1613279 (Refugee)

[2016] AATA 4806

1613279 (Refugee) [2016] AATA 4806 (9 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613279

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Amanda Goodier

DATE:9 December 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 09 December 2016 at 4:08pm

CATCHWORDS

Refugee – Protection visa – Afghanistan – Federal Circuit Court  remittal – Imputed political opinion – Anti-Taliban views – Defied Taliban blockade – Particular social group – Returnee from Western country – State protection – Internal relocation – Lack of family or tribal links

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1,
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo & Anor (1997) 191 CLR 559
Yao-Jing Li v MIMA (1997) 74 FCR 275
Prasad v MJEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39

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] February 2013 and the delegate refused to grant the visa [in] January 2014.

3. On 18 June 2015, the Tribunal (differently constituted) affirmed the delegate’s decision (see RRT Decision 1405053).  The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.  The matter was remitted by the Court.

4. The applicant appeared before the Tribunal on 30 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

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

   RELEVANT LAW

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.

   State protection

9. 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. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

   Relocation

10. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

11. 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’).

    State protection

12. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Relocation

13. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Credibility

    Section 499 Ministerial Direction

14. 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]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [1] DFAT Country Report - Afghanistan 18 September 2015; DFAT Thematic Report - Conditions in Kabul 18 September 2015

    Background

15. A copy of the delegate’s decision was attached to the application for review.  The decision restated the background details of the applicant as well as his claims for protection.

16. The applicant was born in [year] in [his home village], [in a district in] Paktia Province in Afghanistan.  He received a religious education only from his mother.  At about age [age] his family moved to Parachinar, Pakistan due to instability in Afghanistan where he lived until about 2010 when he moved to Peshawar.  The applicant married in 2009 and has [children], [birth dates specified].  The applicant’s parents returned to the home village in Afghanistan.

17. The applicant departed Pakistan in April 2012 for Australia. 

18. The applicant indicates his ethnic group is Pashtun and his religion Sunni Muslim. 

19. In the applicant’s written statement attached to his application for review, he indicates his problem with the Talban arose because of his work.  He assisted the [employer] in the delivery of [products] mainly in Parachinar, Pakistan.  The applicant indicates the Taliban had an issue with the Shia community in Parachinar because they wanted to enter and exit Afghanistan via Parachinar.  The Shia would not allow this so the Taliban warned trucks not to deliver goods to the Shia community in Parachinar.  His boss received a verbal warning through his community people but did not take is serious and he continued to assist his boss despite the warning.  Around June 2008 they were delivering goods in a fleet of about [number] trucks.  On the way to Parachinar the Taliban opened fire at the trucks in [town specified]. They escaped and the Taliban looted the trucks and burned them.  He stayed overnight hiding in the mountain area before going to [City 1] the next morning to hide.  He could not return to Parachinar as the Taliban had blocked off the main road.  After about a month he went to Peshawar to join his wife as her father had taken her there. 

20. He wanted to return to Afghanistan to join his family but they told him the Taliban were looking for him.  His father-in-law had a [shop] in Peshawar so he helped him in the shop.  Later he heard from the community that a person was killed by the Taliban there.  He panicked that they may target him even in Pakistan so he arranged with smugglers to depart Pakistan.

21. He is targeted by the Taliban for delivering goods to Shia people in Parachinar.  They received prior warnings which they ignored.  He cannot return to Afghanistan as they are looking for him there and the Taliban operate in Pakistan. 

22. He further indicated that his parents returned to their home village in Paktia about 2008.  He remained in Parachinar with his [relative]. 

23. The applicant’s claims as to the attack on the convey of trucks in June 2008 was consistent with country information that reports the Pakistani Government sent a convoy loaded with food and medicines to break the siege that was attacked with the Taliban burning about [number] trucks and killing [number] drivers.[2] The same country information discusses one of the truck drivers being captured and taken to a Taliban training camp where he was released after convincing his captures that he was Sunni.  He reported that the Taliban killed [several] other drivers at the camp because they were Shia.[3] 

    [2] [Information deleted].

