1506801 (Refugee)

1506801 (Refugee) [2017] AATA 2993 (30 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1506801
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Alison Murphy
DATE:30 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 30 November 2017 at 2:19pm

CATCHWORDS
Refugee – Protection Visa – Afghanistan – Particular social group – Hazara – Shia Muslim – Fear of persecution – Sectarian violence – Fundamentalist militia groups – Taliban – ISIS – Increase in sectarian violence – Inability of authorities to provide protection – Relocation not practicable – Lack of ties in Afghanistan
LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 [2004] HCA 18

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 [in] May 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a [age] old male from Mazar-e-Sharif, Balkh province, Afghanistan. He seeks to invoke Australia's protection obligations so that he does not have to return to Afghanistan, where he claims to fear harm on the basis of his Hazara race, his Shia religion, his actual or imputed political opinion and his membership of the particular social groups ‘returnee from the West’, ‘failed asylum seeker’ and ‘individuals who enter pre-marital relationships’.
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. A summary of the relevant law is contained in Attachment A.
In assessing the applicant’s claims, the Tribunal has had regard to policy guidelines prepared by the Department of Immigration (PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines) and country information assessments 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.
For the following reasons, the Tribunal has concluded that the decision of the delegate should be remitted for reconsideration.
History of proceedings
The applicant arrived in Australia by boat and without a visa [in] March 2013 and applied for the protection visa [in] June 2013. [In] May 2015 the delegate refused to grant the visa on the basis that he was not satisfied the applicant was owed protection by Australia. In particular the delegate considered there was only a remote chance the applicant would suffer serious or significant harm if returned to Mazar-e-Sharif.
The applicant appeared before the Tribunal on 23 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in his review application by a migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
It is not in dispute that the applicant is an Afghan national. The delegate noted he had provided an Afghan taskera and accepted his claimed identity and Afghan nationality. For the same reasons I find the applicant is an Afghan national and I have assessed his claims against the country.
The applicant’s background
The applicant has provided copies of his Afghan taskera and education documents issued by the Afghan Ministry of Education, together with accredited English language translations of those documents. His taskera identifies him as being born in Balkh province and his education documents state he graduated from the twelfth grade of high school in Balkh province in [year]. I accept the applicant originates from Manzar-e-Sharif, Balkh province.
The applicant has consistently claimed to be Hazara and has participated in all stages of the visa process using a Hazaragi interpreter. DFAT reports that ethnic Hazaras have lived in Afghanistan for centuries, they are overwhelmingly Shia Muslims and are visibly distinct from other ethnic groups in Afghanistan. Hazaras are reported to comprise approximately 10% of the population in Afghanistan and speak Hazaragi[1]. The delegate accepted the applicant to be of Hazara ethnicity and Shia religion and I find accordingly.
[1] DFAT 2017 DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017 at 2.1 – 2.7
I accept the applicant lived in Manzar-e-Sharif until he departed Afghanistan in January 2013, other than a short period before his departure when he resided briefly in Kabul. In making this assessment I note his education documents confirm that he completed his year 12 education in Balkh province in [year]. I accept he worked at his family’s [business] in Manzar-e-Sharif until his departure from Afghanistan a year later.
