1606800 (Refugee)

1606800 (Refugee) [2017] AATA 1499 (15 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606800
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Christopher Smolicz
DATE:15 August 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 15 August 2017 at 3:04pm

CATCHWORDS
Refugee – Protection visa - Afghanistan – Religion – Shia – Ethnicity – Hazara – Family member killed – General sectarian violence – Inadequate State protection - Relocation not an option
LEGISLATION

Migration Act 1958 – ss. 5(1), 5H(1)(a), 5H(1)(b),5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 65, 36(2A) and (2B) 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] April 2016 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 [in] December 2014.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 425(2)(a) of the Act.
Background
The applicant is a [age] citizen of Afghanistan. Since his birth the applicant has resided in [District 1], Maidan Wardak province, Afghanistan.
[In] November 2013 he arrived in Australia as the holder of a [temporary] Visa. He travelled to Australia as the holder of a passport issued by the Republic of Afghanistan. He has not departed Australia since his arrival.
[In] December 2014, that applicant lodged an application for a Protection (Class XA) Subclass 866 Visa.
[In] February 2015, the applicant requested withdrawal of [permanent] visa application due to the breakdown of his relationship with [name] (his first wife). [In] April 2016 the applicant and his wife divorced.
[In] December 2016 the applicant married [name] (second wife) an Australian permanent resident. It was submitted that the applicant and his wife are expecting [a] child in [month] 2018. The Tribunal was provided with a copy of the applicant’s current Australian marriage certificate as evidence of the relationship.
The applicant has provided his claims for protection in a statement of claims attached to his Protection Visa 866 application dated [in] December 2014. The applicant has also provided additional information in response to the Delegate’s decision, in a statement dated [in] July 2017.
Issue
The issue in this matter is whether the applicant has a well-founded fear of persecution in Afghanistan because of his Hazara ethnicity and Shia Muslim religion. The applicant also claims to fear harm from criminal elements that murdered his [family member] ([Mr A]) in Afghanistan. The applicant also fears harm due to his imputed political opinion of anti-Taliban, anti-Daesh, and his membership of the particular social groups of returnee from the West/Australia.
Summary of substantive claims
The applicant is an ethnic Hazara and Shia Muslim. His father remarried when his mother passed away and he has [siblings]. In 2001 he and his family moved to Kabul to escape from the Taliban threats in his home area. In 2009 they returned to [District 1] when his [family member] [Mr A] was killed in Kabul. In 2011 he returned to live by himself in Kabul until he departed for Australia.
His family have remained in [District 1] but face constant threats from the Taliban and Pashtuns in surrounding areas.
In 2012 he married his first wife in [Country 1] and travelled to Australia where he lived with his spouse until their relationship broke down in August 2014 largely as a result of interference by her [family members] who lived in the same house.
The applicant claims that life in Afghanistan for Hazaras is extremely difficult. His father’s family were long persecuted in Afghanistan by the Taliban, Pashtuns and Kuchi. His [siblings] had to flee and some of his [relatives] are now living in [Country 1] as refugees.
His [family member] [Mr A] was killed in 2009 in a bazaar in Kabul. [Mr A]was involved in a [certain] business. One day he went missing and they reported it to the police. His body was found after a week in another area called [name] in a small creek. His neck was wrapped with fabric and his face was swollen and blue. The police did not investigate the case and refused to take any further action. His murderers are still at large and it is an example of how the government does not afford Hazaras adequate protection. The applicant claims he was followed by unknown people in Kabul after his [family member] was killed.
After his [family member] was killed his father was detained and severely beaten by the Taliban and his belongings were taken and he has not moved from [District 1] since.
His [relative] [name] used to work for the Afghan army in Wardak. He was killed before [Mr A]’s death. He was found at the roadside and although he worked for the government army in Wardak they did not do anything to help his family. In Kabul a friend of his named [name] was killed in the street by armed people in 2012 when the applicant was absent from the country. [Name] was a Hazara from [District 1], his workmates and friends and the police and government did not take any action to help the victim’s family.