    [3] [Information deleted].

24. The delegate did not accept the applicant was a credible witness.  The delegate in the decision refers to the applicant stating that he made his way to Peshawar after spending a month in [City 1] after the incident.  His father-in-law travelled to Parachinar and took the applicant’s wife to Peshawar without incident despite the applicant claiming the roads and area were closed by the Taliban.  The delegate also asked the applicant to confirm when he was married and was told in 2009.  When asked by the delegate to explain that the incident occurred in June 2008 and he was not married until 2009 the applicant responded that he must have panicked when he gave the information [on arrival in Australia] and the officer made a mistake. The delegate also refers to the applicant indicating in his statement of claims he married in or around 2009 and at interview about 4 years ago.  The delegate also refers to the applicant advising that his parents returned to Paktia six months after he married which would be after the attack on the convoy.    The delegate also refers to the applicant providing his Taskera which was issued on [a date in] 2009 in Afghanistan, giving the applicant’s age as [age] years in 1388 (2009).  The delegate found he was not a witness of truth and created his claim to fear harm.

25. The applicant’s then representative provided written submissions on 11 May 2015 and after the first Tribunal’s hearing. 

26. The first submissions provide general information including country information.  It states that the applicant estimated various dates and coupled with his illiteracy and a different calendar led to significant difficulties and discrepancies in his evidence.  It was submitted the applicant made a genuine mistake about the date of his marriage, further submitting that it is possible that he could have married as early as 2007.

27. A second submission provided 28 May 2015 also addressed relocation.  It was submitted that the applicant would be imputed with political beliefs adverse to the Taliban because he defied a Taliban directive not to assist Shia “non-believers” under siege in Parachinar. He would also be viewed as someone who had gone against tenets of Sunni Islam by assisting Shia. He would be at risk anywhere in Afghanistan. The Taliban have an extensive and sophisticated network. Photographs of wanted people are circulated on mobile phones and social media so they can be easily identified.

28. As to relocation to Kabul it was submitted that the applicant has never lived there and has no relatives, friends or social network there. He would not be able to support himself. The security situation in Kabul is poor and the Taliban has successfully carried out attacks on targets there. Reports suggesting that Kabul is safe are taken out of context: it is only relatively safer than other parts of Afghanistan but the security situation there is deteriorating. This is especially so now that Islamic state has a presence there. This generalised violence renders it unreasonable for the applicant to relocate there, even if it were accepted that he would not be targeted there. 

29. The Tribunal received a submission from the applicant’s current representative prior to hearing.  The submission relies on the country information in three other Tribunal decisions in relation to him being unable to seek protection from the authorities and the unreasonableness of him being able to relocate to Kabul.  It was submitted that the applicant has been absent from Afghanistan for [number] years, his wife and children have spent considerable time in Pakistan, his family’s mannerisms, language, dressing and accent will be different from other Afghanis and he has a high chance of encountering the Taliban while travelling on the road from Kabul to Peshawar to collect his family.  These factors including the factor that he is considered to be a returnee from the west will enhance his profile.

30. The applicant provided a further sworn statement to the Tribunal.  The applicant claims that Parachinar is a small place dominated by Shia Muslims and the people who live there know everything that goes on there.  The Taliban were able to identify them and attack the supply trucks after they failed to heed their warning.  The Taliban know who he is because he is a Pashtun Sunni from [a certain tribe] and Paktia and Parachinar are close to each other and what goes on is generally known by other members of the tribe.  He would be identified if he returns to Afghanistan as he and his family have lived in Pakistan for the majority of their lives and their dress, accent and mannerisms are different from the locals in Afghanistan.  They will be unable to stay in Paktia as they will be identified and informed on.  They are unable to relocate to Kabul as he has no family or friends to assist him in Kabul and he has no education or skills. They will be easily recognised as being from outside Afghanistan and the Taliban hate people who return from western countries. 

