1615596 (Refugee)

[2019] AATA 5951

1615596 (Refugee) [2019] AATA 5951 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615596

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Anne Grant

DATE:23 July 2019

PLACE OF DECISION:  Melbourne

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 23 July 2019 at 3:26pm

CATCHWORDS

REFUFEE – protection visa – Afghanistan – race – Hazara – religion – Shia Muslim – particular social group – wealthy returnee from a Western nation – Taliban attacks on roads – extraction of ‘road tax’ – informing police against Taliban – targets for kidnap and extortion – decision under review remitted

LEGISLATION

Migration Act 1958, ss 36, 45AA, 65
Migration Regulations 1994, r 2.08F; Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 and Border Protection 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 on 26 February 2013 and the delegate refused to grant the visa on 19 September 2016.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4. The applicant appeared before the Tribunal on 11 July 2019 to give evidence and present arguments. 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. The representative attended the Tribunal hearing.

   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 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.

11. The issue in this case is whether the applicant is a refugee under section 36(2)(a) or otherwise meets the criteria in s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The Applicant’s Claims.

12. In summary, the applicant’s claims are as follows:

    ·He is from a village called [Village 1] in [District 1], Balkh province, Afghanistan.  He is of Hazara ethnicity and Shia faith.

    ·His family owned land in [Village 1] and farmed it, with the employee  labour of fellow villagers. The applicant was not required to work on the farm.  His family made a good living from the farm.

    ·In 2012, his father suffered a heart attack.  The nearest clinic was in the centre of [District 1].  They waited as long as they could but when he started having breathing difficulties as well as digestive pain, the applicant took his father to the clinic.  It was late at night, and a long way, and they travelled by motorbike.  When they were nearly at the clinic, they were stopped by several men.  These men were Taliban, and wearing the clothes and long beards associated with the extremists. They were not known to the applicant or to his father. The men asked them if they were Hazaras and when the applicant’s father said they were, the men made them get off the bike and began to beat them with their rifle butts.  They pleaded for their lives, explaining that they needed to get to the clinic.  The men took all the money they had brought for medical treatment and finally agreed to let them go, on the promise that they would not tell anyone about what had happened. 

    ·The applicant’s father was kept at the clinic for five days due to his heart condition and because of injuries sustained in the beating and the applicant himself was kept there for two days due to his having sustained an injury to his shoulder.  In that time, his mother and uncle travelled to the clinic to bring more money and in discussions about what had happened, they told the applicant not to report the attack, saying that it would just cause more trouble.

    ·In the time he was in the clinic, he and his father discussed the attack and the applicant decided that he should  report it to the local police command also located nearby.  Whilst his father had reservations, he agreed in the end that they should report it so that perhaps the people could be stopped.   The applicant said that he himself was very angry in that time about what happened.  When he was released from the clinic, he went to the police and reported it.

    ·When the applicant and his father had returned home to [Village 1], the police called and said that they had located some of the people involved and asked the applicant to come in to identify them.  By this stage, the applicant’s temper had cooled and he had begun to worry about the consequences if he did actually identify the men who attacked them.  He feared that they would take further revenge.  So he refused to travel to [District 1] to identify them. 

    ·The applicant does not know what happened in the case.  He doesn’t know if the alleged offenders were arrested or just questioned.  In any event a couple of days later, his father received a phone call from someone, speaking Pashtun.  They said that they would get the applicant for telling the police about the attack when he had promised not to.  His father was very worried about the phone call.  He told the applicant he would send him to Kabul until things had calmed down.  That same night they drove to Mazar-e-Sharif and then the applicant took a bus to Kabul. 

    ·He stayed in a hotel in the [specified] suburb of [Suburb 1] For 45 days.  In that time he was in contact with his father to find out if things had settled down.  At this stage, it was just expected that the threat would ease and he would be able to return home.  However his father said that the men kept ringing him and threatening to find and kill the applicant.  His father decided that it was necessary for the applicant to leave the country and that it was not safe for him to remain in Afghanistan.  Once that decision was made, his family told the local community that the applicant had abandoned them and that they had no idea where he was.  They did this so that extremists living in the local area would not target them for money and other harm.  They have continued to present themselves as estranged from the applicant for that reason, even though they have kept in contact ever since he left and the applicant has sent money to Afghanistan to help them.

    ·When he arrived in Kabul and it became clear he had to leave, the applicant made contact with a travel agent who helped him obtain a passport and made arrangements for him to leave Afghanistan.  The applicant had brought a copy of his Taskera but left the original at home, and the agent used that to obtain the passport.  He believes that the passport was legitimate.  He then travelled out of Afghanistan to [Country 1] and then to [Country 2] on a student visa.  The applicant has had very little traditional schooling and was not asked anything about his desire to study so he believes that the student visa was obtained on false premises.  He arrived in [Country 2] and was met by a representative of the school (which he was supposed to attend for his ‘study’), to get through customs.  Then, he had to pay the man [amount] USD once they had left the airport.  This person from the school also took his passport, because he said they needed it to ‘extend’ his visa.   The people smuggler then took over and told the applicant not to worry about his passport as ‘he wouldn’t be needing it’.  Then he came to Australia by boat.  He arrived in Australia on or about [a date in] December 2012 aboard a boat code named [Boat 1].  The applicant was [age] years old when he arrived in Australia and before leaving [Village 1] after the threat to his life, he had not travelled anywhere at all outside his local district.

