa. In a statement attached to his application for a protection visa, the applicant provided the following information:

5. He was born in Baglan (Baghlan), Afghanistan. He is a Sayed Shia and a Hazara. He was brought up during the civil war and was unable to attend school. He cannot read and write.

6. In about 2000, [Sheikh A] from [Organisation 1] shot his [two relatives] in the applicant’s presence. This incident has left ‘deep scars’ on his mental health. He has developed memory problems and [a condition]. Soon after this incident, he moved with his step mother and [siblings] to Pakistan. The move was arranged by his father through an agent.

7. In Pakistan Hazaras are targeted by militant groups such as Lashkar-e Jhangvi. While he lived there, he was attacked, injured and threatened. They had frequent ‘break-ins’ into their house by ‘unknown’ armed people. They used to beat and threaten them. His stepmother was also targeted many times for ‘sexual abuse’.

8. In about 2005, he met his wife, [named], in Quetta. She is Hazara and lived nearby. She was divorced and living with her stepson, [named]. In 2006 she fell pregnant from the applicant and they entered into a temporary marriage (mut’a or sigha marriage). They stayed apart, however, because he had no job and was relying on his father’s financial support from Australia. The applicant’s relationship with [his wife] in Pakistan produced [number of children]. The applicant did not disclose his relation with [his wife] to anyone in his family because he was scared that his parents would not approve of the relationship.

9. In 2008 the applicant obtained his Australia visa after being sponsored by his father. In 2009 he returned to Pakistan to marry [his wife] under Islamic law. During this visit, he was beaten and told to return to Australia. He approached the police but the police did not help him. He was also threatened with death if he got married in Pakistan. As a result they decided to have a ‘very quiet’ celebration.

10. In 2010, the applicant sponsored his wife and children to come to Australia. He received assistance from a ‘free-lance’ migration agent and [a welfare organisation]. Due to his inability to read and write, he did not know what information was entered into his partner visa application and the application was refused by the Department. He was also told that his visa was going to be cancelled because he was in a spousal relationship with [his wife] and not a dependent of his father and stepmother when his Australian visa application was lodged. However, he had never disclosed his spousal relationship to anyone in his family as he was dependant on his father.

11. The Department cancelled his visa and the MRT affirmed the decision on 13 June 2014. 

12. The applicant is fearful of being killed at the hands of radicals and militant groups if he were to return to Pakistan or Afghanistan. He would not be protected by the local authorities and he has no one to protect or look after him.

13. The following supporting material was provided in support of the application for a protection visa:

    ·News articles in relation to the situation of Hazaras in Quetta, Pakistan;

    ·Copy of the MRT’s Statement of Decision and Reasons, dated 13 June 2014, affirming the delegate’s decision to cancel the applicant’s [temporary] visa;

    ·Copy of the applicant’s Afghanistan issued passport;

    ·Copy of [his wife’s] Afghanistan issued passport; and

    ·Copy of the applicant and [his wife’s] marriage certificate.

    Protection Visa Interview

14. The applicant was interviewed by a delegate of the Minister on 27 February 2015. Where relevant the applicant’s oral evidence to the delegate is discussed below.

    The Delegate’s Decision

15. The delegate found that the applicant does not face a real chance of persecution for a Convention reason or a real risk of significant harm in Afghanistan. The delegate also found that the applicant would be able to relocate to Kabul ‘and maintain a low profile’.

    Application for Review

16. The applicant appeared before the Tribunal on 22 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

17. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

18. Following the hearing, the applicant’s representative provided a submission and further country information from a number of sources in support of the applicant’s claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

20. 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).

21. 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.

22. 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’).

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

    Analysis, Findings and Reasons

24. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

25. The applicant has made claims for protection against both Afghanistan and Pakistan.

26. The applicant travelled to Australia in November 2008 on an Islamic Republic of Afghanistan passport issued to him by the [consulate] of Afghanistan in [Pakistan] in January 2006. According to a copy of this passport located on the Department’s file, the applicant was in [year] in Baghlan, Afghanistan. The Tribunal accepts his evidence that, in 2000, he moved to Pakistan and resided in Quetta until he came to Australia. The Tribunal, therefore, accepts that the applicant is a citizen of Afghanistan. There is no evidence before the Tribunal to demonstrate that the applicant is a national of Pakistan. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Afghanistan, including Pakistan. The Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.