31. A submission was provided to the Tribunal following the Tribunal hearing.  It urged the Tribunal not to be influenced by the finding of the delegate as the delegate made many obvious mistakes when arriving at a conclusion the applicant was not credible.  The submission also highlighted that the previous Tribunal heard the matter by video and in many instances the applicant did not understand the questions, which could be a shortcoming of the video link or the interpreting.

32. It was submitted that the applicant answered all the Tribunal’s questions honestly and the Tribunal had the opportunity at the hearing to clarify anything that was bothering it.  The Tribunal was urged to consider the applicants’ disability and the possibility that questions were not interpreted correctly clearly or were beyond the applicants’ intelligence and ability to understand. 

33. With respect to the questions as to relocation to Kabul, it was submitted that there is a vast difference in relocating to a safe western country compared to a war torn country with insurgent attacks on the Afghan Government and western forces in Afghanistan and Kabul.  It was submitted that the Tribunal should consider the latest and country information from other sources and not rely on the DFAT report that was prepared over a year ago. 

34. It was submitted that the applicant is a simple person who has never been educated and in those circumstances it can be said he suffers a disability.  Therefore he should be given the benefit of the doubt.

35. The Tribunal informed both the applicant and the representative that it was having a fresh look at the application and would come to a new decision.  It indicated it was not bound by any of the findings by the previous Tribunal or the delegate but was reconsidering all the evidence before it and that this hearing was an opportunity for the applicant to ensure that the Tribunal was fully informed as to his circumstances and his application.  The Tribunal informed the applicant and representative that it had considered the available information and the applicants’ credibility was an issue and that it was not relying on the findings of the delegate or previous Tribunal but had arrived at its conclusion on the basis of the information before it.  The Tribunal emphasised the importance of the hearing as an opportunity for the applicant to ensure the Tribunal was fully informed and that everything was important.

    Findings

    Country of reference and home area

1. 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.

2. The applicant indicated that he resided illegally in Pakistan and he has no right to return or right to residence in Pakistan.

3. 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).

4. The Tribunal finds that Paktia Province, Afghanistan is the applicant’s home area.

   Credibility

5. The Tribunal has considered the applicant’s personal characteristics which may have impacted on his capacity to give consistent and coherent accounts at different times of the reasons for which he seeks protection. He has no formal education and is functionally illiterate. The Tribunal does not accept that because he received instruction in the Koran he has any literacy skills as in most instances the Koran is learned by repetition and memorization and is written in Arabic.  He has few skills.  He is separated from his family and has been involved in a lengthy process of having his claims assessed. The Tribunal accepts that the applicant is feeling stressed by the process.  The Tribunal also accepts that his story has been presented through various interpreters.

6. The Tribunal accepts that the applicant may have difficulty recalling precise dates and events can be confused and gives little weight to these inconsistencies when assessing his credibility. 

7. However, despite taking these factors into consideration, the Tribunal did not find the applicant’s claims to be of interest to the Taliban credible.  The Tribunal found aspects of his evidence implausible, inconsistent and not consistent with relevant country information.    

   Imputed political opinion – Taliban threat

8. The applicant claims that he will be targeted by the Taliban because he ignored a directive to not assist the Shia people in the Parachinar area.  He claims to have been part of a convoy taking goods to the area in defiance of the directive when the convoy was fired upon by the Taliban.  He managed to escape but claims the Taliban have his details and are looking for him.

9. The applicant provided consistent evidence that he was involved in a convoy of trucks that was attacked by the Taliban in June 2008.  Country information refers to an attack by the Taliban on a convoy of truck organised by the Pakistani Government to provide food and medical assistance to those in the Parachinar area.[4]  However the country information refers to the Taliban killing the Shia drivers but releasing those who were Sunni.[5]  When this information was discussed with the applicant, he responded that it was all in the media and the Taliban were killing elders and important people from the Sunni religion.  He told the Tribunal that if they were only killing Shias, why would he flee. 

   [4] [Information deleted].

   [5] [Information deleted].