I accept the applicant’s consistent evidence that he is one of [a number of siblings] and at the time he arrived in Australia, all his living family members remained in Manzar-e-Sharif, Afghanistan. At hearing he told me that since that time, [one] brother [Mr A] has migrated to [Country 1], while his brothers [Mr B] and [Mr C] are in [Country 2] awaiting resettlement. I accept each of those matters to be true, noting the letters from the UNHCR in [Country 2] dated [in] September 2017 stating his brother [Mr B] and his brother’s [son] are currently registered as asylum seekers with the [UNHCR]. A copy of a [Country 1] residence permit issued to [Mr A] confirms he is resident in that country. I further accept his mother [and other siblings] remain living in Manzar-e-Sharif, although his mother moved to a different village after his father died in 2014.
The applicant has provided copies of documents issued by the International Committee of the Red Cross relating to the release of the applicant’s father and brothers who were held captive by the Taliban in Mazar-e-Sharif in 1998.
DFAT reports that following the takeover of Kabul and most of Afghanistan by the Taliban in 1996, the worst single recorded massacre in recent history took place in Manzar-e-Sharif in 1998, when the Taliban massacred at least 2,000 Hazaras[2]. The delegate’s decision makes reference to other sources indicating the International Committee of the Red Cross facilitated access to some detainees and captured prisoners in and around Mazar-e-Sharif at that time[3]. The applicant gave detailed and distressing evidence of visiting his father and brothers to provide them with food during their three year imprisonment. I accept the applicant’s evidence that his father and [brothers] were prisoners of the Taliban following the fall of Mazar-e-Sharif in 1998.
[2] DFAT 2017 DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017 at 2.6
[3] Delegate’s visa decision record dated 12 May 2013 at footnote 19
I further accept the applicant’s consistent evidence that [a number of] of his brothers worked with ISAF forces between 2001/02 and 2012, [details of work]. In making that assessment I have had regard to the delegate’s assessment of his evidence at interview in this regard as being spontaneous and detailed. I have also had regard to his evidence at the hearing before me and the worksheet forms and photographs from [a military base] dated January 2013 indicating that his brothers [Mr A] and [Mr C] being Afghan Hazaras from [a] village in Balkh province were [employed] at [that military base] from 2001 and 2002 respectively. At hearing he told me they were first employed at [a certain] base and I accept his [brothers] often accompanied [Mr A] and [Mr C] while they [worked].
I accept that in [2012], the convoy in which his brothers were [a part of] took an alternate [route] when it was attacked by the Taliban near [a location]. I accept the applicant’s [brother] died in the attack. At hearing the applicant told me that his other brothers continued to [work] for a period after [his brother’s] death, but limited the business and eventually [stopped working] about a year later as it was too dangerous to [continue to work]. I accept the family’s long term work [history] for ISAF was well known in Mazar-e-Sharif.
The applicant also claims to fear harm from the family of a girl he was in a relationship with before he left Mazar-e-Sharif. Given my findings below, it is unnecessary for me to consider these claims.
Future risk of harm in Balkh province as a Hazara and a Shia
DFAT reports the general security situation in Afghanistan continues to deteriorate with insurgent forces contesting many areas of the country, warning no part of the country can be considered free from conflict-related violence. It reports the most common targets of insurgent attacks are government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, foreign diplomatic missions and international organisations.[4]
[4] DFAT 2017 DFAT Country Information Report Afghanistan18 September at 2.31 – 2.35
In his most recent report to the UN Security Council, the UN Secretary-General reported:
‘The overall security situation continued to deteriorate throughout 2016 and into 2017. The United Nations recorded 23,712 security incidents, an almost 5 per cent increase compared with 2015 and the highest number in a single year ever recorded by UNAMA . . . In addition, the control of a number of districts has been contested, with some reports claiming an increase in the percentage of Afghan territory under Taliban influence. The fighting evolved further in character as the number of armed clashes between the Taliban and Government security forces increased by 22 per cent in 2016, accounting for 63 per cent of all security incidents, the majority of which were initiated by the Taliban.’[5]
