1701786 (Refugee) - [2019] AATA 1229

1701786 (Refugee) [2019] AATA 1229 (7 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701786
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Paul Millar
DATE:7 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 07 January 2019 at 12:59pm
CATCHWORDS

REFUGEE – protection visa – Federal Circuit Court remittal –Afghanistan – Shia Hazara – claims of being pursued by Taliban – Pashtun – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65 and 499
Migration Regulations 1994 Schedule 2
CASES
CAE15 v Minister for Immigration and Anor [2017] FCCA 66
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who the Tribunal finds to be a citizen of Afghanistan, applied for the visa [in] September 2012 and the delegate refused to grant the visa on 2 January 2013.[1] That decision was affirmed by the former Refugee Review Tribunal (‘the first Tribunal’) but the case was remitted by the Federal Circuit Court on the basis that the first Tribunal had misunderstood the applicant’s evidence.[2] The applicant appeared before the Tribunal on 14 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing by telephone.
[1] The Tribunal’s finding on citizenship is based on a copy of the applicant’s Taskera at folio 1 of Department [file deleted].
[2] See CAE15 v Minister for Immigration and Anor [2017] FCCA 66, 18 January 2017. The court found that the Tribunal misunderstood the applicant's evidence about the location of a business he set up and which brought him into contact with the Taliban; contact on which his protection claims are based.
RELEVANT LAW
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.
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).
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.
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’).
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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
FINDINGS
For the following reasons, the Tribunal concludes that the decision under review should be affirmed. According to his evidence to the Department and the Tribunal, the applicant claims protection on the grounds that he is a Shia Hazara who is being pursued by the Taliban and will return to Afghanistan after seeking asylum in a western country.[3] The Tribunal holds the following concerns about the credibility of the applicant’s evidence.
Concerns about being pursued by the Taliban
[3] The applicant’s evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; his interview with an officer of the Department on 30 June 2012 for which there is a record on the Department file at folios 74 – 82; his statutory declaration made [in] September 2012; his evidence at his interview with the delegate for which there is an audio recording and to which the Tribunal has listened; his evidence at his hearing before the first Tribunal for which there is an audio recording and to which the Tribunal has listened; his further statutory declarations made [in] August 2017 and [in] September 2018 and his evidence at the hearing before this Tribunal.
To the Tribunal, the applicant related the following account of the events that he claims caused him to flee from Afghanistan. In early 2012, the applicant left his family home in Kabul and went to [City 1] where he set up a [business in a location specified]. Approximately one month after he opened, [a] bearded Pashtun man brought in [goods] which had [some damage]. The applicant told the Pashtun man that he estimated the necessary work would take approximately one week. Over that period, the Pashtun man twice returned to check on progress.
After one week, on the day that the applicant expected to complete the work [goods] to the Pashtun man, [in the afternoon], the police came into the applicant’s [business] and told him that they were seizing the [goods]. They told the applicant that the [goods] belonged to the Pashtun man and that there were ‘matters going on’ in relation to him. They said that they had been watching the [goods] and it was under investigation. Because he felt responsible for what happened to the [goods], the applicant went to the police station to try to get more information. At the police station, the applicant was told that the Pashtun man who owned the [goods] was a Taliban [official] and he was very dangerous.
On being given this news, the applicant became afraid for his safety and he returned to his shop. The applicant was afraid because he was a young Hazara Shia man and Pashtuns and the Taliban had bad relations with Hazaras. He was afraid that the Pashtun man would think that he had reported the [goods] to the police. The applicant feared that if the Pashtun man ‘had access’ to him he would kill him. The applicant knew how dangerous the Taliban were and conflict between them and Hazaras was ongoing. The applicant then related an account of closing his shop, being subsequently warned that the Pashtun man was looking for him and returning to Kabul where he made arrangements to flee from Afghanistan.
The Tribunal found implausible various aspects of the applicant’s account of his behaviour once he was told that the Pashtun man was a Taliban [official]. As stated above, the applicant said that when he was given this news he returned to his shop. He told [his][employees] [to] leave. He closed his shop and went into [City 1] where he stayed the night. He did not stay in his usual accommodation which was very close to the [location specified].
The Tribunal asked the applicant whether, after returning to his shop from the police station, he made any decisions as to what he would do. In response, the applicant said that he was confused and did not make any decisions. Instead, he just went into [City 1] and made a decision the following day. The Tribunal asked the applicant what he did on that following day. In response, the applicant said that he stayed in the city for the whole day and then, when it was dark, he returned to the [location specified] where his [business] was located to see what had happened.
The applicant approached the man who looked after the [location specified] and with whom he had signed an agreement to rent the premises where he set up [his] [business]. The applicant also spoke to a Hazara [who] worked in a neighbouring shop. Both men had seen the police earlier come and take the [goods] the day before. On that same day, the applicant told the men that the Pashtun man who owned the [goods] was a Taliban [official] and the applicant was in fear for his safety. On the following day, when the applicant returned to his [business] both men told him that the Pashtun man had come to the [business] and was angry that it was closed. They told him that the Pashtun man gained entry to the [business] and had taken some of the applicant’s paperwork.
The applicant understood that the documents taken from his [business] by the Pashtun man were a copy of his Taskera and the agreement he had signed to rent the premises. The Pashtun man had questioned both the [location specified] head and the Hazara [and] they told him that the police had seized the [goods]. They both told the applicant that the Pashtun man was angry and could kill him. On being given this news, the applicant gave his key to the [business] to the [supplier] head and he went back into [City 1]. He remained there that night and the following morning returned to his family home in Kabul.