    ·The applicant claims that if he returns to Afghanistan, he will be targeted by the Taliban because of his having reported the men who attacked him and his father in 2012.  He also fears that he will be the subject of attack by the Taliban and Islamic State extremists more generally because of his Hazara ethnicity and Shia religion.  The applicant also fears that he will be targeted as a returnee from a western nation both because of his being perceived to be wealthy (and that he will become the subject of extortion and kidnapping)  and because he will be perceived to be a supporter of the western ideals opposed by the Taliban and Islamic State.

    CONSIDERATION AND FINDINGS

13. The delegate in this case initially appeared to have some concerns about the applicant’s age, ethnicity and whether he was from [Village 1] as he claimed.  Ultimately, the delegate was satisfied that the applicant was a national of Afghanistan and about his identity. 

14. Based on the information and evidence before me, I accept that the applicant is [name] and that he is a national of Afghanistan.  I also accept, (as the delegate did), based on his evidence and his observed familiarity with the Hazaragi language, that the applicant is a Hazara of the Shia faith.  When questioned about his faith at hearing the applicant responded that  in Afghanistan he was required to and did regularly attend Mosque to pray but that in Australia he has not maintained the practice of his faith - due mainly to his work commitments.  I accept his evidence that if he was in Afghanistan, he would be expected to and would resume attending regular prayers and Shia festivals.

15. The delegate did not accept the applicant’s claims to be from [Village 1] despite confirming that information given by the applicant at interview about the area was supported by country information.  The delegate did not accept that he was the subject of death threats after being attacked by and reporting a Taliban group in 2012.  The delegate found that the applicant was actually from Mazar-e Sharif, based on perceived inconsistencies with the applicant’s evidence about the issue of and how he obtained and then lost possession of his passport and vagueness about his time living in Kabul prior to leaving Afghanistan.    The delegate did not accept that the applicant ever travelled to Kabul, instead concluding that the applicant obtained his passport in and left Afghanistan from Mazar-e Sharif.   One of the reasons  referred to by the delegate in his decision to ground his finding that the applicant was from Mazar-e Sharif and not [Village 1] was to the applicant sending money to Mazar-e Sharif and not to [Village 1].  This was put to the applicant and he agreed, but explained that his father would travel to Mazar-e Sharif to get the money because there were not facilities to do so in [Village 1]. 

16. I reminded the applicant that the Delegate had found that he was not actually from [Village 1] but was from Mazar-e Sharif.  He explained that what he had said about his being born in and growing up in [Village 1] was true, as was his family history.  He could draw a detailed map of the area.  His family still has land there, farmed by locals in their absence.  His parents live in Mazar-e Sharif now but they did not before he left.  They still lived in [Village 1] when he spoke to the delegate and until late 2016.

17. The Departmental file included a document which was the subject of a certificate under s.438(1)(a) of the Act, on the basis that it contained internal working documents and papers.  The information was relevant to the issues before me and potentially adverse to the applicant and I determined that it was appropriate to disclose a summary of the content and give the applicant an opportunity to respond to that information. 

18. The document is dated in August 2016 and is vague and lacking in any explanation of its’ source.  However, it suggests that the applicant was’ having contact’ with persons (who appeared to be mostly members of his family) in Mazar-e Sharif whilst he was in Australia.   The information is potentially adverse to the applicant as it does not reflect him having regular contact with anyone from [Village 1], where he said his family was from.  The applicant was informed that the source of this information is unknown and it does not bear any dates of specific contact, and why it was potentially adverse to him.

19. The applicant was given a break and time to respond to the information in the document.  He did not change his evidence about his personal history, and responded at length to the summary of the information I had given him.  The applicant indicated that there are a number of reasons why his parents would be reported as being or actually have been in Mazar-e Sharif prior to them moving there.   For example, he explained that his mother suffered from a complicated eye condition [as specified], and she required at least two surgeries.  He sent money back to Afghanistan so that she could have the specialist surgery in Iran because the local treatments had not worked at all.   Before and after she went to Iran, his mother and father were in Mazar-e Sharif en-route.  The applicant also said that his main way of having contact with his family has always been via [social media] because he couldn’t afford the phone costs to call direct.   Like everyone from their region, they described themselves on [social media] as being from Mazar-e Sharif and not from [Village 1].   He suggested that it is common in Afghanistan to pick the nearest big city as your ‘from’ location rather than smaller, lesser known villages.    Also, as he had indicated earlier, his father had to travel to Mazar-e Sharif to collect money he had sent, and he most probably spoke to him when he was there, on some occasions.   The applicant was adamant that his family only moved to Mazar-e Sharif late in 2016.  Since then, the locals who manage their farm send half of the produce to them in Mazar-e Sharif which they use for their own food.  His father does not sell that produce in his shop, but buys other stock to sell.  I had not disclosed  that the certificated document also included a reference of  the applicant being in contact with a person in Iran as I had not considered that relevant to the issues in this review.  Despite this, I note that in the process of explaining how it might be that ‘sources’ might suggest he was contacting people in Mazar-e Sharif, the applicant spontaneously gave an explanation  which also explained why he would be contacting someone in Iran.  Iran had not been mentioned in my summary of the certificated information.   

20. The Tribunal observes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he satisfies all of the required statutory elements.

21. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

22. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he has made.

23. This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

24. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

1. I have considered the applicant’s evidence about his life and experiences in [Village 1].  I accept that he was just a young man when he left the area and left the country on that very first trip away from home.   I accept that the months away from home and the process of getting to Australia were distressing and overwhelming for the applicant. I consider that despite that, his evidence about his reasons for fleeing Afghanistan have been consistently reported from his entry interview to date.  I do not consider that much weight should be placed on small inconsistencies (such as where he got his passport) given the situation that the applicant found himself in, in Kabul and then again on arrival in Australia after a perilous and terrifying boat journey.  

2. On balance, I also consider it appropriate to place no weight on the information contained in the certified document as either tending to prove or disprove  that the applicant was from Mazar-e Sharif  and not [Village 1], because the information is extremely brief, the source of the knowledge is not disclosed, nor the frequency or method of contact.  Also, I find the applicant’s explanations of the information in the document to be reasonable. 

3. The applicant has provided some documents in support of him being from [Village 1] and not Mazar-e Sharif.  Those documents are

   ·A letter from the village representative, [Village 1] of [District 1] dated 2 July 2017.  This letter confirms that the representative, [Representative A] knows the applicant.  The letter confirms that:  “Due to Taliban threats, he fled the [District 1] because of a person called [name]”.

   ·A letter from the Shia Scholars Council of Afghanistan which requests verification of “the Application of [variation of applicant’s name], resident of [Village 1], [District 1] of Balkh province.”  The Shia Scholars Council replies ([in] June 2017):  “[The applicant] is completely know to me as he is one of the shia brothers and can verify his character.”

4. At hearing, I asked the applicant if he knew the names of any of the people who threatened him, or whether his father did.  The applicant said that he did not and when I noted that [Representative A] specifically names one of them, the applicant replied that it may be that the village representative who still lives in the area knows who it is now but the applicant is unable to say.  The applicant got these letters because the delegate had found that he was not from [Village 1], as support for his claims.

5. I have carefully considered the matters which caused the delegate concerns about the  applicant’s credibility or his evidence to be from [Village 1], the new evidence described above and the applicant’s evidence in both his claims and before me.  I do not share the delegate’s concerns.  I accept the applicant’s evidence as consistent and credible.  The incident of being stopped, beaten and robbed when he was making an emergency trip to [District 1], to extract a ‘road tax’ and because of his ethnicity, is consistent with known Taliban conduct reported widely in country information about Afghanistan and is one of the reasons that night travel throughout the country is reported to be extremely dangerous.  In any event, because of my findings which follow about the real chance of harm to the applicant in Afghanistan, I do not consider that the outcome of my consideration would be different, even if I shared the delegate’s concerns and reached a conclusion that the applicant was from Mazar-e Sharif - and not [Village 1]. 

6. Nonetheless, I consider this to be a case where the applicant ought to be given the benefit of doubt. Allowing for some inconsistencies about his taskera and passport which could be (and have been) reasonably explained by fatigue, confusion and interpreting difficulties, I found his evidence about the family home, the farm  and his knowledge of [Village 1] and the surrounding district to be plausible and credible and I accept it. For the purposes of this review, I accept that the applicant is from [Village 1] in [District 1] , Afghanistan, that his parents still own land there and that his family now lives in Mazar-e-Sharif after their security in [Village 1] became uncertain.   

7. I accept that the applicant’s parents moved to Mazar-e-Sharif late in 2016 due to fears for their security and safety in [Village 1].  I accept that in the years since he left Afghanistan (and before they moved there)  the applicant sent money to Mazar-e-Sharif to his father due to there being no facilities to do so in [Village 1]. 

8. The reasons in the applicant’s claims for the harms he fears are:

   ·His ethnicity as a Hazara;

   ·His religion as a Shia Muslim;

   ·His membership of the particular social group of people who have returned from living in a Western Country, (because they are perceived as wealthy and supportive of the West;) and

   ·additionally, he fears harm from extremists because he reported an assault and robbery by members of the Taliban which was investigated by local police.  Although this bears the character of a criminal seeking retribution from a victim, the reason for the attack on the applicant and his father which triggered the dispute was at least partially due to them being Hazaras.

9. I find that the essential and significant reasons for the harm the applicant fears are convention reasons.

   Does the applicant face a real chance of persecution in Afghanistan?

10. The applicant comes from a small rural village where his family is well known.  I accept that the extremists who attacked his father and he on the road would plausibly find out if he were to return to [Village 1] and resume their threats and attacks on him.  Based on how quickly they obtained his father’s phone number and began to threaten the applicant, I accept that it is plausible that extremists in [District 1] have contacts within the police and the local community and would have the capacity to find the applicant if he was to return to that region.  I have accepted that the applicant has been targeted by local extremists after he reported them to police.   I accept that there is a real chance that the applicant would be assaulted, extorted and or killed by Taliban extremists if he was to return to his home village.

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

12. I have taken into account the following relevant information extracted from DFAT Country Information Report on Afghanistan 27 June 2019:

    2.5  The Taliban and other anti-government insurgent and terrorist groups continue to contest the Afghan government’s control in many areas. No part of the country is entirely free from conflict-related violence, with resulting negative effects on economic development, health care and education services.

    2.17  Mazar-e-Sharif (‘Mazar’) is the capital of Balkh province, in the far north of Afghanistan bordering Uzbekistan, Tajikistan, and Turkmenistan. Balkh has traditionally been an important trading location due to its location at the historical crossroads of central Asia, China, the Indian sub-continent, and Iran. Balkh and Mazar more specifically have continued to play an important economic role as both an import/export hub and a regional trading centre for northern Afghanistan. Mazar maintains extensive economic links with other northern provinces and with Kabul. Balkh’s provincial economy is predicated upon trade and services (43.2 per cent), agriculture (38.5 per cent), and manufacturing (16.2 per cent). Mazar has a tradition of high educational standards, especially at higher levels and Balkh has a comparatively high literacy rate. Approximately a quarter of Balkh’s population are migrants, defined as those who had resided elsewhere for a least six months in another district within Balkh, in another province, or abroad. Mazar is the most popular destination for migrants, attracting 46 per cent. Although statistics related to ethnic breakdown are not available, Balkh is a Tajik majority province.

    2.52  The security situation in Afghanistan is dangerous, complex and highly fluid. It varies considerably by location, including between rural and urban areas. A number of AGEs, most notably the Taliban and the Haqqani Network (HQN), remain engaged in a violent armed insurgency against the government and its international partners (see Anti-government elements). The emergence of an Islamic State-affiliate in pockets of eastern Afghanistan, Islamic State in Khorasan Province (ISKP), has been a growing concern for the international community. Allegiances between groups can change quickly. Arrangements of convenience exist, even between groups generally considered adversarial. Insurgent forces contest many areas of the country, and no part of Afghanistan can be considered completely free from conflict-related violence. Considerable ethnic and intra-ethnic tensions exist throughout the country, separate from (but intersecting with) the continuing armed conflict. Competition over land rights and access to scant resources can on occasion adopt ethnic overtones and escalate into community-level violence. International and domestic observers agree that the general security situation in Afghanistan has deteriorated considerably in recent years. In the Asia Foundation’s 2018 Survey of the Afghan People, 71.1 per cent of Afghans reported feeling fearful for their personal safety.

    2.53  UNAMA’s annual report for 2018 found that the overall number of armed clashes between pro- government Forces and AGEs decreased slightly across Afghanistan in 2018. Fighting intensified, however, in some parts of the country, particularly in the east, southeast and areas within the south. The Taliban made territorial gains in sparsely populated areas, and advanced their positions in areas that had not seen fighting in years. They temporarily gained control of strategic check posts, including along major roadways leading to Kabul city, further restricting freedom of movement for residents and hampering movement of goods and people between major cities. The pressure on the population and non- governmental community to pay illegal taxes to the Taliban reportedly reached higher levels than in recent years as the movement attempted to assert its presence across larger areas of the country and the Taliban’s leadership ordered local groups to become more reliant on local sources of revenue.

    2.57  ISKP formally launched its Afghanistan operations in January 2015, pledging its allegiance to the ‘caliphate’ in Syria and Iraq. Initially based in Nangarhar province on the porous Pakistan border, ISKP has subsequently expanded its presence to approximately 30 districts across the country, primarily in the north and east. The UN has estimated the overall size of the group in Afghanistan at between 1,500 and 6,000. ISKP has identified its specific targets as the Shi’a community (see Shi’a), government and foreign military forces, and the Taliban, who had not previously been challenged by an insurgent group. Despite rigorous targeted operations against ISKP by the government and international military forces, and fierce fighting between the Taliban and ISKP in a number of provinces, ISKP has continued to carry out attacks and targeted killings.

    2.61  UNAMA documented 3,804 deaths and 7,189 injuries in 2018, representing a five per cent increase in overall civilian casualties and an 11 per cent increase in civilian deaths from the previous year. In 2018, there was a considerable increase in civilian casualties caused by suicide attacks by AGEs, particularly ISKP. Suicide IEDs caused almost 26 per cent of all civilian casualties. Of particular concern are the number of casualties from attacks by AGEs deliberately targeting civilians, mostly in the form of suicide and complex attacks. These increased by 48 per cent from 2017, causing 1,404 deaths and 2,721 injuries. The number of civilian casualties from deliberate targeting by the Taliban nearly doubled in 2018 from the previous year, with 1,751 casualties overall. The increase largely resulted from a suicide ambulance attack in Kabul on 17 January (See People associated with the government or international community); and from election-related attacks on polling day on 20 October, when UNAMA recorded the highest number of civilian casualties on any single day in 2018. Civilian casualties from attacks deliberately targeting civilians by ISKP also more than doubled from the previous year to 1,871 in 2018. The ISKP attacks were mainly suicide and complex attacks, including sectarian-motivated attacks against Shi’a (see Shi’a). There were also increases in harm to civilians resulting from aerial operations and search operations.

    2.64  Kabul remains a particularly significant target for suicide and complex attacks against both civilian and non-civilian targets carried out by AGEs. The ANDSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. These include numerous checkpoints along highways leading into Kabul, at major intersections, and outside government and international institutions. These checkpoints provide a deterrent to insurgent attacks by increasing the probability of detection before AGEs are able to carry out their attacks. Nevertheless, the checkpoints vary in their effectiveness, and violent attacks within the city are common (see Shi’a and People associated with the government or international community).

    2.65 The security situation in the Hazarajat, particularly Bamiyan province, has been considerably better than in most other parts of Afghanistan in recent years. There are a number of factors behind this: the Hazara comprise the vast majority of the population in most districts in these provinces, which means there are fewer opportunities for ethnic tension; and because the Hazara are visually distinct, non-Hazara have found it difficult to infiltrate these areas without detection. The mountainous terrain of the Hazarajat also offers a form of natural protection, with few routes for outsiders to traverse these provinces.

    2.66 In the reporting years 2017-2018, UNAMA recorded only one conflict-related civilian death in Bamiyan province (caused by unexploded ordinance or a landmine), and only ten injuries. Security conditions in other parts of the Hazarajat, however, deteriorated significantly in 2018. Large-scale Taliban attacks in the Hazara-dominated western areas of Ghazni province led to protracted fighting and large-scale displacement from August onwards. In late October, fighting between the Taliban and a Hazara former Afghan Local Police (ALP) commander led to displacement of many Hazara families in the Khas Uruzgan district of Uruzgan  province. The Taliban began offensive operations shortly afterwards in the Malestan and Jaghuri districts of Ghazni province, which ended in both locations by 19 November after large-scale operations by Pro-Government forces. UNAMA verified 20 civilian deaths and six injuries in Jaghuri and four deaths and seven injuries in Malestan, all caused by the Taliban during the period of the offensive. UNAMA determined that dozens of additional casualties had likely lost their civilian status due to direct participation in hostilities. Ground engagements also affected the southern areas of Daykundi province bordering Uruzgan province over the course of 2018. These areas tend to be less secure than the rest of Daykundi province as they form an unofficial border between majority Hazara and Pashtun communities, providing increased opportunities for localised ethnic violence

    2.68 Balkh province experienced a 78 per cent increase in civilian casualties in 2018 from the previous year, with 85 deaths and 142 injuries. Ground engagements were the leading cause of casualties, ahead of non-suicide IEDs, with the number of civilian casualties caused by ground engagement almost tripling from 2017. UNAMA’s reporting does not provide any indication that significant numbers of civilian casualties occurred in Mazar-e-Sharif.

    2.75 Conflict-related abductions involve the forcible taking and holding of a civilian or civilians by a party to the conflict in order to compel the victim or a third party to take or refrain from taking an action. Anti- government elements kidnap civilians based both on suspicions that they have connections to or work for the government, and for financial gain, with release predicated on payment of a substantial ransom. According to UNAMA, there are also cases in which anti-government elements abduct civilians and hold them hostage for the purpose of warning against ‘unacceptable’ behaviour. UNAMA also noted continued abductions by illegal armed groups and criminal gangs, particularly in large cities such as Kabul, which are under-reported.

    2.80 DFAT concurs with the assessment of UNAMA and other international sources that the primary motivations for kidnapping/abductions include taking hostages for ransom or prisoner exchange, or to target those with connections to the government or international community.

    3.9 The Hazara have made significant social, political and economic gains in Afghanistan since the fall of the Taliban in 2001, albeit from a low base. However, the continuing armed insurgency conducted by the Taliban and other groups has raised questions over the sustainability of Afghanistan’s progress. These questions have been exacerbated for Hazara since the emergence in mid-2016 of a campaign of religiously- motivated attacks against Shi’a by militant groups, including ISKP (see Shi’a). While Afghans of all ethnicities feel uncertain about Afghanistan’s future, DFAT assesses that the Hazaras’ previous experience of life under the Taliban and earlier episodes of discrimination have caused many to feel particular concern about the long-term prospects for their community. This concern is an important factor contributing to the decision of many Hazaras to leave Afghanistan.

    3.11 As noted in Security situation, Bamiyan and (to a lesser extent) Daykundi provinces have been significantly less affected by the ongoing armed conflict than most other Afghan provinces. This is not the case, however, for many of the surrounding provinces and other provinces on transportation routes to major cities. This insecurity has placed considerable limits on the ability of Hazarajat producers to access large markets. It also has implications for Hazaras seeking to travel for seasonal work in other provinces (which applies also to poor Afghans of all ethnicities). Provinces which suffered either a significant rise in civilian casualties or a sustained level of already high casualties in 2018 included Wardak (on one of the two main transportation routes to Kabul), Ghor (on the main transportation route to Herat, Samangan (on the main transportation route to Mazar-e-Sharif), Baghlan (offering transportation routes to Kabul, Kunduz, and Mazar-e-Sharif); Balkh (host province for Mazar-e-Sharif), Kabul, Kandahar (host province for Kandahar city), and Ghazni (on the southern border of the Hazarajat. Reduced civilian casualty rates were recorded, however, in the provinces of Uruzgan (on the main transportation route to Kandahar), Parwan (on the other main transportation route to Kabul), Herat (host province for Herat city), and Sari Pul (on the northwestern border of the Hazarajat).

    3.16 DFAT assesses that Hazara residing within the Hazarajat (particularly within Bamiyan province) face a lower risk of experiencing conflict-related violence than are those residing in other parts of the country, particularly those residing in Kabul. Those residing in the Hazarajat are also at a lower risk of experiencing societal discrimination in relation to employment opportunities than those residing elsewhere due to their being in the ethnic majority. While Hazara are able to secure employment within government and with the international community, their ability to obtain senior positions within government is limited due to their ethnicity. This represents a moderate risk of societal discrimination. Because Hazara are widely perceived to be supporters of the government, the risk profile described in People associated with the government or international community is applicable to them. Because the overwhelming majority of Hazara are Shi’a (or are widely perceived to be), the risk profile described in Shi’a is applicable to them.

    3.35  DFAT assesses that Shi’a face a high risk of being targeted by ISKP and other militant groups for attack based on their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.

    3.46 DFAT assesses that people working for, supporting or associated with the government and/or the international community (or perceived to be doing so) face a high risk of violence perpetrated by AGEs, particularly the Taliban. Given the methods of attack used are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack or is a lower level employee of the organisation in question.

    5.11 International donors have made significant efforts to turn the ANP into a credible, professional and effective police force, including through providing extensive training on human rights. International observers report, however, that the ability of the ANP to provide and maintain security and law and order remains limited, particularly outside major cities. The ANP has a weak investigative capacity, lacking forensic training and technical knowledge. Its overall capacity is constrained by a number of factors, including lack of resources, poor training and leadership, low morale, and high levels of corruption. The majority of ANP members are either illiterate or have very low levels of literacy. Human rights observers have expressed concern over ongoing reports of serious human rights abuses committed by ANP members, including allegations of intimidation, extortion, torture, and sexual abuse.

    5.34  Economic and employment opportunities vary across the country, but are likely to be limited in rural areas and areas directly affected by the continuing armed conflict. DFAT assesses that while there are generally options available for internal relocation in Afghanistan, there are considerable security and economic factors that limit the ability of Afghans of all ethnicities to relocate internally safely and successfully.

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

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

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

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

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

   ·     Security conditions continued to deteriorate in Kabul city.

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

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

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

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

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

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

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

2. I also found the EASO Country of Origin Information report:  Afghanistan (Key socio-economic indicators, state protection, and mobility in Kabul City, Mazar-e Sharif, and Herat City)  (August 2017) [1]invaluable in considering the issues facing citizens and internally displaced persons in each of those cities.  In respect to Mazar-e Sharif in particular, I have taken into account the following information from that report and rely on it in making my decision (emphasis added to some paragraphs):

   [1] Accessed via Refworld and available here:  Mazar-e Sharif

   The population of Mazar-e Sharif is about 590,000 and given its ‘strong and relatively diversified economies including robust construction, manufacturing and services sectors’ is ‘under considerable urbanisation pressure’ (202).

   The relatively peaceful situation in Balkh province in the first decade after transition allowed for a surge in economic development and an “economic boom” after 2004 (203). Mazar-e Sharif’s economic performance has attracted many labourers from the countryside, from neighbouring districts, provinces and even further afield (204). A 2014 study on urban poverty by Samuel Hall found that the city had by far the biggest share of economic migrants of all five major cities in Afghanistan (205).

   Due to its link with Central Asia and advantageous central position in the north of Afghanistan, Mazar-e Sharif is an important import/export hub, as well as a regional trading centre for Northern Afghanistan (206). According to UNHCR in Afghanistan, ‘In late 2016, some key districts connecting Mazar-e Sharif to Hairatan Border, Kaldara and Shortepa, witnessed an increasing number of anti-government elements and security incidents along the highway. The attacks mostly targeted commercial convoys and are directed as disrupting the commercial ties of the province with Uzbekistan and China’ (207).

   Mazar-e Sharif is also an industrial centre, with a large number of small and medium enterprises and several large-scale manufacturing enterprises. Compared to other major cities, Mazar-e Sharif has the largest share of self-employed people, followed by salaried workers and day labourers (208). According to the Afghan government ‘[t]he SME industry in Mazar-e Sharif is well developed, providing Qaraqul skin, handicrafts, rugs and carpets. Mining, textiles and agro-based products are also growing in significance’ (209).

   Mazar-e Sharif’s booming urban economy has provided a source of non-agricultural income for many households but that has been in visible decline since about 2013. This is attributed to a combination of factors, mainly the reduction in international financial flows which has curtailed employment on military bases and in construction. For example, an estimated 7,000 people lost their jobs due to the closure of two military bases in and around Mazar-e Sharif. Here too, the uncertainty due to the political instability in the National Unity Government has affected the economy of Mazar-e Sharif. Businessmen adopted a wait-and-see attitude (210). The business climate in the province Balkh has been largely negative since the second half of 2015, mainly due to ‘security’ factors (211). Until 2012-2013, the construction sector was booming, with a peak period in 2009-2010. Rising wages had reflected a constant demand for labour. However, between 2010 and 2012 there was a 50 % reduction in construction activity. As a result, many companies have become inactive and went on “stand-by”. From 2012-2013 wages declined, reflecting a drop in demand for construction workers (212).

   While there are no formal economic statistics available, there were, according to analyst Paul Fishstein, clear indicators that construction, investment and trade were all down in Mazar-e Sharif, with casual labourers finding less work and stagnant or lower wages (213). Those who arrive for casual labour in Mazar-e Sharif are at a disadvantage relative to those who are better known and make better use of their networks to find work (214).

   In 2013 the provincial unemployment rate was above the national average, while the under-employment rate was below it (215). According to a study by Mercy Corps and Samuel Hall from 2011, the main recruitment channel in Mazar-e Sharif is, as in other cities, the social network: 85 % of labourers reported being recruited through friends or family, being either an employer or an employee. Only 7 % of employees reported having a formal work contract. This highlights the informal nature of employment relations in Afghanistan. It also reinforces the assumption that most businesses are family-run, where no contract is deemed necessary. Salaries in Mazar-e Sharif are close to the average in other Northern cities (216).

   According to Afghanistan Rights Monitor: Baseline Report of April 2016, ‘[t]here is uniform contention that access to employment is severely compromised by corruption and nepotism. Bribery is a pre-condition of gaining employment even if a candidate has the necessary qualifications. There are allegations of ordinary government positions being sold for up to 60,000 Afghanis’ (217).

   Access to employment for IDPs & returnees in Mazar-e Sharif

   UNHCR stated in 2017 that both IDPs and returnees faced significant challenges in accessing meaningful employment and livelihood opportunities. IDPs, who are mostly former farmers and lost their livestock and harvest in place of origin, often rely on daily wage jobs. These jobs are more limited during fall and winter seasons. Returnees also mostly rely on daily wage jobs. The average daily income for returnees and IDP families is between 50 and 100 AFS (218).

   2.3.8…

   Only about 15 % of inhabitants of Mazar-e Sharif live above the poverty line (365). According to a 2015 study, Mazar-e Sharif has the biggest share of income earners making only an irregular living of all five major cities (366). When defining poverty as the share of households that spend more than 60 % of their income on food, Mazar-e Sharif stands out, with over half of its population spending more than 60 % of their income to food, presumably because it is more expensive in Mazar-e Sharif (367). Households in Mazar-e Sharif also reported the lowest dietary diversity (368). The main problem for Mazaris is not the availability of food but the affordability of a diversity of food items (369). Balkh is therefore the exception to the trend whereby more urbanised provinces generally have a lower official poverty rate than rural provinces (370).

   Mazar-e Sharif ANP

   3.4.7.1. Structure and capacity

   Publicly available information on the number of police, as well as the ethnic and gender composition for Mazar-e Sharif and Balkh province could not be found. The senior political analyst interviewed for this report explained that the police dynamics and relative stability in Mazar-e Sharif is more similar to Herat than to other provinces, due to the influence of strong local power-holders and figures, such as the governor (980). Balkh governor Atta Mohammad Noor, of the Jamiat Party, is described as one of Northern Afghanistan’s most dominant political figures. He is a former Mujahideen commander and of Tajik ethnicity (981). In 2014, President Ghani dismissed him as governor but he refused to step down (982). Tolo News reports in February 2017 that Atta was in talks on moving to Kabul to take up a post in the national government (983). Sources have ascribed the relative stability in Balkh province to his leadership dominance (984).

   3.4.7.2. Response and effectiveness

   The New York Times reported that security in Mazar-e Sharif has been gradually deteriorating since the transition to Afghan command in 2014 (985). In May 2015, Balkh Governor Atta publicly stated that if the government did not become more effective in dealing with security matters in Northern Afghanistan, then he would have to take action himself (986). Mazar-e Sharif had a reputation as a relatively quiet city until the 2016 bombing of the German Consulate (987). The senior political analyst explained that there has been a new infiltration by insurgents in the north who are carrying out abductions, for example, stating that this kind of activity had rarely happened in the northern part of the country.

   In terms of police response, in Mazar-e Sharif, citizens surveyed by APPRO in April 2016 stated that they were generally satisfied with the security conditions and the ANP in the city and neighbouring districts. However, citizens typically complained ‘vociferously’ about informal power holders more than the ANP. Police were described as responding well in relation to harassment in the street, or in providing protection to girls traveling to school (989). APPRO reported that between May and August 2016 in Balkh province, there was an increase in security checkpoints and security meetings with the governor and police which resulted in improved security conditions, while there was also improvement in police registration of cases involving women and children . However, there were reports of continuing security problems, for example:

   -  In April 2017, Taliban attacked an army base in Mazar-e Sharif and killed over a hundred soldiers, to some accounts 140, and wounding another 160 soldiers .

   -    On 10 November 2016, a VBIED detonated at the German consulate in Mazar-e Sharif, killing 4 civilians and injuring 128 people, including 19 women and 38 children. The Taliban claimed responsibility for the bombing. The Indian Consulate in Mazar-e Sharif was also attacked in 2016.

   -    In April 2015, four Taliban militants attacked a government compound in Mazar-e Sharif which houses the provincial Attorney General’s Office and provincial court of appeal. Five members of the security forces and five civilians were killed, with more than 60 injured, including women and children (995). A district police chief was also killed.

   -    In October 2014, the Mazar-e Sharif ANP headquarters was attacked by two members of the Taliban, killing two people and injuring 18 before being killed by security forces.

   There is a political rift within the region between supporters of Atta and supporters of Dostum, which has caused infighting within the population. In April 2016, street violence broke out in Mazar-e Sharif between supporters of Balkh Governor Atta and those of First Vice President, General Dostum, reportedly because Atta was accused of pulling down a billboard of Dostum. Atta claimed in the media that Dostum was trying to disrupt peace in the city and that he had forces trying to come into the province but that they were ‘repelled at the border gates’ by Atta’s force.

3. My assessment of the country information about the situation for Hazara Shias in Afghanistan reflects that they are at risk of being targeted by Taliban and Islamic State throughout the country and also that civilian casualties as a consequence of increased extremist activity are at the highest level in recorded history. The applicant has never lived outside of his home area (and for this purpose I am including Mazar-e Sharif in his ‘home area’ given that it is in the same province and his family currently lives there) and has no contacts or family outside of Balkh state. I also note that according to country information, the security situation in Kabul is continuing to deteriorate and attacks on Hazara Shia neighbourhoods and religious festivals and mosques are increasing.   In that context, I find that the real chance of persecution of the applicant because of his faith, his ethnicity, and due to his membership of the particular social group of returnees from a western country is higher than a remote chance throughout the country outside of Balkh state as well as in [Village 1] and [District 1]. 

4. In relation to Mazar-e Sharif, I note that the applicant’s family has established a business there and that they did so to escape rising security issues in their home village.  Given that the applicant would have family support in Mazar-e-Sharif, I have carefully considered whether the applicant faces a real chance of serious harm in Mazar-e-Sharif.

5. I conclude from the country information before me, that once considered one of the safest places in Afghanistan, the security situation in Mazar-e-Sharif is deteriorating after decades of conflict, and, as a result of that conflict, the influx of displaced people and poor resources. Jobs are scarce, business and the building industry is in decline and foreign investment has greatly decreased. Accommodation is poor with many families living in crowded facilities.  I also note that over recent years the city has suffered from a number of terrorist attacks and is not immune from the blight of anti-government elements afflicting the country generally.

6. Given DFAT and Home Affairs’ assessment of the deteriorating security situation, I consider that there is a real chance that  even areas like Mazar-e-Sharif (formerly one of the safest regions in Afghanistan) will be increasingly targeted in the foreseeable future by extremists seeking to gain control of the region from the Afghan Government. I consider it reasonable to conclude that the patterns of violence in other regions is likely to be mirrored in areas formerly considered more secure as anti-government elements seek to establish stronger roots in states such as Balkh, including targeted acts of violence against the Hazara Shia community.

7. The applicant’s family has established a life in Mazar-e Sharif.    He could fly into the city from outside Afghanistan and avoid the dangerous roads surrounding the city, and he would, at least in theory, have access to some accommodation with his family.    However I have accepted the applicant’s evidence that after he left, members of the local community, particularly those with links to extremists in the region, began to treat his family differently, and wanted to know what had happened to the applicant, and where he had gone.  To avoid their scrutiny, and being targeted due to his having moved to a ‘wealthy’ country, his family have said that he ‘abandoned’ them, that they don’t know where he is, and that they have disowned him.  Even now, they try to limit who in either the [Village 1] or Mazar-e-Sharif community know that they are still in contact with him or that he sends them money, because they fear it would make the other members of his family still in Afghanistan (his parents and siblings) targets for kidnap and extortion.   The applicant gave evidence that his brother has recently been robbed of a mobile phone purchased with money sent by the applicant.  He was threatened at gunpoint on a bus to school.  The applicant gave this as an example of the risks faced by returnees as well as a risk to ordinary members of the Mazar-e-Sharif community and as a sign of the general lack of security in the country.

8. Based on the steps his family have taken in the past to protect themselves from being linked to the applicant for their own and his safety, I consider that there is at least some chance (in the sense that it is greater than a remote chance) that if he were to return to Afghanistan and to live in Mazar-e Sharif, the applicant may be identified and targeted by locals (such as displaced rural workers who have links to his former community in [Village 1]) and who may also plausibly have links to the extremists in [District 1] who sought to do him harm.   I also accept the applicant’s claim that if he was to return to Afghanistan, it would be obvious to other members of the community that he had returned from a western country and that he would be perceived as wealthy and as a person who supports western ideology.  Given the poor economic conditions in Mazar-e Sharif and the deterioration of security throughout the country, and relying on the country information outlined above, I consider that if the applicant were to return to live in Mazar-e Sharif, there is a higher than remote chance that the applicant and his family (because of him) will be targeted for abduction, extortion or the threat of same because of the cumulative effect of his being a Hazara Shia, because he is perceived as being a wealthy returnee, and also because he and his family would be perceived as supporters of the West.

9. I am satisfied that the applicant faces a real chance of persecution throughout Afghanistan from the Taliban or Islamic State extremists due to his faith and ethnicity, because of his having reported a roadside assault and robbery in 2012 and also because of a perception that, as a returnee from the West, he is wealthy and supports Western ideologies, in direct opposition to extremist expectation.    The real chance is heightened in this case when the various reasons for the harm feared and the claims raised by the applicant are considered cumulatively.

10. I conclude that the real chance of persecution in this case relates to all areas of Afghanistan and that relocation is not possible for the applicant to avoid the real chance of serious harm.

11. Taking into account the general country information and that in the DFAT and Department of Home Affairs reports, I find that state protection from the harm the applicant fears is unavailable in Afghanistan.   Although the police and security forces may have the will to disarm and disempower extremists seeking to take control of the country, and who target minorities such as the Hazara Shia population, they lack the capacity to do so as is evidenced by the deteriorating security situation in the country.  I find that the applicant is unable to rely on the country of Afghanistan or any local authority or security force therein for protection from the harm he fears.  The police and security are unable to prevent or protect themselves from attack, let alone the minorities facing persecution by extremists. 

1. 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

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

   Anne Grant
   Member