1610190 (Refugee)

[2016] AATA 4742

1610190 (Refugee) [2016] AATA 4742 (15 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610190

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Amanda Goodier

DATE:15 November 2016

PLACE OF DECISION:  Perth

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 November 2016 at 5:06pm

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Afghanistan applied for the visa [in] September 2012 and the delegate refused to grant the visa [in] December 2012.

3. On 26 June 2013, the Tribunal (differently constituted) affirmed the delegate’s decision. The applicant has also unsuccessfully sought Ministerial intervention on two separate occasions.  The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision which was remitted by consent by the Court [in] June 2016.

4. The applicant appeared before the Tribunal on 7 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [names].  The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[1]

    [1] DFAT Country Report Afghanistan 18 September 2015; DFAT Thematic Report Afghanistan Security Conditions 1/1/to 1/8 2016 5 September 2016; DFAT Thematic Report Conditions in Kabul 18 September 2015.

    Country of reference

11. The applicant claims to be a citizen of Afghanistan.  In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Afghanistan and that Afghanistan is his country of nationality and receiving country.

12. The applicant indicated that he resided illegally in [Country 1] and he has no right to return or right to residence in Pakistan.

13. The Tribunal is satisfied on the evidence before the Tribunal, the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is  not excluded from Australia’s protection obligations under s36(3).

    Background

14. The applicant indicates he was born sometime in [year] in [village], Jaghori District, Ghazni Province, Afghanistan.  He travelled to [Country 2] for work reasons between 1983 and 1990 and departed Afghanistan for [Country 1] about 2002.    He departed [Country 1] in February 2012, arriving Australia [in] June 2012.

15. The applicant is illiterate and has never attended school.  He has worked in [an] industry in [Country 2] and self employed as a [occupation] in his home village and in [Country 1].  He was also employed as a [occupation] for a period in [Country 1].  Since his arrival in Australia he has worked in various unskilled positions. 

16. The applicant claims to have converted to Christianity, having become interested while in Afghanistan.  Others in his village became aware of his interest and threatened him.  He eventually fled to [Country 1] where he maintained his interest and attended a house Church where he was baptised.  It became dangerous for him to remain in [Country 1] so he travelled to Australia.  

17. He participated in Bible study groups while in detention and initially did not attend Church very much following his release as he did not speak the language and did not understand the proceedings.

18. The delegate and previous Tribunal found he was not a credible witness and did not accept the applicant’s claims to have converted to Christianity.  They found he was a Hazara from Jaghori but on available country information found that there was not a real chance he would suffer persecution there and he could safely access the area.  For the same reasons he was found not to meet the complementary protection criteria.

19. Prior to hearing, the Tribunal received detailed submissions supported by country information as well as copies of submissions lodged with the Federal Court and copies of letters of support provided with the applicant’s requests for Ministerial intervention.   Evidence was taken at hearing from various witnesses as to the genuineness of the applicant’s conversion to Christianity.

20. The Tribunal notes the delegate and previous Tribunal’s concerns about the applicant’s credibility.  The Tribunal had considerable more information before it than before the delegate and previous Tribunal.  It also had the advantage of speaking to a number of witnesses about the applicant’s Christian faith and the genuineness of his beliefs. 

21. The Tribunal spoke to the applicant about his Christian beliefs and the genuineness of those beliefs. The applicant’s witnesses gave evidence as to the applicant’s faith and the commitment he has to his Christian faith.  The Tribunal also notes that the applicant has been broadly consistent from his entry interview through to this hearing in his claims in relation to his interest in Christianity. 

    Does the applicant hold a well-founded fear of persecution based on a convention ground?

22. The Tribunal accepts that the applicant is a Hazara from the Jaghori District, Ghazni Province in Afghanistan. 

23. The Tribunal notes that the applicant is illiterate and had never read a Bible prior to his arrival in Australia.  He had only attended fellowship a few times while in [Country 1] and had limited conversations with others about the Christian faith.  The Tribunal considers that the applicant’s knowledge of the Christian faith would have been limited in such circumstances, despite developing an interest in the Christian faith many years prior to his arrival in Australia. The Tribunal considers that it would have been extremely difficult for the applicant to learn more about the Christian faith living in a Muslim country where conversion is regarded to be apostasy and the Taliban were in control.   

24. While the Tribunal may have some concerns about the credibility of some aspects of the applicant’s claims, it found his evidence in relation to his Christian faith, credible.  The Tribunal gives weight to the evidence of the witnesses as to the genuineness of the applicant’s Christian faith and his commitment to that faith.

25. In considering the provisions of s.91R(3) of the Act and the available evidence, the Tribunal is satisfied that the applicant's conduct in Australia: that is participation in his Christian faith was not engaged in for the sole purpose of strengthening his claim for a protection visa. This means the Tribunal need not disregard the applicant's conduct in Australia and it follows that consideration needs to be given as to any implications for him if he were to be returned to Afghanistan.