The applicant remained living at his family home for [a number of specified] days during which time he sold [a family product], the proceeds of which he used to pay a people smuggler to enable him to leave Afghanistan and come to Australia. After he gave this evidence, the Tribunal returned to his evidence about the day on which the police seized the [goods] from his [business]. The Tribunal asked the applicant whether, after he returned to the [business] from the police station, he packed up any belongings and took them with him. In response, the applicant said that he packed up his work equipment and put it in a nearby empty shop [location specified]. When asked why he did this, the applicant said that he was afraid and knew that he could not come back and run his business.
The Tribunal asked the applicant why he did not also take with him the lease agreement and his Taskera that were eventually taken by the Pashtun man. In response, the applicant said that it did come to his mind. The day he packed up and shifted his work equipment was the day he returned from the police station. His decision to close the business for good was made the next day and, by then, the documents had already been taken by the Pashtun man.[4] The Tribunal asked the applicant whether he would have wanted to take those documents with him. In response, the applicant said that on the day he packed away his work equipment it was his intention to take those documents away but he forgot. When asked why he wanted to take those documents with him, the applicant said that they were important documents.
[4] The first Tribunal explored this same issue with the applicant and he said that he did not take those documents with him as he was scared and shocked.
The Tribunal asked the applicant why, on the day he found out that the [goods] confiscated by police belonged to a Taliban [official], he did not straightaway flee from [City 1]. The applicant had been clear in his evidence that when told by the police that the [goods] belonged to a Taliban [official] he thought that he could be killed. In those circumstances, it seemed implausible to the Tribunal that the applicant would not immediately flee from [City 1] and, instead, choose to remain there for [number of] nights. It seemed implausible that he would choose to return to his shop the following day knowing full well there was every chance that the Pashtun man could be there waiting for him. Further, it seemed implausible that on the day that he returned from the police station that he would not have, in addition to fleeing from [City 1], taken with him the documents that were eventually taken by the Pashtun man, being the Taskera and the lease agreement. The applicant said that these documents were important and, as discussed further below, were, potentially, a means of the Pashtun man being able to locate him in Kabul.
In response to these concerns, the applicant said that he went back to his shop during the evening. He stayed in [City 1] and not in the usual nearby accommodation he had been using until that time. He said that he had not made the final decision to run away as he still had his business and his intention was, on that second night, to return there to see if it was possible to continue the business.[5] He said that it was only when he got back to the shop and was told what had happened by the [an official at the location] and the Hazara [that] he returned to [City 1] to stay the night. He did not go to Kabul that evening as it was safer to travel during the day which is why he left the following morning. In submissions of 15 May 2018, the representative stated that after the police confirmed that the [goods] belonged to a Taliban [official] the applicant was not clear as to the degree of danger for him and that was only obvious once he returned to the shop and was told that the [official] had gone there looking for him and taken documents.
[5] The applicant gave a broadly similar response to the first Tribunal when this issue was explored with him.
The Tribunal does not accept these responses. The applicant made clear in his evidence that once he was told that the [goods] confiscated by the police belonged to a Taliban [official] he believed he could be killed on suspicion that he had reported the [goods] to the police. On that basis, the Tribunal disbelieves the applicant’s claim that he would not, that same day, decide to flee from his business for his own safety. Further, the applicant’s evidence about deciding to close his business was inconsistent. At one stage, he said that he packed away equipment after returning from the police station because he knew that he could no longer operate the business given the danger he was in. At another stage, the applicant said that he did not decide to close his business until the following day and only after being given the news that the Pashtun man had gone to the shop looking for him. In addition, the Tribunal does not believe that, having packed away equipment, the applicant would, according to his evidence, forget to also take with him the lease agreement and Taskera which he himself said were important documents.
The Tribunal then put to the applicant that it also had difficulty accepting that he would choose to hide in his family home for [a number of specified] days before leaving Afghanistan. The Tribunal put to the applicant that, according to his account, the Pashtun man had his Taskera and a lease agreement which they could possibly have used to locate his family home in Kabul. In response, the applicant said that the family home was the safest place for him to hide. He said that his Taskera only disclosed the district in Kabul where he lived not the street name and number. However, he then added that it was still possible that the Pashtun man could use those documents to find him because, by going to the district indicated in the Taskera and mentioning to people the name of his father and grandfather, they could locate him. Accordingly, the Tribunal does not believe that the applicant would remain in his family home for the period in question and not hide somewhere else in the city pending arrangements to flee from the country. When this same issue was explored with him by the first Tribunal, the applicant said that he chose to remain living in the family home because he thought that the Taliban would easily find him in a hotel. The Tribunal is not persuaded by that response considering the applicant’s claimed circumstances.
At the hearing, the representative urged the Tribunal to consider that when the events in question occurred the applicant was only [age] years old and that people that age did not make rational decisions and engaged in risk-taking. The Tribunal has considered that submission but it was the applicant’s own evidence that at the age of [age] he was sufficiently mature to relocate to another city in Afghanistan, obtain and rent premises and commence operating [a business]. The Tribunal is not persuaded that the behaviour of the applicant that the Tribunal finds to be implausible can be explained by his youth at that time.
The Tribunal put to the applicant that it had difficulty accepting his account of a Taliban [official] bringing [goods to his business] as he described and that the Taliban would not have had the resources to do this work themselves. It struck the Tribunal as implausible that a [officer] of a group engaged in an insurgency with the Afghan government would [take the goods and] approach a Hazara [to] work on it. In his evidence to the Tribunal, as set out above, the applicant mentioned the conflict between the Taliban, Pashtuns and Hazaras which was one reason why he was afraid of the Pashtun man. In those circumstances it seemed highly unlikely that a Taliban [official] would behave this way.
The implausibility of this account was enhanced by the applicant’s evidence that the Pashtun man did not actually demand that the [goods] be ready by a certain date nor did the applicant give him a specific date. Rather, the pair only discussed when the applicant thought the work might be finished and the Pashtun man returned twice to check on progress. Again, the Tribunal had great difficulty believing that a [officer] of an insurgent group waging conflict with the Afghan government would accept this somewhat loose arrangement as to when the [goods] could be collected.
When these concerns were put to him, the applicant first said that he was working in the [location specified], he needed customers and he did not know that the Pashtun man was in the Taliban. The Tribunal put to the applicant that its concern was not related to his behaviour but that of the Pashtun man. In response, the applicant said that although the Taliban was fighting the Afghan government, its members walked freely in the city all of the time. Possibly the Pashtun man brought the [goods] to the applicant because the applicant was Hazara and the man knew he was under investigation. He therefore may have thought that it was safer to take the [goods] to the applicant in those circumstances. The Tribunal is not persuaded by that response because, if the Pashtun man believed that he was under investigation, it seems even more improbable that he would not have the [goods] repaired covertly and by someone within or known to the Taliban.

This same issue was explored with the applicant by the first Tribunal and to the first Tribunal, the applicant said that possibly the Taliban [official] chose to use the applicant’s services because he was cheap. The Tribunal is not persuaded by that response either. The Tribunal does not accept that the Taliban would bring a [goods] to a Hazara [for] that reason, when, at the same time, that same group was engaged in a conflict with the Afghan government. On this same issue, in submissions of 15 May 2018, the representative submitted that there was no country information demonstrating that the Taliban owned and operated [a specified] businesses. Therefore, it was submitted, it was plausible that the Taliban would bring [goods] to the applicant for [work]. The representative also submitted that possibly the Taliban were ‘checking out’ the applicant as a recent arrival to the [location specified]. The [goods] in question was one that, according to country information, the Taliban would use. It was submitted that the applicant could not know what was in the mind of the Taliban [official] bringing the [goods] to him. The applicant was offering a cheap competitive price.
The Tribunal has considered these submissions from the representative. It is not necessary for the Tribunal to have country information about the Taliban operating [specified] businesses to assess the credibility of the applicant’s claim about a Taliban [official] [bringing goods to the applicant for work]. The [goods] may well have been typical of [goods] used by the Taliban but what concerns the Tribunal is the plausibility of an insurgent group engaged in military conflict with the Afghan government bringing [goods] to a public [location specified] for [work] and simply not having the resources or means to have those [works] done covertly itself. The Tribunal does not believe the [goods] would be brought to the applicant because he was cheap. The Tribunal also does not believe the [goods] would be brought to the applicant so that the Taliban could ‘check him out’. Overall, for the reasons given, the Tribunal finds the applicant’s account of a Taliban [official] bringing [goods for repair] to be far-fetched and lacking the ring of truth.
Conclusions on credibility
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant’s evidence about a Pashtun Taliban [official] bringing [goods] to his newly established business in [City 1], the police subsequently seizing the [goods] and the [official] wanting to apprehend and harm the applicant. Possibly the applicant opened a business in [City 1] as he claims but there is no credible evidence about this.
At the Tribunal hearing, the applicant claimed that since his arrival in Australia he had been in regular contact with his family in Afghanistan. He said that approximately one year ago he lost contact with them. He then made enquiries through others, both in Australia and in Afghanistan, and he claims to have been told that the family have ceased living in the home in Kabul and are living in the Hazarajat. Because the applicant is not a witness of truth, the Tribunal disbelieves this evidence. The Tribunal finds that the applicant’s family are living in the family home in Kabul where the applicant himself lived before he came to Australia.
In reaching its credibility findings, the Tribunal considered medical evidence the applicant submitted to the Department about his mental state as assessed in early 2014.[6] According to the medical evidence, at that time, the applicant suffered from a depressive illness, anxiety about his immigration status in Australia, post-traumatic stress disorder and major depressive disorder. The Tribunal has taken this evidence into consideration but states at the outset that the applicant had a meaningful opportunity to participate in the Tribunal hearing. He was well able to comprehend the Tribunal’s questions and respond to them. The contents of the reports that comprise this evidence indicate that these assessments are based on what the applicant has said about his experiences in Afghanistan, evidence this Tribunal finds to be false. Accordingly, the Tribunal has no credible evidence as to the cause of the applicant’s mental state as assessed in this evidence. The applicant did not claim protection on the basis of his mental state. The Tribunal was not presented with any more recent medical evidence. Possibly, with his immigration status in Australia resolved, his mental state could well improve.
[6] See folios 183, 188-194 of Department file [file deleted].
Because the Tribunal does not believe the account of events on which the applicant’s protection claims are based, the Tribunal has no credible evidence as to why the applicant left Afghanistan when he did. In his evidence to the Department, the first Tribunal and to this Tribunal, the applicant made no claim that he or any member of his family suffered harm in Afghanistan beyond the applicant’s claim about his conflict with the Pashtun man who came to his [business], a claim the Tribunal disbelieves. There is therefore no credible evidence before the Tribunal that the applicant suffered harm in Afghanistan. There is no credible evidence that anyone in Afghanistan seeks to harm him. There is no credible evidence as to why the applicant does not want to return to Afghanistan.
Assessment of whether there is a real chance that the applicant will suffer serious harm in Afghanistan
The Tribunal now turns to assess the risk of the applicant suffering serious harm on the remaining grounds on which he claims protection, namely, that he is a Shia Hazara who will return to Kabul as a failed asylum seeker from Australia.
Country Information
Security
The security situation in Afghanistan is ‘complex, highly fluid, and varies considerably by location, including between rural and urban areas’.[7] The Taliban and other anti-government insurgent and terrorist groups continue to contest the Afghan government’s control in many areas of the country.[8] Anti-government elements have regularly conducted attacks across Afghanistan, including a significant and increasing number of high-profile attacks in Kabul.[9] DFAT describes the most common targets for insurgent attacks as:
“… government institutions, political figures, the [Afghan National Defence and Security Forces (‘ANSDF’)] and other Afghan and international security forces, demonstrations, foreign diplomatic missions and international organisations. Mosques, schools, hospitals and other civilian targets are also vulnerable.”[10]
[7] DFAT Country Information Report Afghanistan 18 September 2017 (‘Country Report’)
at 2.31.
[8] Country Report at 2.5.
[9] Country Report at 2.32.
[10] Country Report at 2.32. DFAT further describes these targets as ‘Afghans of all ethnicities working for, supporting or associated with the government and/or the international community’, including, but not limited to, ‘government employees, judges and prosecutors, judicial workers, police, and Afghan and international security force personnel’ - See Country Report at 3.19. DFAT adds, in this category of target, that those in civil society and non-government organisations, particularly those involved in women’s rights and female workers for those groups, face a high risk of violence from anti-government elements – See Country report at 3.26 - 3.29.
Attacks on these targets are particularly prevalent in Kabul.[11] DFAT states that people working for, supporting or associated with the government and / or the international community (or those perceived as doing so) face a ‘high risk of violence perpetrated by anti-government elements’ where ethnicity may be a contributing factor in some cases.[12] In the context of risk for Hazaras, DFAT states that although most Afghans perceive Hazaras to be affiliated with the government, because of the improvement in their situation since the fall of the Taliban, it is those openly affiliated with the government or the international community by way of employment, public statements or other associations who face a high risk of being targeted by anti-government elements, a risk true for other ethnicities in the same situation.[13]
[11] Country Report at 3.19.
[12] Country Report at 3.23.
[13] DFAT Thematic Report Hazaras in Afghanistan 18 September 2017 (‘Thematic Report’) at 3.16, 3.18. This same position is taken in more recent country information; see United Kingdom Home Office Country Policy and Information Note Afghanistan: Hazaras Version 1.0 August 2018 (‘the UKHO report’) at 2.4.16.
Although attacks are generally directed at specific targets, the methods of attack can be indiscriminate and often result in civilian casualties.[14] In terms of those casualties, in 2016, there were approximately 3,500 deaths and 7,920 people injured, a three per cent increase on the previous year and a casualty rate that continued in 2017.[15] This includes a ‘sharp increase’ in civilian casualties in Kabul and Herat caused by attacks by Islamic State in the Khorasan Province (‘ISKP’) the majority of those attacks targeting Shias.[16] In the context of risk for Hazaras, DFAT states that Hazaras are vulnerable to being civilian casualties in attacks against specific targets in Kabul but ordinary Hazaras who reside in Hazara-majority areas of Kabul and do not have open affiliations with the government or international community are unlikely to face any greater threat than Afghans of other ethnicities.[17]
Hazaras – Discrimination and violence based on ethnicity
[14] Country Report at 2.33.
[15] Country Report at 2.34. The population of Afghanistan is 33.3 million - See Country Report at 2.6.
[16] Country Report at 2.35. DFAT states that 77% of all civilian casualties arising from suicide and complex attacks in 2016 occurred in Kabul; that is 16 incidents resulting in 1,514 civilian casualties made up of 308 deaths and 1,206 injured - See Thematic Report at 2.23.
[17] Thematic Report at 2.26.
There are approximately three million Hazaras in Afghanistan.[18] Following the fall of the Taliban, violence and discrimination against Hazaras has greatly reduced and they have made ‘significant social, political and economic gains’ in Afghanistan since then.[19] Ethnic tensions do exist at a local level and can result in sporadic low-level violence over issues such as land rights or access to natural resources.[20] However, there has been no large-scale ethnic violence since 2001 when tensions significantly reduced.[21] Overall, targeted violence on the grounds of ethnicity alone is unlikely.[22]
[18] Country Report at 2.6; Thematic Report at 2.2.
[19] Thematic Report at 2.6, 2.7. This same position is taken in the UKHO Report at 2.4.4 – 2.4.5 according to which there are no reports of ill treatment of Hazaras by the state and any state discrimination faced by Hazaras does not amount to a ‘real risk of persecution and / or serious harm’.
[20] Country Report at 3.5. See also Country Report at 2.36 where DFAT states that ‘competition over land rights and access to scant resources’ can occasionally adopt ‘ethnic overtones’ and escalate into ‘community level violence’.
[21] Country Report at 3.4.
[22] Country Report at 3.5. This same position is taken in the UKHO report at 2.4.7 according to which, in general, Hazaras do not face targeted abuse or violence from societal actors because of their ethnicity or faith.