[5] UN Secretary-General, ‘The situation in Afghanistan and its implications for international peace and security’, 3 March 2017, A/71/826–S/2017/189, paragraph 13.
Until recently the applicant’s home province of Balkh has experienced less conflict than other parts of Afghanistan, however it is increasingly subject to Taliban influence and attacks.
According to the EASO Country of Information Report for 2016, there were 370 security incidents in Balkh province between 1 September 2015 and 21 May 2016, including 48 incidents targeting individuals. 27 of those incidents occurred in Mazar-e-Sharif, including suicide and bomb attacks. Less than 100km to the south of Mazar-e-Sharif lies Keshendeh district, more than half of which is reported to have moved from a ‘low confidence Taliban support zone’ in February 2016 to a ‘high confidence Taliban support zone’ in April 2016. ISIS have also been reported to have a presence in the southern districts of Balkh province[6].
[6] European Asylum Support Office, “EASO Country of Origin Information Report Afghanistan Security Situation”, November
2016
There have been further attacks by militants in Mazar-e-Sharif and surrounds since the EASO report:
·On 9 August 2017 a suicide bomber attacked a market place in Mazar-e-Sharif killing two and wounding fifteen[7];
·In January 2017, militants attacked the Indian consulate in the city and in February 2017 three people were killed in an attack on a bus carrying military personnel not far from Mazar-e-Sharif[8];
- On 12 October 2016, an explosion occurred at the entrance of a mosque where Shia worshippers had gathered for the religious commemoration in Khojagholak area of Balkh district, Balkh province. ISIS claimed responsibility this incident which killed 18 civilians and injured 67 others, including 36 children[9];
·In November 2016, a suicide bomber attacked the German consulate in Mazar-e-Sharif, killing at least six civilians and wounding 120[10];
·In April 2017, a Taliban attack on a secure army base in Mazar-e-Sharif killed 170 soldiers while leaving prayers. The attack was described as a ‘sophisticated and deadly’ attack on one of Afghanistan’s most secure bases[11].
[7] UNAMA, Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016, February 2017, pages 34-35;
[11] S. Peterson, “Attack on Afghan base a reminder: Taliban pose the greater threat”, Christian Science Monitor, 26 April 2017,
Further, DFAT reports the continuing armed insurgency and deteriorating security situation has limited the ability of Afghans to travel safely from one part of the country to another by road and the Taliban and other insurgent groups target the national highway and secondary roads, commonly establishing unofficial checkpoints. DFAT assesses that people of all ethnicities are vulnerable to these attacks, but ethnicity can play a role once an attack is in process. It reports Hazaras remain likely to be selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped, citing a number of cases in which Hazaras have been been singled out for special attention during an abduction[12].
[12] DFAT 2017 DFAT Thematic Report Hazaras in Afghanistan 18 September at 2.33 – 2.39, 2.45, 5.16
In 2016 DIBP reported:
The Kabul-Mazar-e Sharif Hwy (also known as the A76), which runs north from Kabul through Parwan, Baghlan and Samangan to Balkh province in the far north, remained one of the most dangerous routes in Afghanistan due to heavy fighting between ANSF and Taliban groups. The fighting led to the temporary closure of the highway in Baghlan province in mid-May. Although the highway was later reopened, travel on it is still considered dangerous for civilians. The number of bus passengers using the highway was reported to have declined through May and June and those who can afford to were choosing to travel by air. In mid-June, ANSF responded to ongoing insecurity along the highway with a series of large scale ground operations in Baghlan province. The operations were aimed at clearing remaining Taliban elements from areas in the strategically located Puli Khumri district - which is transversed by the Kabul-Mazar-e Sharif Hwy. ANSF operations remain ongoing[13].
[13] Department of Immigration and Border Protection, Issues Paper, Afghanistan Road Security Update: 1 January – 30 June2016”, 22 July 2016
I have accepted the applicant’s brothers worked for ISAF [forces] for over ten years and their involvement in those activities would be wel known in Mazar-e-Sharif. There is evidence that the Taliban have targeted family members, with the UNHCR stating as follows in their recent Eligibility Guidelines:
AGEs have been reported to target family members of individuals with the above profiles, both as acts of retaliation and on a “guilty by association” basis. In particular, relatives, including women and children, of government officials and members of the ANSF have been subjected to harassment, kidnappings, violence, and killings[14].
[14] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016
Given the deteriorating security situation in Balkh province and the surrounding roads, I accept there to be a real chance the applicant would be subjected to serious harm if he is returned to Afghanistan, both in Balkh province itself and on the journey by road from Kabul to Mazar-e-Sharif.
In considering whether that harm will be directed to the applicant for reasons of his Hazara ethnicity or Shia religion, I note that DFAT reports the security situation in Afghanistan is complex and fluid, with a number of anti-government elements, most notably the Taliban, engaged in a violent armed insurgency against the government and its international partners[15].
[15] DFAT 2017 DFAT Thematic Report Hazaras in Afghanistan 18 September at 2.26 – 2.35
Attacks are generally directed at specific targets and DFAT reports that ethnicity is rarely the primary motivating factor in incidents such as kidnappings and abductions. However DFAT notes that ethnic targeting can play a role in the selection of victims once an abduction or attack is underway, with Hazaras more likely to be selected for abduction or violence, particularly while travelling on Afghanistan’s highly insecure road network[16].
[16] Ibid
While DFAT doesn’t identify Hazaras as being among the most common targets of insurgents, it reports that in late 2016 and 2017 there were a series of deliberate sectarian attacks against Shia targets raising concerns that Shias are now vulnerable to being targeted based on their religious identity. DFAT assesses that the number and scale of attacks in 2016 and 2017 demonstrate that Hazaras are particularly vulnerable to religiously motivated attacks and that Shias, both Hazara and non-Hazara, now face a risk of being attacked based by Islamic State based on their religious affiliation[17].
[17] Ibid
USCIRF’s 2017 annual report noted that during 2016, Shia Muslims, especially ethnic Hazaras, fell victim to multiple violent and deadly attacks, as well as abductions that often ended in death. The attacks were overwhelmingly claimed by or attributed to US designated terrorist groups including the Taliban and ISIS[18].
[18] United States Commission on International Religious Freedom, ‘USCIRF Annual Report 2017 - Tier 2 countries – Afghanistan’, (Conditions for Shi’a Muslims), 26 April 2017 at >
In light of this information I find the applicant faces a real chance of serious harm for the combined reasons of his Hazara ethnicity and Shia religion in his home area of Mazar-e-Sharif and elsewhere in Balkh province and on the roads between Kabul and Mazar-e-Sharif.
State protection
In this case, the perpetrators of the harm feared by the applicant in Balkh province are non-state agents including the Taliban, ISIS and other militant groups.   Harm from non-state agents may amount to persecution if:
·    the motivation of the non-state actor is Convention-related, and the State is unable to provide adequate protection against the harm; or
·    the motivation of the non-state actor is not Convention related, but state protection from the feared harm will be discriminatorily withheld for a Convention reason[19].
[19] MIMA v Khawar (2002) 210 CLR 1
For the reasons set out above I have found the harm feared by the applicant in Balkh province will be directed at him for the combined reasons of his Hazara ethnicity and Shia religion.
DFAT reports that the ongoing armed insurgency and deteriorating security situation nationwide has challenged the government’s ability to exercise effective control over large parts of the country, particularly outside of major urban centres and provincial capitals. As a result, the government lacks the ability to adequately protect vulnerable groups and prosecute human rights violators in some parts of the country. DFAT reports the number and scale of major attacks that have taken place in Kabul since the beginning of 2016 demonstrate the limits of the government’s ability to protect its citizens even in a place where security infrastructure is strongest[20].
[20] DFAT 2017 DFAT Thematic Report Hazaras in Afghanistan 18 September at 4.1 – 4.2