26. The Tribunal finds on the evidence before it, that the applicant's Christian belief is genuine and he will remain an active member of the Church. Based on the evidence given by the applicant and his witnesses the Tribunal accepts that his religious beliefs are central to him and he is committed to his faith.

27. For the above reasons the Tribunal accepts that the applicant's conversion to Christianity was not undertaken for the sole purpose of strengthening his refugee claims. Having accepted that the applicant has genuinely renounced Islam and has converted to Christianity and he continues to practise this in Australia. The Tribunal accepts that if the applicant were to return to Afghanistan, even if he does not practice his Christian faith by attending church or prayer groups, he is likely to seek out people and experiences which accord with his sense of his own spirituality and risk disclosing his abandonment of Islam. The Tribunal accepts that if the applicant's views became known he will be imputed with apostasy, of having abandoned Islam and he will face serious or significant harm for this reason.

28. The Tribunal accepts the applicant's evidence that he would not deny his Christianity if he were to return to Afghanistan but would be forced to modify his behaviour in order to escape the attention of the authorities and others.

29. According to DFAT, 99 % of the population of Afghanistan identifies as Muslim and other groups, including Christians, make up the remaining one per cent of the population.[2]  There are no religious facilities in Afghanistan available to Afghan Christians and many non-Muslims do not openly practice their religion because of the risk of discrimination or violence.[3]  Adults who convert from Islam may face the death sentence under Afghan law but DFAT does not know of the government actually carrying out the death penalty for crimes of apostasy or blasphemy since 2004 when the Afghan constitution was ratified.[4]

    [2] DFAT Country Information Report Afghanistan 18 September 2015 at 3.16.

    [3] DFAT Country Information Report Afghanistan 18 September 2015 at 3.22.

    [4] DFAT Country Information Report Afghanistan 18 September 2015 at 3.20.

30. In its International Religious Freedom Report for 2013, the United States Department of State discussed the position of the Christian community in Afghanistan.  According to this source, the Christian community numbers between 2,000 and 3,000 people.[5] There are no public Christian churches and Afghan Christians, many of whom converted while living in other countries, worship alone or in small congregations in private homes.[6] Public places of worship for Christians do not exist because practising their faith openly could mean risking charges of apostasy which carry the death penalty and possible targeted violence.[7]

    [5] Afghanistan - International Religious Freedom Report 2013", US Department of State, 28 July 2014. OG54B54461.

    [6] Ibid.

    [7] Ibid.

31. In its Operational Guidance Note Afghanistan, released in February 2015, the United Kingdom Home Office also discussed the position of converts to Christianity in Afghanistan.  According to this source, arrests for conversion to Christianity had been recently reported and, more generally, converts from Islam may face isolation, pressure to recant and, in some cases, physical harm, causing converts to usually conceal their faith.[8] The Home Office concluded that converts to Christianity from Islam were, in general, at real risk of persecution in Afghanistan for which there would not be sufficient protection anywhere in the country.[9]

    [8] "Operational Guidance Note Afghanistan", UK Home Office, 01 February 2015, OG8F59D8D29 at 3.14.2.

    [9] "Operational Guidance Note Afghanistan", UK Home Office, 01 February 2015, OG8F59D8D29 at 3.14.10.

32. From this information the Tribunal infers that as a Muslim convert to Christianity, the applicant will not be able to practice his faith openly and, in that sense, will have to act in such a way to avoid the threat of serious harm should his conversion be discovered. 

33. Having to modify his behaviour to avoid the threat of serious harm, should his conversion be discovered, in itself constitutes persecutory conduct.[10]  Further, the Tribunal is satisfied the applicant is a person who would naturally be open about his Christian faith and for whom it would be difficult to keep his Christian faith hidden.  Considered with the references in country information about how some Christian converts have been treated, the Tribunal finds that, because of his conversion to Christianity, the fact that he is a practising Christian and that he would continue to practise his Christian faith if returned to Afghanistan, there is a real chance the applicant will suffer serious harm which is systematic and discriminatory for the essential and significant reason of religion.

    [10] Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [40].

34. The Tribunal is therefore satisfied that the applicant would face a real chance of serious harm for reason of his religion if he returns to Afghanistan now or in the reasonably foreseeable future.

35. The Tribunal is satisfied on the basis of the country information referred to earlier that effective protection measures would not be available to the applicant in Afghanistan and the real chance of persecution relates to all areas within Afghanistan. 

36. Therefore the Tribunal finds that the applicant holds a well-founded fear of persecution for a Convention reason should he return to Afghanistan now or in the reasonably foreseeable future. 

    CONCLUSION

37. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Amanda Goodier
    Member