10. The Tribunal raised with the applicant the information that he returned to Afghanistan in July 2009 to obtain his Taskara and asked if he was so fearful of the Taliban, why he returned to his home area to obtain the document.  The applicant responded that in those days he did not have a feeling he was in danger and went with his friends to the same place he obtained his driver’s licence.  He was only there for two days and returned to Pakistan.  He wasn’t fearful as the incident happened in Pakistan and he wasn’t fearful in Afghanistan.  He also told the Tribunal that at the time he obtained his driver’s licence he was living in Peshawar. 

11. The applicant’s parents returned to their home village in Afghanistan, returning to Pakistan after his arrival in Australia.  The applicant told the Tribunal that they left their home village because of his difficulties.   

12. The applicant told the Tribunal that there is a flow of people between Pakistan and Afghanistan and everyone knows everyone else.  That is how he obtained his driver’s licence in that people you know are always returning so they take your details and bring back your licence.  

13. The applicant told the Tribunal that when he was living in Peshawar he lived like a housewife.  The Tribunal put to him that he had early claimed to have helped his father-in-law in the shop.  The applicant indicated he helped out. The shop was [in location] and he rarely went out.  The representative submitted following the hearing that the applicant worked at the back of the shop helping his father-in-law.

14. The Tribunal put to the applicant that the incident happened in June 2008, he returned to Afghanistan in July 2009 to obtain his Taskara and nothing happened to him.  The applicant responded that he went with friends and was only there two days.  The Tribunal put to the applicant that according to his evidence, people travel on a regular basis between Pakistan and Afghanistan and return, everyone knows everyone and that is how he obtained his driver’s licence and if he was really a target for the Taliban they could have easily located him in Pakistan.  The applicant responded that they could have easily found him but they were not particularly looking for him but the village is different from Peshawar as that is bigger and a city.  He stated that if the Taliban see you they will kill you but they don’t come after you.  The applicant told the Tribunal there are not many Taliban in Peshawar like there are in his home village. 

15. The Tribunal does not accept that if the applicant was of such adverse interest to the Taliban following the incident in June 2008, that he would have been able to live safely in Peshawar for four years despite his claim to have lived like a housewife and not gone out.  Country information indicates that the Taliban has had a presence in Peshawar for many years and the Tribunal finds that if the applicant was of such an adverse interest to them they could have easily located and harmed him during that time.[6]  Especially as the applicant’s evidence is that there is relatively free movement between Afghanistan and Pakistan and everyone else knows everyone else.  The Tribunal would expect that it would not be that difficult for the Taliban to have located him with such free movement and with everyone knowing each other such that it is easy to obtain a driver’s licence from Afghanistan. 

    [6] The Taliban has had a presence in Peshawar for many years: see for example, CR1211AE77, "Issues Paper Pakistan: The Pakistani Taliban", Country of Origin Information Section (COIS), 09 July 2014, pp.47-50.

16. The applicant claims that the Taliban knows who he is because everyone knew he worked on the truck as he was the one who loaded and unloaded and was therefore known.  Again if everyone knew who he was, then it would be expected that he could be easily located and harmed by the Taliban in Peshawar. 

17. The applicant claims that he could be easily located in Kabul as he would not know which person was Taliban and who was not.  The Tribunal finds that this would be the same in Peshawar in that if the applicant was targeted by the Taliban he would just as easily be found in a city that has a large presence of Taliban as in Kabul, especially as his evidence is that he was living in an area with other refugees from Afghanistan. 

18. The applicant claimed that the Taliban had asked about him in his village.  The Tribunal finds that as he had been absent from the village for around 20 years then this would be common knowledge.  The Tribunal finds on the basis of the applicant’s evidence as to the free flow of people between Afghanistan and Pakistan, that the Taliban could easily determine the applicant’s location in Pakistan and harmed him there if it was so intent on harming him. 

19. After considering the applicant’s evidence, the Tribunal does not accept that the applicant is of adverse interest to the Taliban because he was employed as a “[occupation]” in a truck that was in a convoy that was attacked in June 2008.  The Tribunal does not accept that he was personally identified by the Taliban despite his claims that everyone knew he worked on the truck.  The Tribunal does not accept that the Taliban have been looking for him in his home village.  The Tribunal finds that if the applicant was of such an adverse interest to the Taliban that they wished to harm him, they could have located him during the four years he lived in Peshawar with his in-laws.  

20. On the basis of the available evidence, the Tribunal does not accept that the applicant faces a real chance of persecution or a real risk of significant harm in his home area for reasons related to or arising from his claimed involvement in a convoy to Parachinar in June 2008 in defiance of Taliban orders.

    Imputed political opinion - as a returnee

21. It was submitted that the applicant’s return to Paktia, as a person who had lived in Pakistan for the majority of their life and as a western returnee who has been absent from his area for a long period, he would remain at a particularly heightened risk of targeted harm by the Taliban or anti-government elements operating within his area. It was submitted that the applicant would be more identifiable as compared to other Pashtuns who have been residing in the Paktia Province through his accent, dress, mannerisms, lack of links in the area and lack of local knowledge arising from his absence from the area for a number of years.

22. In its country information report of September 2015, DFAT stated that it was aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While DFAT did not express an opinion as to the veracity of those claims, it stated that people who are identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent groups such as the Taliban. DFAT assessed that returnees from western countries face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community.[7] There is widespread violence against individuals because of their perceived support for or association with the government, or perceived opposition to anti-government elements. DFAT has reported that:

    Insurgent and terrorist groups, including the Taliban, openly target government officials and people associated with the international community. These individuals are often subject to intimidation, threats, abduction and killing. These attacks occur throughout Afghanistan, including Kabul.[8]

    [7] DFAT Country Report - Afghanistan 18 September 2015.

    [8] Ibid.

23. Elsewhere in the report, DFAT stated that in kidnappings of civilians travelling by road, insurgent groups typically target people associated with the government and the international community.[9] DFAT stated that people in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assessed those returnees from western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.[10]

    [9] Ibid.

    [10] Ibid

24. The Department of Immigration and Border Protection’s Country of Origin Information Section has recently provided the following update on the security situation in Paktia:

    For most of September 2015, parts of Paktia province recorded more than 20 security incidents each week placing Paktia among the most violent provinces in Afghanistan during that month. In mid-July 2015, the ANA were reported to have completed a month long clearance operation in the districts of Chamkani and Jani Khall in eastern Paktia. Afghan military claimed that the operation had killed more than 130 Taliban fighters and re-captured police checkpoints lost to the Taliban in earlier fighting.  Also in eastern Paktia, the Taliban had threatened to capture Samakni district after a month of heavy fighting between Taliban and local security forces. In western Paktia in Zurmat district, a dozen civilians were wounded in a bomb blast in a bazar and clashes were reported between militants and security forces along the Gardez-Zurmat highway that runs through Zurmat. Earlier in June 2015, ANA clearance operations in Zurmat were reported to have left six militants dead. In the same month in Dandpatan district to the east, ANA clearance operations left 16 militants dead.[11]

    [11] Department of Immigration and Border Protection Country of Origin Information Section,  Afghan Security Brief July-October 2015.

25. The European Asylum Support Office reported in January 2015:

    The province of Paktya is among the volatile provinces in Afghanistan, where anti‑government armed insurgent groups, including the Taliban insurgents and insurgents from the Haqqani network, are operating in a number of its districts.[12]

    [12] European Asylum Support Office, EASO Country of Origin Information Report Afghanistan Security Situation, January 2015.

26. The Tribunal notes the available country information of the network of informers, which provide information about the identity of travellers to the Taliban. [13]  The Tribunal accepts that the fact he has been absent from his home area for around [number] years and that his family are also absent from their home area, will be well known.  It is also highly likely that the fact he has been in Australia is well known as his parents were living in the village when he arrived in Australia and communicated with them as to his arrival and they returned to Pakistan shortly after.  The Tribunal finds that information about returnees is likely to travel fast, as noted by the UNHCR in relation to internal relocation:  “[e]ven in a city like Kabul, which is divided into neighbourhoods (gozars) where people tend to know each other, the risk remains, as news about a person arriving from elsewhere in the country or abroad may reach potential agents of persecution.”[14]

    [13] See for example reports such as Nazari Foundation, 2010, “Security Update”, 10 January ; and Abdul Karim Hekmat, “Unsafe Haven: Hazaras in Afghanistan and Pakistan”, Cosmopolitan Civil Societies Research Centre, UTS, Sydney, October 2011, p.19

    [14] UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, July 2009, Rev, 4a6477ef2.html Accessed 3 October 2012

27. When considering the applicant’s particular circumstances, he grew up in Pakistan and would speak the language with an accent, his dress and mannerisms would be different from local people, he would be unfamiliar with the area due to his prolonged absence and have little networks or family support and he would also be a returnee from Australia.  The Tribunal finds that these factors together elevate his profile as a returnee from Pakistan and Australia within his home area. 

28. Based upon his individual circumstances and the country information, the Tribunal finds that the applicant in returning to such a volatile area as Paktia, faces a real chance of serious harm in the reasonably foreseeable future at the hands of the Taliban in his home area or travelling to his home area for reasons of his imputed political opinion in that he will be imputed to be anti-Taliban or a pro-government opinion and that the reason for his persecution is his membership of a particular social group as returnee to Afghanistan.  The Tribunal is not satisfied that the applicant would be able to completely conceal his association with Australia and Pakistan in order to reduce his chance of facing serious harm to remote. 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.

    State protection

29. 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.

30. The UNHCR reported 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.  

31. In respect of the ability of the state to protect, the Tribunal has also considered the following DFAT advice, provided in March 2014, before the coalition forces began the pull out:

    5.1The ongoing insurgency, particularly in the south and east of Afghanistan means that the Government struggles to exercise effective control over many parts of the country. 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.

    5.2Despite these challenges, DFAT assesses that the Government maintains effective control in major urban areas, particularly Kabul, all provincial capitals, including Herat, Mazar-e-Sharif and Kandahar, and the majority of other district centres.

32. The more recent DFAT Report of September 2015 reports the security situation has since deteriorated and even in areas such as Kabul where there is a strong government military presence and the security situation is much better, attacks from anti-government elements are a common occurrence.

33. 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 and Kabul

34. The applicant’s feared persecution described above is linked to the risk he faces returning to his home area. There remains the question of whether the applicant can find protection from this feared persecution by relocating to a different part of Afghanistan.

35. The Tribunal has considered whether it would be reasonable for the applicant to relocate to another area of Afghanistan, and thereby avoid the harm he faces in his home area. Given the applicant’s circumstances, the Tribunal considers that Kabul is the only place to which relocation could realistically be considered. DFAT assesses that the Government maintains effective control over major urban areas, particularly Kabul, although there have been an increased number of security incidents there in recent months.

36. The 2010 UNHCR Guidelines[15] state that it is unlikely that an Afghan would be able to lead a relatively normal life without undue hardship upon relocation to an area where he or she is not fully protected by his/her family, community or tribe, including in urban areas of the country; this is because traditional extended family and community structures of Afghan society constitute the main protection and coping mechanism, and Afghans rely on these structures. The Guidelines state that for a person without familial or social networks and the associated support system, relocation to Kabul would be extremely difficult. The most recent 2013 Guidelines are in similar terms, and state that the mere presence of members of the same ethnic background in the proposed area of relocation does not mean that an applicant would benefit from meaningful support from that community; and even if an extended family network is present it cannot be assumed that they would be in a position to assist. The 2013 Guidelines suggest that unless a person has access to “pre-identified accommodation and livelihood options”, their situation may be difficult .[16] This assessment was shared by DFAT in its September 2015 Country Report, and its September 2015 Thematic Report - Conditions in Kabul alluded to these difficulties while assessing that there are “generally options available for members of most ethnic and religious minorities to be able to relocate from other parts of Afghanistan to relative safety in Kabul”, despite constraints caused by a lack of financial resources and employment opportunities, compounded by the high cost of living, particularly housing; DFAT assesses that single men of working age are most likely to be able to successfully  relocate, and notes that returnees from Australia may have access to cash assistance.[17]