The UNHCR reported in April 2016 that the security situation in Afghanistan remains unpredictable, with civilians continuing to bear the brunt of the conflict. It noted the conflict is increasingly affecting all parts of the country, with anti-government elements reported to have engaged in an increasing number of high-profile attacks in Kabul and other cities while also expanding their reach in rural or less populated areas. The UNHCR reports that concerns have been expressed about the capability and effectiveness of the Afghan National Security Forces in ensuring security and stability across Afghanistan and that violent attacks by anti-government elements targeting the Shia population continue to occur[21].
[21] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, HCR/EG/AFG/16/02, at pp pp14-15 and 51-52 and 76 available at: >
Given this information, I find that the applicant would not be able to access state protection in Balkh province to international standards in accordance with the principles in MIMA v Respondents S152/2003.
Relocation
I have considered whether the applicant can relocate to Kabul, given the higher level of security forces present in that city and the corresponding higher level of state protection available to its inhabitants.
DFAT reports there is no legal impediment to internal movement within Afghanistan and Afghans of all ethnicities can and do relocate internally for a variety of reasons. It assesses Kabul provides the most viable option for internal relocation and resettlement for most Afghans, including ethnic Hazaras, which make up between 40-50% of Kabul’s population. However it notes that Kabul is a significant target for attacks against civilian and non-civilian targets, with a 75% increase in civilian casualties in 2016 compared to 2015. It notes that while the Afghan National Defence and Security Forces (ANDSF) and international forces have put in place a range of counter measure to prevent and respond to insurgent attacks in Kabul, they vary in their effectiveness and violent attacks within the city are common[22].
[22] DFAT 2017 DFAT Thematic Report Hazaras in Afghanistan 18 September at 2.23-2.26, 2.4, 4.3 – 46.
With regard to sectarian attacks on the Shia Muslim minority, the United Nations Assistance Mission in Afghanistan (UNAMA) reported in its Annual Report on Protection of Civilians in Armed Conflict: 2016 that an emerging pattern of deliberate sectarian attacks against the Shia Muslim religious minority in 2016, mainly claimed by Daesh / ISKP, raised grave concerns regarding the right to freedom of religion or belief and the protection of minorities.
In the second half of the year, UNAMA recorded five separate attacks against Shia Muslim mosques and gatherings:
·On 23 July 2016, two suicide attackers targeted a peaceful demonstration in Deh Mazang Square of Kabul city protesting a decision relating to a cross-country power line project, killing at least 85 civilians and injuring 413 others – the deadliest attack recorded by UNAMA since 2001. Nearly all victims were men and members of the Shia Muslim religious minority of Hazara ethnicity. On the same day, Daesh/ISKP, claimed responsibility for the attacks through a Twitter account affiliated with the Amaq News agency, linking the attacks to the reports of Hazaras’ alleged participation in fighting in Syria on the side of the government. Anti-Shia Muslim statements were delivered in the same message. A Truth-Finding and Investigative Committee was appointed by the President on 25 July 2016 following this incident, but it has not yet published any report.
·On 11 October 2016, the day of Ashura, a major Shia Muslim commemoration, an attacker disguised in an Afghan national security force uniform entered the Karte Sakhi Mosque in Kabul, opened fire at Shia worshippers and used a hand grenade, killing 19 civilians and injuring 60 others. The attack caused minor damage to the mosque. Daesh/ISKP also claimed responsibility for this attack by issuing another online statement containing hate language targeting the Shia Muslim religious minority.
·On 12 October 2016, an explosion occurred at the entrance of a mosque where Shia worshippers had gathered for the religious commemoration in Khojagholak area of Balkh district, Balkh province. This incident killed 18 civilians and injured 67 others, including 36 children, and also caused minor damage to the gate. No group claimed responsibility for this incident.
·On 21 November 2016, a suicide attack killed at least 40 civilians and injured 74 others, including many children, at the Baqer-ul Ulum mosque in Kabul during observance of the religious ceremony of Arbaeen, a commemoration on the 40th day after Ashura. The suicide bomber detonated the device at the mosque, deliberately targeting the large congregation composed mainly of worshippers from the Shia Muslim religious minority.123 Daesh/ISKP claimed responsibility for this attack using derogatory expressions and calling for violence against Shia Muslims, as it called in earlier statements.
·On 22 November 2016, Anti-Government Elements detonated a remote-controlled IED that injured four Shia Muslim worshippers at the Razaiya Mosque in Herat city. No group claimed responsibility for this incident.
The attacks against the four mosques accounted for the almost six-fold increase in civilian casualties from attacks deliberately targeting religious persons and places of worship observed in 2016. UNAMA documented 377 civilian casualties (86 deaths and 291 injured) from such attacks in general, a 573 per cent increase from 2015.’[23]
[23] UNAMA, Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016, February 2017, pages 34-35.
Amid reports of numerous insurgent attacks on embassies and government institutions in Kabul since the UNAMA report was released in February 2017[24], there have been further reports of attacks on Shia mosques or in Shia dominated areas of Kabul during 2017:
·     15 June 2017: an attack on the Shia al-Zahra mosque in western Kabul during religious observances of Ramadam killed at least four people and wounded eight. The attack was claimed by ISIS[25];
·     24 July 2017: an attack in the predominantly Shia Hazara neighbourhood in western Kabul killed four people[26];
·     25 August 2017: an attack on the Shia Imam Zaman mosque in Kabul during Friday prayers killing at least 28 worshippers. The attack was claimed by ISIS[27].
·     21 October 2017: twin attacks on Shia mosques in the west of Kabul took place just hours apart, with as many as 88 reported killed in the attacks and dozens wounded, including women and children. Shortly prior to the attacks the UN reporting that at least 84 Shias had been killed and 200 injured in attacks on mosques so far in 2017[28].
[24]
[25] The Age Four Killed in Islamic State attack on mosque in Kabul16 June 2017 at
[26] The Age Taliban bomb kills dozens in Kabul 24 July 2017 at
[27]
[28]
I accept that the series of attacks referred to above represent a significant change in the security situation in Afghanistan, and in Kabul in particular, by introducing a sectarian dimension to the attacks.
In considering whether it would be reasonable in all the applicant’s circumstances to expect him to relocate to a major city like Kabul, it is also relevant to take into account the availability of traditional support mechanisms provided by members of an applicant’s extended family or members of his or her ethnic group. In this regard I note the UNHCR observed in its Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (19 April 2016) that:
‘Applicants may be able to fall back on the support of members of their extended family or members of their larger ethnic group. However, the existence of such traditional support networks can be assumed to weigh in favour of the reasonableness of a proposed IFA/IRA [internal flight or relocation alternative] only when the members of the applicant’s extended family or wider ethnic group are assessed to be willing and able to provide genuine support to the applicant in practice, taking into account Afghanistan’s low humanitarian and developmental indicators and the wider economic constraints affecting large segments of the population. Moreover, the presence of members of the same ethnic background as the applicant in the proposed area of relocation cannot by itself be taken as evidence that the applicant would be able to benefit from meaningful support from such communities in the absence of specific pre-existing social relations connecting the applicant to individual members of the ethnic community in question. The extent to which applicants are able to rely on family networks in the proposed area of relocation also has to be considered in light of the reported stigma and discrimination against those who return to Afghanistan after spending time abroad.’[29]
[29] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, page 84, omitting footnotes.
Professor William Maley reports that reintegration is difficult, even if people have associates in the region to which they are returned. The mere fact that there might be people of similar ethnic background living in a potential relocation destination did not overcome this problem since ethnic identities did not in and of themselves give rise to the tie of personal affinity and reciprocity that arose from family connections. In his opinion a Hazara who is returned to a region where he lacked strong cultural connections is likely to end up destitute or to be exposed to gross exploitation or criminal predation[30].
[30] Professor William Maley 16 March 2017 On the Return of Hazaras to Afghanistan available at >
DFAT reports that Hazaras, like other Afghans, are vulnerable to the threats posed by indiscriminate attacks against targets in Kabul and that Kabul regularly experiences serious security incidents, including attacks directly targeting the Shia community. It assesses that while there are generally options available for internal relocation within Afghanistan, there are considerable security and economic factor that limit the ability of Hazaras to relocate safely and successfully[31].
[31] DFAT 2017 DFAT Thematic Report Hazaras in Afghanistan 18 September at 2.23 – 2.6, 4.3. – 4.6
The applicant is a [age] year old Hazara Shia who grew up in Mazar-e-Sharif. Those family members who remain in Afghanistan continue to live in Mazar-e-Sharif where I have found it is not safe for him to return. One brother has been killed in a Taliban attack and [a number of] brothers have fled Afghanistan. He has some education but his work experience in Afghanistan was limited to working in his father’s [business]. Apart from a brief period while in transit to Australia, he has never lived in Kabul and he has no relatives in that city.
In view of the deteriorating security situation in Kabul and the individual circumstances of the applicant, particularly his lack of family and social links and his lack of employment skills, I do not consider that relocation to Kabul is reasonably practicable for the applicant.
For the reasons given above, I am 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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Alison Murphy
Member

ATTACHMENT A – SUMMARY OF THE 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.
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.
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’).
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.

accessed at

Key Legal Topics

Areas of Law

Immigration
Statutory Interpretation

Legal Concepts

Judicial Review
Jurisdiction
Procedural Fairness
Statutory Construction

Actions

Download as PDF Download as Word Document

Citations

1506801 (Refugee) [2017] AATA 2993

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55

[2017] AATA 2993

30 November 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction