1513684 (Refugee)

1513684 (Refugee) [2017] AATA 2012 (23 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513684
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Gabrielle Cullen
DATE:23 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 23 October 2017 at 10:48am

CATCHWORDS
Refugee – Protection visa – Afghanistan – Property dispute with officials – No right to enter and reside in any other country – Political situation in Mazar-e-Sharif – Local government corruption – Jamiat-e Islami political party – No well-founded fear of persecution – Credibility issues – Internally inconsistent application
LEGISLATION
Migration Act 1958, ss 36,36(2)(a)-(c), 36(3)-(5), 36(2A), 45AA, 65, 424AA, 438, 499
Migration Regulations 1994, r 2.08F, Schedule 2
CASES
MIBP v SZSCA [2014] HCA 45
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 applied for a Protection (Class XA) visa [in] June 2013. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
The applicant who is a citizen of Afghanistan, was born in the Balkh Province in [date] and lived in his home village of [Village 1], situated within the area of Mazar-e-Sharif from birth until [December] 2012 when he travelled to Kabul. [In] December 2012 he claims he used his Afghani passport to travel to [Country 1], whereupon he travelled to Australia via [Country 2] and [Country 3]. He arrived in Australia [in] March 2013. He claims he fears return to Afghanistan due to a family dispute over their land with [a police officer], [Official 1] who is supported by [Politician 1]. He claims to fear return as he has knowledge of corruption and extortion practised by the authorities in his area.
[In] April 2013 the applicant was interviewed by the Department for the purpose of his entry interview. The Tribunal has considered the written notes on file of that interview and where relevant the evidence from that interview appears in this decision.
[In] May 2015 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa [in] September 2015. Although he accepted as plausible that the applicant’s father had land stolen from him by a local authority figure, he did not accept as credible that his father was murdered by [Official 1], the applicant had to flee Mazar-e-Sharif and his life was threatened by [Official 1]. He did not accept the applicant will be detained, tortured, and abused on return by local police, authorities and government for the reasons he claims.
The applicant appeared before the Tribunal on 28 August 2017 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. He was assisted by an interpreter in the Dari and English languages. His representative attended the hearing.
The applicant was given until 30 September 2017 to provide written comments as to the s.424AA matters raised, provide comments as to any matter he believed is relevant and any medical evidence he wished to provide as to his claimed mental difficulties.
The issues to be considered in this case are as follows.
·Is the applicant credible as to his claim to be a citizen of Afghanistan?
·Where is the applicant’s home area in Afghanistan?
·Does he have a right to enter and reside in any other country?
·Is the applicant credible as to his claims?
·Does he have a well-founded fear of persecution in relation to Afghanistan and meet the protection obligation under the Refugees Convention?
·Does he meet the protection obligations under the complementary protection provisions of the Migration Act?
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited, to the following.
·The protection visa application dated [June] 2013 and identity documents attached.
·The statement of the applicant attached to the protection visa application.
·Submission of the applicant’s former representative to the Department dated [July] 2015
·Oral evidence of the applicant provided at the Department entry interview [in] April 2013, Department interview [in] May 2015 and the Tribunal hearing held on 28 August 2017.
·Post-hearing submission of the applicant’s representative dated 29 September 2017.
·DFAT Country Information Report Afghanistan, 18 September 2017.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed
Section 438
The Department’s file relating to the applicant’s protection visa application contained a purported s.438 certificate.[1] The certificate stated that disclosure of information contained in folios 83 to 88 on the file would be contrary to the public interest because the information related to an internal working document and business affairs. As outlined to the applicant the document is the Protection Support –Identity Integrity Checklist which confirms the applicant is who he claims to be. The Tribunal advised the applicant at hearing that it considered the document to be irrelevant to its assessment of the application. In any event, as raised with the applicant, the Tribunal accepts the applicant’s identity as he has claimed. It also, as raised with the applicant, considers the certificate to be invalid. When invited to make submissions on this issue at the hearing, neither the applicant nor his representative made any comment.
[1] Department file CLF[number] at f.125
Is the applicant credible as to his claim to be a citizen of Afghanistan?
On the basis of the applicant’s consistent evidence to the Department and the Tribunal as to where he is from in Afghanistan, and his Afghan identity documents, I accept that the applicant was born in [Village 1], situated in the area of Mazar-e-Sharif and is a citizen of Afghanistan. I therefore find that as a citizen of Afghanistan his claims should be assessed against that country. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Afghanistan is the applicant’s country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Afghanistan is the receiving country.
Where is the applicant’s home area in Afghanistan?
On the basis of the applicant’s evidence that he has spent all his life in Mazar-e-Sharif, except for a short period before his departure which he spent living in a hotel in Kabul, the Tribunal finds his home area in Afghanistan from where his claims should be assessed to be Mazar-e-Sharif, Balkh Province.
Does he have a right to enter and reside in any other country?
The applicant lived in Afghanistan from his date of birth until December 2012. He then for very short periods lived in [Country 1], [Country 2] and [Country 3] on his way to Australia. I therefore find he does not have a right to enter and reside in any other country in terms of s.36(3) – (5) of the Migration Act, other than Afghanistan.
Is the applicant credible as to his claims?
The Applicant’s Claims
In his statutory declaration attached to his protection visa application the applicant claims his family owned [number] Jerib of land. He claims a Jerib is approximately equal to [number] square metres. He claims the land was barren but had trees and they grew [produce]. He claims in around 2011 a number of the surrounding properties started to be developed with residential houses and shops being built in the area, increasing the value of their property. He claims in early autumn 2012 his family started having problems with [Official 1] who is [a police officer] for [Village 2] Police Station.
He claims his father was summoned to [Official 1]’s house. [Official 1] advised he was interested in purchasing the land, offering a very low price. While offering he claims [Official 1] asserted that he held a position of power and it was in his father’s interest to accept the offer. When his father refused [Official 1] advised he would take the land by any means. On his return his father told them of the conversation and they were all of the view that even if his father agreed he would have taken the land in any event.
He claims on or around [December] 2012 [Official 1] contacted his father and advised he is to take possession of the land. He advised his father he was in Court and transferring the title of the land and invited his father to come to Court if he wished to dispute the transfer.
His father advised his mother he was going but his father was not seen again. The applicant claims he checked with the court, searched the roads and hospital and informed the local police his father was missing. Although a report was taken, nothing eventuated from it.
[In] December 2012 his family was advised that his father’s body was taken to [Hospital 1]. They confirmed it was his father and noticed all the personal belongings had been taken, including his mobile phone. He claims his body was found in a silo. They took the body for burial but no death certificate was issued nor investigation conducted and they believed it was due to [Official 1]’s influence.
He claims [in] December 2012 he was walking to the local grocery shop when a [Police] Ranger car stopped and pointed a rifle at him and dragged him by the shirt into the car. He claims two police officers sat either side of him and in the front sat the driver and a passenger. He claims they told him to keep quiet and did not tell him where he was going.
He claims the person in the front seat said he was [Official 1] and showed the applicant a document. He claims this was the deed for their family land and that he had taken his father’s thumb print and he then took the applicant’s thumb print by force.
He claims the car was speeding between [Village 1] to [another village]and the road was slippery in the winter conditions and subsequently the police car crashed. He claims the police officers started arguing and as a result as he was not bound he was able to escape. He claims he was shot at twice. He claims he went to some trees and reached a road between [two towns] and hailed a taxi who took him to the intercity transport station. He said he had sufficient money as he had intended to go to the grocery station. He claims he hired a car and a driver to take him to Kabul.
He claims in Kabul he did not leave the hotel out of fear of what could happen to him. He claims the hotel owner put him in touch with [Mr A] who helped him leave Afghanistan.
He claims he was afraid that [Official 1] and his men would find him so he did not contact his family until he arrived in [Country 1]. He claims his family thought that after the 6^th day of him being missing he too was dead.
Fearing for his [child]’s life they fled to [District 1] to stay with his mother’s [family member] and were in hiding. He claims they had requested his wife’s parents to source a tenant for their house and the tenants had subsequently advised that some plain clothes men had come and enquired about the applicant.
He claims he fears return as he will be harmed by the Afghan authorities and police force, as well as [Official 1]. He claims as [Official 1] is backed by a [politician] he holds a considerable amount of influence in Afghanistan, they control the police and would be able to locate him irrespective of his location in Afghanistan.
He claims he fears he will be mistreated for reasons of his membership of a particular social group, being those who have held information or witnessed corruption adverse to the interest of the local police, authorities and government. He claims he has knowledge of the corruption and extortion of the local authorities in his local area, including several high ranking officers. He claims he has information that could expose their corruption, and would be compelled to expose this. He claims subsequently the officials will harm and mistreat him. He claims as a result he is unable to earn a living anywhere in Afghanistan.
[In] July 2015 the applicant’s representative at that time provided a submission to the Department. The representative submitted that the applicant is unable to relocate to Kabul and provided information in that regard, including among other factors, that he has no family support except in Mazar-e-Sharif. It notes with such a large family he would be unable to earn an income in Kabul to feed his family. The submission refers to the concerns as to the treatment of Hazaras and Shias, however the applicant submits and confirms he is of Sayed/ Tajik ethnicity and a Sunni Muslim. The submission also indicates that he would face a real risk of serious harm travelling by road from Kabul to Mazar-e-Sharif and refers again to the applicant being Hazara.
At the Department interview the applicant reiterated his claims to fear return at the hands of [Official 1] on account of the land in [Village 1]. Below is a summary of the evidence the applicant provided to the Department.
·The applicant stated he is the oldest [child] of his parents, being predeceased by an older [sibling]. The applicant stated he worked [for his family’s business]. He said that business was shut down by someone the applicant believes to be a local police [officer]. The applicant stated that his father dealt with that matter so he did not know details, but his father was instructed to close his business and he did so. After the [business] closed the applicant [worked in another industry]. He stated he [worked in this industry] from 2008 until shortly before he left Mazar-e-Sharif in December 2012.
·The applicant stated at interview that his father owned 'quite a bit' of land that he intended on dividing up between his descendants.
·The land was held in [Village 1], Mazar-e-Sharif and in another [area] [distance] from Mazar-e-Sharif. The applicant stated that [number] jerib (approximately [number] square metres) of land in Mazar-e-Sharif was to be his entitlement from his father's land holdings. The applicant and his family did not live on this land, they lived in a home in Mazar-e-Sharif and the land was worked by [farmers]. The applicant's family received a percentage of proceeds from the farmed land which he stated covered everyday expenses. The family did not work the land themselves, and lived approximately [distance] from the land, in Mazar-e-Sharif.
·The applicant stated in autumn of 2012 his family started having problems with [Official 1], [a police officer from] [Village 2] Police Station in Mazar-e-Sharif.
·The applicant stated [Official 1] sent two men to his father to advise his father that [Official 1] sought his presence in his home. The applicant's father went to the home of [Official 1] and was made an offer for the land, which the applicant stated was well below the land's value. He stated his father refused the offer and was threatened by [Official 1] stating that he would take the land by any means. The applicant stated that their family discussed this offer and were of the opinion that [Official 1] would never have actually paid any money for the land even if he had agreed to sell.
·The applicant stated that [in] December 2012, [Official 1] contacted his father to tell him he was about to take possession of his land; he was in court and in the process of transferring the land to his own name. He stated [Official 1] invited his father to attend the court if he wished to dispute the transfer. The applicant stated his father left the home to go to the court, and did not return.
·He stated the family searched for his father and after two days they went to [Hospital 2] to view a body that had been brought in, which turned out to be his father. The applicant stated there was no investigation of his father's death and no death certificate was issued.
·The applicant stated the land was taken and he does not know what has happened to it since. He stated the person responsible for the theft was [Official 1].
·The applicant stated that after recovering the body of his father from the hospital, his family made arrangements for burial and mourning. [In] December 2012, the third day of mourning, the applicant stated he rose early and left the family home to buy food and supplies. He stated he "had a bit of money, not a lot" as he just "had a few things to pick up". The applicant stated it was early in the morning, around dawn. He had walked a short way from his house when a [police] car pulled alongside and two men got out of the back and grabbed him by the collar and forced him into the car. The applicant stated a man in the front turned around, asked him if he knew who he was, the applicant stated he did not know him, and the man identified himself as [Official 1]. The applicant stated the man then said to him that he had asked the applicant's father for his land and had been refused, and showed the applicant a deed saying "this is your dad's thumbprint. Now I got this I need your thumbprint and we see what we do to you". The applicant stated they took his thumbprint by force and intended to kill him once it was taken, as they had done to his father.
·The applicant stated the car he was forced into was moving the whole time, travelling along icy roads. He stated they then collided with another police vehicle. He stated no-one was injured and the occupants of the two vehicles got out and began arguing. The applicant stated he was not tied, handcuffed or restrained in any way and therefore took this opportunity to get out of the car and make his escape. He did not look back, he just ran to the cover of trees which were some minutes away from where the cars were. He stated he was fired upon but by then he was in trees and was not hit. He does not think that [Official 1] pursued him because there were other people there (occupants of the other police vehicle) who would be witness to anything that occurred. When asked why his abductors would leave him in the vehicle unsupervised, he stated that [Official 1] "thinks he is the angel Israel...he will take your life if he chooses, and once he had you, has you in his car, that is it, he has you”
·The applicant stated he was then able to hail down a car and requested to be taken to the bus station at Mazar-e-Sharif, where he hired a car to take him to Kabul.
·Once in Kabul the applicant stated he stayed at [a] Hotel and did not leave his room for sixteen days for fear of what would happen to him. The applicant stated he was so afraid that he did not contact his family at all until after he arrived in [Country 1], as he believed if he contacted his family [Official 1] would be able to find him. He stated that these people have power in the government, they can do whatever they want, and he thought that through his phone number they could find his family, or more importantly they might find him.
·When asked what he had with him at the time of the incident and escape to Kabul, the applicant stated he just had the money for shopping. He stated his driver's licence and passport were at home, "all documents like this are kept in the car, and I didn't have my car". The applicant stated he had asked the hotel owner to find him someone to take him out of Afghanistan. The applicant could not recall when, after his arrival, that he asked the hotel owner for assistance to leave the country. He stated the hotel owner put him in contact with a man named [Mr A], who made the arrangements for him to leave Afghanistan. When asked about how he left Afghanistan, the applicant stated he travelled by air on a commercial flight, through Kabul international Airport, with his passport and a tourist visa. When asked how he had his passport, given he has stated he did not have anything except a small amount of money with him when he left Mazar-e.-Sharif, the applicant stated he had given [Mr A] his uncle's telephone number, to contact him to get his passport sent to Kabul.
·The applicant stated that [Mr A] made all arrangements for his travel, and it was [Mr A] who stated he should go to Australia.

Credibility concerns were raised by the Department at interview and where relevant these have been outlined below including the applicant’s responses.
At the hearing held on 28 August 2017 the applicant reiterated his claims as to fearing return from [Official 1] due to him forcibly taking their family land. He indicated he did not fear return on account of his ethnicity being a Sayed and Tajik or due to his religion.
The additional and relevant evidence provided by the applicant, and concerns raised by the Tribunal are summarised as follows.
·His [brother] travelled to [Country 4] from Mazar-e-Sharif as he was under pressure. When asked when he departed, he initially said he did not remember and then said he thought it was in 2014. He said in 2014 his brother spoke to him from [Country 4] but said he has had no contact with him since then. His brother told him that his father’s enemy was looking for him as well. As to why he was looking for his brother as well, he said it relates to their property and [Official 1] did not want any witnesses to the illegal taking. He said his brother told him he was threatened.
·The Tribunal raised with him its concern that at the Department interview held [in] July 2015 he indicated that his brother was still living in Mazar-e-Sharif. He responded that his memory is not working. He said maybe it was in 2015 when he called him and he confirmed he only called him once. The Tribunal raised with him that it was odd he had said the call came in 2014 but changed his evidence when advised what he had said at the Department interview. It raised with him that as it is such a significant event the Tribunal may expect he would be consistent as to when he found out his brother was threatened and when he received the call. He said his memory is not perfect and there are a lot of issues. He said he has spent 5 years in Australia and day by day his memory is weakening. The Tribunal raised with him as the decision was not made until September 2015 it may expect he would have advised the Department as to the change in circumstances of his brother if this had happened. It raised with him that it is odd he was able to provide evidence as to his background and other matters clearly and could not recall the timing of this event. He apologised and said he could not recall. The Tribunal raised with him why when his brother was living in Mazar-e-Sharif he was only of interest to [Official 1] for nearly three years after the land grab. He said his brother was not known to [Official 1].
·As to the family land, he said before he died his father owned [number] Jerib in [Village 1] and other land in [another district]. He said through a verbal agreement the brothers knew that he the applicant was receiving the land in [Village 1] and his brother was receiving the land in [another district] on the death of their father. He confirmed that the title was in his father’s name and there was a verbal agreement as to the inheritance. He confirmed there was no written document as to how the title of the lands would be distributed on his father’s death. He said that they just knew that was happening.
·As to why he fears return, he said he will be killed as [Official 1] took the land, killed his father and has no documents to indicate the land was sold to him by his father. He said the land is still in his father’s name.
·He said [Official 1] is a [police officer] at [Village 2] Police station, and is also involved in Jamiat-e-Islami. He said [Village 2] is situated [distance] from Mazar-e-Sharif and [distance] from [District 1].
·He said [Official 1] bought the land adjacent to his father and he wanted their land in [Village 1], as it was [distance] to Mazar-e-Sharif and in a good [position] He said it was valuable land. He said [Official 1] was building houses and buildings in the adjacent land.
·The Tribunal asked the applicant how title is legally transferred in Afghanistan; he said the seller and buyer go to Court, sign the document and it is registered. He said a thumb print is equivalent to a signature. As to which court title is registered in; he said he was not sure.
·When asked what happened as to the land, he stated that his father was approached to buy the land by [Official 1] and he was offered $[amount] per square metres when it was worth $[amount]. He said that as his father did not want to sell, [Official 1] said he will go to Court and transfer the land. As to when he first approached his father as to buying the land; he said he did not remember but said he remembers his father went to Court on [date] and they did not see him again after that and he was killed. He later said he thought the first time he was approached was about three months before his father disappeared but also said he didn’t recall. The Tribunal asked whether at this time [Official 1] threatened his father and he said [Official 1] advised that if he didn’t want to sell the land he would take it by force. The Tribunal questioned why he would not remember when his father was first approached and threatened and the sequence of events which led him to leave Afghanistan.
·The Tribunal asked whether his father spoke to him about these matters; he said his father told him a powerful man was trying to take the land and the applicant advised his father that he would go to Court for him and his father said no he would go himself. He said this discussion happened the day before his father went to Court.
·As to whether there were any other approaches between [Official 1] wanting to buy the land and threatening his father and his father disappearing; he said he was not sure but he repeated that he remembers the day before his father disappeared they had a discussion about his father going to the Court to defend the forced title transfer. The Tribunal asked him to confirm whether he was saying that on the day before, his father knew that [Official 1] was going to Court to transfer the land. The applicant confirmed he knew the day before that his father was going to Court to prevent the illegal transfer of title to the land to [Official 1]. He said his father had to go to Court to prove the land was his and he was not agreeing to the transfer. He confirmed that the day before his father told the applicant that he had to go to Court to show his title to prove the land was his.
·As to the day his father went to Court, the Tribunal asked whether [Official 1] came to the house or contacted his father by phone to ask him to come to the Court. He said he was not sure as he was not at home and when he returned his mother told him his father had gone to Court. The Tribunal questioned why his father would go to the Court as the applicant had said for land to be legally transferred both the buyer and seller has to be there. He responded as [Official 1] had claimed the land belonged to him and his father had to show that it did not. He said that [Official 1] said he had a document to prove that the land was his and he believes he was deceiving his father. The Tribunal questioned how he would think he could transfer the land as he had not signed the document; the applicant then said [Official 1] approached him with a gun. The Tribunal asked whether he is now saying that [Official 1]came to the house with a gun and forcibly took him; he said his mother told him that he came looking for his father and his father went with him. He confirmed that he was told that he came and took his father and his father went with him. When asked if his father voluntarily went to Court; he said he was advised by his mother that [Official 1] called him and said he is coming and they will go to Court together. He said that is what his mother said. The Tribunal questioned this and referred to his statement attached to his protection visa application at point 8 and 9. It raised with him it had concerns with his credibility as the series of events appears to be different between that stated at hearing and in his statement, and questioned if [Official 1] is corrupt why he needed his father to go to Court to take the land. It referred to corrupt transfer of land in Afghanistan. After a break, the applicant stated that his father owned the land; he had the deeds and didn’t want to sell it. He said [Official 1] was looking for an excuse to take his father as his father did not want to sell it.
·He said on the day his father went to Court he finished work in the late afternoon and his father did not come home. He said they looked for him and two days later found him in a hospital. He said they looked for him in the two hospitals. As to whether they made calls or went to any other places to look for him; he said no. He confirmed that the only places he went were the two hospitals; he then said they called the Court and they told them he had not attended. The applicant confirmed he only called the Court by phone. When asked which Court they called; he said the Court that deals with land disputes. The Tribunal noted the applicant had been a [occupation] in Mazar-e-Sharif for [a number of] years and asked the name of the court and he said he did not know it. The Tribunal raised with him that it had concerns with his evidence as in his statement at point 10 he had said he actually went to the Court and at the Department interview he said he did not go to Court and the evidence seems to have changed. He said he has issues with his memory and he only telephoned the court. The Tribunal also raised with him that at the Department interview he was able to explain which Court it was; and said he had said it was [a court ] in Balkh in Mazar. He said that is it. When asked to describe it after saying he had been past it; he said it was two levels. The Tribunal queried why he had said at the Department interview it was only one level. He responded that his memory is not good.
·He said there was a funeral and three days later he was walking to the shops very early, nearly dawn to get some food. As to how much money he had; he said he doesn’t remember. He said he did not have anything else on him, only money for groceries and confirmed he did not have his driver’s licence, any ID papers or his passport.
·He said a police ranger then sopped and 2 police officers got out and he was kicked and punched and pushed into the car. He said the car was [a certain colour] and they had weapons and used them to make him go in the car.
·He said as they were driving along [Official 1] advised him that he had the fingerprint of his father; he said he killed his father and he will kill the applicant as well. [Official 1] said he did not want to leave any proof. He said he showed him the false title and took his print while they were moving. The Tribunal referred to evidence he had given in his statement and noted at neither of those when recalling these events did [Official 1] say “I killed your father and I will now kill you”. The applicant responded that [Official 1] asked whether he knew him and asked whether he knew his father. He said he then introduced himself and said “I destroyed your father and I will destroy you” The Tribunal queried why he needed the applicant’s thumb/finger print when he had his father’s; he responded as he wanted the land and realised the son of the family would know and may query him owning the land. He said that maybe he didn’t want to leave any evidence.
·The Tribunal queried why if there was only a verbal agreement as to the inheritance of the land his brother was able to live in Mazar-e-Sharif for [a number of] years if [Official 1] wanted the applicant killed to destroy the evidence and any witnesses. He said his [brother] was not known to [Official 1] and that the applicant had been shown to him. The Tribunal queried that if he needed the applicant’s thumb print as he was worried the children may dispute his ownership, the Tribunal may expect his brother would be targeted as well. It raised with him that it is his claim that [Official 1] [would] be able to find out who the children of his father were. It raised with him that this is particularly so as it is the applicant’s evidence he was prepared to kill for the title. He said the neighbourhood was told to hide the dispute and they did not say he had a [brother].
·He said it was cold and snowing and they were driving along when they had an accident with another police car at a roundabout. A to where the accident happened, he said it happened in [a location], about [distance] from Mazar. He said all the police left and had an argument and he ran to the factory. He said he ran through the trees to the factory and got a car ride to Mazar-e-Sharif. He said he ran from the side of the road to vacant land and it was about a 5 minute run to the tress through a low level garden. He said from the trees he went to the factory and went to Mazar and caught a taxi straight to Kabul.
·He confirmed that he did not go home. He said he did not contact his family. He said he first contacted his family when he arrived in [Country 1] and they told him they had moved to [District 1] and were living with his uncle. As to whether they thought he was dead or disappeared like his father when he contacted them for the first time in [Country 1]; he advised that he was not sure. He said maybe his [uncle] talked to them. The Tribunal raised with him that he had said at the Department interview and in his statement that when he contacted them in [Country 1] they did not know where he was and had thought he had disappeared. He confirmed this. He confirmed he did not call or get in contact with them until [Country 1]. The Tribunal asked whether he was saying that they didn’t know what had happened to him until he was in [Country 1]; he said he was aware his uncle knew. He then said on his arrival in Kabul he contacted his [uncle]. The Tribunal raised with him that his evidence appeared inconsistent with evidence given to the Department. It raised with him that he had said that he did not know his uncle had taken the family to [District 1] until [Country 1] It raised with him that if he had spoken to his uncle while in Kabul it expects he would have told him he had taken his family for safety to his home in [District 1]. It also raised with him that at the Department interview he said that he did not contact his uncle rather the agent, [Mr A], did. It raised with him that it had concerns as to the credibility of his evidence. He said he had no contact with his family, only once with his uncle and the rest was sorted by the agent, [Mr A].
·The Tribunal raised with him a number of concerns. It raised with him its concern as to how he was able to pay $[amount] US to the agent to leave Kabul if he had no contact with his family and only had grocery money on home when he left his home. It also raised with him how he was able to obtain his passport if he did not have it on him when he left to buy groceries. He said he contacted his uncle and then said [Mr A] had contact with his uncle. The Tribunal queried this as he said to the Department that when he contacted his family in [Country 1] they did not know what had happened to him and had thought the same thing had happened to him as had happened to his father. It raised with him that was difficult to understand if he spoke to his uncle and [Mr A] was in contact with his uncle, which is who he claims his family were living with.
·It raised with him that he had repeatedly said at the hearing that he contacted his uncle whereas at the Department interview he said he never directly contacted his uncle rather [Mr A] did. He said he has a mental condition. He then said he did not contact his uncle, only [Mr A] did. He then confirmed that he never directly contacted his uncle. The Tribunal queried the change in his evidence and he said he had been in Australia for five years and his memory is not working and he is very forgetful.
·The Tribunal asked how he was able to obtain $[amount] Us to depart Kabul; he said his uncle sold his car.
·The Tribunal raised with him under the process outlined in s.424AA that at his entry interview he said [Official 1] came to his house rather than he was picked up while walking to the grocery shop.
·It also raised with him under the process outlined in s.424AA that he said [Official 1] had said that his father didn’t sign the land contract and that is why they killed him, yet said at the Department interview that he had a thumb print. He said he had done many interviews and he had many mental issues
The Tribunal raised with the applicant a number of other concerns as to the credibility of his claims, including those outlined in Department decision, and where relevant these are considered below.
It also raised with him information as to the treatment of returnees from western countries, failed asylum seekers and as to general violence.
It raised with him the reasonableness of his remaining in Mazar-e-Sharif and questioned whether he could relocate to Kabul,
The applicant’s representative noted the following
·In considering the applicant’s evidence and the internal inconsistencies the Tribunal should consider the applicant’s education level and level of literacy as he only had 5 years of education. He claimed this was indicative in the way the applicant responded.
·He raised that the inconsistencies may be as a result of poor interpretation at the Department interview. The Tribunal acceded to his request to be sent the Department file.
On 29 September 2017 the applicant’s representative provided a written submission which is summarised as follows.
·Mazar-e-Sharif is controlled by Atta Mohammad Noor who is a member of the radical Islamic Militia Jamiat-e-Islami. He is head of the Afghan mafia and supported by Iran. He and his people have committed horrific atrocities in Mazar and Afghanistan. They cut people’s noses off and obtain land by force.
·He submits that anyone who opposes him or his [associates] is killed.
·The applicant’s father was killed by one of Atta’s [associates], [Official 1], so as to obtain his land. He reiterates the claims. He claims the taking of land is common practice in Afghanistan.
·He submits while the applicant’s claims were not presented in the best possible way the inconsistencies arose due to his educational level and psychological issues that affects his memory and recollection of events. He submits the applicant has been suffering depression as he is away from his family and concerned about his unknown future.
·As to why [Official 1] did not restrain the applicant, he submits the applicant cannot answer that as it is the thought of [Official 1].
·As to how the applicant obtained a visa for [Country 1], when it was raised with him that he is required to attend in person; he submits it is not true as in Kabul there are agents who organise visas for individuals as the agents know people in the Embassies. He submits the applicant’s smuggler organised the visa.
·As to why the applicant’s family has not been harmed yet, he submits the applicant cannot answer this question as he does not have the knowledge of why [Official 1] did not harm his family.
·As to the Facebook account of his brother[2], he submits there are fake accounts and people can write whatever they want.
·The applicant is new in Australia and as his English is poor it is difficult for him to express himself in another medium and to transmit the message. He submits the mechanics of this communication is never without error and mistakes are made particularly with regard to a person of the applicant’s educational level.
·When the applicant relocated to Kabul he felt unsafe and he was warned to leave Afghanistan. He submits [Official 1] has a strong presence and power in the system, including in Kabul and he could find and kill him there.
·The applicant meets the refugee criteria as he is a member of a social group of people who were killed and forcefully threatened to leave the area because of their land and property being taken.
·The applicant fears return at the hands of [Official 1] and his allies, as well as non-government forces or agencies beyond the control of government.
·The Tribunal should consider the applicant’s low level education and poor psychological status which has affected his memory.
Assessment of the Credibility of his Claims
[2] Information in his brother’s Facebook account was raised with him via s.424AA at the hearing.

As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding aspects of the applicant’s claims and evidence, particularly those he claims led him to leave Afghanistan, which the Tribunal does not accept as true, and why he fears return, there are other aspects of his claimed basic circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Due to the applicant’s consistent evidence between the Department and Tribunal, particularly at the interview and hearing, I accept the following to be true.
·The applicant is a Sayed/Tajik and Sunni Muslim. As to his religion and ethnicity, he has been consistent at all stages of the process. It accepts, as was his evidence at the Tribunal hearing that he does not fear return to Afghanistan on account of his ethnicity and/or religion. The Tribunal notes the representative’s submission of July 2015 refers to difficulties faced by Hazara/Shias but there is no evidence to indicate he is of this ethnicity or a Shia.
·The applicant was born in Mazar-e-Sharif and lived there with his wife and children until he departed for Kabul in December 2012, spending 16 days in Kabul and then departing Kabul for Australia via [Country 1], [Country 2] and [Country 3].
·His wife, [minor] children and mother have lived in [District 1] with his [uncle] since the applicant departed in 2012. [District 1] is approximately [number of] hours from Mazar-e-Sharif in Balkh Province.
·The applicant will return to Afghanistan as a failed asylum seeker and returnee from the West.
·He has one living [brother]. The other brother was killed in [date] and while he indicated he was killed by the Taliban he made no claims in this regard. The Tribunal therefore finds he does not fear return on account of the death of his other brother in [date].
However, for the reasons outlined below the Tribunal does not accept the applicant is a credible witness as to the reasons which led him to flee Afghanistan in 2012 and fearing return on that basis. The Tribunal finds the applicant’s testimony internally inconsistent amounting to a fabrication for the reasons set out in the paragraphs below. It follows it does not accept the applicant’s father was killed by [Official 1] or the applicant was targeted by [Official 1] or that his brother was threatened by [Official 1] and fled to [Country 4] for the reasons he claims or he fears return on this basis.
Father’s Difficulties
It is the applicant’s claim that his father was killed by [Official 1] while on his way to Court to dispute the illegal transfer of title of the land. For the reasons that follow the Tribunal does not accept the applicant is a credible witness as to his claims.
Firstly, the applicant has provided inconsistent evidence as to when he knew his father was required to go to Court. At the hearing the applicant indicated and confirmed he was told by his father that he was going to Court the next day to dispute the transfer of title to [Official 1]. He confirmed that he, the applicant, knew the day before that his father was going the following day to dispute the transfer of the title at Court. He said his father spoke to him about it. The applicant said he offered to go with his father. However, in contrast, as raised with the applicant, in his statement, attached to his protection visa application, the applicant indicated that his father only knew he was going to Court on the day he was contacted by [Official 1] as he advised he was in Court about to take possession of the land and the applicant only learned of his father going to Court after his father did not return.
8. On or around [date], [Official 1] contacted my father in the morning and advised that he was about to take possession of the land. He advised my father that he was currently in Court, and was in the process of transferring the title of our land to himself. He invited my father to come to Court and to bring hi deed if he wished to dispute the transfer.
9. Immediately after this, my father advised my mother of this conversation and left to dispute the matter. I returned home that evening, and learned the information from my mother.
Also, in contrast with his evidence at hearing, the applicant stated at the Department interview that [Official 1] contacted him [in] December 2012, being the day he went to Court, to advise he was in the process of transferring the land to his name. When the concerns were raised with the applicant he repeated why his father was going to Court and that he did not want to sell the land. The Tribunal does not accept the applicant’s response as explaining the inconsistency and is of the view due to the significance of the event, being the disappearance of his father, he would provide consistent evidence throughout the process as to whether he knew his father was going to Court to meet [Official 1] to dispute the land transfer the day before he went to Court or only after he was supposed to go and then disappeared.
Further, the applicant’s evidence has been confusing and internally inconsistent as to whether [Official 1] came to his home and took his father on the pretense of going to Court or his father was called by [Official 1]and advised to come to Court as he was at Court transferring the land. As noted above in his statement and at the Department interview the applicant indicated that [Official 1] called his father and advised he was in Court and then his father immedietly went to Court to dispute the matter. However at the hearing when asked whether [Official 1] came to his house looking for his father or contacted him by phone, he responded that he did not know as he was not at home. He, however, later said that his mother told him that [Official 1] came looking for his father and his father went with him. He then said his mother said [Official 1] called his father and said he is coming and they will go to Court together. Due to the significance of the event, the Tribunal is of the view the applicant would be consistent as to this series of events, whether his father went by himself or was collected by [Official 1] throughout the process, even if he wasn’t at home at the time. It has considered below that the inconsistencies arose as a result of poor education and memory loss but rejected these as reasons for the inconsistency in evidence.
Further, while the applicant has been consistent that his father was not seen again, he has provided inconsistent evidence, as to the steps he and the family took to discover where his father had gone, in particular as to whether he, the applicant, went to the Court to look for him. At hearing he initially stated he went to the two hospitals in the area but made no other calls. He then said he called the Court by telephone and they advised him that his father had not attended. He confirmed that he did not attend the Court but telephoned it. However, in contrast, as raised with him, in his statement attached to his protection visa application he indicated that he personally went to the Court.
10. For the next two days, my family could not contact or find my father. At first, we thought that perhaps he had been in an accident, so we searched the roads and hospitals to look for him. We even went to the court, who advised us that nobody by his name had been there. We informed the local police that our father was missing, and although a report was taken, nothing eventuated from this
He also provided internally inconsistent evidence at the Department interview as to whether he went to the Court or not to search for his father. He initially stated he did not contact the Court and did not go there. However, after the delegate raised with him the evidence outlined above in his statement he stated that he thought the Department was previously asking whether he telephoned the Court, he said rather he went to the Court and described the Court. When the Tribunal’s concern was raised with the applicant he stated that he has issues with his memory and he only telephoned the Court searching for his father. His responses only further confuse and these matter and add to the finding he is not a credible witness.
Further, the Tribunal views as of concern that despite his claim of both having contacted and gone to the Court, and being a [occupation] in Mazar-e Sharif for [a number of] years he could not name the Court at the Tribunal hearing where his father was meant to go and provided inconsistent evidence as to the description of the Court between the Department interview and the Tribunal hearing. At the Tribunal hearing the applicant stated he did not know the name of the Court where his father would have gone. He said it was the Court that deals with land disputes but said he could not name it. He said it had two levels. However, as raised with, him at the Department interview he indicated that [he] had passed it many times, it is close to the city Centre and is on the main street. He said it is [a court] of Balkh for the City of Mazar and is only one level. When the Tribunal raised its concern as to his inconsistent evidence he said that the inconsistencies arose due to his poor memory and as his mind does not work. These have been considered and rejected below as reasons for the inconsistencies in his evidence.
The Tribunal is of the view that due to the significance of the event the applicant would be consistent, if true, as to whether he went to the Court, telephoned it or did not go. It is also of the view he would be able to provide consistent evidence as to whether it was one or two levels. His inconsistent evidence in this regard adds to the finding he is not a credible witness.
Applicant’s Difficulties and leaving Afghanistan
The applicant claims that on the third day of mourning after his father had been discovered dead while walking to the grocery store he was picked up by [Official 1] and his associates in a police car, threatened, then escaped, travelling to Kabul, hiding in a hotel and fleeing to Australia. However the Tribunal does not accept for the reasons that follow that the applicant had any interaction with [Official 1], fled to Kabul in fear and fled Afghanistan for the reasons he claims. These concerns add to the finding the applicant is not a credible witness.
Firstly, his evidence as to where he was picked up by [Official 1] differed between that given at his entry interview and evidence to the Department in his interview and at the Tribunal hearing. As raised with him via the process outlined in s.424AA at his entry interview he indicated that [Official 1] came to his house, stopped the car and said get in whereas his later evidence to the Department and at hearing was that he was picked up while he was walking down the road to buy groceries. When raised with him he said he walking from his home to the shops. While not determinative this adds to the finding he is not a credible witness as to his claims.
The applicant’s evidence as to what [Official 1] said to him has changed throughout the process. In his statement, attached to his protection visa application he indicated that once he got in the car, [Official 1] introduced himself and showed him the land document. He said he informed him that this was a deed to their land and that he had taken his father’s thumb print and that he would need his, the applicant’s thumb print. He then said they took his thumb print by force. However at the Tribunal hearing, in contrast to his statement he added that [Official 1] said he would kill him. Specifically, at the hearing when asked what happened he said [Official 1] introduced himself and said he had the print of his father and then said “I killed your father and will kill you as well. I do not want to leave any proof”. As the Tribunal is of the view this is a significant statement, it expects if [Official 1] said it to the applicant it would be included in his statement. This is particularly so as his statement was taken only 7 months after the events. When raised with him he repeated his evidence at hearing saying [Official 1] said he destroyed his father and said he will destroy the applicant which does not explain the omission in his statement. This adds to the finding he is not a credible witness.
Further, the applicant’s evidence as to [Official 1] taking his father’s thumbprint and why he abducted the applicant to take his is confusing and internally inconsistent. As raised with him via the process outlined in s.424AA, at the entry interview he indicated that when he got into the car they told him that as his father didn’t sign the contract that is why they killed him and if the applicant did not sign the contract they would kill him too. The applicant said signing is the same as taking a thumb print. However in his statement, Department interview and at the hearing he stated that they told him they had taken his father’s thumb print. The Tribunal views this as of concern and adding to the finding he is not a credible witness.
Further, as it is his evidence that his father owned the land and that [Official 1] had his father’s thumb print the Tribunal views as of concern why [Official 1] needed the applicant’s thumb print. He said a thumb print is similar to a signature and land is transferred through a deed of sale with both signatures and the parties going to Court. He said, however, that the people running Government are powerful and they take the land and destroy the documents. As the applicant was not the owner of the land on the title the Tribunal is concerned as to why he would want the applicant’s thumb print and if so, why his brother was not also abducted for his thumb print. This is outlined further below. This is particularly so as there was only a verbal agreement as to the distribution of his father’s land and unlikely to be widely known. This further adds to the finding the applicant is not a credible witness.
Further, it is the applicant’s evidence that he fled Mazar-e-Sharif for Kabul due to being targeted by [Official 1] and did not return home after fleeing. He indicates he had none of his identification papers and only the money he had with him when he ventured out to go grocery shopping when he fled Mazar. He claims he departed Kabul approximately 16 days later, through the airport on his own genuine passport paying the smuggler, [Mr A] $7,000 to organize his travel to Australia. He indicated at hearing his uncle sold his [vehicle] to pay [Mr A]. However, in the manner outlined below, his evidence as to how he was able to do this was inconsistent and confusing, indicating he did not depart Afghanistan with little planning as he was on the run from [Official 1]. It further supports the finding he was not targeted by [Official 1] fleeing to Kabul for his safety without preparation. It leads the Tribunal to find he did not face the difficulties he claims. It adds to the finding he is not a credible witness as to his claims.
In this regard, of concern to the Tribunal is how he was able to obtain his documents and pay the smuggler when it is his evidence he did not venture out from his hotel in Kabul. In this regard his evidence has been inconsistent and confusing.
In his statement, attached to his protection visa application, the applicant said he did not contact his family until he arrived in [Country 1] and upon contacting them they advised that after the 6^th day after he went missing they presumed he had suffered the same fate as his father. He said they fled to their [uncle]’s place in [District 1]. The applicant indicated at the Department interview that he did not contact his family until he was in [Country 1] as he believed if he contacted his family [Official 1] would be able to find them. He said he was concerned they were monitoring his telephone. He said he was told by his family that the day after he disappeared his [uncle] came and picked up the family and took them to [District 1]. He confirmed he did not know his family was with his [uncle] until he arrived in [Country 1] and he said his family did not know where he was until he called them from [Country 1], thinking he had suffered the same fate as his father. When asked how he was able to obtain his passport to depart Afghanistan when it is his evidence he did not have it on him when he fled Mazar, he said he gave the smuggler, [Mr A], his [uncle’s] telephone number. He said his [uncle] would have asked the family and obtained the passport. When asked why he did not mention [Mr A] contacting his uncle when asked whether he had contacted his family; he said family means Mum, Dad and children. When queried about why his family did not know what had happened to him if [Mr A] had contacted his uncle and his uncle was assisting in him departing Afghanistan, he said he doesn’t know what his uncle told his family. As raised with the applicant at the Department interview, it is difficult to accept that the applicant was able to obtain the passport from his home, different to his uncle’s without his family knowing of the request and that he was alive, which is in contrast to his evidence that they did not know where he was until he called them from [Country 1].
Further compounding the Tribunal’s concerns in this regard is his confusing evidence at the Tribunal hearing. He said he first contacted his family when he arrived in [Country 1] and they told him they had moved to [District 1] and were living with his uncle. As to whether they thought he was dead or disappeared like his father when he contacted them for the first time in [Country 1]; he advised that he was not sure. He said maybe his [uncle] talked to them. The Tribunal raised with him that he had said at the Department interview that when he contacted them in [Country 1] they did not know where he was and had thought he had disappeared. He confirmed this. He confirmed he did not call or get in contact with them until he was in [Country 1]. The Tribunal asked whether he was saying that they didn’t know what had happened to him until he was in [Country 1]; he said he was aware his uncle knew. He then said on his arrival in Kabul he personally contacted his [uncle]. The Tribunal raised with him that his evidence appeared inconsistent with evidence given to the Department. It raised with him that he had said that he did not know his uncle had taken the family to [District 1] until [Country 1]. It raised with him that if he had spoken to his uncle while in Kabul it has difficulty accepting he would not have told him he had taken his family for safety to his home in [District 1] and his family where the applicant was. It also raised with him that at the Department interview he said that he did not contact his uncle rather the agent, [Mr A], did. It raised with him that it had concerns as to the credibility of his evidence. He said he had no contact with his family, only once with his uncle and the rest was sorted by the agent, [Mr A].
The Tribunal raised with him its concern as to how he was able to pay $[amount]US to the agent to leave Kabul if he had no contact with his family and only had grocery money on home when he left his home. It also raised with him how he was able to obtain his passport if he did not have it on him when he left to buy groceries. He said his uncle sold the car to pay for the agent’s fees. He said he contacted his uncle and then changed his evidence and said [Mr A] had contact with his uncle. The Tribunal repeated its concerns as to his confusing evidence.
It raised with him that he had repeatedly said at the hearing that he contacted his uncle whereas at the Department interview he said he never directly contacted his uncle rather [Mr A] did. He said he has a mental condition. He then said he did not contact his uncle, only [Mr A] did. He then confirmed that he never directly contacted his uncle. The Tribunal queried the change in his evidence and he said he had been in Australia for five years and his memory is not working and he is very forgetful.

The Tribunal views the applicant’s inconsistent and confusing evidence as highlighted to add to the finding he is not a credible witness. It views his explanation as to the confusion to further undermine the credibility of his claims to have departed Kabul on the spur of the moment, fleeing [Official 1] after escaping from him.
Brother’s Difficulties
It is the applicant’s claim at the Tribunal hearing that his brother fled to [Country 4] as he had been threatened by [Official 1] due to the land and as [Official 1] did not want any witnesses to his illegally taking the land. However, the applicant’s evidence in this regard was internally inconsistent which adds to the finding the applicant is not a credible witness.
At the Tribunal hearing the applicant claimed that his brother called him from [Country 4] and advised him he had fled there as a result of threats by [Official 1] and his allies in 2014. He claimed that his brother advised him that the person that was the enemy of his father was looking for him as well. As to why he believed they were also looking for his brother, he said because [Official 1] probably did not want any witnesses to the illegal taking of land. He said he had not had contact with his brother since. However, as raised with the applicant, in contrast, at the Department interview held [in] July 2015 he indicated that his brother continued to live in Mazar-e Sharif. His evidence at the Department interview as to the whereabouts of his brother was that he was currently not having any problems, he was living [distance] drive from the family home, living with his in-laws and leading a separate life. When raised with the applicant he indicated that his memory is not good, he has spent 5 years in Australia and day by day it is weakening. When again raised he repeated that he did not remember. The Tribunal has considered and rejected below that the inconsistencies arose on account of his poor memory. The Tribunal does not accept that the applicant would provide inconsistent evidence as to such a significant event.
The Tribunal also has difficulty accepting that if [Official 1] has the power he claims to trace him in Kabul, [is] well-connected and was concerned as to witnesses as to the land being taken that he would wait 2 years to find and threaten his brother, particularly as there was only a verbal agreement as to the distribution of the land on his father’s death. It also is concerned as to why only the applicant was approached for his thumb print and not his brother. When raised with the applicant he said it was because his brother was not known to him and he was shown to [Official 1]. He said the neighborhood as told to keep it quiet. The Tribunal does not accept this response as the applicant also claimed [Official 1] is a powerful and well connected.
These concerns lead the Tribunal to find the applicant’s brother did not flee to [Country 4] in 2014 or 2015 as he was threatened or due to a fear at the hands of [Official 1] for any of the reason the applicant claims. It adds to the finding he is not a credible witness
Credibility Summary
When each of the above matters as to the applicant’s lack of credibility are considered together, this leads me to find that as a whole the applicant has not been a credible witness and has fabricated evidence regarding the reasons he departed Afghanistan in 2012. It follows it does not accept that [Official 1] was ever interested in the family land, his father was threatened by [Official 1] and killed by him as he wanted to illegally take the land. It follows that the Tribunal does not accept that the applicant was abducted by [Official 1] and his associates, threatened, forced to give his thumb print to the title to the land, he escaped, fled to Kabul and fled to Afghanistan in fear. It follows it does not accept that the applicant was in hiding in Kabul in fear of [Official 1 ] as he is well connected and powerful, his departure was unplanned and arose as a result of fear of harm for the reasons he claims. It follows it does not accept his family ever believed him to have been harmed and left to [District 1] for the reasons he claims. It follows it does not accept after his departure people came looking for him at the family home in Mazar-e-Sharif or that his brother was threatened and fled to [Country 4] in 2014 or at any time in fear to escape [Official 1].
Based on the applicant’s lack of credibility, the Tribunal also does not accept his father sold the [business] due to any difficulties with the local [police officer] or anyone else.
It rejects in their entirety his claims as to difficulties faced by him and his family at the hands of [Official 1], his allies and associates. It follows it does not accept as true that at the time he departed Afghanistan he was of any interest to [Official 1], his allies and associated, including Atta Mohammad Noor or [Politician 1], anyone in the Afghan Mafia or Jamiat-e-Islami or anyone else for the reasons he claims.
In making this finding the Tribunal has taken into account that the applicant has only had five years of education. Notwithstanding it does not accept that this matter in any way affects the Tribunal’s concerns and findings above. With regard to the applicant’s claim that his poor education affects the consistency of his evidence the Tribunal notes he has been able to provide evidence consistently throughout the process as to factors other than his claims. For example he could consistently advise of the land held by his family, its position and size and where he lived and worked in Afghanistan. While the Tribunal accepts he has had only five years education it finds that this factor does not excuse or explain the Tribunal’s concerns, nor affect its credibility findings above and below.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, that he has been interviewed on a number of occasions and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal has also considered the matters submitted by the representative in the written submissions. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making these findings the Tribunal has also considered his claims that his consistency in evidence is affected on account of his psychological problems, that he has been in Australia for 5 years and his claim he is depressed and suffers memory loss.
On the basis of the evidence before it the Tribunal has considered whether the applicant might have been hindered in presenting his claims to the Tribunal. Having had the opportunity to observe the applicant at hearing, listen to the Department interview and read his statement, the Tribunal is satisfied that he was able to participate effectively and articulate his claims. His answers to questions put to him were generally responsive and coherent and he retained his composure at the hearings. The Tribunal notes that with regard to his mental health claims no independent evidence has been submitted to support his claim his evidence is affected by memory loss, depression or psychological matters. The Tribunal is therefore not satisfied on the evidence before it that the difficulties he describes caused him to forget or to provide inconsistent evidence throughout the process, to both the Department and the Tribunal.
In making these findings the Tribunal has also considered that some information the applicant has provided has been consistent over time, such as when the events occurred in 2012, that his father was killed by [Official 1] that he searched for him in the hospitals, how he escaped and time spent in Kabul. However, the Tribunal considers that these consistent matters are relatively easy matters to recall and his consistency in these matters does not outweigh the credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness as to these claims.
In making this finding the Tribunal has considered the concern raised by the applicant’s representative that inconsistencies may have arisen due to possible poor interpretation at the Department interview. As request the Tribunal sent a recording of that interview to the applicant’s representative and he was given time after the hearing to comment. No further comments were received in this regard. The Tribunal does not accept on the evidence before it that any of the credibility issues arose as a result of poor interpretation at the Department interview.
It has also considered his claim that English is not the applicant’s first language, it is difficult for him to express himself in another medium and the mechanic of communication can cause error. In this regard the Tribunal notes the applicant was assisted with a qualified interpreter. The Tribunal notes where concerns arose it also questioned and requested the applicant to ascertain and confirm what he was saying. The Tribunal does not accept on the evidence before it that any of the credibility issues arose as a result of these matters.
Does the applicant meet the protection obligations under the Refugees Convention and the complementary protection provisions of the Migration Act?
Past claims and reasons he claims to have left Afghanistan
Considered together, the reasons discussed above lead the Tribunal to find that the applicant is not a credible witness as to the reasons he left Afghanistan in 2012. It follows that the Tribunal finds that the applicant, his father, family and brother did not face the difficulties the applicant claims for the reasons he claims in Afghanistan. It follows it does not accept he, his brother or family will be killed, physically abused, mistreated, tortured, threatened, abducted, be forced to hand over land or will be unable to earn a living and will be unable to subsist or will suffer harm or face any of the difficulties he claims for the reasons he claims.
Therefore, on the basis of the evidence before it, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution at the hands of [Official 1] and his associates, Atta Mohammad Noor or [Politician 1], the Afghan mafia, Jamiat-e-Islami followers, the authorities, the police force and any [politician] as a result of any incident involving the applicant or his family land, as the applicant witnessed corruption by the police, authorities and government, as the applicant feels compelled to expose the corruption, as he wants to seek retribution as his land was taken and father killed and as he opposed [Official 1], non- government forces and insurgents beyond the control of the Government.
On the basis of the Tribunal’s finding that the applicant is not credible as to these claims, the Tribunal considers there are no substantial grounds for believing there is a real risk that he will suffer significant harm at the hands of [Official 1] and his associates, Atta Mohammad Noor or [Politician 1], the Afghan mafia, Jamiat-e-Islami followers, the authorities, the police force and any [politician] as a result of any incident involving his land, as he witnessed corruption by the police, authorities and government, as the applicant feels compelled to expose the corruption, as he wants to seek retribution as his land was taken and father killed, as he opposed [Official 1] , non- government forces and insurgents beyond the control of the Government.
Sayed/Tajik and Sunni Muslim
The applicant indicated at the Tribunal hearing that he does not fear return on account of his ethnicity being Sayed, which is similar to being Tajik and on account of his religion, being Sunni Muslim.
The independent information indicates that the Tajik community is officially recognised as an ethnic group under Afghanistan’s Constitution and the information indicates the vast majority are Sunni Muslim[3]. Estimates indicate that the Tajik community comprises between 25-27% of the population of Afghanistan.[4] Minority Rights Group International estimates there are approximately eight million Tajiks in Afghanistan, and provides the following information:[5]
The Tajiks are the second most prominent ethnic group in Afghanistan after the Pashtuns. They make up the bulk of Afghanistan's elite, with considerable accumulated wealth within the community. As a result of this wealth and levels of education, they wield a significant political influence within Afghanistan. Being of Central Asian origin they maintain a kinship with the 4 million ethnic Tajiks that live in the neighbouring Central Asian state of Tajikistan.
[3] Sources of tension in Afghanistan and Pakistan: A regional perspective’, Siddique, A, January 2012, CIDOB Policy Research Project in conjunction with Norwegian Ministry of Foreign Affairs and Norwegian Peacebuilding Resource Centre, CIS961F9402779 and Afghan in Afghanistan’, Joshua Project, 1 January 2017, CXC90406613301 .
[4] ‘In Afghanistan Election, Three Plausible Presidents’, The Brookings Institution, 30 March 2014, CX1B9ECAB12973; ‘Afghans Confront Sensitive Issue Of Ethnicity’, National Public Radio, 8 May 2013, CXC28129415602
[5] Afghanistan - Tajiks’, Minority Rights Group International (MRG), 01 January 2017, CXC90406612613
The European Asylum Support Office (EASO) found Mazar-e-Sharif’s ethnically diverse population includes Tajiks and is estimated to be between 368,000 and 693,000. [6]The Central Statistical Organisation estimates the population at 402,806 inhabitants.[7]
[6] Key socio-economic indicators, state protection, and mobility in Kabul City, Mazar-e Sharif, and Herat City’ EASO August 2017, CISEDB50AD5465, p. 18
[7] Ibid
The Department’s COISS found no recent reports of Tajiks in particular being targeted or harmed in Mazar-e-Sharif.[8]
[8] Sources consulted during the research for this question include the CISNET database, BBC Monitoring, Refworld, the Google search engine, the European Country of Origin Information Network, the EBSCOHost database, the Immigration and Refugee Board of Canada, local news sources including Khaama Press, Pajhwok News, Dawn, Tolo News, Bakhtar News, and Afghanistan Times
On the basis of the applicant’s own evidence and the independent information, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution on account of his Sayed/Tajik ethnicity and Sunni/Muslim religion.
It follows it 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 on the basis he is of Tajik/Sayed ethnicity and a Sunni Muslim.
General Violence
According to DFAT the general security situation in Afghanistan has deteriorated in recent years. Anti-government elements have regularly conducted attacks across Afghanistan, including a significant and increasing number of high-profile attacks in Kabul. The most common targets for insurgent attacks are government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, foreign diplomatic missions and international organisations. Mosques, schools, hospitals and other civilian targets are also vulnerable. Attacks can include small arms fire, indirect (rocket) fire, suicide bombings, car bombs, improvised explosive devices (IEDs) and complex attacks involving a combination of these methods. Attacks are generally directed at specific targets, but the methods of attack can be indiscriminate and often result in civilian casualties.[9]
[9] DFAT DFAT Country Information Report on Afghanistan 18 September 2017
Independent information indicates that Mazar-e-Sharif is one of the safest cities in Afghanistan, although it experiences sporadic violence that affects its civilians.[10] In 2016, the city recorded the lowest number of civilian casualties compared to other cities in Afghanistan.[11] Trends from 2009-2015 show that Mazar-e Sharif consistently had significantly fewer civilian casualties than other cities.[12] Between 2015-2016, the majority of incidents (93 per cent) in Balkh province occurred outside Mazar-e-Sharif.[13] An exception to the trend took place in April 2017, when the Taliban carried out a complex attack against the headquarters of the Afghan National Army in Mazar-e Sharif, which resulted in at least 140 security forces killed and 60 others injured.[14]
[10] ‘Country of Origin Information Report Afghanistan Security Situation November 2016’, European Asylum Support Office, November, p.151 <CIS38A80122>
[11] Country of Origin Information Report Afghanistan Security Situation November 2016’, European Asylum Support Office, November, p.35 <CIS38A80122>
[12] State of Afghan Cities report 2015 volume 1’, UN Habitat, 1 September 2015, p.22<CISEC96CF14550>
[13] Country of Origin Information Report Afghanistan Security Situation November 2016’, European Asylum Support Office, November, p.150 <CIS38A80122>
[14] The situation in Afghanistan and its implications for international peace and security’, United Nations, 15 June 2017, p.5 <CISEDB0AD4651>
The Tribunal raised with him that the difficulties he claims to face on return on account of the claim of general violence does not appear to meet the protection provisions. It outlined that it the difficulties he claims to face in this regard appears not to be for an essential and significant Convention reasons and appears to be one faced by the population as a whole. In response he referred to the continuing fight between the Taliban and the government. The applicant referred to the return of Hekmatayar and that Atar Muhammad Noor harmed a Commander of Police. He questioned if that person cannot protect himself how could he have the power to protect himself on return to Afghanistan. He said he had been away for 5 years and referred to the districts of Chamtal being controlled by the Taliban and Daesh controlling Sari Pul in a neighbouring province and questioned how he would protect himself. He said people are abducted and much is hidden. He referred to the violence committed by Attar Muhammad Noor, the Governor of Balkh and that he is not protected from either side.
The applicant’s evidence is that he fears return on account of [Official 1] illegally taking the family land. He claims [Official 1] is closely connected to Attar Muhammad Noor. He has made submissions as to the widespread corruption by officials in Mazar-e-Sharif and the taking of land by force. The Tribunal has rejected as true his claim that he or his family faced any of these difficulties personally and that he has any adverse profile with these men or their allies. As there is no evidence before the Tribunal that the applicant is a target of the attacks by the Taliban or Daesh or a member of any of the groups likely to be targeted, it is of the view that he may only be harmed in such attacks as a bystander as with the rest of the population in Afghanistan.
The Tribunal therefore does not accept that any difficulties the applicant claims he will face on return to Afghanistan in this regard will be for an essential and significant Convention reason[15]. The Tribunal therefore finds that the applicant does not have a well-founded fear of Convention related persecution if he returns to Afghanistan in the reasonably foreseeable future on account of the general violence or war between the Taliban, Daesh and Government and as land is forcibly taken and corruption exists.
[15] This was specifically raised with the applicant at the Tribunal hearing.

The Tribunal also finds that there is not a real risk he will suffer significant harm because the real risk is one faced by the population of the country generally and is not faced by the applicant personally. Considering the country information and his individual circumstances, the Tribunal considers that the problems he faces upon return as a result of cross fire and insurgency violence do not constitute significant harm as the real risk is one faced by the population of Afghanistan generally and is not faced by the applicant personally.
Travel to Mazar-e-Sharif
The applicant’s former representative submitted on 17 July 2015 that the applicant would face a real chance of serious harm travelling by road from Kabul to Mazar-e-Sharif if he were to return. He submitted that reports have indicated that the Taliban are not only targeting individuals they suspect of supporting or working for the Afghan government, foreign forces and NGOs but also Hazaras. With regard to this submission the Tribunal notes the applicant is Sayed/Tajik and not Hazara and there is no evidence to suggest he is in anyway supporting or working for the Afghan government, foreign forces and NGOs or imputed to do so.
The Tribunal accepts that there have been a number of security incidents on roads, in certain areas, particularly the roads between Kandahar and Kabul and Ghazni and Kabul. The Tribunal also accepts that in late 2015 security on the Mazar-e Sharif – Baghlan Highway had declined due to the placement of Taliban checkpoints along the section of the highway just outside of Pul-i-Khumri city, the capital of Baghlan province. The information indicates that there are only very occasional incidents on the road to and from Mazar-e Sharif.[16] DFAT concurs with the assessment of UNAMA and other international sources that the primary motivations for these abductions on the roads include taking hostages for ransom or prisoner exchange, or to target those with connections to the government or international community. Ethnicity is rarely the primary motivating factor in these incidents, but can play a role once an abduction is in process. [17]
[16] European Asylum Support Office, EASO Country of Origin Information Report: Afghanistan - Security Situation, January 2015, CISEC96CF1191, page 138.
[17] DFAT DFAT Country Information Report on Afghanistan 18 September 2017 at 2.45
On the basis of the evidence before it, whilst there are stretches of road that are under the influence of the Taliban on the Highway between Mazar and Kabul, there are no reported incidents of people with the same background as the applicant, being kidnapped on this road. The Tribunal is satisfied that the applicant would be able to safely access Mazar-e Sharif. The Tribunal considers that the air route from Kabul to Mazar-e-Sharif provides a further opportunity for the applicant to safely access Mazar-e-Sharif and there are commercial flights between Kabul and Mazar-e-Sharif. In this regard Mazar-e-Sharif has one of Afghanistan’s largest international airports. The airport is located nine kilometres east of Mazar-e-Sharif, a journey of 15 minutes by taxi from the centre of the city.
Having carefully considered the evidence and information before it, the Tribunal considers that the chance that the applicant would suffer serious harm is remote and not for a Convention reason. It therefore does not accept that there is a real chance he would be persecuted for a Convention reasons while travelling from Kabul to Mazar-e-Sharif.
Based on its findings of fact and country information above the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant traveling from Kabul to Mazar-e-Sharif he will suffer significant harm. Considering the country information and his individual circumstances, the Tribunal considers that the problems he faces upon return as a result of cross fire and insurgency violence do not constitute significant harm as the real risk is one faced by the population of Afghanistan generally and is not faced by the applicant personally.
Failed asylum seeker and returnee from the west

100. The Tribunal has assessed whether he would be subjected to serious and significant harm for reasons he would be a failed asylum seeker and a returnee from ‘the west’.
101. DFAT has said that many Afghans regularly travel abroad to Iran, Pakistan and also to Europe and other western countries to seek work and greater economic or educational opportunities.[18] UN data shows the number of overall returns to Afghanistan increased in 2016 by 85% compared to 2015.[19] 600,000 Afghans returned in 2016.[20] In 2016 and into the first four months of 2017, over 8,000, mostly young men, voluntarily returned from Europe. Of the returnees who availed themselves of International Organization for Migration (IOM) repatriation assistance from Western countries in 2016/7, the 3 most common destinations for return were Herat, Kabul and Balkh province (Mazar-e-Sharif).[21] There were no reports of difficulties faced by these returnees.
[18] See the DFAT Thematic Report - Hazaras in Afghanistan and Pakistan, 26 March 2014, paragraphs 3.39 and 3.41.
[19] UK Home Office Country Policy and Information Note Afghanistan: Security and Humanitarian Information
[20] UN OCHA, ‘Humanitarian Response Plan – First Quarter Report (January to March 2017)’,(page 18), May 2017, Accessed: 11 July 2017
[21] Afghanistan Analysts Network, ‘Voluntary and Forced Returns to Afghanistan in 2016/17: Trends, statistics and experiences’, 19 May 2017, Accessed: 11 July 2017
102. In its most recent report DFAT states that it has no information to suggest that returnees from western countries attract negative attention from state authorities for having sought and failed to gain asylum[22]. DFAT, however, further states in considering Afghanistan as a whole the following:
[22] DFAT DFAT Country Ifnroamtion Report Afghanistan 18 September 2017 at 5.20
DFAT is aware of occasional reports alleging that returnees from western countries have been kidnapped or otherwise targeted based on their having spent time in a western country. As noted in ‘People associated with the government or international community’, people who identified as having international associations face a high risk of being targeted by anti-government elements. This may possibly include returnees from western countries. However, DFAT understands that most returnees take measures to conceal their association with the country from which they have returned, and keep a low profile on return. DFAT assesses that people in this situation do not face a significantly higher risk of violence or discrimination than other Afghans with a similar ethnic and religious profile[23].
[23] Ibid at 5.22

103. In its report of 2015 DFAT advised:
5.20 Returnees from western countries are almost exclusively returned to Kabul. While some families are returned, most tend to be single men travelling alone. While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. The relatively better economic opportunities available mean returnees often choose to remain in Kabul. There are no tracking mechanisms for these returnees, so it is difficult to assess the conditions they face, particularly sometime after their return. There are plausible, but anecdotal, reports of returnees from western countries often turning up in drug communities. DFAT assesses that, because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion.
5.21 DFAT is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers. As noted above, people who are identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent groups such as the Taliban. Returnees from western countries, however, face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assesses that returnees from western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.
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.[24]
[24] DFAT, Country Report - Afghanistan, 18 September 2015.

104. DFAT’s position on the return of asylum seekers from the West is consistent with earlier advice it provided in October 2012. In this advice, DFAT maintained that it was not aware of returnees experiencing harm after returning to Afghanistan from a western country. The DFAT advice stated that:
Post is not aware of any instances of returnees having suffered harm due to being considered supporters of the west. Afghans regularly travel abroad – to Iran and Pakistan, but also to Europe and other western countries – to seek work and greater economic or educational opportunities. Even under Taliban rule, Afghans continued to travel abroad to work or study, then returned to the country. Representatives of the several European countries that regularly conduct involuntary returns to Afghanistan have told us they are not aware of any returnees having suffered harm due to a prior claim for asylum.[25]
[25] DIAC, Country Information Service, Country Information Report No. 12/64 – CIS Request No. AFG13987: Security Situation for Hazaras in Afghanistan, (sourced from DFAT advice of 31 October 2012), 1 November 2012, CX298127.

105. The UK Home Office 2015 Operational Guidance is supported by earlier advice provided in January 2012 by a Foreign and Commonwealth Office official at the British Embassy, Kabul. The official, who claimed to have dealt with returnees from the UK on ‘an almost daily basis’ advised that, in relation to any reports of failed Afghan asylum seekers being targeted on their return to Afghanistan from the UK (or other western countries) for being supporters of the West, or for adopting Western life styles or behaviours:
I have not received any reports from those who have returned from the UK in my time here that they have been targeted on their return for the reasons set out above. Similarly, I have not received any reports of targeting on return with regards to those who have been identified in the UK media. Returnees usually contact me regarding reintegration support and concerns voiced to me are almost exclusively around accessing the labour market.[26]
[26] DIAC, Country Information Service, Targeting of failed asylum seekers upon return to Afghanistan, (sourced from United Kingdom Border Agency advice of 16 January 2012), 19 January 2012, CX280060.

106. DFAT’s assessment of conditions for returned asylum seekers from the West is consistent with Operational Guidance for decision makers produced by the UK Border Agency in February 2015. Commenting on the enforced return of failed asylum seekers from Afghanistan, the Operational Guidance stated that:
There is no policy which precludes the enforced return to Afghanistan of failed asylum seekers who have no legal basis of stay in the United Kingdom.[27]
[27] UK Home Office, Operational Guidance Note Afghanistan, 2 February 2015, p.39,

107. The UK Home Office 2015 Operational Guidance is supported by earlier advice provided in January 2012 by a Foreign and Commonwealth Office official at the British Embassy, Kabul. The official, who claimed to have dealt with returnees from the UK on ‘an almost daily basis’ advised that, in relation to any reports of failed Afghan asylum seekers being targeted on their return to Afghanistan from the UK (or other western countries) for being supporters of the West, or for adopting Western life styles or behaviours:
I have not received any reports from those who have returned from the UK in my time here that they have been targeted on their return for the reasons set out above. Similarly, I have not received any reports of targeting on return with regards to those who have been identified in the UK media. Returnees usually contact me regarding reintegration support and concerns voiced to me are almost exclusively around accessing the labour market.[28]
[28] DIAC, Country Information Service, Targeting of failed asylum seekers upon return to Afghanistan, (sourced from United Kingdom Border Agency advice of 16 January 2012), 19 January 2012, CX280060.

108. Other reports noted that certain returnees from Western countries had been attacked for reasons other than having been in a Western country. For example the Dutch News in 2011 reported the killing of a returnee from the Netherlands because he was a ‘known opponent of the Taliban.’ Macdonald, in her 2011 report on reintegration of returnees, states:
Reported attacks on returnees in Kabul appear to have taken place for reasons additional to only being a returnee. Reasons reported for attacks on returnees in Kabul include being an opponent of the Taliban, robbery, pre-existing family enmity and suicide bombings.[29]
[29] Macdonald, I , Landlessness and Insecurity: Obstacles to Reintegration in Afghanistan, Middle East Institute & Fondation pour la Recherche Strategique, Refugee Cooperation, 9 February 2011,

109. Having considered all the information before it, including the information provided by the applicant or on his behalf, the Tribunal is of the view that returnees from oversees locations are not being persecuted on return to Afghanistan.
110. Further, the Tribunal has found no information that Afghans who have returned to Mazar-e Sharif, either by plane or on the road, in recent years, regardless of profile, have been targeted solely because of their residence in the West or outside of Afghanistan, having sought asylum in any country or any imputed political opinion arising out of this. In this regard, the Tribunal notes that information indicates, Mazar-e-Sharif is one of the safest cities in Afghanistan recorded the lowest number of civilian casualties compared to other cities in Afghanistan.[30]
[30] EASO, ‘EASO Country of Origin Information Report Afghanistan – Security Situation’, (page 35), November 2016, Accessed: 30 June 2017
111. The Tribunal accepts that the applicant has been living in Australia for a number of years and his accent, habits and mannerisms have been influenced. There is no evidence, which is accepted that he has links to the Afghan Government or the international community or is of any adverse interest to anyone in Afghanistan. The Tribunal does not accept that the applicant will be perceived as having any Western identity through accent, habits or mannerisms including as he had lived in a western country.
112. The Tribunal does not accept that the applicant faces a real chance of serious harm because of his residing outside of Afghanistan and in a Western country. The Tribunal does not accept that he will be seen as a spy or an infidel, given the large number of people who are moving out and now back into Afghanistan.
113. Having carefully considered the evidence and information before it, the Tribunal considers that the chance that the applicant would suffer serious harm for reasons of his being a returnee from a western country, or for being a failed asylum seeker, is remote. It therefore does not accept that there is a real chance he would be persecuted because of the length of time he has spent outside Afghanistan or the time he has spent in Australia or because he would be a failed asylum-seeker and a returnee from a western country.
114. It follows based on the independent information and the applicant’s circumstances and profile 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 for reasons of his being a returnee from a western country, or for being a failed asylum seeker, or because of the length of time he has spent outside Afghanistan or the time he has spent in Australia.
115. In making these findings the Tribunal has taken into account the fact he has had only five years education and his claims to have mental difficulties; however, having carefully the information and evidence before it, the Tribunal does not accept that these factors and / or his ethnicity, either by themselves or in combination, would make him more vulnerable to harm as a returnee from a western country or as a failed asylum-seeker, and it does not accept there is a real chance he would suffer serious harm or real risk of significant harm for any of those reasons, including in combination.
Other matters taken into account
116. The Tribunal has considered the guidance provided by the High Court in the recent decision in MIBP v SZSCA [2014] HCA 45. This case is relevant as it discusses the reasonableness of expecting the applicant to remain in Kabul, with the majority of the Court determining that, the same considerations as are relevant to relocation, apply when the Tribunal identifies an area where the applicant may be safe, so long as he or she remains there. The applicant’s personal circumstances can be distinguished to the circumstances of the applicant in SZSCA, in that, in the SZSCA case, the applicant had some claim to be a truck driver, which potentially could require that applicant to be required to drive outside of Kabul.
117. While the applicant in this case is a [occupation], the evidence he has provided does not indicate he is required to [work] outside the city to earn a living or provide for his family or that [accepting work] outside a city is integral to him performing his [occupation].
118. The applicant has only ever lived in Mazar-e Sharif, except for 16 days in Kabul, when in Afghanistan. He has not claimed to have any family outside Balkh province and there is no evidence that his family cannot return to Mazar-e Sharif other than for the reasons which the Tribunal has rejected as not credible. There is therefore no evidence he needs to travel to other areas of Afghanistan where he would need to travel by road The Tribunal is therefore of the view that there is no reason why he would or could reasonably be considered to need to leave Mazar-e-Sharif to travel elsewhere in Afghanistan. Mazar –e Sharif is the third largest city in Afghanistan and has one of the largest commercial and financial centres in the country[31] and he has not claimed that he would face better economic opportunities outside Mazar-e-Sharif. The Tribunal is of the view that there would appear to be no reasonable or credible reason to consider that, in his circumstances, he would need to leave Mazar-e-Sharif for work or educational opportunities or medical reasons, in the circumstances, the Tribunal considers it is reasonable that the applicant remain in Mazar-e-Sharif to re-establish his life and to seek employment.

[31]Country of Origin Information Service Section, DIBP Afghanistan Reasonableness of Relocation dated 30 June 2017.
Summary of refugee and complementary protection claims
119. For all of the above reasons, having carefully considered the evidence and information before it, including the various submissions of his migration agents and the reports referred to in those submissions, the Tribunal does not accept that, in his particular circumstances, there is a real chance he would suffer serious harm in Afghanistan in the reasonably foreseeable future.
120. Accordingly, on the evidence before it, and having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real chance that he would suffer serious harm for a Convention reason if he returned to Afghanistan now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Afghanistan.
121. Having considered the applicant’s circumstances singularly and on a cumulative basis, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.
CONCLUSIONS
122. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
123. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
124. 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
125. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Gabrielle Cullen
Member

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1513684 (Refugee) [2017] AATA 2012

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Minister for Immigration and Border Protection v SZSCA [2014] HCA 45

[2017] AATA 2012

23 October 2017

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Immigration

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