On many occasions the applicant was discriminated and threatened by the Pashtuns and Kuchis when he travelled from Kabul to [District 1]. They would stop the cars and forcibly check the people and he witnessed cases where Hazaras were killed by the Taliban when travelling by road.
The applicant said that in 2012 he was singled out by the Taliban when he was travelling to [District 1] to visit is family. Some armed Pashtuns stopped the van of [number] people. The males were tied up and were searched. They were released after about 5-6 hours.
He believes he would not be able to safely relocate anywhere in Afghanistan as there is no place safe for Hazaras, especially when he is identified by his [family member]’s murderers in Kabul and the increase influence of the Taliban after the withdrawal of coalition forces.
The applicant claims that some areas of Afghanistan are now fully controlled by the Taliban and they have influence in all areas including Kabul. He claims that Kabul is now becoming a dangerous place.
The applicant fears he will be persecuted because of his presence in Australia as the Taliban will label him as an infidel from the west and suspect he is connected to western forces. Afghan Hazaras have no access to government protection.
He fears he would be targeted by the Taliban and other militia groups due to his ethnicity and religious beliefs. As the only male child in his family, he is more vulnerable to an unexpected assault and further persecution form the Taliban and Pashtuns.
The applicant made the following further claims during his protection interview with the Department. He claims that his [family members] have smuggled themselves to [Country 1] at about the time he travelled to Australia because the situation in Afghanistan was not good. As a result of being Hazara Shias they experienced serious harm from Pashtun people who would come to their village and kill people and destroy crops. They are now living illegally in [Country 1].
He provided further detail about the circumstances of his [family member]’s disappearance and death in Kabul. He did not declare that he had a [family member] on his overseas [permanent] visa application because at time it was very sad news for the family. He did not declare his [family member] to immigration on his family composition form because he was not alive so he did not mention him. He only told his spouse that [Mr A] passed away when he came to Australia. He has evidence in Afghanistan to prove that he had a [family member].
After his [family member] was killed he kept a low profile and did not go out much. His friend told him that someone who went to the police station after his [family member]’s death was looking for him. His friend told him this person was a dangerous member of a gang and a thief.
New evidence
The applicant’s statement dated [in] July 2017 outlines his response to the delegate’s credibility concerns in relation to the murder of his [family member], [Mr A]. The applicant has also provided additional evidence from sources in Afghanistan able to verify aspects of his claims. For example the applicant provided photographs of [Mr A]’s gravesite, a letter of support signed by the authorities in his local area confirming that his [family member] was killed by a criminal Taliban group and that he is buried in [name] Township Kabul. The applicant also provided a letter from the person in charge of the cemetery and a person of authority from the applicant’s district in Kabul. The letter was also signed by elders from the [name] Social Council in the same village where his [family member] lived in Afghanistan. The Tribunal has had regard to the evidence and accepts that the applicant had a [family member] called [Mr A] who was killed by the Taliban in Kabul in 2009 as claimed.
This evidence provided by the applicant also includes clarification of the amount of time the applicant spent in Kabul after his [family member]’s murder, additional information in relation to his decision to marry in [Country 1] and information confirming that the risk to him in Kabul because of his [family member]’s murder contributed to the breakdown of his marriage to his first wife.
It was submitted that the threats to the applicant in Afghanistan are not faced by the population generally. The threats to the applicant are personal and particularised given his status as a returnee from Australia and his ethnic and religious characteristics, as well as his vulnerabilities as an IDP in the context of relocation.
The Tribunal has decided to wholly accept the applicant’s evidence.
Country Information
By way of background, the Tribunal has referred to the EASO Country Information report provides the following information on the security situation in the Wardak Province :
Wardak Province, also known as Maydan Wardak, shares borders with Parwan and Bamiyan to the north, Kabul and Logar in the east, and Ghazni to the south and west. More than fourfifths of the province is mountainous or semimountainous terrain while a little more than onetenth of the area is made up of flat land. The province of Wardak is divided into nine districts: Chak, Daymirdad, Hesae Awale Behsud, Jaghatu, Jalrez, Markaze Behsud, Maydan Shahr, Nirkh, Sayadabad. The capital is the town of Maydan Shahr, which is located almost 35 kilometres west of Kabul City. The main KabulKandahar highway intersects the province through the districts of Maydan Shahr, Nirkh and Sayadabad. A provincial road runs west from Maydan Shahr to Bamiyan through Jalrez and the districts of Hisae Awal-e Behsud and Markaz-e Behsud. The areas around the Kabul-Kandahar highway are more densely populated.
The province is estimated to house 596,287 residents. The major ethnic group living in Wardak Province is Pashtun, followed by Tajiks and Hazaras. The local Pashtun population belongs to a variety of Ghilzai tribes, primarily the Wardak, Kharoti and Hotak tribes. During spring, Kuchi migrations regularly cause violent clashes in the predominantly Hazara Behsud districts.
Despite its political and strategic importance due to its proximity to Kabul and status as gateway to the south, the province has few resources and attracts comparatively little financial and political support.
……
In 2014, according to Landinfo, rebels consisted of local and regional Taliban groups, Hezb-e Islami and international groups of fighters.
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According to Landinfo, since 2008 the Taliban has significantly destabilised the province, resulting in several areas becoming inaccessible to government officials. As of autumn 2015, it was difficult for provincial government officials to travel from Maydan Shahr, the provincial capital, to any of the district centres. According to UNHCR, in September 2015 Wardak was in a state of permanent instability. The security situation in the summer of 2015 was tense with several security incidents, including IED attacks and explosions, targeting military forces and government institutions. Civilian property was destroyed, which was, according to UNHCR, a violation of the principle of distinction in International Humanitarian Law. Killing of civilians in confrontations between AGEs and ANSF was reported in several districts, such as Chak, Sayadabad and Nirkh.
In August 2015, the provincial governor labelled Daymirdad, Jaghatu, Nirkh, Chak and Jalrez as volatile districts of the province. He also stated ‘although Behsud is a relatively calm district, there are disturbing questions about the rule of law there’. These Hazara districts were de facto under the control of the political party Hezb-e Wahdat. However, AREU stated that some Hazara areas in the province, without specifying which, were affected by Taliban presence.
The US Department of State also stated that the Taliban remained active throughout 2015 in what it called their ’traditional stronghold’, Wardak. After Jalrez saw heavy fighting in the previous reporting period, the government created a pro-government militia outside the ALP, under the ‘National Uprising Support Strategy’ in 2015.
….
From 1 September 2015 to 31 May 2016, Wardak Province counted 359 security incidents.
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In October 2015, government officials claimed Taliban had wanted to (re)take the Chak district centre and several security posts but failed because of an ANSF ambush. ANSF claimed it killed a dozen AGEs and injured 18 more in the clash.
In Sayadabad civilians regularly became victims when caught in crossfire or ground engagements, often on, or around Highway 1. On 16 October 2015, during a clash between the Taliban and Afghan security forces in Sayedabad district, a Taliban-fired mortar hit the Kabul-Ghazni highway, killing two civilians and injuring nine others as they were travelling in buses. The clash involved heavy weapons on both sides and the highway remained closed for more than a day. In December 2015, ANA fired two explosive recoilless rifle rounds that hit a mosque in Sayedabad district, killing nine civilians, including four boys, and injuring three others. In February 2016, a child was shot by a soldier firing from his security post on the main Kabul-Ghazni road. In March 2016, a Ghazni judge was killed while passing with his vehicle over the same highway.
In February 2016, two separate ANSF operations in Nirkh resulted in firefights with the Taliban. According to government sources, two commanders and a Taliban fighter were killed in these operations. Government forces held a major clearing operation in the district a few days later, resulting in heavy fighting. The government claimed to have killed a dozen Taliban fighters in the operation that lasted for days. It claimed to have cleared several villages that were under Taliban control for many years.
On 18 February 2016, Afghan Special Forces and the IMF conducted a joint operation in the Tangi Sayedan area of Daymirdad district and entered a government health clinic funded by the Swedish Committee for Afghanistan. Two patients and a 15-year-old boy on a visit were taken to a nearby shop and summarily executed. Later, IMF were accused of complicity in the raid.
In May 2016, the Ministry of Defense announced it had killed the first commander of Islamic State in Wardak in an airstrike.
In April 2016, during fighting as a result of an attack on an Afghan security forces convoy, crossfire injured six civilians in Sayedabad district.
In its mid-year report of 2016, UNAMA documented 12 abductions in Wardak Province in the first half of 2016.
As of June 2016, according to the Institute for the Study of War (ISW), most of Sayadabad, including the district centre, and parts of Chak, Nirkh and Jalrez are under control of the Taliban. The rest of Chak, Maydan Shahr and parts of Jalrez are considered ‘high confidence Taliban support zones’, while the rest of Nirkh and a small stretch in Hesae Awale Behsud are considered ‘low confidence Taliban support zones’. Also in August 2016, there were reports of several Taliban attacks in the province.[1]
[1] EASO Country Information report – Afghan Security Situation January 2016 type="1">
In March 2016, DFAT assessed that no particular group was systematically targeted solely on the basis of ethnicity. The assessment found that although ethnicity or religion is sometimes a contributing factor, especially in the kidnappings of civilians travelling by road between Kabul and the Hazarajat,[2] insurgent groups typically target people associated with the government and the international community, or those who appear wealthier than other Afghans, rather than targeting specific groups (such as Hazaras) on the basis of ethnicity.[3] DFAT’s March 2016 assessment was consistent with an earlier assessment that it made in March 2015 which stated that:
DFAT has no evidence to suggest that Hazaras are systematically targeted in these attacks on the basis of their ethnicity alone. DFAT assesses that, with the exception of kidnappings, Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan.[4]
[2] The Hazarajat consists of Bamiyan and Daykundi, and parts of Ghor, Uruzgan, Wardak and Ghazni
[3] Department of Foreign Affairs and Trade 2016, DFAT Thematic Report: Hazaras in Afghanistan, 8 February, p.5 <CIS38A8012186>
[4] Department of Foreign Affairs and Trade 2015, DFAT Country Information Report: Afghanistan, 18 September, p.11 <CISEC96CF13366>
DFAT’s March 2016 report noted that there had been a number of abduction incidents involving Hazaras in 2015. The report concluded that although ethnicity or religion is rarely the primary motivating factor in these incidents, it can be a contributing factor, particularly in the choice of victim, in some circumstances.[5]
[5] Department of Foreign Affairs and Trade 2016, DFAT Thematic Report: Hazaras in Afghanistan, 8 February, p.8 <CIS38A8012186>
DFAT’s Thematic Report provides the following information regarding travel by road in Afghanistan:
Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly those roads that pass through areas contested by insurgents. Taliban and criminal elements target the national highway and secondary roads, setting up arbitrary armed checkpoints. Official ANP and ANA checkpoints designed to secure the road are sometimes operated by poorly-trained officers known to use violence to extort bribes. More broadly, criminals and insurgents on roads target all ethnic groups, sometimes including kidnapping for ransom. It is often difficult to separate criminality (such as extortion) from insurgent activity.
Individuals working for, supporting or associated with the Government and the international community are at high risk of violence perpetrated by insurgents on roads in Afghanistan. Carrying documentation that would indicate employment or another connection with the Government is dangerous.

Because Hazaras are perceived to be affiliated with either the Government or international community, those Hazaras travelling these routes who work for the Government or international community frequently take precautions to ensure that, if they are stopped, they could not be identified as such.
Hazara MPs and several credible civil society contacts have told DFAT that ‘dozens’ of Hazaras were killed on roads to and from Hazarajat in 2013. However, DFAT has no reliable evidence to indicate that insurgents disproportionately target Hazaras on roads in Afghanistan. Hazaras are often the main travellers on roads to Hazarajat, so higher numbers of victims could also reflect the higher volume of traffic.
On the other hand the Tribunal notes that, Professor Maley[6] provided the following comments on the security situation for Hazara’s traveling by road:
[T]ravel for Hazaras remains extremely dangerous, and claims that roads are open need to be treated with great caution. On 3 December 2011, I received the following observation from a very highly respected Kabul-based observer: 'Dozens of Hazaras have been killed or abducted and never heard of while travelling between Ghazni and Jaghuri and also through Wardak province to Behsud and Bamyan. Ghulam Hussain Naseri, a Hazara member of parliament from Behsud, reported on November 10 that 10 Hazaras were forced off vans and buses going to the Hazarajat in Wardak and killed in dreadful manners in front of other travelers during the preceding 10 days.[7]
[6] William Maley, AM is a Professor of Diplomacy at the Asia-Pacific College of Diplomacy at The Australian National University. He has published extensively on Afghan politics for over three decades, and is author of Rescuing Afghanistan (London: Hurst & Co., 2006); The Afghanistan Wars (London and New York: Palgrave Macmillan, 2002, 2009); and What is a Refugee? (New York: Oxford University Press, 2016). He has also written a study of The Foreign Policy of the Taliban (New York: Council on Foreign Relations, 2000); co-authored Regime Change in Afghanistan: Foreign Intervention and the Politics of Legitimacy (Boulder: Westview Press, 1991) and Political Order in Post-Communist Afghanistan (Boulder: Lynne Rienner, 1992); edited Fundamentalism Reborn? Afghanistan and the Taliban (New York: New York University Press, 1998, 2001); and co-edited The Soviet Withdrawal from Afghanistan (Cambridge: Cambridge University Press, 1989) and Reconstructing Afghanistan: Civil-military experiences in comparative perspective (New York: Routledge, 2015). He authored the entry on Hazaras in John L. Esposito (ed.), The Oxford Encyclopedia of the Islamic World (New York: Oxford University Press, 2009) Vol.II, pp.385-386. He visited Afghanistan most recently in August-September 2016, and interviewed survivors of several recent terrorist attacks.
[7] On the Position of the Hazara Minority in Afghanistan, 7 December 2011, bmrsg.org.au/wp.../2011/10/Maley-Hazaras-Opinion-Updated2.pdf
The applicant’s representative referred the Tribunal to the following country information prepared by M Zeerak, Director of Ghazni Rural Support Programs[8], who confirms that Hazaras of all social strata and backgrounds are presumed to be government supporters and are physically examined while travelling through Ghazni and Wardak.
…As one can see on the Afghanistan map, all residents of Jaghori, Malistan, Qarabagh and other Hazara-Populated districts of Ghazni, like all other Hazara-populated districts of other provinces, are entirely dependent on highways and other roads crossing the Taliban controlled/dominated districts and areas of Ghazni; like Gilan, Moqor, Qarabagh in Ghazni province, and other districts in Wardak province, to the East, and to the West on Kabul- Kandhar highway.
These areas are Taliban-dominated, if not entirely controlled, areas. All Hazaras traveling to and from their districts are subject to ‘ethnic targeting’ by the Taliban insurgents.…
…In such areas the Taliban insurgents have their checkpoints. They stop all cars, and pull off the passengers. The Taliban, by default, see all Hazaras as “the foreigners agents and conspirers”, and “collaborators with the occupiers”. It implies that the Taliban have publicly announced that all those people who work with the Afghan government, the international forces, and with national and international NGOs are ‘enemy’ of the Islamic “Emirates”, and thus are to be targeted and prosecuted anywhere they are found/captured.
….
The only roads that are secure are the roads inside Jaghori and other districts where the entire population of the district is Hazara. But since people are totally dependent on procuring their daily needs, (including food and fuel) they need to travel to Ghazni city, to Kandahar and to other places outside their districts. The same applies to students who have to travel to Kabul and Ghazni for taking exams and attending universities. Number of students have been killedand beheaded on their way to Kabul. So even if inside Jaghori is secure it does not help the people, and does not make any difference on the safety of Hazaras.”[9]

Does the applicant have a well-founded fear of persecution for a convention reason?

[8] Ghazni Rural Support Program (GRSP) is a non-governmental, nonprofit, and non-partisan Afghan organization established in 1993 by a dedicated group of Afghan professionals experienced in humanitarian activities with the sole objective to carry out such activities in rural Afghanistan.

[9] Title: Email to RRT: ‘Re: Request for advice on road security and ethnic targeting in Ghazni province’

Date: 25 March 2013

The issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings and the country information.
Although the delegate was satisfied that the applicant did face a real chance persecution by the Taliban or other AGE’s for reason of his race and religion should he return to his home area, the delegate had regard to s.5J(1)(c) and found that the persecution feared by the applicant does not relate to all areas of Afghanistan and found the applicant could relocate to Kabul.
The Tribunal is satisfied the applicant is a citizen of Afghanistan. His claim to refugee status is therefore assessed against Afghanistan as his country of nationality. The Tribunal accepts the applicant is Hazara and a Shia Muslim.
The Tribunal finds that in the case of a person who had fled his country of nationality the assessment of well-founded fear of persecution would naturally commence with a consideration of the situation in the area where the person had previously lived (or other home area to which the person had similar or substantial ties).
The applicant was born in [District 1], Maidan Wardak province, Afghanistan. His family continue to reside in [District 1]. The Tribunal has assessed the applicant’s claims of fear of persecution in Afghanistan [District 1], Maidan Wardak province as the applicant’s home area.
The Tribunal has had regard to the country information and agrees with the delegate’s findings that Taliban and other insurgents are active on the roads in the applicant’s home area of Afghanistan (Wardak, [District 1]).
In light of the general volatile security situation in Wardak and recent attacks by the Taliban, the Tribunal finds that travel by road near the applicant’s home area would be highly dangerous. Further, if the applicant were to return to his home area, he would need to get there by road from Kabul. He would also need to travel for work, medical treatment and access services not available in his home area.
DFAT confirms that Hazaras are a visibly distinct ethnic group in Afghanistan. The Tribunal finds the applicant would be easily recognised as Hazara because of his physical appearance when traveling by road.
The Tribunal finds that there are numerous reports of Hazara travellers being abducted for ransom in the Hazarajat area, with some subsequently being killed. The Tribunal accepts that while it is not always clear who is responsible for these attacks and what their motives are, it is evident that Hazaras are being attacked in that area more often than travellers of other ethnicities.
The Tribunal finds that the weight of information indicates that the attacks may be viewed as persecution on racial and religious grounds. Having regard to the situation of routine targeting of Hazaras in and around Wardak, the Tribunal finds that the applicant faces a real chance of being abducted and killed by the Taliban for reason of his Hazara race and Shia Muslim religion should he attempt to return to his home area in Afghanistan.
The Tribunal is satisfied the persecution is systematic and discriminatory and amounts to serious harm as it includes threat to life or liberty, significant physical harassment or ill-treatment.
The applicant primarily fears harm from the Taliban, a non-state insurgency group, however, harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the state is unable to provide adequate protection against the harm.
UNHCR in its eligibility guidelines (April 2016) has provided the following report on the Afghan state’s ability to protect civilians:
‘Even where the legal framework provides for the protection of human rights, the implementation of Afghanistan’s commitments under national and international law to promote and protect these rights in practice frequently remains a challenge. Afghan governance and the adherence to the rule of law are perceived as particularly weak, while public satisfaction with government performance and confidence in public institutions reportedly decreased sharply in 2015.
The Tribunal has regard to the UNHCR’s eligibility guidelines and the EASO’ s report and find that state protection in Afghanistan is compromised by high levels of corruption, ineffective governance, a climate of impunity, lack of official impetus for the transitional justice process, weak rule of law and widespread reliance on traditional dispute resolution mechanisms that do not comply with due process standards.
In view of the unstable security situation in Afghanistan, the Tribunal finds the state cannot meet the level of protection which citizens are entitled to expect, as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal finds based on the country information, that the applicant would not be able to avail himself of effective state protection against such harm.
Relocation
The Tribunal must therefore consider whether the persecution faced by the applicant is localised and whether he could relocate to another part of Afghanistan to avoid it. In this regard the Tribunal has considered whether the applicant could relocate to another area of Afghanistan, such as Kabul to avoid the persecution he fears from the Taliban.
The Tribunal notes that the applicant has lived and worked in Kabul. According to the applicant’s address history he has lived in various addresses in Kabul from 2001 to 2009 and in 2011 to November 2013 before arriving in Australia. He claims life was very difficult and he was constantly in fear and was basically hiding when he lived in Kabul. He claims he was in [Country 1] from May 2012 to October 2012.
The Tribunal has considered the following DFAT advice in relation to the security situation in Kabul:
The ongoing insurgency across the country means that the government struggles to exercise effective control over many parts of the country, particularly areas outside major urban centres. As a result, the government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in those areas. Despite these challenges, DFAT assesses that the government maintains effective, but not absolute, control in major urban centres, particularly Kabul. While violent attacks still occur and there are major concerns over the capacity of law enforcement and judicial systems, security in these urban centres is typically better than in rural areas. [10]
[10] DFAT country information report Afghanistan 18 September 2015 (5.1)
The applicant’s representative has provided the Tribunal with detailed and lengthy submissions setting out current country information from various sources addressing the security situation in Kabul. In particular the representative notes that the DFAT reports relied upon by the delegate were issued in 2015 and February 2016 and are outdated. It was submitted that the overwhelming weight of country information points to ongoing deterioration in the security situation, and a particular deterioration in the last 18 months, since the publication of the latest substantive DFAT report.
The Tribunal notes that Kabul has a sizeable Hazara population (which the country information indicates a large proportion of which are also displaced from other areas) and a range of employment options. The Tribunal also notes that there is a huge Hazara underclass in Kabul that does not have access to clean water or electricity. It is also reported by the UNHCR that there is widespread unemployment in urban areas that limit the ability of a large number of people to meet their basic needs. There is also evidence of the deaths of children in refugee camps and the inadequate response of government and aid agencies.
Apart from internal displacement due to the conflict in Afghanistan, Kabul City saw large flows of Afghan refugees returning from neighbouring countries, putting further strain on the city’s services. At the same time, humanitarian aid over recent years decreased resulting in less support and services, traditionally provided for by NGOs.
The Department provides the following information on the situation for Hazara returnees in Afghanistan:
Notwithstanding security issues in Afghanistan, there generally are options available for Hazaras to relocate from other parts of Afghanistan to relative safety in Kabul. Kabul is the most viable option for internal relocation and resettlement for returnees to Afghanistan. Western Kabul, where most Hazaras live, is considered relatively safe for Hazaras. Kabul has relatively better economic opportunities and greater levels of security, and many people migrate to the city for these reasons. Most returnees from Western countries are returned to Kabul and many choose to remain in Kabul rather than return to their place or origin elsewhere in Afghanistan. Kabul is under the effective control of the government.
However, consideration must be given to an individual’s profile and the economic and social aspects of relocation. Internal relocation is more successful for single men of working age if they can make use of family or tribal networks, and least likely for unaccompanied women and children, particularly where they do not have these networks. Economic and social aspects of return and relocation to Kabul are detailed further below.^[11]
[11] Afghanistan: Situation for Returnees Thematic Briefing COISS Refugee and Humanitarian Programme Branch
Effective from 8 March 2017 p.2
Professor Maley states that it is essential to appreciate that the situation in Afghanistan is extraordinarily fluid, and assessments of the situation made even quite recently do not necessarily provide an accurate picture of the going into 2017 and beyond. He holds the view that it is a mistake to conclude that Kabul is safe for Hazaras. He cites the December 2011 suicide bombing attack against Shia Afghans, mostly Hazaras, who were commemorating the Ashura festival in downtown Kabul which killed at least 55 people, with Pakistani Sunni extremist group Lashkar-e Jhangvi claiming responsibility. He states that to depict this attack as an isolated incident misses the underlying history of antagonism towards Hazaras that is pertinent to assessing what the future holds. He states that the same conclusion flows with respect to the attacks (discussed below) on peaceful Hazara demonstrators in Kabul on 23 July 2016, and on Shiite mosques in Kabul on 11 October 2016 and 21 November 2016, and near Mazar-e Sharif on 12 October 2016. [12]
[12] On the Returns of Hazaras to Afghanistan, Professor William Maley AM, FASSA Professor of Diplomacy Australian National University 16 March 2017. >
USDOS reports that during 2016, Shi'a Muslims, especially ethnic Hazaras, fell victim to multiple violent and deadly attacks, as well as abductions that often ended in death. The attacks were overwhelmingly claimed by or attributed to U.S.-designated terrorist groups, including the Taliban and Islamic State. Reportedly, more than 500 members of the Shi'a community were injured or killed between July and November 2016. There continues to be allegations that the government failed to provide adequate security in majority-Shi'a areas.[13]
[13] United Nations Human Rights Office of the High Commission Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016
Specifically, the Tribunal finds that the following recent reports of sectarian attacks further support Professor Maley’s concerns about persecution faced by Hazaras Shia Muslims living in Kabul.
·October 2015 Islamic State attacked a Shia religious hall in Chindawol, one of the oldest and most identifiably Shia parts of Kabul city.[14]
·July 2016 Islamic State claimed responsibility for an attack on Hazara protestors that killed 80 people and injured hundreds of people in Kabul. The attack was reported to be the deadliest in Kabul since 2001 and intensify the sectarian conflict Afghanistan.[15]
·October 2016, the day of Ashura, a major Shia Muslim commemoration, an attacker disguised in an Afghan national security force uniform entered the Karte Sakhi Mosque in Kabul, opened fire at Shia worshippers and used a hand grenade, killing 19 civilians and injuring 60 others. Daesh/ISKP claimed responsibility for this attack by issuing an online statement containing hate language targeting the Shia Muslim religious minority.[16]
·November 2016 Islamic State claimed responsibility for a suicide attack on a crowd of worshipers at the Baqir ul-Uloon mosque in Kabul that killed more than 30 people and wounded dozens in what was reported as the third major attack on the minority Shias in Kabul since July 2016.
[14] Khaama Press, October 10th 2015, “ISIS claims responsibility for the attack on religious hall in Kabul” Khaama Press
[15] United Nations Human Rights Office of the High Commission Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016

The Tribunal finds that the UNAMA reported that the attacks against the four mosques in Afghanistan accounted for the almost six-fold increase in civilian casualties from attacks deliberately targeting religious persons and places of worship observed in 2016. UNAMA reported that in 2016, the emerging pattern of deliberate sectarian attacks against the Shia Muslim religious minority, mainly claimed by Daesh/ISKP, raised grave concerns regarding the right to freedom of religion or belief and the protection of minorities.^[17]
[17] United Nations Human Rights Office of the High Commission Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016
According to the ISW in March 2015:
The escalation of violence in Kabul is likely linked to the increase of Taliban activity in the periphery. As ISAF troops closed their forward operating bases and pulled back to provincial capitals in the transition to Resolute Support, the insurgency was able to operate with greater freedom of movement and consolidate pre-existing strongholds in areas around Kabul. The insurgency maintains safe-havens in areas abutting three major highways leading into Kabul. The Taliban can funnel weapons, funds, and fighters from these areas and along the highways in order to support operations in Kabul. The Taliban’s ability to reinforce the Kabul Attack Network is made easier by an ineffective ANSF presence around the capital. With their limited capabilities, Afghan forces are reportedly struggling to maintain an adequate level of security on the roadways leading into Kabul.[18]
[18]AFGHANISTAN REPORT 11 | THE TALIBAN RESURGENT | MCNALLY AND BUCALA | MARCH 2015 Institute for the Study of War. >
In making its decision the Tribunal has had regard to the most recent country information which establishes that the situation in Afghanistan has deteriorated since the applicant lived in Kabul. The Tribunal further finds that security situation in Afghanistan is likely to further deteriorate in the reasonably foreseeable future.
In view of the applicant’s personal profile and the evidence outlined in the country information cited above indicating the strong and growing presence of the Taliban in much of Afghanistan, the potential for further sectarian violence, the increased presence of ISIS and the ongoing ethnic and sectarian tensions and discrimination against Hazaras and Shias noted by Professor Maley, the Tribunal finds that the threat to the applicant is not localised and a real chance of persecution applies to all areas of Afghanistan. The Tribunal finds that relocation is not an option available to the applicant to avoid the risk of persecution.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christopher Smolicz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(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.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

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Citations

1606800 (Refugee) [2017] AATA 1499

Cases Citing This Decision

Cases Cited

Statutory Material Cited

MIMA v Respondents S152/2003 [2004] HCA 18

[2017] AATA 1499

15 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Standing