27. As the Tribunal has found that the applicant is a national of Afghanistan, it has assessed the applicant’s claims for protection against Afghanistan only.

28. The Tribunal accepts that the applicant is a Hazara Shia born in the district of Baghlan-e-Markazi (Baghlan-i-Jadid) in Baghlan Province. The Tribunal further accepts that his family fled Afghanistan in 2000, after [Sheikh A] from [Organisation 1] shot his [two relatives] in the applicant’s presence. The Tribunal accepts that, while he was residing in Pakistan, the applicant entered into a relationship with [his wife]. The Tribunal accepts that the applicant married [his wife] in 2009. The Tribunal accepts that [his wife] has a [child] from a previous marriage and that the applicant has fathered [number of children] with [his wife].

29. In his evidence to the Tribunal, the applicant indicated that he fears [Sheikh A] as he is still alive and lives in the area. The applicant, however, did not know why his [two relatives] had been killed. Nor was he able to offer a reason as to why [Sheikh A] would want to harm him now. Having regard to the applicant’s evidence and the passage of time since the incident in 2000, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant would be seriously or significantly harmed by [Sheikh A] or [Organisation 1] if he were to return to his home district.

30. The Tribunal, nevertheless, has considered the security situation in the applicant’s home district.

31. Baghlan province, lying ‘on the main route’ to the country’s ‘north and Northeastern regions’[1], comprises 15 districts, including (transliterations vary) Baghlan-e-Markazi (also known as Baghlan-e-Jadid).[2] Pul-e-Khumri and Baghlan-e-Markazi districts, whose projected populations are respectively 24 and 19 percent of the province’s, contain almost all the province’s urban population. They include the lowest-lying parts of the province, whose ‘principal income is derived from agriculture, boosted by the water sources of the Baghlan-Kunduz river system’.[3] Most of Baghlan-e-Markazi’s villages are located on this river system’s plain, and the Kabul-Kunduz Highway passes through it. A 2014 report stated its inhabitants to be 52 percent Tajik (in its mountainous south, east and west), 20 percent Pashtun, 15 percent Hazara and 9 percent Uzbek (in its north).[4]

    [1] Islamic Republic of Afghanistan, Ministry of Rural Rehabilitation & Development (MRRD) n.d. [2014], National Rural Water Supply, Sanitation & Irrigation Program (Ru-WatSIP) Provincial Profile. Baghlan, n.d. [9 March], p.1 < Accessed 29 September 2016 <CISEFCB23F7175>

    [2] Roggio B 2016, ‘Taliban offensive in north stresses Afghan military’, The Long War Journal, 16 May < <CX6A26A6E4169>

    [3] EASO European Asylum Support Office 2016, EASO Country of Origin Information Report. Afghanistan Security Situation Update. January 2016, [20] January, p.118, on RefWorld < <CIS38A8012395>.

    [4] Goodhand J & Hakimi A 2014, Counterinsurgency, Local Militias, and Statebuilding in Afghanistan (Washington, DC: United States Institute of Peace, Peaceworks No. 90), January, p.51 note 93 < Accessed 3 February 2014 <CIS27187>.

32. On 7 September the United Nations Secretary-General reported that Afghanistan’s security situation ‘remained highly volatile’ as ‘intensive Taliban operations’ challenged government control in eight provinces, including Baghlan, by attempting to capture key ‘district administrative centres and cut key supply routes’. The Taliban’s July offensive briefly captured eight districts’ centres, and although the Afghan National Defence and Security Forces (ANDSF) regained control of most of these district centres, they ‘remained under significant pressure, particularly in the south and north-east’.[5] Northwestern Baghlan province is under pressure by the Taliban in Baghlan-e-Markazi (or Baghlan-e-Jadid) district and around the province’s capital Pul-e-Khumri in neighbouring Pul-e Khumri district. On 14 August the Taliban briefly captured Dahana-e-Ghori district’s centre, further to the south.[6] Local authorities in Baghlan said the Taliban had ‘taken control of eight villages in Baghlan-e-Markazi and Dahane Ghori districts’.[7]

    [5] United Nations General Assembly Security Council 2016, The situation in Afghanistan and its implications for international peace and security. Report of the Secretary-General (A/70/1033–S/2016/768), 7 September, p.4 paragraphs 16 & 17, on ReliefWeb website < (at < Accessed 30 September 2016 <CIS38A80122100>

    [6] ‘Dahana-e-Ghori district falls to Taliban’ 2016, Afghanistan Times, 15 August < Accessed 18 October 2016 <CX6A26A6E11069>.