Societal discrimination is widespread at the community level, the most common manifestation being in the form of nepotism in favour of family tribal or ethnic group members.[23] Ethnic kinship plays a crucial role in enabling Afghans to obtain shelter, employment and security.[24] Hazaras are more likely than any other ethnic group to be excluded from senior civil service positions due to their ethnicity and they are subject to a moderate risk of societal discrimination in practice as they are generally less likely than other groups to be in a position to benefit from ethnically based positive discrimination (that is nepotism in favour of ethnic group members).[25] The applicant will return to Kabul where Hazaras are estimated as making up 40 to 50 per cent of the city’s population of five million.[26] This makes them the largest ethnic group in the capital, with most living in the west of the city.[27] Major cities like Kabul offer greater opportunities for employment and are home to communities from virtually all of Afghanistan’s ethnic groups.[28]
Hazaras - Religion
[23] Country Report at 3.3.
[24] Country Report at 3.1.
[25] Thematic Report at 3.3.
[26] Thematic Report at 2.4; Country Report at 2.8.
[27] Thematic Report at 2.4. According to the UKHO Report at 2.4.9, in general, ‘the level of societal discrimination faced by Hazaras does not amount, by its nature or repetition, to a real risk of persecution and / or serious harm’.
[28] Country Report at 5.15.
The overwhelming majority of Hazaras are Shias.[29] Muslims make up 99 per cent of the population of Afghanistan and 14 per cent of Afghan Muslims are Shia.[30] It is non-Muslim communities that face considerable societal discrimination.[31] Anti-government groups have targeted religious leaders perceived as supporting the government or the international community as well as religious facilities, resulting in 287 civilian deaths and 291 civilians injured in 2016.[32] This was an increase in casualties from previous years and mainly due to sectarian attacks targeting Shias.[33] In this respect, traditionally, there has not been a significant sectarian divide between Sunni and Shia in Afghanistan.[34] Between 2001 and 2016 religiously motivated attacks on Shias were rare.[35] In late 2016 and early 2017 a series of sectarian attacks against Shia targets took place and ISKP claimed responsibility for all of the attacks in Kabul.[36] Because of this series of attacks, Shias are particularly vulnerable when assembling in large and identifiable groups such as during demonstrations or when attending mosques during major religious festivals.[37]
Hazaras - Road travel
[29] Thematic Report at 3.4.
[30] Country Report at 3.6.
[31] Country Report at 3.6, 3.7.
[32] Country Report at 3.9.
[33] Country Report at 3.9.
[34] Thematic Report at 3.5.
[35] Thematic Report at 3.5.
[36] Thematic Report at 3.6 – 3.8. There were ten incidents in total occurring at demonstrations, mosques and religious gatherings and in which approximately 230 people were killed – See Thematic Report at 3.6 – 3.8.
[37] Thematic Report at 3.9. The Tribunal is aware of a further attack by ISKP on a Shia cultural organisation on 28 December 2017 and an Afghan media agency in which 41 people were killed and 80 people wounded. See ‘Afghanistan suicide bomb attack: Dozens killed in Kabul’ 28 December 2017 accessed 29 December 2017.
In terms of road travel, DFAT states that the majority of fatalities on Afghan roads are caused by unsafe driving practices.[38] The Taliban and other anti-government groups as well as criminal elements target national and secondary roads and can also set up unofficial checkpoints.[39] These criminal and insurgent groups target ‘people who appear wealthy or are associated with the government or the international community’.[40] All ethnic groups are vulnerable to these attacks and it can be difficult to ascertain the motivation for them.[41] There have been incidents in which Hazaras have been abducted by anti-government groups while travelling on roads in provinces in Afghanistan there being 15 such incidents in 2016.[42] However, as stated above, kidnappings and abductions by such groups occur regularly particularly on roads and people from all ethnic groups are vulnerable.[43] Ethnicity can play a role in the selection of victims once the abduction is in process.[44] However the reason for the targeting of Hazaras in these cases in unclear.[45]
Returnees
[38] Country Report at 2.37.
[39] Country Report at 2.38.
[40] Country Report at 2.39. Similarly, at 2.41 DFAT states that with respect to the abduction of citizens, those killed had been identified as ‘off duty members of the Afghan national security forces or their family members, civilian government staff, or people perceived to be government spies’. Similarly again at 2.42 DFAT refers to instances of mass abduction in which anti-government elements abducted large groups of civilians to identify members of the Afghan national security forces.
[41] Country Report at 2.39.
[42] Thematic Report at 2.29.
[43] Thematic Report at 2.28. There DFAT also states that ethnicity is rarely the primary motivating factor as opposed to ransom, prisoner exchange or targeting those with connections to the government or international community.
[44] Thematic Report at 2.33. In Thematic report at 2.33, DFAT refers to ‘recent cases’ in which Hazaras were singled out for ‘special attention’ during an abduction, mentioning an incident in late 2015. DFAT states that Hazaras are likely to be selected for abduction or violence if the vehicle they are in is stopped and it is carrying a mix of ethnic groups - See Thematic Report at 2.35. DFAT refers to reports of people at bus stations calling ahead to tell insurgents or criminals which buses carry Hazaras causing some bus companies to refuse to carry Hazaras due to the risk they will be stopped by insurgents or criminals – see Thematic report at 2.33.
[45] Thematic report at 2.34 where DFAT also states that it is unclear whether this is due to ethnicity, perceived association with the government or international community, a perception that Hazaras are more wealthy than others and so can pay ransoms or because they present a ‘lower risk target’ than other ethnicities.
In recent years hundreds of thousands of Afghans have returned to Afghanistan.[46] In 2016 and early 2017 approximately 8,000 Afghans voluntarily returned to their country from Europe.[47] Returnees from Western countries almost exclusively return to Kabul.[48] DFAT states that it has no information to suggest that returnees from Western countries attract negative attention from state authorities for having sought and failed to gain asylum.[49] DFAT refers to ‘occasional reports’ alleging that returnees from Western countries have been kidnapped or otherwise targeted based on their having spent time in a Western country.[50] While people identified as having ‘international associations’, and thereby facing risk of being targeted by anti-government groups, may possibly include returnees from Western countries, most returnees take measures to conceal their association with the country from which they have returned and keep a low profile on return.[51]
[46] Country Report at 5.19.
[47] United Kingdom Home Office Country Policy and Information Note Afghanistan: Security and Humanitarian Situation August 2017 at 10.1.2. See also United Kingdom Home Office Country Policy and Information Note Afghanistan: Afghans perceived as “Westernised” Version 1.0 January 2018 (‘UKHO Returnees Report’) at 2.3.6 according to which – in 2016 over 10,000 Afghans returned from European states collectively.
[48] Country Report at 5.20.
[49] Country Report at 5.20.
[50] Country report at 5.22.
[51] Country Report at 5.22.
DFAT states that people in this situation do not face a significantly higher risk of violence or discrimination than other Afghans with a similar ethnic and religious profile.[52] With respect to Hazara returnees, DFAT assesses that Hazaras who have international connections face a low risk of violence as a result provided they do not openly highlight their links and this is true for those Hazaras who have spent time in Western countries.[53] For Hazaras returning to Kabul, DFAT states that the size and diversity of that city mean that it would be unlikely for Hazara returnees to be more vulnerable to violence based on their ethnicity or religion than for other Hazaras already living there, or returnees from other ethnic groups.[54]
Inferences drawn from country information
[52] Country Report at 5.22.
[53] Thematic Report at 3.18.
[54] Thematic Report at 4.7.

From this country information, the Tribunal infers that the risk of the applicant suffering serious harm in Afghanistan in the reasonably foreseeable future is remote. Country information indicates that although an insurgency takes place in Afghanistan, the prime targets of insurgent groups are, essentially, those working for or directly involved with the government or the international community. The applicant is not such a person. Although insurgent attacks in Kabul have been increasing and civilians have been indiscriminately harmed in those attacks, the Tribunal nevertheless infers that, given the number of such attacks and the number of casualties, considered in the context of the population of Kabul and Afghanistan, the risk of the applicant suffering serious harm as a civilian on this ground is remote.[55]
[55] A similar position is taken in more recent country information; see United Kingdom Home Office Country Policy and Information Note Afghanistan: Security and Humanitarian Situation Version 5.0 April 2018 at 2.3.14 - 2.3.18. According to this source the proportion of the population of Kabul that is directly affected by the security situation there is ‘tiny’. This source states for example that the proportion of the population of civilian casualties in Kabul in the first six months of 2017 equates to 0.02% of the population of the city.
The Tribunal acknowledges the recent series of attacks on Shias in Afghanistan and in Kabul in particular and notes that it is preceded by a climate in which attacks on Shias have been rare. The Tribunal still infers that when the number of attacks and casualties are considered in the context of the nature of those attacks (being, essentially, at gatherings of Shias) and in the context of the size of the Shia population in Afghanistan (over three million) and in Kabul (approximately 2.5 million) the risk of the applicant suffering serious harm as a Hazara Shia is remote.[56]
[56] The Tribunal estimates that the Shia population of Kabul is approximately 2.5 million given that almost half of the city’s population of five million are Hazaras and the overwhelming majority of Hazaras are Shia. According to the UKHO Report on this issue, at 2.4.12 – 2.4.13, the number and scale of attacks on Shia places of worship and the Hazara community by groups such as ISKP in 2017 and the first half of 2018 indicate that Shia Muslims, both Hazara and non-Hazara, face a relatively low risk of being attacked by insurgent groups, most commonly ISKP, based on their religious affiliation.
The applicant may encounter discrimination in Afghanistan on the basis of his ethnicity (and possibly his religion) but he will return to a city with a large population of his own ethnic group who can assist him to find work. On his own account the applicant had housing when he lived in Kabul and there is no credible evidence that he suffered discrimination or could not subsist. The risk of him suffering serious harm through discrimination based on his ethnicity is remote. As he resumes his life in Kabul he is unlikely to encounter targeted violence just because of his ethnicity. The Tribunal acknowledges risk for Hazaras travelling on roads in Afghanistan but country information suggests that those most at risk in this context are those working for the government. The Tribunal considers instances of harm to Hazaras on roads in Afghanistan to be isolated in number.[57] The combination of these factors leads the Tribunal to infer that the risk of the applicant suffering serious harm on this ground is remote.
[57] According to the UKHO Report, at 2.3.14, instances of Hazara civilians being abducted or killed, including while travelling in Afghanistan, are relatively low and have been decreasing in recent years.
The Tribunal acknowledges ‘occasional reports’ alleging that returnees from Western countries have been harmed due to having spent time in those countries. However, this must be considered in the context of the large numbers of returnees to Afghanistan from Western countries as discussed in the country information above. While returnees may choose to conceal any association with the country in which they spent time, if the risk of the applicant suffering serious harm for having been in Australia equated with a real chance, then the Tribunal would expect to see far more reported (and substantiated) instances of harm to returnees on that basis. The country information discussed above does not reflect this and accordingly the Tribunal infers that the risk of the applicant suffering serious harm because he will return there after spending time in Australia, including after seeking asylum here, is remote.[58] The applicant may choose not to disclose to others the fact he has been in Australia (and conceal any association with Australia as such). That is a matter for him. The Tribunal does not regard any choice he makes to do so as a modification of his conduct that would amount to being persecuted.
Discussion of country information and inferences put to the applicant
[58] A similar position is taken in the UKHO Returnees Report at 2.3.2 - 2.3.7 according to which there are only isolated reports of returnees from Western countries being harmed and that when the number of incidents is compared to the thousands who have returned from Western countries the risk of attack or abduction is low.
At the hearing the Tribunal discussed the country information with the applicant and put to him the inferences the Tribunal draws from that information. The Tribunal now turns to the applicant’s responses as well as submissions on these same issues made by the representative at the hearing and by letters dated 15 May 2018 and 6 September 2018. The applicant said that the government was a risk to Hazaras. In this respect, if government intelligence officers announced a threat of a targeted attack in a certain location, the attack usually would eventuate. The Tribunal understands this to be a submission that the Afghan government is in some way in collusion with insurgent groups. The Tribunal rejects any such submission given country information clearly indicates that the government is contesting control of Afghanistan with the same groups.
The applicant stated that the Taliban had a presence in Kabul and they were a risk to Hazaras. The representative in this respect submitted that the security situation in Afghanistan, including in Kabul had deteriorated since the withdrawal of international forces throughout 2014 and 2015. With the withdrawal of these forces the government was struggling to maintain control. The withdrawal has led to an increase in the number of attacks on government targets made by insurgent groups with a consequent rise in civilian casualties. The representative submitted country information to the effect that the Taliban controlled 60% of Afghanistan and more recently were engaged in a siege of [City 1]. With respect to security in Kabul and the risk of the applicant suffering serious harm as a civilian casualty, the representative submitted that the attacks made by insurgent groups were on government targets but these were usually near Hazara neighbourhoods so that ethnic group was more likely to suffer. The representative also submitted that insurgent groups launched their attacks on Kabul airport and the roads in and around Kabul.
The Tribunal has carefully considered these submissions but remains of the view that the risk of the applicant suffering serious harm as a civilian casualty from attacks made by insurgent groups is remote. Country information discussed above clearly indicates that the targets of insurgent groups are the government and the international community. In its assessment on Afghanistan, DFAT acknowledged the very same factors advanced by the representative with respect to security in Afghanistan. DFAT acknowledged insurgent forces were increasing their control of districts in Afghanistan; that international forces had withdrawn from the country resulting in a deterioration in security, an increase in civilian casualties and the Afghan army being challenged to maintain control of the country nationwide.[59] Even so, it is clear from the country information the Tribunal has set out earlier in this decision and on which it relies that when the number of civilian casualties is considered in the context of the population of Kabul and Afghanistan more generally the risk of the applicant suffering serious harm due to insurgent attacks is remote.
[59] See Country Report at 2.31-2.36, 2.4 and 5.1.
The applicant said that in recent years the influence of ISKP had increased. The applicant stated that ISKP would target Hazaras and there had been attacks on Shia mosques, schools and gyms. The applicant said that there was a threat to the mosque he used to attend in Kabul. On this issue, the representative re-iterated content from the DFAT assessment on Afghanistan and the various attacks carried out by ISKP. In more recent submissions of September 2018, the representative gave further instances of attacks by ISKP and submitted that they were continuing and increasing. It was submitted that if the applicant was to attend a Shia mosque and religious ceremonies or commemorations as well as undertake activities within his own Shia community, including in neighbourhoods where Hazara Shias reside, then he was at risk.[60]
[60] The Tribunal records in this respect documents on Department [file number deleted] relating to the applicant's involvement in the Hazara community in Australia (folios 148 – 182).
The Tribunal acknowledges the continuation of attacks by ISKP but remains of the view that when the number of attacks and the number of casualties are considered in the context of the size of the Shia population in Afghanistan but, more importantly, in Kabul, in which the applicant will live, the risk of him suffering serious harm is remote. The representative submitted that Hazaras were at risk of being kidnapped on roads in Afghanistan outside of Kabul, but, the country information discussed earlier in this decision makes clear that while these incidents occur, they are isolated. The Tribunal can only speculate as to whether and with what frequency the applicant will travel out of Kabul. Based on the country information set out above, the Tribunal finds that the risk of the applicant suffering serious harm in road travel in Afghanistan is remote.
The representative submitted that anti-Hazara feeling existed amongst Pashtuns and this was increasing. At the hearing the applicant stated that to put Pashtuns against Hazaras was something encouraged by certain groups to be able to remain in government. Even if these submissions are correct, country information set out earlier in this decision makes clear that the risk of Hazaras being attacked by other ethnic groups on the basis of their ethnicity is unlikely. Country information makes clear that all ethnic groups discriminate against each other displaying, for example, nepotism when it comes to recruiting people for employment. As stated above, there is no credible evidence that this applicant was discriminated against to such a degree that he suffered serious harm, including, being denied employment.
The applicant said that he would suffer serious harm on return to Kabul because he had been living in a western country and, in that sense, he was ‘Westernised’. He said that if he said or did things like a Westerner he would be at risk because the Taleban believe that anybody who has spent time in a western country is a spy. In submissions, the representative put forward various sources of country information to the effect that returnees from Western countries without strong personal networks and connections in the location to which they were returning could not subsist. According to these sources, failed asylum seekers from Western countries were seen as a source of suspicion and would be at risk of kidnapping or robbery due to a perception that they are wealthy.
However, the Tribunal notes that in this same country information it is also asserted that many returnees and their families experience a sense of shame for failing to be able to gain protection and the right to remain in the western country to which they fled. This sense of shame and loss of status impacts on the acceptance of the returnee by the community and family.[61] The Tribunal can acknowledge this risk for the applicant but there is no credible evidence that the applicant’s family (or community) rejects him or will reject him because he has had to return to Afghanistan. Whatever sense of shame the applicant or is family may feel about him having to return does not amount to serious harm. While certain elements in Kabul may perceive returnees as wealthy and try to harm them for that reason, country information does not demonstrate that this happens at a frequency that would equate with a real chance of the applicant suffering serious harm on this ground.
[61] This is consistent with content from the UKHO Returnees Report that also states that Afghans who return from Western States may face discrimination and social stigma due to the perception that they have failed by having to return to Afghanistan and therefore failing to meet the expectations of family and community of successful emigration. The point is made in this source of country information that any such discrimination and stigma has no nexus to a person having become westernised, but, is due to this perception of failure with respect to an unsuccessful attempt to gain asylum. See the UKHO Returnees Report at 2.2.1, 2.3.8 and 3.1.5.
The representative also submitted that returnees had been attacked on return to Afghanistan because they were perceived as having become foreigners or spies for a western country, a perception most likely held by insurgent groups. Country information set out earlier in this decision indicates that reports of attacks on returnees for being in Western countries are isolated in number. The Tribunal is not satisfied that these incidents occur at a level that would substantiate a real chance of the applicant suffering serious harm on this ground. While the representative and applicant made claims about him becoming in some way ‘westernised’, a concept the Tribunal finds to be vague, country information set out above indicates that returnees can take steps to conceal indicia of having spent time in a western country and doing so does not require a modification of conduct such as to amount to serious harm.
The representative submitted that the applicant would not find employment on return to Kabul because he was young, poorly educated and had previously been exploited when working [in] Kabul. It was submitted that [a product that was family owned] which had provided income for the family had been sold to fund the applicant’s travel to Australia. It was also submitted that there is great competition for employment in Kabul. Because the Tribunal finds that the applicant is not a witness of truth, it has no credible evidence that his family is impecunious, assuming this [family owned product] was sold to enable him to travel to Australia. There is no credible evidence that this applicant could not obtain employment when he lived in Afghanistan. His ethnic group constitute a substantial proportion of the population of Kabul and he can seek employment through and within his own ethnic group.
The representative then made reference to guidelines produced by the United Nations High Commissioner for Refugees (‘UNHCR’) in which that organisation stated that Kabul was not a suitable place to which Afghans from other parts of the country could relocate.[62] The representative submitted that if UNHCR express that position on relocation, then a similar conclusion should also be drawn with respect to the applicant returning to Kabul as his native area. The Tribunal rejects that submission because, based on the Tribunal’s understanding of these guidelines from UNHCR, that organisation was considering factors that related to the reasonableness of relocation such as the ability of people from other parts of Afghanistan to be able to settle in Kabul, find work and accommodation. On the contrary, this applicant lived in Kabul and will be able to re-join his family there who will assist him to reintegrate into life there.
[62] United Nations High Commission for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan 30 August 2018.
The Tribunal also notes that with respect to these recent guidelines issued by UNHCR, while they contain statements and country information similar to the positions advanced by the representative, UNHCR also expresses the qualification that whether or not people from minority ethnic groups, such as Hazaras, are in need of the protection of the Refugee Convention, depends on the circumstances of the individual concerned. In making that assessment, UNHCR states that a consideration is the relative position of power held by the ethnic group in the area of origin, the history of interethnic relations in that area and whether that ethnic group constitutes a majority in that area.
The Tribunal does not understand UNHCR to be stating that the protection of the Refugee Convention is engaged for a person solely on the ground that the person is a Shia Hazara. Country information set out above indicates that there is a substantial Hazara population in Kabul into which this applicant can reintegrate including seeking employment. The prime target of attacks by insurgent groups in Kabul is the government or the international community. The Tribunal acknowledges attacks carried out on Shias by ISKP, but, for the reasons given above, finds the risk of the applicant suffering serious harm on that ground is remote.
The Tribunal records that at the hearing before the first Tribunal, in the decision of the first Tribunal and in submissions made to the Department,[63] country information about Afghanistan is presented. The Tribunal regards this country information as too old in time to be of assistance in accurately assessing the risk of the applicant suffering serious harm in Afghanistan in the reasonably foreseeable future. The Tribunal prefers the country information set out earlier in this decision which is more recent in time and therefore enables a better assessment of risk.
[63] See folios 213, 231 of Department [file deleted] and folios 69-78 of the first Tribunal file.
For all of the reasons given above, the risk of the applicant suffering serious harm in Afghanistan is remote. There is not a real chance that the applicant will suffer serious harm in Afghanistan. He does not hold a well-founded fear of persecution based on any convention ground. For the same reasons, the Tribunal finds that the applicant does not meet the complementary protection criterion.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Paul Millar
Member