    [15] The United Nations High Commissioner for Refugees, ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’ 17 December 2010, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 6 August 2013, Pages 74-5,

    [17] DFAT Thematic Report, Conditions in Kabul, 18 September 2015, at 3.13 – 3.16

1. In relation to relocation DFAT advise that “large urban areas such as Kabul are home to mixed ethnic and religious communities. Urban areas offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas, including as a result of a higher degree of anonymity for returnees. In practice, internal relocation to urban areas can be limited by a lack of financial resources. Internal relocation to urban areas is generally more successful for single men of working age. Unaccompanied women and children are least likely to be able to relocate to urban areas without the assistance of family or tribal networks.”[18]

   [18] DFAT Thematic Report, Conditions in Kabul, 18 September 2015

2. There is other information documenting the extremely difficult conditions faced by displaced persons in Kabul, which include overcrowding and associated violent clashes over resources such as running water; inadequate housing; high unemployment and a lack of formal jobs; extremely low wages and widespread exploitation in the informal employment sector; and a lack of access to basic services such as electricity and health care.[19] A report by Amnesty International describes conditions for displaced persons, including returning refugees, in Kabul as unrelentingly miserable.[20]  

   [19] “Sanctuary in the city? Urban displacement and vulnerability in Kabul”, V Metcalfe and S Haysom, with E Martin, Overseas Development Institute, Humanitarian Policy Group Working Paper, June 2012, 

   [20] Fleeing war, finding misery, The plight of the internally displaced in Afghanistan, Amnesty International, February 2012,

3. 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. Further, Kabul is reportedly a very expensive city to live in, outside of the slum and ghetto areas.

4. The country information emphasises given the lack of social security infrastructure in Afghanistan, people typically rely on traditional family and clan networks for support. The DFAT advice is that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan. Kinship is central to identity and acceptance in a community, including for finding shelter and employment.

5. The Tribunal acknowledges the applicant indicated members of his tribe may live in Kabul.  However he has been absent from Afghanistan for around [number] years and the Tribunal is satisfied that after such an absence, and taking into consideration the UN Guidelines that the mere presence does not guarantee assistance, the Tribunal finds he has no family, tribal or clan ties in Kabul to assist or protect him. The country information supports a conclusion he has little prospect of being employed without family or tribal ties in Kabul. The country information also suggests that he would be unable to readily find accommodation in Kabul without such connections.

6. Given the absence of family and social links in Kabul, his lack of education and his limited employment history, the Tribunal does not consider it reasonable for the applicant to relocate to Kabul. While he has demonstrated considerable resilience during the period that he has spent in Australia, where he appears to have managed well, in Kabul he would be competing with many similarly unqualified displaced persons for limited job opportunities without a family or social network to assist him to find work. Country information indicates that work in the construction industry or selling fruit and vegetables is the recourse for many displaced persons in Kabul and obviously cannot provide a living for all of them. The Tribunal finds that as a person with no family or social network in Kabul, a limited skill base, and with a wife, children and other family to support, the applicant could not reasonably be expected to relocate there. In addition, the country information indicates that there is an atmosphere of generalised insecurity in Kabul, with the Taliban and other armed insurgent groups increasingly carrying out attacks in the city.[21]  While the Tribunal does not consider that this establishes that he has a well-founded fear of persecution in Kabul, it considers that it is an additional factor that renders relocating to Kabul neither a reasonable nor practicable option for this applicant. The Tribunal does not consider that there is any other part of Afghanistan to which it would be viable for the applicant to relocate.

   [21] See for example, Washington Post, Taliban brings war to Afghan capital”, 29 November 2014, at accessed 24 April 2015.

7. In these circumstances, and having regard to the applicant’s personal situation as set out above, the Tribunal accepts that it is not reasonable for the applicant to relocate to Kabul to avoid his risk of Convention based persecution.

8. The Tribunal is satisfied the applicant has a well-founded fear of persecution for a Convention reason if he returns to Afghanistan now or in the reasonable foreseeable future.

   CONCLUSION

9. 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

10. 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