1606781 (Refugee)

[2019] AATA 5820

1606781 (Refugee) [2019] AATA 5820 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606781

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Anne Grant

DATE AND TIME OF

ORAL DECISION AND REASONS:          13 June 2019 at  12:15pm

DATE OF WRITTEN RECORD:                17 June 2019

PLACE OF DECISION:  Melbourne

Statement made on 17 June 2019 at 2:05pm

CATCHWORDS

REFUGEE – protection visa – Afghanistan – Religion – Ethnic group – Hazara Shia – targeted by ISIS – social group – wife‘s profile as educated women – returnee from western nation – extortion –deterioration of security situation – relocation not an option – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 45AA, 499
Migration Regulations 1994 (Cth), Schedue 2, r 2.08F

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 April 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 13 June I made an oral decision and gave an oral statement of decision and reasons.  The applicant has requested a written record of the reasons for my decision.   The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in the application of [the applicant] AAT reference (1606781).  

   Country of nationality

4. The applicant claims to be a citizen of Afghanistan and has provided a copy of his Taskera to the department in the process of his application for a protection visa. 

5. The applicant applied for a Protection (Class XA) visa. 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.

6. The applicant appeared before the Tribunal on 13 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

8. 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.

9. 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).

10. 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.

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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

    Summary of claims

12. The applicant’s written claims can be summarised as follows: 

    ·He is a Hazara Shia and he will be targeted byTaliban and ISIS (also known as Islamic State (ISK) and Daesh) extremists for attack and kidnapping because of his ethnicity and his religion. 

    ·His wife is an educated woman, [employed in Occupation 1], and she has received threats from Taliban extremists to desist from working in [a profession] because they are opposed to women working or being educated. The applicant claims that he and his family are at risk because the Taliban will target his wife.

    ·He will be targeted for abduction and other harm by extremists as a returnee from a wealthy Western nation.

    ·He is unable to return to Kabul due to the deteriorated security situation there and is unable to safely or reasonably relocate within Afghanistan.

    ·The authorities in Afghanistan, including the police and security forces, have also discriminated against him due to his Hazara ethnicity and are unable and unwilling to provide him with protection.

    Summary of evidence at hearing

13. The applicant confirmed each of the claims in his application for protection.  He also updated his circumstances and that of his family.

14. He explained that he was abducted by extremists before coming to Australia when the Taliban took control.   He provided compelling details about the abduction and his escape.

15. His son was abducted whilst he was in Australia (in 2015) and this happened because the applicant was known to be in Australia and thus said to be wealthy.  His brother told them about his being unemployed and negotiated a [amount] fee for his son’s release.  That same son has recently also been assaulted and robbed in Kabul near their home though it is not known who the assailants were.   They robbed him because it was known that his father was in Australia and was perceived to be wealthy. His son is too frightened to return home and is staying between relatives also living in Kabul.  The applicant’s wife and children are looking into moving but the security situation in Kabul makes that difficult.

16. His wife is currently only doing some private [work] when called by telephone.  After a dispute with her former [members], she ceased that work.  She has not received recent threats from the Taliban.  In the past she received written warnings that she would be killed unless she stopped working at [an organisation] in the PASHTUN part of Kabul.  She did stop that work and moved to a local [organisation] in a Hazara area. She now just works for herself [around] her home area.

17. If he was to return to Afghanistan, the applicant would attend Shia religious festivals as he did when he lived in the country in the past.

18. His wife and children continue to live in Kabul but live a secluded life. 

    Findings and reasons

19. I find that the applicant is a national of Afghanistan which is also his receiving country for the purposes of the refugee and complementary protection assessments.

20. On the evidence before me, I am satisfied that the applicant does not have the right to enter and reside in any third country for the purposes of section 36(3) of the Act.

21. In making this decision I have considered, as discussed with the applicant at hearing, recent country information from DFAT and Department of Home affairs which in summary outlines a significant deterioration in security conditions in Afghanistan and in the applicant’s home city of Kabul since the delegate’s decision.  Further, civilian casualties and attacks on members of the Hazara and Shia community have increased over 2018, and indications suggest they will continue at a significantly increased level for the foreseeable future. 

22. I have taken into account PARAGRAPHS 2.23 – 2.46 in DFAT Country Information Report on Afghanistan of 18 September 2017 and in particular the information in paragraph 3.8: 

    3.8  DFAT assesses that the number and scale of the attacks in late 2016 and early 2017 demonstrate that Shi’a, both Hazara and non-Hazara, now face a risk of being attacked by ISKP based on their religious affiliation. DFAT assesses that Shi’a are particularly vulnerable when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major Shi’a religious festivals.

23. As discussed, I have also carefully considered the information from Common Claims:  Afghanistan by COISS Department of Home Affair effective from April 2019:   This report cites multiple international country reports, news and reputable and authoritative sources on the security situation in Afghanistan over very recent years.   The headlines of the assessments in that report tell a vivid story, particularly since they rely on multiple sources to reach those conclusions:

    ·     Insurgent control over Afghanistan’s population continued to increase while civilian casualties have continued to climb to their highest levels in recorded history.

    ·     The trend of increased complex and suicide attacks by anti-government elements (AGEs) continues. The Taliban and other insurgents continued to kill security force personnel and civilians using indiscriminate tactics such as improvised explosive devices (IEDs), suicide attacks, and rocket attacks, and to commit disappearances and torture.

    ·     Civilian casualties resulting from deliberate targeting of civilians by ISK, which included attacks against the Shia Muslim population, more than doubled.

    ·     As a state, Afghanistan is largely lawless, weak and dysfunctional.

    ·     Security conditions continued to deteriorate in Kabul city.

    ·     Violence increased in Hazara-populated areas of Kabul city, following a series of protests and clashes with security forces over the government response to the Ghazni attacks of late 2018.

    ·     Conditions for returnees continue to decline. The UNHCR’s latest guidelines for Afghanistan advise internal relocation is generally not available in Kabul, noting considerations relating to the relevance and reasonableness analysis and ‘taking into account the overall situation of conflict and human rights violations, as well as the adverse impact this has on the broader socio-economic context.’

    ·     The Taliban is stronger than at any point since the United States invasion of Afghanistan over 17 years ago.

    ·     ISK sharply escalated its attacks in urban areas, including bombings that targeted Afghanistan’s minority Shia population.

    ·     The Shia community is disproportionately represented among civilian casualties in Afghanistan.

    ·     Hazara members of the Shia community continue to be the target of attacks in Kabul and elsewhere.

    ·     Shia citizens, including the minority Hazara community, are disproportionately represented in the civilian death toll and have been subject to various forms of discrimination in Afghanistan.

    Findings

24. I accept the evidence of the applicant as credible and consistent with the known country reports about the security situation in Afghanistan generally. 

25. I accept that the applicant is a Hazara Shia who lived his whole life in Kabul prior to coming to Australia.   I accept that his wife is an educated woman, [employed in Occupation 1] working currently privately in Kabul.  Due to the security situation in Kabul she is currently not working full time.

26. I accept that the applicant has been targeted for extortion more than 15 years ago by Taliban operatives but was able to escape.

27. I accept that the applicant’s family have experienced threats and attacks in the period since he left Afghanistan, including an abduction of his son for ransom and a recent physical assault and robbery of his son. 

28. I accept that the applicant has a profile in the community in Kabul as a “wealthy” person due to his time living overseas, and that if he returned he would continue to face that perception and have that profile.  I also accept that the applicant would participate in Shia religious festivals in Afghanistan.

29. I have taken into account DFAT’s thematic report on Hazara Shias in Afghanistan 2017 and Department of Home Affairs very recent “Common Claims Afghanistan” effective April 2019 and in particular those matters raised above based on multiple reputable sources as outlined in the common claims report. 

30. Taking into account my findings about his ethnicity, his faith, his profile as a returnee from a western country and his wife’s profile as an educated woman, and based on the deteriorated security situation as reported in the country information, particularly when his claims are considered cumulatively, I am satisfied that there is a real chance (that is, that it is higher than a remote chance) that the applicant will be seriously harmed (targeted and attacked, extorted or killed) if he returns to Kabul by Taliban or Islamic State extremists for one or more of the convention reasons.

31. I find, based on the country information about limited capacity for safe and accessible relocation within Afghanistan, the lack of employment opportunities and deteriorated economic situation, and the fact that the security situation throughout Afghanistan is volatile and unstable, that relocation is not reasonable or possible within Afghanistan for the applicant to avoid the harm he fears.

32. The evidence and country information before me in this matter does not support a finding that the level of state protection for Hazaras in Afghanistan is sufficient to be regarded as adequate or reasonable; rather, it is obviously quite fragile. I find that the applicant is unable to avail himself of adequate state protection in Afghanistan.

33. For these reasons, I find that there is a real chance the applicant will be persecuted for reasons of his ethnicity, his faith and membership of the particular social group of family members of educated, working women, and or as a returnee from a western country by Taliban or Islamic State extremists on his return to Afghanistan now or in reasonably foreseeable future.  The applicant has a well-founded fear of persecution in Afghanistan.  He is unable to rely on the protection of the state of Afghanistan.

34. I therefore conclude that the applicant meets the criterion in s.36(2)(a) of the Act.

    DECISION

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

    The time is

    Anne Grant
    Member