    [7] ‘TOLOnews 6pm News 14 August 2016’, TOLOnews, 14 August < Accessed 18 October 2016 <CX6A26A6E11068>

33. Security incidents in Baghlan province near but outside Baghlan-e-Markazi district continued subsequent to 14 August. On 15 August ‘spokesman for Baghlan province’, Mahmoud Haqmal,  said that one week after ‘tens’ of Taliban attacked ‘Dahan-e-Ghori’ district from neighbouring provinces, the security forces ‘retreated “tactically”’ and that ‘district fell to them last night’; ‘contacts with the center of the district had been cut’.[8] On 16 August the Baghlan provincial police spokesman said that the ‘provincial security forces’ and additional ANDSF had arrived to carry out a large-scale military operation to retake Dahana-e-Ghori district.[9] On 17 August battles ‘escalated in areas around Pul-e-Khumri city’.[10] On 18 September former Dahana-e-Ghori district residents gathered in front of the Baghlan governor's office and called on government ‘to step up efforts to retake the district from the Taliban’. One said that 5000 families who used to live in Dahana-e-Ghori district were now living with difficulty in Pul-e-Khumri city. Some claimed that their district and ‘dozens of villages in Baghlan-e-Markazi and Pul-e-Khumri’ were under Taliban control.[11] On 7 October there were heavy clashes in Baghlan-e-Markazi district and in ‘Dand-e-Ghori of Pul-e-Khumri city’, a locality of 30 villages two kilometres from Pul-e-Khumri city with a population of 3000.[12] TOLOnews reported that it is said ‘Taliban outfits’ have sustained control over Baghlan province's ‘Dahnae-e-Ghori, Gul Tapa, Aqtash and Kalbad districts’ and some areas of Kunduz province’s Chahardara district.[13]

    [8] ‘Dahana-e-Ghori district falls to Taliban’, n6, above.

    [9] ‘Security forces ready to retake Dahana-e-Ghori: Officials’ 2016, Afghanistan Times, 16 August < Accessed 18 October 2016 <CX6A26A6E11070>

    [10] Hamid T 2016, ‘Questions Raised Over Sudden Fall Of Baghlan’s Dahna-e-Ghori’, TOLOnews, 17 August < Accessed 14 October 2016 <CX6A26A6E10921>

    [11] Shirzai H 2016, ‘Baghlan Residents Urge Govt To Clear Dahan-e-Ghori Of Taliban’, TOLOnews, 18 September < Accessed 18 October 2016 <CX6A26A6E11080>.

    [12] Hotak S (tr. Rahimi H) 2016, ‘Afghan Interior Minister flies to Baghlan province’, Bayan Shamal Website, 8 October < Accessed 14 October 2016 <CX6A26A6E10931>.

    [13] Amini K 2016, ‘MoD Vows To Hit Taliban’s Strongholds In Winter As War Rages On’, TOLOnews, 18 October < Accessed 19 October 2016 <CX6A26A6E11255>

34. In September 2016, DFAT reported:

    Ground engagements between pro-government forces and anti-government elements caused the highest number of civilian casualties in the first half of 2016. Fighting in and around population centres in Uruzgan, Helmand, Baghlan, and Kunduz provinces caused extreme harm to civilian communities.[14]

    [14] DFAT, Thematic Report on Security Conditions in Afghanistan: 1 January - 31 August 2016, 5 September 2016.

35. The information before the Tribunal clearly suggests that Baghlan Province and the applicant’s home district of Baghlan-e-Markazi have witnessed greater insecurity and bold incursions by the Taliban into the area. Whilst the Tribunal has been unable to locate specific information in the sources consulted on the situation of Hazaras in Baghlan-e-Markazi (Baghlan-i-Jadid) district, the Tribunal is of the view that the applicant’s ethnicity and religion render him vulnerable to harm, particularly when travelling on roads in and around the area.

36. The Tribunal finds that the applicant would need to travel on the road from Kabul to return to his home area. It is also likely that he will have to travel outside of his home area on a more than infrequent basis to find work and access health services.

1. DFAT has reported:

   2.28 There have been a series of reported incidents of Hazaras being kidnapped since late 2014, including the February 2015 kidnapping of 31 people—almost all Hazaras—while travelling on two buses through Zabul province (see also the 18 September 2015 DFAT Afghanistan Country Information Report). According to the UNAMA 2015 mid-year report on the protection of civilians in Afghanistan, of the 196 conflict-related abduction incidents country-wide in the first six months of 2015, only ten incidents involved Hazaras. All but one of the kidnappings of Hazaras occurred in areas of mixed Hazara and non-Hazara communities. A total of 97 Hazaras were reported as being abducted, 67 of whom have been confirmed as being subsequently released. The motivations for the abductions reportedly included financial gain, intimidation and extracting concessions from other parties to the conflict such as a hostage exchange. For example, on 14 April 2015 anti-government elements abducted 14 Hazaras in Ghazni province, reportedly to exchange them for insurgents held by pro-government forces. Four of these abductees were reportedly killed when the insurgents’ demands were not met. The remaining ten hostages were later released. DFAT notes that the UNAMA reports only covers abduction incidents that are perpetrated by parties to the conflict, and excludes incidents perpetrated by criminals and tribal or other groups that do not have a connection with the conflict. Incidents of kidnap and ransom tend to be under-reported…

   2.31 While ethnicity is rarely the primary motivating factor in these incidents, DFAT assesses that ethnicity can be a contributing factor, particularly in the choice of victim, in some circumstances. For example, in November 2015, militants stopped a number of buses travelling through Zabul Province on their way to Kandahar from Kabul. The gunmen reportedly asked passengers for identification documents, and only took away the Hazara passengers. Some of the passengers were later released, although around nine remain unaccounted for.

   2.32 Multiple credible sources informed DFAT that some bus companies are refusing to sell tickets to Hazaras because of the risk to their vehicles and drivers of being stopped by insurgents or criminals because of the possibility of Hazaras being on board. There are also credible anecdotal reports of ‘spotters’ being used at bus stations to call ahead and alert insurgents as to which buses are carrying Hazara people. It is unclear whether this targeting is being conducted because of the Hazaras’ ethnicity, because of a perceived association with the government or international community (see below), or because Hazaras can often appear wealthy, making them an attractive target for kidnap and ransom. Furthermore, Pashtun kidnappers may be less likely to kidnap other Pashtuns, partly due to the risk that this could create a cycle of inter-tribal violence and retribution; Hazaras may represent a lower risk target from the kidnappers’ perspective.

   2.33 While no ethnic group is immune from kidnappings, DFAT assesses that Hazaras travelling by road between Kabul and the Hazarajat face a greater risk than other ethnic groups. It is unclear whether this is due to ethnic targeting or is a result of the high numbers of Hazaras travelling on this route. On the basis of consultations in Kabul with government authorities, international agencies and civil society organisations, DFAT assesses that, if a bus with a mixture of ethnic groups on board is stopped in these areas, ethnic Hazaras (and other non-Pashtuns) are more likely to be selected for kidnapping or violence than are Pashtun passengers. While ethnicity may not be a primary motivation for an abduction incident, it may have an influence on the selection of victims.[15]

   [15] DFAT, Thematic Report Afghanistan, Hazaras in Afghanistan, 8 February 2016.

2. One of Afghanistan’s busiest highway stretches is the section of the national Ring Road ‘between Kabul and Mazar-i-Sharif, an important economic centre and gateway for travel to Uzbekistan’, in Baghlan province.[16] An October 2015 report on security in Baghlan province noted an endemic threat to Kabul-Kunduz Highway access 20 kilometers northeast of Baghlan-e-Markazi ‘district center along the highway to Kunduz’ in the Gadi area, ‘named after a large local Pashtun tribe’ which ‘is an important local source of fighters for the Taleban’, from which insurgents could ‘easily’ both ‘threaten the security of the highway’ and ‘come together for joint operations’ with insurgents from another Taleban ‘stronghold’, Chahrdara district in Kunduz province.[17] The Kabul-Kunduz Highway enters Baghlan province’s Khenjan district from its southern neighbour, Parwan province, at Kotal-e Salang (‘Salang Pass’) through the Hindu Kush mountains.[18] It is ‘the only trans-Hindukush highway in Afghanistan and the major transit route between the Afghan capital Kabul and the north’.[19] In Baghlan province, the Kabul-Kunduz Highway crosses Khenjan, Doshi and Pul-e-Khumri districts. The ‘road forks at the northern edge of Pul-e Khumri, taking goods and travellers either northwest [through Samangan province] to Mazar-e Sharif in Balkh province, or northeast [through Baghlan-e-Markazi district] towards Kunduz. This road has been contested through many stages of Afghanistan’s war.’[20]

   [16] Nordland R 2016, ‘Taliban Cut Off Afghan Highway Linking Kabul to Northern Gateways’, The New York Times, 14 May < Accessed 17 May 2016 <CX6A26A6E4123>; now accessible at < Hewad G 2015, ‘The 2015 insurgency in the North (4): Surrounding the cities in Baghlan’, Afghan Analysts Network, 21 October < Accessed 14 October 2016 <CXBD6A0DE18849>.

   [18] ‘[Baghlan.] Provincial Profile’ n.d. [2013], 2014 Afghanistan Elections. TOLOnews, n.d. < Accessed 14 October 2016 <CIS36DE0BB2522>

   [19] Hewad, n16, above.

   [20] Ibid.

3. On 14 May 2016 The New York Times reported that the highway had been cut at ‘Surkh Kotal’ for three days by fighting, since ‘the Taliban ambushed police forces guarding a stretch of’ it on 12 May.[21] It was later reported that ‘a large group of Taleban fighters’ attacked Surkh Kotal village on 14 May to ‘eliminate the newly-established, local anti-Taleban militia unit known as khezesh-e mardomi (Dari for ‘people’s uprising’)’ (‘supported by the National Directorate of Security (NDS) with weapons, money and logistics’). The 14 May New York Times report quoted ALP commander ‘Mubarez Hazara’ saying by telephone that Taliban had overrun a check post on the highway.[22] On 17 June 2016 the ANDSF repelled the Taliban from, and retook control of, the Surkh Kotal position.[23] In July 2016, the police established two security posts on Northern Salang highway, Baghlan Province’ (in Khenjan district) ‘to prevent insurgents’ terrorist activities’ and ‘have begun 24/7 activities in the area’.[24]

   [21] Nordland, n15, above.

   [22] Ibid.

   [23] Ali O 2016, ‘Taleban in the North: Gaining ground along the Ring Road in Baghlan’, Afghan Analysts Network, 15 August < Accessed 14 October 2016 <CIS38A80122289>; also on ReliefWeb < Hotak S (trans. Rahimi H) 2016, ‘2 security posts established on Northern Salang highway’, Bayan Shamal Website, 31 July < Accessed 14 October 2016 <CX6A26A6E10920>

4. On 17 August 2016 TOLOnews reported that, following the Taliban’s takeover of Dahna-e-Ghori district, ‘battles are ongoing and have escalated in areas around Pul-e-Khumri city’ and ‘overall security along the Baghlan-Kunduz highway has also deteriorated and those traveling out of Pul-e-Khumri city have said they are afraid the Taliban may ambush security forces’.[25]

   [25] Hamid T, n10, above.

5. On 26 July 2015 TOLOnews quoted Baghlan Provincial Council member ‘Bismiullah Attash’ saying that the previous evening in the capital Pul-e-Khumri, Taliban stopped a bus with ‘about 20 passengers on board, including six women’, and took the passengers; they later released six women ‘"after negotiations with the tribal elders"’.[26] The same day Associated Press reported Baghlan provincial police chief Perdili said eleven people were kidnapped the previous day ‘after gunmen stopped their vehicle in Dahna-i Ghori district’ [sic]: ‘the vehicle held 18 passengers, all Shiite Hazaras. Four women and one man were freed, and authorities were still negotiating the release of the others’.[27] On 28 July TOLOnews reported that the previous day eleven hostages were released ‘after being held for 48 hours by Taliban kidnappers’ who stopped their passenger vehicle ‘in the Dandi Ghore area of Pol-e-Khomre’. A ‘freed hostage’ said ‘"Two cars stopped us and took us to a mosque and they [the kidnapers] [sic] told us 'one of our men was arrested by your men so we kidnapped you,'"’’.[28]

   [26] ‘Taliban Abduct 14 passengers in Baghlan Province’ 2015, TOLOnews, 26 July < Accessed 14 October 2016 <CXBD6A0DE18851>

   [27] Faiez R 2015, ‘Taliban take control of police base in northeastern Afghanistan’, The Associated Press (AP), at CP24 (Toronto), 26 July < Accessed 14 October 2016 <CXBD6A0DE18852>.

   [28] Shirzai 2015, ‘Baghlan Hostages Released By Taliban after 48 Hours’, TOLOnews, 28 July < <CXBD6A0DE10890>.

6. In September 2016 ‘a Pul-e-Charkhi prison official, had been traveling to Kabul with his family when the Taliban attacked his vehicle near the northern end of Salang Tunnel’ ‘in Khenjan district’: he, ‘two women and two men were killed’ and three children wounded’. TOLOnews reported that ‘Clashes meanwhile are ongoing in the area and the Salang highway has been closed to officials.’[29] Late on 7 October 2016 ‘Taliban targeted a police convoy on Friday night in Baghlan Markazi that was carrying ammunitions and military equipment to Kunduz province’ and ‘after a few hours of clashes between the security forces and the insurgents, a lot of the supplies were destroyed after insurgents burnt the trucks’.[30]

   [29] ‘Prison Official Killed In Taliban Attack Near Salang Tunnel’ 2016, TOLOnews, 24 September < Accessed 14 October 2016 <CX6A26A6E10924>

   [30] Shirzai H 2016, ‘Taliban Attacks Pul-e-Khumri city’, TOLOnews, 7 October < Accessed 14 October 2016 <CX6A26A6E10930>

7. On 6 September 2016 ‘Mohamamd Zarif Zarif, a member of the Baghlan provincial council’ said ‘"[…] the negligence of local government have paved the way for the Taliban to launch attacks on Kabul- Baghlan, Kunduz-Baghlan and Mazar-e-Sharif-Kunduz highways. So far up to ten civilians have been wounded as a result […]"’ in the province. A ‘civil society activist’ said (apparently in Pul-e-Khumri city) ‘"We live like hostages; roads [north] towards Kunduz are blocked and there is no security on the [west] route toward Mazar-e-Sharif. War also going on [south] towards Kabul.[…]"’. ‘Baghlan provincial council officials have asked the local administration and security forces to stop motorists from using the highways while clashes are underway.’[31]

   [31] Ahmadi N 2016, ‘Taliban A Threat to Baghlan’s Key Highways: Locals [sic] Officials’, TOLOnews, 6 September < <CX6A26A6E8865>

8. On the basis of the country information before it, the Tribunal is of the view that there is a real chance that the applicant will be subjected to serious harm if he were to travel on the roads to and around his home area as a Hazara Shia.  

   Relocation

9. The Tribunal has considered whether it would be reasonable for the applicant to relocate to another area of Afghanistan. At the hearing, the Tribunal discussed with the applicant whether he would be able to relocate to Kabul or Mazar-e Sharif.

10. Information before the Tribunal suggests that many Afghans, even those who have never lived in Kabul before, return or relocate to Kabul due to their concerns about security or economic prospects in other parts of Afghanistan.[32] In view of the applicant’s background and the country condition, the Tribunal is the view that, if he could, the applicant would seek to relocate to Kabul.

    [32] Metcalfe, V, Haysom, S & Martin, E 2012, Sanctuary in the city? Urban displacement and vulnerability in Kabul, HPG Working Paper, June, pp.1,7, also Majidi, N. 2011, ‘Urban Returnees and Internally Displaced Persons in Afghanistan’, Middle East Institute & Foundation pour la. Recherche Strategique, 25 January, pp.7-8, Refugee Cooperation website, >

    According to DFAT,

    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. This applies to those displaced by conflict and natural disasters, economic migrants and returnees to Afghanistan.[33]

    [33] DFAT, Thematic Report - Condition in Kabul,18 September 2015

11. The report goes on to state that:

    In practice… 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. 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.[34]

    [34] Ibid

12. In another part of the report DFAT noted:

    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. Those who have foreign language and computer skills tend to be best placed to find well-paid employment in Kabul, with new arrivals from rural areas at a disadvantage due to their lack of relevant skills. Many of these new arrivals also lack a network of family contacts needed to find employment. In this situation, employment may be irregular and often insecure–many work as relatively poorly paid day labourers who seek occasional work as it becomes available. Others are required to beg or work as street-sellers. Interviewees in Kabul for the preparation of this report often cited a lack of job opportunities as a key concern, more so even than the security situation.[35]

    [35] Ibid.

13. The Tribunal has also considered the information contained in DFAT’s most recent Thematic Report on Security Conditions in Afghanistan. In that report DFAT noted:

    Suicide and complex attacks carried out by anti-government elements, primarily the Taliban, were the second leading cause of civilian casualties by mid-2016 (precluding the 23 July attack on Hazara protesters in Kabul). Nearly two-thirds of casualties from such attacks took place in Kabul.[36]

    [36] DFAT, n14, above.

14. In contrast to Kabul, Mazar-e Sharif is among the most secure areas in Afghanistan and incidents of violence, including insurgent attacks that target government institutions, political figures and Afghan National Security Forces, other security services and international organisations, are uncommon. Professor Alessandro Monsutti has described the situation of ordinary Hazaras as possibly better in Mazar than in Kabul.[37]  Nevertheless, for the applicant, access to economic opportunities in both Kabul and Mazar-e Sharif is restricted.

    [37] Monsutti, A 2012, Comments by Professor Alessandro Monsutti on Hazaras in Afghanistan Provided to the Independent Protection Assessment Office on January 2012, January, CIS28579.

15. DFAT has reported:

    Traditional extended family and tribal community structures of Afghan society are the main protection and coping mechanism 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.[38]

    [38] DFAT, n33, above.

16. In its August 2013 Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, the UNHCR stated that

    [I]nternal flight or relocation may be a reasonable alternative only where the individual can expect to benefit from meaningful support of his or her own (extended) family, community or tribe in the area of prospective relocation. The only exception to this requirement of external support are single able-bodied men and married couples of working age without identified vulnerabilities, who may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life... ^[39]

    [39] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 6 August 2013, HCR/EG/AFG/13/01, >

    The UNHCR also noted that Afghans originating from rural areas, with few marketable professional skills beyond agriculture and animal husbandry, may have more difficulty reintegrating elsewhere.[40]

    [40] Ibid 

17. The Tribunal accepts that the applicant has never resided in Kabul or anywhere else, other than his home area, in Afghanistan. There is no evidence before the Tribunal to indicate that the applicant has any family or social connections in Kabul or anywhere else in Afghanistan. The Tribunal is of the view that, if he were to return to Afghanistan, he would be under an obligation to continue to support his wife and children, who are residing in Pakistan.

18. The applicant is almost completely illiterate. He is only capable of writing his name in illegible Dari script. In giving oral evidence at the hearing, he did not strike the Tribunal as particularly bright, confident or resilient. He struggled with dates and even the very most basic numeric concepts. He is unskilled and, apart from short periods of employment as [two specified occupations], he has been mostly unemployed and dependent on [welfare] in Australia.

19. Having regard to the applicant’s individual circumstances, in particular his lack of family or social network, his illiteracy and lack of professional or employment skills, the Tribunal is not satisfied that, in this particular case, it would be reasonable for the applicant to relocate internally.

1. For the reasons outlined above, the Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason in Afghanistan.

2. 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

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

   Shahyar Roushan

   
   

   Senior Member