1603070 (Refugee)

1603070 (Refugee) [2020] AATA 974 (6 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603070
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Mila Foster
DATE:6 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 April 2020 at 2:08pm
CATCHWORDS
REFUGEE – protection visa – Afghanistan – political opinion – anti-Taliban – worked for a foreign company – father’s and brothers’ employment – harm by members of ex-wife’s family – returnee from the West – right to enter and reside in a third country – credibility concerns – mental health condition – false and misleading information in previous visa application – whereabouts of family members – marital status – application for protection in other countries – voluntary return to Afghanistan – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Afghanistan, applied for the visa on 16 September 2014 and the delegate refused to grant the visa on 24 February 2016.
The applicant was represented in relation to his protection visa application and the review by his registered migration agent.
SUMMARY OF APPLICANT’S CLAIMS
The applicant claims that if he returns to Afghanistan:
a.    the Taliban will kill him because of his anti-Taliban political opinion, he worked for a foreign company in Afghanistan, his father worked as a [Occupation 1] at [a location], and two of his brothers, [Brother A] and [Brother B][1], worked for foreign forces in Afghanistan;
b.    he will be targeted by the Taliban and fundamentalists because he has lived in the West; and
c.     one of his ex-wife’s brothers will have him killed because of a complaint the applicant made to the [Country 1] authorities and because he has divorced.
[1] Also spelt [Brother B variation] and referred to as [Alias 1] and [Alias 2].
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Section 91R(2) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such a report in relation to Afghanistan on 27 June 2019 (DFAT Report).
BACKGROUND
The applicant has provided the following personal details:
a.    He is a national of Afghanistan and no other country.
b.    He was born in [date] in [Village 1], [Area 1], Kabul in Afghanistan.
c.     He is a Muslim and of Tajik ethnicity.
d.    He lived in Afghanistan in the suburb of [Suburb 1] in [a specified] District of Kabul from September 1989 until September 2011. From September 2011 until June 2014 he lived in [Country 1]. In June 2014 he came to Australia on a visitor visa and has lived here ever since.
e.    He had [number of] years of education in Afghanistan.
f.   From December 2008 until February 2010 he worked as an [Occupation 2] and [Occupation 3] for [Company 1] in Afghanistan. He worked for [Company 2] in [Country 1].
g.    He married [Ms C], a cousin and citizen of [Country 1], in Kabul in 2010. They are now divorced.
h.    He does not currently have a partner or any children.
i.   His close relatives consist of his parents, [and a number of siblings].
SUMMARY OF EVIDENCE
The evidence before me is as follows.
Department file relating to applicant’s protection visa application
The Department file relating to the applicant’s protection visa application ([Department file number]) includes:
a.    A protection visa application form completed by the applicant on 15 September 2014 with the assistance of his migration agent.
b.    A Form 80 personal particulars form completed by the applicant on 16 September 2014.
c.     A photocopy of the applicant’s Afghan taskera (identification document) along with an English translation.
d.    A photocopy of the applicant’s, now expired, Afghan passport.
e.    Photocopies of the applicant’s Afghan educational certificates.
f.   A statutory declaration made by the applicant on 15 September 2014 setting out his reasons for seeking protection (SD1).
g.    Amendment made to SD1 by the applicant (AM) dated 3 February 2015 but declared on 12 February 2015.
h.    Written submission made by the applicant’s migration agent on 3 February 2015 (MAS1).
i.   A statutory declaration made by the applicant on 17 February 2015 regarding his relationship with [Ms C] (SD2).
j.   An Australian Muslim divorce certificate issued on 18 February 2015 pronouncing that the applicant had divorced [Ms C] according to Islamic rites on that day.
k.     A ‘Concerned person: Cancellation and removal notice’, in [Country 3 language], dated [in] April 2014 from the [Country 1 government department] and an English translation of that letter[2] (the cancellation and removal notice).
l.   An audio recording of an interview conducted on 18 February 2015 with a delegate of the Minister regarding the applicant’s protection visa application.
m.   A letter, in [Country 3 language], dated 20 February 2014 marked ‘[NGO 1] Letter’. The letter was presented by the applicant at the delegate’s interview.
n.    Documents relating to inquiries made by the Department, with the applicant’s permission, to the [Country 1] authorities regarding his residential status in [Country 1].
o.    An undated certificate purportedly issued under s.438 of the Act in relation to information in folios 108-112 of the [Department] file.
[2] The translation incorrectly dated the letter 18 April 2014.
Department file relating to applicant’s visitor visa application
Upon my request the Department provided a copy of the offshore visitor visa application the applicant made on 2 January 2014 ([Department file number]). That file included:
a.    A ‘visitor visa-tourist stream application’ form completed by the applicant on 21 December 2013.
b.    A Form 80 completed by the applicant on 21 January 2014 and submitted in support of his visitor visa application.
c.     The applicant’s [Country 1] residence permit and other documents relating to his residence status in [Country 1].
d.    The applicant’s [Country 1] ‘family certificate’.
e.    An undated certificate purportedly issued under s.438 of the Act in relation to information in folios 37 to 38 of the [Department file number] file.
Documents and evidence presented to the Tribunal
The applicant appeared before the Tribunal on 27 September 2019 and 7 November 2019 to give oral evidence and present arguments in support of his application for review. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The applicant’s migration agent attended the hearing.
In addition to giving oral evidence at the hearing, the applicant presented documents and other evidence in support of his review application which included:
a.    A copy of the delegate’s decision record refusing him a protection visa.
b.    A copy of a referral letter dated 12 February 2015 from the applicant’s GP to ‘Refugee Services Startts’.[3]
[3] STARTTS is the (NSW) Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.
c.     A copy of a submission dated 24 February 2015 (MAS2) which the applicant’s migration agent said he had submitted to the Department in support of the applicant’s protection visa application, but which was not on Department [file]. Attached to that submission were:
i.An image of what was said to be the applicant’s father’s [work] ID card.
ii.An image of [Ms C]’s [Country 1] passport.
iii.An English translation of a letter dated [in] May 2014 from the applicant to the [Country 1] [immigration department].
d.    A pre-hearing written submission dated 17 September 2019 made by the applicant’s migration agent (MAS3).
e.    A letter, in [a Country 3 language], dated [in] January 2014 written to the applicant by the [Country 1 government department], and an English translation.
f.   Copies of letters relating to the applicant’s father’s employment in Afghanistan including two which indicate that his father worked at [Company 3] in Kabul.
g.    A statutory declaration made by the applicant on 8 January 2020 (SD3). The statutory declaration was a response to a written invitation dated 15 November 2019 sent to the applicant by the Tribunal pursuant to s.424A of the Act (s.424A invitation). The s.424A invitation invited the applicant to comment on or respond to adverse information.
h.    A photograph the applicant sent to the Tribunal on 8 January 2020 said to be of his brothers [Brother A] and [Brother B] in Pakistan.
i.   A written submission dated 13 January 2020 made by the migration agent in response to the s.424A invitation (MAS4).
PROCEDURAL ISSUE
The reasons given in the certificates purportedly issued pursuant s.438 of the Act do not disclose a sufficient basis for public interest immunity. I thus find that the certificates are invalid and hence disclosure of the information contained in folios 108 to 112 of the [Department] file and folios 37 to 38 of the [Department] file is not restricted by s.438.
The relevant information in folios 108 to 112 relates to the applicant’s immigration status in [Country 1]. It supports the applicant’s evidence that he does not have a right to enter and reside in any country other than Afghanistan. I refer to that information below in my findings about the applicant’s nationality and right to enter and reside in a third country.
The information in folios 37 to 38 is not relevant to the applicant’s claims.
ASSESSMENT OF CLAIMS AND EVIDENCE
The issue in this case is the applicant’s credibility and whether he is a refugee or owed complementary protection. For the following reasons, I have concluded that the decision under review should be affirmed.
Credibility
In assessing the applicant’s credibility, I have had regard to the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility (July 2015) and Guidelines on Vulnerable Persons (November 2018).
The applicant stated at hearing that he had been mentally affected by his past experiences. While the applicant appeared somewhat nervous he did not seem unable to give evidence and present arguments. I note that the GP’s letter of 12 February 2015 states that the applicant was suffering from depressed mood, severe anxiety and panic disorder and indicated that he was taking medication for those conditions. However, at hearing the applicant said he was no longer taking the medication or being treated by STARTTS. He said he didn’t need to see STARTTS anymore because he was keeping busy and working full time. I thus find that while the applicant may have experienced poor mental health in about February 2015 his ability to give evidence and present arguments at the hearing in 2019 was not adversely impacted by his mental health nor does the fact he had poor mental health indicate that his claims are true.
Having considered all the evidence before me I have concluded that the applicant was not a witness of truth and lacks credibility. I found his evidence evasive, vague, contradictory, misleading and false. I elaborate on the reasons for my credibility finding below.
Nationality and ‘right to enter and reside’
Consideration of evidence
The applicant has consistently claimed that he is a national of Afghanistan and no other country. He has presented his Afghan passport. There is no evidence before me to undermine that claim.
The applicant stated in his protection visa application that one of his sisters was an Australian permanent resident, his father and another sister were living in Afghanistan, and the rest of his family were living in Pakistan. During his interview with the delegate he stated that his family in Pakistan had temporary visas. At hearing he said his father had fled to Pakistan and his family in Pakistan were living there illegally. The applicant’s Afghan passport shows that he has entered and exited Pakistan in the past. At hearing he said he had no right to enter and reside in Pakistan. There is no evidence before me that he has such a right.
In relation to the applicant’s status in [Country 1], I have before me the documents the applicant submitted in support of his Australian visitor visa application:
a.    A copy of a [Country 1 visa] issued to the applicant for ‘family reasons’ [in] August 2011 which was valid [until] November 2011.[4]
b.    A copy of a [Country 1] residence permit issued to the applicant [in] November 2013 which was valid [until] November 2014.[5]
c.     A copy of a [Country 1] family certificate which states that the applicant married [Ms C] in [Country 1 in] November 2011.[6]
[4] [Department file number], f.71.
[5] [Department file number], f.71.
[6] [Department file number], ff.46-47; [Department file number], f.100.

The [Country 1 visa] is a long-stay visa issued for longer term stays (more than 90 days)[7] for reasons such as long-term study, family reunification or a marriage visa.[8]
[7] [Source deleted].
[8] [Source deleted].
In response to an inquiry from the Department, the [Country 1] authorities advised that the applicant had valid residency status in [Country 1] from 22 November 2011 until 30 November 2014, no longer had residency status in [Country 1] and was registered as having ‘left the country’.[9]
[9] [Department file number], f.112.
The above evidence indicates that the applicant had but no longer has a right to enter and reside in [Country 1].
Finding
On the basis of the above, I find that the applicant is a national of Afghanistan and no other country, and that he does not have a right to enter and reside in any third country. Afghanistan is thus the country against which his claims for protection are to be assessed.
Applicant’s ethnicity and religion
Consideration of evidence
The applicant claims to be a Muslim and of Tajik ethnicity. He gave his evidence to the delegate and at the hearing in Dari. His taskera states that he is Muslim and speaks Dari. DFAT reports that Afghanistan is an ethnically diverse and multilingual country:
Afghanistan’s 2004 constitution recognises 14 ethnic groups: Pashtun, Tajik, Hazara, Uzbek, Baloch, Turkmen, Nuristani, Pamiri, Arab, Gujar, Brahui, Qizilbash, Aimaq, and Pashai. Demographic data for Afghanistan is unreliable … Most sources agree that Pashtuns are the country’s largest ethnic group at approximately 40 per cent, with Tajiks second at approximately 25 per cent. Hazara and Uzbeks are the other major national ethnicities, with each constituting approximately 10 per cent of the overall population. Dari (Afghan Persian) and Pashto are both recognised as official languages.[10]
…
Virtually all Afghans (approximately 99 per cent) identify as Muslim.[11]
[10] DFAT Report, [2.7].
[11] DFAT Report, [3.17].
There is nothing before me to undermine the applicant’s claims about his ethnicity and religion.
Finding
I therefore accept that the applicant is Tajik and Muslim.
Home area in Afghanistan
Consideration of evidence
By way of background, I note that Afghanistan has both a province and a city, its capital, named Kabul.
The applicant stated in his protection visa application that he was born in [Village 1], [Area 1], Kabul. His taskera states the same. His passport states he was born in Kabul. In MAS3 the migration agent stated that the applicant was born in [Village 1] in the [Area 1] district of Kabul province.
The applicant stated in his protection visa application that he lived in [address] in [a specified] District of Kabul[12] and in SD1 that he lived in the suburb of [Suburb 1] in Kabul.[13] He stated in his protection visa application and SD1 that he attended [School 1], [School 2] and [University 1] in Kabul.[14] He claimed the secondary school was located in [Suburb 1]/[Suburb 2], the high school in [Suburb 3] and the university in [Suburb 4]. I have not found evidence of [School 1] however according to Google Maps, [School 2], [University 1] and [Company 3], where the applicant claims his father worked in the past, are located a short distance from [Suburb 1].
[12] [Department file number], f.31.
[13] [5].
[14] [Department file number], ff.30,31; SD1 [9], [21].
According to sources I have consulted, Kabul province has 15 districts which include the districts of Kabul city and the neighbouring district of [Area 1].[15] Some villages from the [Area 1] district (as well as other neighbouring districts) had at some time been merged into Kabul city.[16]
[15] [Source deleted].
[16] [Source deleted].
According to a recent detailed report about Kabul city, the district of Kabul city is comprised of 22 municipal districts.[17] [One specified district] includes [a government building] and the settlements of [Suburb 1] and [Suburb 5] which are markedly inhabited by Hazaras and Tajiks.[18] The neighbouring [district] includes the area of [Area 1].[19] According to Google Maps [Village 1] is located within [this district] and the shortest distance by road between [Village 1] and [Suburb 1] is 19.6km.
Finding
[17] Foschini, F., Afghanistan Analysts Network, Kabul Unpacked, A geographical guide to a metropolis in the making, January 2019, p.4, url, (Kabul Unpacked).
[18] Kabul Unpacked p.9.
[19] Kabul Unpacked, p.19.
Having regard to the above, I accept that the applicant was born in the village in [Area 1] of what is now [one of the municipal districts] of Kabul city and sometime after his birth his family moved to [Suburb 1] in [a neighbouring] district of Kabul city.
Family’s whereabouts
Consideration of evidence
The applicant stated in the protection visa application form that his sister [Ms D] lived in Australia, his father and sister [Ms E] were living in Afghanistan, and his mother and remaining siblings were living in Pakistan. In the accompanying Form 80 he stated the same expect that [Ms E] was living in Pakistan. In SD1 the applicant stated that his father asked ‘all’ his siblings to escape to Pakistan after the Taliban allegedly attacked a van in July 2014 in an attempt to kill his father. The applicant thus gave the impression in SD1 that his siblings left Afghanistan sometime after July 2014. He told the delegate at interview that only his father was remaining in Afghanistan. In MAS3 the migration agent stated that the applicant’s father escaped to Pakistan in May 2015. At hearing the applicant stated that all his family was in Pakistan (other than his sister in Australia) and that his brothers [Brother A] and [Brother B] had gone to Pakistan before or early in 2008 because of the danger they faced in Afghanistan due to their employment as [Occupation 2].
In contrast to the above evidence, the applicant stated in his visitor visa application that (other than his sister in Australia), his whole family was in Afghanistan. In the Form 80 which he later submitted in support of his visitor visa application he specifically stated that his brothers [Brother A] and [Brother B] were living in Afghanistan. The apparent inconsistency about where the two brothers were living was put to the applicant in the s.424A invitation. In response, the applicant stated in SD3 that at his interview with the delegate he had corrected that the brothers were living in Pakistan. That does not explain why the applicant provided the incorrect information about his brothers in his visitor visa application. In the subsequent MAS4 the migration agent stated that the applicant acknowledged that SD1 was incorrect and that the applicant believed if he stated his brothers were in Pakistan that would raise questions and could result in him being refused a visitor visa. It is not apparent nor has the applicant explained why he would believe that his brothers being in Pakistan rather than Afghanistan would have adversely affected his application to visit his sister in Australia. It does however indicate that the applicant knowingly provided false information in his visitor visa application which undermines his credibility. Further, when I questioned the applicant at hearing to ascertain when the members of his family left Afghanistan, he seemed intentionally vague and evasive. It did not appear he was being forthright about his family’s movements.
Findings
In light of the above and given the applicant’s general lack of credibility I have concluded that he has not been truthful about his family’s whereabouts. I do not accept that they have all fled Afghanistan as he claims. I thus find that the applicant has family in his home area in Kabul city.
Applicant’s marriage and divorce
Consideration of evidence
The applicant stated in SD1 that in 2009 his parents agreed to a proposal made by an aunt from [Country 1] that he marry the aunt’s daughter, [Ms C], and his sister [Ms F] marry the aunt’s son, [Mr G]. The applicant said he married [Ms C] and [Ms F] married [Mr G] in Kabul in 2010. After being sponsored by their spouses for ‘immigration entry’ to [Country 1], he and [Ms F] arrived in [Country 1 in] September 2011. He said his marriage to [Ms C] was ‘registered’ in [Country 1 in] November 2011.[20]
[20] SD1, [31]-[32].
The applicant has not produced a marriage certificate for either a marriage in Afghanistan or in [Country 1]. He was asked to produce his [Country 1] marriage certificate by the delegate during the interview but he did not do so. The [Country 1] family certificate he submitted in support of his Australian visitor visa application states that he and [Ms C] married in [Country 1 in] November 2011. The applicant’s migration agent stated in MAS3 that the applicant was unable to provide his marriage certificate because he did not have it within him in Australia but he had been able to procure a copy of [Ms C]’s current passport which he presented. I do not find it credible that the applicant could procure the passport of his ex-wife, a resident of another country, who he claims he had virtually no contact with after she left him [in] December 2013 but he was unable to procure his own marriage certificate.
The applicant claims that he and [Ms C] are divorced. However, he has not provided documentary evidence that he and [Ms C] are divorced under [Country 1] law. On 18 November 2018 the applicant’s migration agent informed the Tribunal via email that the applicant was awaiting his divorce certificate from [Country 3] (I assume the migration agent meant [Country 1]). The applicant claimed to have difficulties obtaining a copy of his divorce certificate from [Country 1] but has not explained why it would be difficult for him to obtain his own divorce certificate. He has managed to produce a range of documents including documents which are years old and relate to other people such as letters relating to his father’s past employment and [Ms C]’s passport. I expect that the applicant would have been able to obtain a divorce certificate from [Country 1] in relation to his own marriage. The Islamic divorce certificate the applicant provided is not evidence that the applicant has been granted a divorce under [Country 1] law or Australian law for that matter.
Further, the evidence the applicant has given about when he divorced has been contradictory, unclear, and evasive.
The applicant stated in his protection visa application that he divorced in [Country 1 in] December 2013. He did not specify in SD1 when he divorced but indicated that his relationship with [Ms C] deteriorated after they registered their marriage in [Country 1 in] November 2011:
32. [In] December 2013, my wife left my house and she started to live with her family. .. I would call her and she would not answer my calls. I was under a lot of stress and I wanted to visit see my sister so I applied immigration entry to Australia under a visitor visa. I could not return to Afghanistan because my life was in danger in Afghanistan. My wife was trying to divorce me and I was not aware of it. She was contacting the authorities in [Country 1] to cancel my visa but she was not telling me this. I had told her that I was going to see my sister … but she did not tell me of her plans.
33. [In] June 2014, I arrived in Australia and after my arrival, my wife cancelled my visa. She did this so I wouldn’t be able to return to [Country 1]. My [Country 1] visa is now cancelled.[21]
[21] [32]-[33].
The above paragraphs indicate that the applicant and [Ms C] separated, not divorced, [in] December 2013, and that [Ms C] subsequently obtained a divorce under [Country 1] law without the applicant’s agreement sometime [after] December 2013. The applicant did not specify in SD1 when he found out his wife was trying to divorce him but seems to suggest it was after he arrived in Australia [in] June 2014. The applicant told the delegate during the interview that he and [Ms C] separated [in] December 2013. When questioned about when he became aware that [Ms C] was divorcing him and in particular whether he had become aware of that prior to leaving [Country 1], the applicant seemed to avoid giving a clear and direct answer.
In SD2 the applicant stated that he and [Ms C] separated [in] December 2013 when she told him that she had found another man, moved out of their house and cut off contact with him. He said that after that he divorced her under Islamic law. He said she divorced him and cancelled his [Country 1] visa under [Country 1] law, he had been divorced since December 2013, and had not married since and was single. This is confusing to say the least. It is not clear whether the applicant was claiming they divorced under Islamic law and/or [Country 1] law in December 2013. In any event there is no documentary evidence that the applicant and [Ms C] were divorced under the Islamic religion in December 2013. Further, according to information I have and which the delegate also put to the applicant, divorce in [Country 1] is granted (without the mutual agreement of the two parties) after two years of separation.[22] Thus, if [Ms C] left the applicant [in] December 2013, neither the applicant or [Ms C] could have obtained a divorce under [Country 1] law in December 2013 as suggested in the protection visa application and SD2. Nor could [Ms C] have obtained a divorce without the applicant’s agreement by 12 February 2015 when the applicant signed SD2 stating he was divorced.
[22] In the case of mutual agreement in a period between 30 and 60 days, url.
The delegate questioned the applicant at the interview about whether he was divorced under [Country 1] law. The applicant did not answer that simple question. He seemed to refer to [the] April 2014 cancellation and removal notice and stated that he was divorced under Islamic law. The delegate noted that under [Country 1] law he would have had to be separated for two years and asked the applicant again whether he was divorced under [Country 1] law. The applicant responded that they were separated but divorce takes 2 years and ‘they said go and once the time comes will get letter of divorce’. His response suggested that he was not divorced under [Country 1] law.
In light of the lack of clarity I questioned the applicant about his separation and divorce at the hearing to try to ascertain when he divorced but he seemed intentionally evasive and unclear about the matter. Further, he stated that he contacted [Ms C] about how to file for divorce a few days after arriving in Australia which contradicts the impression he gave in SD1 that [Ms C] had sought a divorce without his knowledge before he left [Country 1]. It also contradicts what he told the [Country 1] authorities in his letter of 27 May 2014 that his divorce was not final yet, that he was still married to [Ms C] and he did not want to be divorced.
Overall then I have concluded that the applicant was determined not to be truthful about his divorce, and that he gave misleading and false information to the Department and Tribunal about his divorce.
Findings
I find on the basis of the [Country 1] family certificate that the applicant and [Ms C] married in [Country 1 in] November 2011.
The letter of 31 January 2014 from the [Country 1] authorities states that they had ‘assumed’ from the applicant’s files that he and [Ms C] had not lived together since 31 December 2013. That assumption does not preclude the possibility that [Ms C] left the applicant earlier [in] December 2013. As that is one of the matters which the applicant has been consistent and clear about, I accept that the applicant and [Ms C] separated [in] December 2013.
I find on the basis of the Islamic divorce certificate that the applicant divorced [Ms C] in accordance with Islamic rites [in] February 2015. In the absence of documentary evidence and the applicant’s inconsistent and unclear evidence, I do not accept, as he seemed to suggest at one point in the hearing, that he divorced [Ms C in] December 2011 under Islamic rites nor do I accept that he was divorced under [Country 1] law [in] December 2013 or in December 2013 as he stated in his protection visa application and SD2.
The documentary evidence before me suggests that it is highly likely that the applicant and [Ms C] are now legally divorced under [Country 1] law given more than two years has elapsed since their separation. However, due to the applicant’s unsatisfactory evidence and the absence of a divorce certificate, I cannot make a confident finding about when the divorce occurred under [Country 1] law. I will however assume for the purpose of assessing the applicant’s claims that he is now legally divorced.
Seeking protection in [Country 1]
Consideration of evidence
The applicant stated in his protection visa application that he had never applied for refugee status or protection in any country other than Australia.[23] Subsequent evidence presented by the applicant indicates that information was inaccurate.
[23] [Department file number], f.55.
The delegate questioned the applicant at the interview about why he had not sought protection in [Country 1]. The applicant’s response seemed vague and evasive but eventually he indicated that he had in fact done so; he said he had ‘applied a few times’ and that ‘legal aid’ had written on his behalf. Asked whether he had any evidence of his applications he presented the letter dated 20 February 2014 which he said [NGO 1] had written on his behalf (the [NGO 1] letter). Questioned about when he had applied for protection the applicant seemed to indicate it was before [the] April 2014 cancellation and removal notice. My translation of the [NGO 1] letter into English[24] reveals that the [NGO 1] letter is a response to the letter of 31 January 2014 from the [Country 1] authorities. In the [NGO 1] letter the applicant requests that his residence permit be extended because of his integration into [Country 1] society.
[24] Translated using Google Translate. See Tribunal file, f.162.
The delegate questioned the applicant further about the protection application process in [Country 1] after his migration agent told the delegate that the applicant did not have a ‘professional lawyer’ or ‘professional advice’ when he made his protection visa application in [Country 1] and only had a brief period of about 15 minutes with his advisor. The applicant’s responses were unclear and seemed to contradict both his migration agent and his earlier statements. He said he went to legal aid, no form applying for protection was completed - just a letter was written, and he was not interviewed by the [Country 1] immigration authorities. The applicant subsequently stated that he had an appointment with [Country 1] immigration authorities, and they told him he could relocate. Ultimately the applicant indicated to the delegate that he had sought protection from the [Country 1] authorities but he did not believe the process had been adequate.
The applicant also told the delegate that there were other letters related to his request to the [Country 1] government for protection and he subsequently provided a copy of the letter of 27 May 2014 which he sent the [Country 1] authorities in response to the notice [of] April 2014. In the letter of 27 May 2014, the applicant stated that the [Country 1] authorities were wrong to assume he would not be in danger if he returned to Kabul and set out why he would be in danger if he returned.
Despite the above, when I sought to confirm at the hearing that the applicant had applied for protection in [Country 1], his reply was unsatisfactory. His initial response was that he could not recall. I find it hard to believe that the applicant would be unable to recall whether or not he had applied for protection given the correspondence between himself and the [Country 1] authorities and if he genuinely feared returning to Afghanistan as he has claimed. He then added vaguely that he had documents which showed that he had revealed everything to them which seems to contradict the evidence that he had given just a moment before that he could not recall if he had applied for protection. It seemed the applicant was being intentionally vague and evasive.
Findings

The unsatisfactory nature of the applicant’s evidence at hearing, the evidence he gave during the interview that he had applied to the [Country 1] authorities for protection, and the correspondence between him and the [Country 1] authorities indicates that his response to the question in the protection visa application form asking whether he had applied for refugee status or protection in any other country was false or at least misleading and hence undermines his credibility.
Applicant’s return to Afghanistan
Consideration of evidence
The applicant stated in his protection visa application and SD1 that he travelled to Pakistan [in] October 2011 and departed [in] November 2011. He said the reason for the travel was to accompany [Ms F] to Kabul. Stamps on pages 17 and 21 of the applicant’s passport indicate that he departed [Country 1] via [name] airport [in] October 2011 and entered Afghanistan via Kabul airport [in] October 2011, and that he departed Afghanistan via Kabul airport [in] November 2011 and arrived in [Country 1] via [name] airport the same day. In SD1 the applicant said he accompanied [Ms F] back to Afghanistan after her relationship with [Mr G] broke down and her temporary spouse visa was cancelled by her husband.[25] He said he could not stay in Kabul because his life was in danger in Afghanistan because of his, his father’s and his two brothers’ employment. The applicant also told the delegate that he went back to Afghanistan because his sister [Ms F] begged him to take her back after her relationship with her husband broke down. He said he hid in a friend’s house and did not go to the family home.
[25] [29]-[30].
However, the applicant stated in Form 80 which he submitted in support of his visitor visa application that he lived at [address in specified District], Kabul, Afghanistan [from] October 2011 [to] November 2011. According to his protection visa application that was his address in Kabul. The information in the visitor visa application was put to the applicant in the s.424A invitation. He responded that he did not live with his family when he returned and provided that address as it was his ‘official address’. Form 80 asked the applicant to specify the places where he had lived not his ‘official address’. Secondly, the applicant stated in Form 80 that he had returned to visit his parents not that he was accompanying his sister back to Afghanistan. Invited to comment on that in the s.424A invitation the applicant reiterated that he stayed with a friend but had contact with his family. That does not explain why he stated the purpose of the trip was to visit his parents if the purpose of the trip was to accompany [Ms F]. Thirdly, if the purpose of his trip was to accompany his sister and he was so afraid he hid at a friend’s house then I expect the applicant would not have remained in Afghanistan for three weeks but instead would have returned to [Country 1] promptly after accompanying [Ms F] back to Kabul.
Finding
The inconsistent information the applicant gave about why he returned to Afghanistan and where he stayed when he returned undermines his credibility. Further, the fact the applicant returned to Afghanistan for three weeks undermines the credibility of the claims that he faced harmed there due to his, his father’s and brothers’ employment, and anti-Taliban political opinion. I thus do not accept that the applicant feared for his safety or life when he returned to Afghanistan in October 2011.
Father’s and brothers’ employment
The applicant claims that he will be killed by the Taliban because his father worked as a [Occupation 1] at [a location] and two of his brothers worked as [Occupation 2] for foreign forces in Afghanistan.
The applicant stated in SD1 that his father began his employment as a [Occupation 1] at [a location] in June 2002, his father’s car was targeted by the Taliban in March 2011[26] and in July 2014 the Taliban attacked a bus transporting staff home from [location] because they were looking for his father. [27] He said his father however had taken a taxi home that day. He said four people were killed in the July 2014 attack, two of his father’s apprentices and two of his father’s friends, the Taliban vowed to find and kill his father and all his father’s children. His father thus told all his children to escape to Pakistan. In AM the applicant stated that some of the details he had provided in SD1 about the July 2014 attack had been ‘miscommunicated’. He said that those killed in the July 2014 attack were not his father’s apprentices but fellow employees from the media department of [a location]. Further, the incident occurred in the morning on the way to work rather than in the evening on the way home from work.
[26] [27].
[27] [34].
However, the applicant made no mention his father’s and brothers’ employment in his letter of 27 May 2014 to the [Country 1] authorities about why it would be dangerous for him to return to Afghanistan. The migration agent mentioned during the applicant’s interview with the delegate that the applicant had applied to the [Country 1] authorities for protection on the basis that he would be targeted by the Taliban because of his marriage to a European woman and his wife’s connection to [Mr H]. In response to being asked by the delegate why he had not told the [Country 1] authorities he feared harm due to his father’s employment the applicant said he was not given enough time to explain everything.
I too asked the applicant at the hearing why there was no mention of his father’s and brothers’ employment in the letter. The applicant blamed the lawyer who wrote the letter. He claimed the lawyer was not professional or a formal, official lawyer, did not take his matter seriously, did not obtain details from him and asked him to provide brief information. I do not accept that explanation. The letter of 27 May 2014 does not appear to be a letter written without serious thought. There is a considerable degree of detail in the letter about the danger the applicant claimed he would face in Kabul both from his wife’s family and the Taliban. Furthermore, the letter refers specifically to the applicant’s parents and two brothers but instead of claiming the applicant would be harmed because of their employment it indicates that the applicant’s parents and brothers feared they would attract the adverse attention of the Taliban because of the applicant. Given the applicant mentioned his parents and brothers to the lawyer I expect he would also have mentioned that he feared harm due to his father’s and brothers’ employment if he genuinely feared being targeted by the Taliban for that reason.
I note that the applicant has provided letters regarding his father’s past employment. However, none relate to any employment as a [Occupation 1] at [a location]. The latest letter was written in 1978, well before the applicant claims his father began working at [a location]. The applicant also provided a copy of what he said was his father’s [work] ID card. However, there is nothing on the Entry Card that identifies it as being a card issued by or connected to [a location]. I thus give the letters and card no weight.
Further, as I have described above, the applicant provided inconsistent information in his visitor visa application and in relation to his protection visa application about where [Brother A] and [Brother B] were living and undermines the applicant’s evidence that the two brothers left Afghanistan in or about 2008 due to their employment. I note that the applicant has presented a photograph of what he is says are his brothers [Brother A] and [Brother B] in Pakistan. Even if the photograph is of [Brother A] and [Brother B] in Pakistan it is not evidence that they are living in Pakistan or that they have lived there since about 2008 or that they fled to Pakistan due to their employment as [Occupation 2] with foreign forces. I thus give the photograph no weight.
Findings
For the above reasons, the applicant’s return to Afghanistan in October 2011 and his general lack of credibility, I do not accept that the applicant’s father worked as a [Occupation 1] at [a location] or that his brothers [Brother A] and [Brother B] worked as [Occupation 2] for foreign forces. I thus do not accept that the applicant’s father and [Brother A] and [Brother B] were harmed or threatened by the Taliban due to their employment or that the applicant would be harmed by the Taliban if he returned to Afghanistan due to his father’s and brothers’ past employment.
Applicant’s employment with [Company 1]
Consideration of evidence
The applicant stated in the protection visa application form and in SD1 that he was employed by [Company 1] as an [Occupation 2] and [Occupation 3] from December 2008 until February 2010.[28] He stated in SD1 that [Company 1] was a company that imported ‘[goods]’ and that the company’s [employees] would travel all over Afghanistan [performing their duties]. He said he took newly arrived guests to [Company 3] and [Company 4], did their [work] and liaised with the security group. He claimed the Taliban had a list of all the company’s workers and targeted them for aiding foreigners, many of the staff were targeted, and [workers] killed. In MAS1 the applicant’s migration agent referred to [Company 1] as a [specialised] company which had a strongly multicultural policy and staff and its business was conducted in English.[29]
[28] [24].
[29] P.4.
At hearing the applicant referred to [Company 1] as a foreign organisation because he said most of its employees were from [Country 4] and [Country 5]. He said he worked as an [Occupation 2] and guided employees to guest houses and helped prepare food. I noted that according to his protection visa application the applicant could only speak, read or write Dari, Pashto and [Country 3 language]. I questioned how then he was able to [perform his work]. He replied that most [Occupation 2] in Afghanistan were not highly skilled but were at a level to assist with basic things. He then vaguely suggested that he had lost a certificate which demonstrated that he had studied [language]. While it seems plausible that a high level of [language] skills would not be needed to undertake the tasks the applicant claimed, I expect the applicant would have mentioned his any [language] certificate in his protection visa application given the relevance to his claims. Also it seems dubious that the applicant lost the one educational certificate which is most relevant to his claims yet, not only did he not lose the certificates for very short courses he did in [subjects] in Afghanistan, he brought them to Australia and included them in his protection visa application even though they are not directly relevant to his clams.
The applicant failed to mention in the Form 80 he submitted in support of his visitor visa application that he worked for [Company 1]. Invited to comment on or respond to that information in the s.424A invitation, the applicant stated that he only listed his [Country 1] employment. I do not regard that as a satisfactory explanation given that the form very explicitly asks for all employment including periods of unemployment and that no time gaps were acceptable. The applicant also submitted a letter purportedly from the Chief Operation Officer of [Company 1]. The letter contains a company logo and company seal. However, the letter is not written on company letterhead nor does it contain any contact details for the company – no physical address, email address, website address, or telephone number. That seems unusual for an international company of the kind described by the applicant and his migration agent. In addition, I expect that if the applicant had worked for [Company 1] and feared harm for reasons of that employment he would have obtained and submitted such a letter in support of his claims much sooner.
Significantly, the applicant made no mention of his employment with [Company 1] in his letter to the [Country 1] authorities about the danger he would face if he returned to Kabul. Asked about that at hearing he gave the same explanation he gave in relation to his failure to mention his father’s and brothers’ employment. If the applicant genuinely believed he would be killed by the Taliban because of his past employment with [Company 1] then I expect that would have mentioned in that letter to the [Country 1] authorities.
Finally, the fact the applicant returned to Afghanistan in 2011 and remained there for three weeks suggests he did not fear being killed due his past employment.
Findings
For the above reasons and given the applicant’s general lack of credibility, I give the purported [Company 1] letter no weight and do not accept that the applicant worked for [Company 1]. I thus find that the applicant was not threatened in the past nor would he be harmed in the future by the Taliban because of his past employment in Afghanistan.
Political opinion and past incidents
Consideration of evidence
In SD1 the applicant gave a detailed account of varying degrees of past harm he claims he and his family were subjected to in Afghanistan by the Mujhadeen, Hazaras, and Shura-e-Nezar in the 1990s, and by the Taliban from September 1996 when they took over Kabul until October 2001 when they were overthrown by the Americans. The incidents involving the Taliban included being expected to wear a turban and loose pants, being forced to cut his long hair, and being beaten for failing to attend a protest in front of the American Embassy. The applicant also referred in SD1 to having a political opinion.
The migration agent stated in his written submissions that the applicant’s past refusal to comply with Taliban demands combined with his employment and the employment of his father and brothers indicated that the applicant had an anti-Taliban political opinion. The migration agent also indicated in MAS2 that the past incidents referred to in SD1 were background to the applicant’s claims for protection.
Asked at the hearing about the political opinion he was referring to in SD1, the applicant replied that he feared the Taliban; he referred to his, his father’s and brother’s past employment; said he had no family left in Kabul, and that he was afraid of ‘the commander’. When I sought to ascertain whether the incidents which predated his employment with [Company 1], his father’s employment at [a location] and his two brothers’ employment as [Occupation 2] were merely background or were relevant to his fear of future harm, the applicant’s response was not entirely clear. He said the incidents caused a great deal of fear for him and his family so they were not minor incidents. He said that time passed and they had continued with their lives but things were different, the Taliban was more dangerous than before. He then said that torture for one family member is torture for the whole family.
Even if the claimed Taliban-related incidents from 1996 until September 2001 occurred, the last incident was almost 20 years ago and occurred in a very different context. As the applicant himself noted they occurred when the Taliban were in control in Afghanistan and before they were overthrown. Further, having found that the applicant, his father and two brothers were not harmed by the Taliban due to their employment, the evidence indicates that neither the applicant nor any member of his family has been threatened or harmed by the Taliban since September 2001. Finally, the fact the applicant returned to Afghanistan for three weeks in October 2011 indicates that he does not fear the Taliban for reasons of the events in the past or any actual or imputed political opinion.
Findings
The applicant did not indicate when asked at the hearing how the incidents in the 1990s involving the Mujhadeen, Hazaras, and Shura-e-Nezar gave rise to any future harm if he returned to Afghanistan. There is nothing in the evidence before me to indicate those incidents would result in future harm. I thus find that the applicant does not face harm in the future in connection with the past incidents involving the Mujhadeen, Hazaras, and/or Shura-e-Nezar.
For the reasons given in [92], I find there is not a real chance that the applicant will face serious harm or significant harm if he returns to Kabul city because he came to the adverse attention of the Taliban prior to September 2001 and/or because of any actual or imputed anti-Taliban political opinion.
Future harm related to applicant’s and sister’s marriages
At hearing the applicant stated that [Ms C]’s brother [Mr I] would have him killed through [Mr H] if he returns to Afghanistan. The applicant claimed that [Mr H] is a famous Afghan commander who is influential throughout Afghanistan and has a large gang of men including armed men. The applicant claimed that [Mr I] would have him killed for two reasons. Firstly, because the applicant had reported the family violence his sister [Ms F] was subjected to by [Mr G] to the [Country 1] authorities. Secondly, he divorced [Mr I]’s sister and in Afghanistan most families want to take revenge if a marriage ends. He also claimed that he had been subjected to threats and intimidation by [Mr I] and/or [Mr G] while he was in [Country 1] and when he contacted [Ms C] about filing for divorce a few days after he arrived in Australia, she told him that her family had spoken to [Mr H] and he would be harmed if he returned to Afghanistan.
I had some doubt about whether the applicant had a sister named [Ms F] in part because of his apparent failure to identify a sister named [Ms F] in the Form 80 he submitted in support of his visitor visa application. I put that to him in the s.424A invitation. Subsequent inquiries from his migration agent suggest that it may be possible that a copy of the last page of the Form 80 was not provided to the Tribunal by the Department. In response to the invitation the applicant provided a copy of a taskera for [Ms F] and pages of her Afghan passport. Those documents indicate that the applicant and [Ms F] have the same father and that she arrived in [Country 1] on the same day as the applicant and on the same type of visa as the applicant. I thus accept that the applicant has a sister named [Ms F] and that she entered [Country 1] on the basis of her marriage to a [Country 1] citizen. It is thus possible and hence I accept that [Ms F] married [Ms C]’s brother, [Mr G]. The stamps in [Ms F]’s passport show that she returned to Kabul [in] October 2011 and thus I accept that her marriage to [Mr G] ended and she returned to Afghanistan.
It is not inherently implausible that some animosity arose between the applicant and members of [Ms C]’s family in [Country 1] due to the end of the applicant’s marriage and/or [Ms F]’s marriage. However, I do not find credible the applicant’s claim that [Mr I] will arrange to have the applicant killed via his connection with [Mr H].
Firstly, as indicated above, prior to the hearing the applicant had indicated that it was [Ms C] who left him because she had met someone else and that she, not the applicant, initiated the divorce. That is also what the applicant indicated in his letter of 27 May 2014 to the [Country 1] authorities. Secondly, questioned at hearing about the threats and intimidation the applicant claims he was subjected to in [Country 1] the applicant evidence was confused, imprecise and unclear. Thirdly, while the applicant mentioned in his protection visa application that [Ms C]’s brother [Mr I] was married to [Mr H]’s niece,[30] the applicant did not mention in his protection visa application that he feared [Mr I] would have him killed through [Mr H], or that he would be killed for making a complaint to the [Country 1] authorities or because of his divorce. When I raised that with the applicant at hearing, he replied that he had discussed all issues with his migration agent. I note that in the applicant’s letter of 27 May 2014 to the [Country 1] authorities the applicant stated that [Ms C]’s family would hire an assailant to kill him if he returned to Kabul because he made a complaint to the [Country 1] authorities and that her brother was married to [Mr H]’s daughter.[31] I note also that the migration agent mentioned during the interview with the delegate that the applicant had applied to the [Country 1] authorities for protection on the basis of his former marriage. However, there is no such claim in MAS1 or the written submission the migration agent made shortly after the applicant lodged his protection visa application. If the applicant genuinely feared being killed through [Mr H] and had been threatened shortly after arriving in Australia as he claimed and he had conveyed those fears to his migration agent then I expect the claim would have been included in the applicant’s detailed statutory declaration or, if it had been omitted from SD1 at the time the protection visa application was lodged, that it would have been included in MAS1 which was lodged afterwards.
Findings
[30] SD1, [36].
[31] The applicant stated the reference to daughter was a mistake and should have referred to his niece. I am prepared to accept that is a mistake.

For the above reasons and the applicant’s general lack of credibility, I do not accept that [Mr I] threatened to use his connection to [Mr H] to kill the applicant if he returned to Afghanistan or that the applicant was subject to any harm in [Country 1] which led him to hold a genuine fear of being harmed in Afghanistan for reasons connected to his marriage or [Ms F]’s marriage.

100. I thus do not accept that the applicant will be harmed by [Mr H] or anyone acting on behalf of any member of [Ms C]’s family because of a complaint the applicant made in [Country 1], because he and [Ms C] divorced, and/or any other reason connected to his marriage to [Ms C] and/or his sister [Ms F]’s marriage to [Mr G].
Returning from the West
Consideration of evidence
101. The applicant made no specific claims in his protection visa application that he feared harm in Afghanistan because he would be returning from a Western country. If he genuinely held such a fear I expect he would have included that claim in his protection visa application given he had been living in Western countries for 3 years by then and he had claimed the Taliban would harm him for that reason in his letter of 27 May 2014 to the [Country 1] authorities. In MAS1 the migration agent stated that because the applicant and his sister had lived in [Country 1] and the length of time the applicant has lived in [Country 1] and Australia the Taliban would view the applicant as endorsing Western values which the Taliban are opposed to.[32] Those claims were repeated in MAS3. At the hearing the applicant developed the claim further. He stated he would be arrested and killed by fundamentalist groups such as Daesh and some mullahs because he has lived outside Afghanistan for a long time and so he would be viewed as a spy for the West, it would be assumed that he drank alcohol and ate haram food, and that he had converted. Questioned about those claims the applicant said he had been living freely as a Western person in [Country 1] and Australia. Asked how, he said he drank alcohol and socialised.
[32] P.5.
102. Asked why he had not made the claims related to living in the West earlier the applicant replied it was because he was not asked. I do not regard that as a credible explanation. If the applicant had changed his lifestyle in the West and genuinely feared being killed by the Taliban as well as other fundamentalist groups and individuals for the reasons he specified at hearing then I expect he would have made those claims in his protection visa application or through the submissions his migration agent had made to the Department and Tribunal prior to the hearing. Instead it appears that the applicant made the claim that he feared harm as a returnee from the West and embellished it over time to bolster his case which undermines his credibility.
103. I thus do not accept that the applicant has a genuine fear of returning to Afghanistan from a Western country or that he drinks alcohol. Further, I do not regard socialising as a Western characteristic. The applicant has not presented evidence which indicates there has been anything about the particular nature in which he has socialised or would want to socialise in Afghanistan that would attract adverse attention.
104. Nevertheless, the applicant would be returning to Afghanistan having lived in two Western countries for over 8½ years. The migration agent submitted that Afghan returnees from the West are a particular social group in Afghanistan. Even if they are, the question is whether there is a real chance the applicant would face serious harm or significant harm for reasons of his membership of any particular social group connected to living in the West. In deciding that question I have had regard to information in the following sources:
a.    DFAT Report, particularly [5.37]-[5.43];
b.    European Asylum Support Office, Country of Origin Report: Afghanistan Individuals targeted under societal and legal norms, December 2017, particularly Section 8 (EASO Individuals Targeted Report);[33]
[33] Url.
c.     United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines For Assessing The International Protection Needs Of Asylum-Seekers From Afghanistan, 30 August 2018, particularly pp.46-47 (UNHCR Guidelines);[34]
[34] Url
d.    Finnish Immigration Service, Afghanistan: Fact Finding Mission to Kabul in April 2019 – Situation of Returnees to Kabul, 15 October 2019, particularly Section 3 (FIS Report);[35]
[35] Url.
a.    European Asylum Support Office, Country Guidance: Afghanistan, June 2019, pp.65-66 (EASO Country Guidance);[36] and
[36] Url.
b.    UNHCR, Afghanistan Fact Sheet – 31 December 2019 (UNHCR Fact Sheet).[37]
[37] Url.
105. By way of background, I note that information in the above sources[38] indicates that in recent decades Afghanistan has seen large-scale population movements due to conflict-related instability. An estimated 40% of the population has been forced to leave the country at some time in their lives. The overwhelming majority of those cross the border to Pakistan while smaller numbers travel to Iran and other countries. In recent years the number of Afghans moving in and out of Afghanistan has ebbed and flowed depending on the perceived security and economic conditions in Afghanistan and policy changes in neighbouring countries. Since 2002 UNHCR has assisted 5.2 million Afghan refugees to return to Afghanistan. Last year 8079 Afghan refugees returned to Afghanistan - 6062 from Pakistan, 1939 from Iran and 78 from other countries. An unknown number of undocumented returnees move back and forth between Afghanistan and Iran or Pakistan. The number of returnees from Western countries is thus very small. From 2015 until 2019, only 0.7% of returnees were from Europe. Most returnees from Western countries are single men and almost all return to Kabul.
[38] DFAT Report, [5.37], [5.39]; [5.41]; FIS Report, Section 3.1; UNHCR Fact Sheet, p.2.
106. In assessing the risk of serious harm or significant harm the applicant would face if he returned to Afghanistan as a Western returnee, I have given considerable weight to the EASO Targeted Individuals Report because it contains a considerable amount of detailed information from a range of sources and the EASO Country Guidance which is based on that report.
107. Information in the UNHCR Guidelines, FIS Report and EASO reports indicates that attitudes towards and treatment of Afghan returnees from the West varies widely from being looked up to and received positively by their communities[39] to being killed by anti-government elements (AGEs) such as the Taliban.[40] EASO states:
[39] EASO Targeted Individuals Report, p.102.
[40] UNHCR Guidelines, p.46.
Documented instances of individual targeting of returning Afghans on the basis of ‘Westernisation’ due to having travelled in or lived in the Europe, holding Western ID documents, or adopting ideas that are seen to be ‘un-Afghan’, ‘Western’ or ‘European’ following time spent outside Afghanistan were scarce. Varying descriptions by sources indicated that there were ‘occasional reports’ of alleged kidnapping and targeting, or, that not everyone is at risk, but it ‘does happen,’ though the scale and prevalence is ‘difficult to quantify’, or, that targeting does not specifically occur because of having sought asylum or having travelled to Western countries.[41]
[41] EASO Targeted Individuals Report, p.92.

108. Information in those sources and particularly the EASO Targeted Individuals Report indicates that the risk of harm and the nature of harm a Western returnee may face would depend on a range of factors. EASO summaries the main risk factors as:
.. gender (the risk is higher for women), the behaviours adopted by the applicant, area of origin (particularly affecting rural areas), conservative environment, perception of traditional gender roles by the family, age (it may be difficult for children to (re)adjust to Afghanistan’s social restrictions), visibility of the applicant, etc.[42]
[42] EASO Country Guidance, p.65.

109. The information indicates that depending upon those factors an individual Western returnee may be imputed with certain traits or opinions, for example, that they are un-Islamic, spies for the West or supporters of the West.
110. Closer consideration of reported attacks against Western returnees by AGEs suggests they may have been targeted for reasons other than or in addition to their status as Western returnees such as their ethnicity or employment with foreign forces or Afghan authorities.[43]
[43] See for example, EASO Targeted Individuals Report, pp.94-95.
111. EASO assesses that the risk of persecution for men perceived as Westernised is minimal and dependent on specific individual circumstances.[44] EASO also indicates that cities and Kabul city in particular are generally more open to Western views and influence and less conservative.[45]
[44] EASO Country Guidance, p.65.
[45] EASO Targeted Individuals Report, Section 8.6; EASO Country Guidance, p.65.
112. While the sources indicate that women returning from the West who are perceived as Westernised for breaching cultural, social or religious norms can face an increased risk of serious harm or significant harm, [46] they do not indicate that having a female relative who lived in the West for about a month as [Ms F] did gives rise to a real chance of harm for her male relatives.
[46] EASO Targeted Individuals Report, Section 8.10; UNHCR Guidelines, p.47; FIS Report, Section 3.3.
113. I put the information about Western returnees to the applicant at hearing and questioned whether there was a real chance that he would face serious harm or significant harm as a male Western returnee returning to Kabul city. The applicant indicated that people had experienced harm in Kabul city, even city people were traditional and very religious, the city may be safe for people with high positions in the government but life was difficult for others, and he had heard that people who had gone back to Kabul had lost their lives. The applicant’s response did not reveal that there was anything specific about his circumstances that would lead him to be targeted as a Western returnee.
Findings
114. The DFAT Report states that it is DFAT’s understanding that most returnees take measures to conceal their association with the country from which they have returned.[47] However according to the FIS Report a returnee to Kabul city would be expected to tell the community their life story.[48] Given the applicant left Afghanistan to marry his cousin in [Country 1] and would be returning to his home area where he has family I expect he could not conceal that he had returned from the West especially after an absence of over 8 years. I thus find if the applicant returned to his home area in Kabul city there is a real chance it would be known or become known that he had returned after spending over 8 years in the West.
[47] DFAT Report, [5.43].
[48] FIS Report, p.21.
115. While the above sources contain reports of returnees from the West being subjected to serious harm or significant harm on their return to Afghanistan, it does not follow that all Western returnees face a real chance of serious harm or significant harm because they are a Western returnee or that they are all imputed with adverse traits or opinions. The information in the sources, particularly in the EASO reports, indicates that the risk of harm and the nature of the harm faced by a Western returnee is dependent on the individual circumstances of the returnee. The information indicates that the applicant, as a male returning to his home area of Kabul city where he has family, would not face a real chance of serious harm or significant harm from the Taliban, Daesh, mullahs, fundamentalists or anyone else because he returned from the West after a long period of time. There is nothing about the applicant’s particular circumstances which would elevate the risk he would face as a Western returnee to a real chance of serious harm or significant harm. I thus find that there is not a real chance that the applicant would be subjected to serious harm or significant harm if he returned to Afghanistan as a Western returnee.
Refugee criterion
116. I have not accepted that the applicant would be harmed if he returned to Afghanistan due to his past employment or the past employment of his father or his brothers [Brother A] and [Brother B]. I have not accepted that the applicant will be harmed by [Mr H] or anyone acting on behalf of any member of [Ms C]’s family because of a complaint the applicant made in [Country 1], because he and [Ms C] divorced, and/or any other reason connected to his marriage to [Ms C] and/or his sister [Ms F]’s marriage to [Mr G]. I have found that the applicant does not face harm in the future in connection with the past incidents involving the Mujhadeen, Hazaras, and/or Shura-e-Nezar. I have found that there is not a real chance that the applicant would face serious harm if he returns to Kabul city because he came to the adverse attention of the Taliban prior to September 2001 and/or because of any actual or imputed anti-Taliban political opinion. I have found that there is not a real chance that the applicant would be subjected to serious harm if he returned to Afghanistan as a Western returnee.
117. Having regard to the above findings, both individually and cumulatively, I conclude that there is not a real chance that the applicant would face serious harm if he returns to Afghanistan for reasons of race, religion, nationality, membership of a particular social group or political opinion. Consequently, the applicant does not have a well-founded fear of persecution for a Convention reason and hence is not a refugee as defined in the Refugees Convention. I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The applicant therefore does not satisfy the criterion set out in s.36(2)(a).
Complementary protection criterion
118. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
119. I have not accepted that the applicant would be harmed if he returned to Afghanistan due to his past employment or the past employment of his father or his brothers [Brother A] and [Brother B]. I have not accepted that the applicant will be harmed by [Mr H] or anyone acting on behalf of any member of [Ms C]’s family because of a complaint the applicant made in [Country 1], because he and [Ms C] divorced, and/or for any other reason connected to his marriage to [Ms C] and/or his sister [Ms F]’s marriage to [Mr G]. I have found that the applicant does not face harm in the future in connection with past incidents involving the Mujhadeen, Hazaras, and/or Shura-e-Nezar. I have found that there is not a real chance that the applicant would face significant harm if he returns to Kabul city because he came to the adverse attention of the Taliban prior to September 2001 and/or because of any actual or imputed anti-Taliban political opinion. I have found that there is not a real chance that the applicant would suffer significant harm as a Western returnee if he returned to Afghanistan.
120. I conclude on the basis of the above findings that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country (Afghanistan), there is a real risk that he will suffer significant harm for the reasons he has claimed either individually or cumulatively.
121. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
122. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mila Foster
Member

[2020] AATA 974

6 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction