1710341 (Refugee)

1710341 (Refugee) [2018] AATA 1288 (26 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710341
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Gabrielle Cullen
DATE:26 March 2018
PLACE OF DECISION:  Sydney
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 26 March 2018 at 1:29pm

CATCHWORDS
Refugee – Protection visa – Afghanistan – Federal Court Remittal – Race – Hazara – Religion – Shia Muslim – Membership of two particular social groups – Afghan adulterers – Failed Hazara asylum seekers – Threat of sectarian violence – Risk of travel by road – Lack of state protection – Internal relocation – Witness credibility
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 is a citizen of Afghanistan, from the district of Jaghori. He claims he travelled to [Country 1] for employment in 1998 and for six months in 2011. He claims he departed Afghanistan in February 2012 via Kabul as he had an affair with a married woman named [Ms A] in January 2012 and her husband [Mr A] found out. He claims that he fears that if he returns to Afghanistan he will be harmed by Pashtun people, the Taliban, ISIS, [Mr A], friends of [Mr A], or the government because of his race (Hazara), his religion (Shia Muslim) and his membership of a particular social group, ‘Hazara adulterers’. He claims that Hazara adulterers are stoned to death. He also claims that he fears that he will be persecuted by the Taliban, ISIS and Sunni extremists who seek to harm the Shia population in Afghanistan. He also claims that he fears being persecuted for reasons of his membership of two particular social groups, ‘Afghan adulterers’ and ‘failed Hazara asylum seekers who fled to the West’. He claims he will be harmed as he will be viewed as politically opposed to the Taliban and ISIS as he is Hazara and Shia, as he has lived overseas and he will be perceived as a spy. He also clams a fear of return as he will be required to travel on the roads to seek employment and in this regard refers to his previous employment as a [Occupation 1].
The evidence indicates the applicant arrived in Australia [in] May 2012. He claims he fled Afghanistan in early 2012, spent approximately two and a half months in [Country 2] and travelled to Australia via [Country 3], [and three other countries].
[In] May 2012 the applicant was interviewed by the Department at his entry interview and [in] August 2012 the applicant was interviewed by the Department as a result of this application.
The delegate refused to grant the visa [in] December 2013. He did not accept the veracity of the applicant’s claims as to having had an affair. The delegate found he did not face a real chance of serious harm or real risk of significant harm on return to Afghanistan on account of his ethnicity, religion or any of the groups he claims to belong to.
The applicant appeared before the Tribunal (differently constituted) on 30 March 2015 to give evidence and present arguments. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision. On 11 September 2015 the Tribunal (differently constituted) affirmed the decision of the Department on similar bases to that of the delegate.
[In] May 2017 the Federal Court ordered by the consent of both parties that this matter be remitted to the Tribunal for reconsideration as the Tribunal (differently constituted) had erred in considering whether the real risk of significant harm the applicant would face when travelling on the highway from Kabul to Ghanzi was one faced by the population generally and not faced by the applicant personally.
On 19 March 2018 the applicant appeared before the Tribunal and where relevant the evidence from that hearing appears in this decision. He was assisted by an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.
The issues to be considered in this case are as follows.
·Is the applicant credible as to his claim to be a citizen of Afghanistan?
·Does he have a right to enter and reside in any other country?
·What is the applicant’s home area of Afghanistan?
·Is the applicant credible as to his claims?
·Does he have a well-founded fear of persecution in relation to Jaghori and while travelling on the roads in and out of and to Jaghori from Kabul as a person of Hazara ethnicity and Shia religion?
·Is state protection available to him?
·Is it reasonable for him to relocate to Kabul or any other area in Afghanistan?
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.
Refugee criterion
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.
·The protection visa application of the applicant dated [in] December 2012, including the applicant’s statutory declaration as to his claims and identity documents.
·Oral evidence of the applicant provided at the entry interview [in] May 2012, the Department interview [in] December 2013, the Tribunal (differently constituted) hearing held on 30 March 2015 and at the Tribunal hearing held on 19 March 2018.
·Submissions from the applicant’s representative made at the Department interview and Tribunal hearings.
·Written submissions from the applicant’s former representatives dated [April] 2013, [June] 2014 and 20 April 2015.
·Psychological Report from Dr [B] dated [March] 2018 advising that the applicant is receiving ongoing counselling due to [specified conditions]. Reference is made to the long separation from his family as a major contributing factor.
·Submissions from the applicant’s current representative dated 12 March 2018 and attached country information as to difficulties faced by Hazara and Shia, including nationwide in Afghanistan and specifically in Kabul, Herat and Mazaar.
·Statutory declaration of the application dated 11 March 2018.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason.
Is the applicant credible as to his claim to be a citizen of Afghanistan?
On the basis of the applicant’s consistent evidence to the Department across various interviews and the Tribunal as to where he is from in Afghanistan, I accept that the applicant was born in Afghanistan and is a citizen of that country and lived, as he claimed, in [Village 1] in Jaghori from his date of birth until 2012 when he departed Afghanistan apart from two trips to [Country 1] in 1998 and 2011. At the Department interview, as noted by the delegate in their decision, the applicant was able to name the surrounding villages consistent with independent information, being a map of villages of Jaghori.
The Tribunal has also taken into consideration that during the Department entry interview, Department interview and at the Tribunal hearings the applicant spoke and understood fluent Hazaragi, which is one of the main languages spoken in Afghanistan.
The Tribunal finds that as a citizen of Afghanistan his claims should be assessed against that country.
Does he have a right to enter and reside in any other country?
The evidence indicates that the applicant travelled to [Country 1] for employment in 1998 and for six months in 2011. In 2011 he claims he was deported as he did not hold a permit. The Tribunal accepts his evidence that neither he nor his family have [Country 1] passports or visas for [Country 1]. [An independent source] stated that refugees, whether registered or unregistered, would not be permitted to re-enter [Country 1] if they had travelled to a third [country]:
[Information deleted][1].
[1] [Source deleted]
On the basis of independent country information and as the applicant does not hold [a Country 1] passport or visa to enter [Country 1], nor does his family, the Tribunal accepts the applicant cannot enter [Country 1] legally and would be subject to return to Afghanistan. The Tribunal therefore finds that there is no evidence before it to suggest that the applicant has a right to enter and reside in any other country in terms of s.36(3) – (5) of the Migration Act, other than Afghanistan.
What is the applicant’s home area in Afghanistan?
The Tribunal accepts from the evidence provided that his home is in Jaghori and that he lived there from birth until 2012 when he departed Afghanistan, apart from two short trips to [Country 1] to work in 1998 and 2011. As noted above, he was able to provide evidence consistent with independent evidence (map of Jaghori) as to surrounding towns in his area[2]. He has also provided consistent evidence at all stages of the process as to where he is from Afghanistan. It accepts his evidence that he continues to have a home in Jaghori. The Tribunal accepts that Jaghori is his home area on the basis of all the evidence before it.
[2] As outlined and accepted in the Department in its decision and by the Tribunal (differently constituted) in its decision dated [in] September 2015.
The Tribunal has considered his evidence that after his departure he moved his wife and [children] to live in Kabul and that they currently live in Kabul in rented accommodation. It accepts that he only ever transited to Kabul on his way to Australia in 2012. As the applicant was not born in Kabul, has never lived there, except for transiting for a few days on the way to Australia and owns no property there, the Tribunal does not accept Kabul should also be considered as a home area, simply as a result of his family having temporarily moved there.
For these reasons the Tribunal finds that the applicant’s only “home area” for the purpose of assessing his claims in Afghanistan is Jaghori.
Is the applicant credible as to his claims?
The Applicant’s Claims
The applicant claims he left Afghanistan because he had an affair with a married woman named [Ms A] in January 2012 which was discovered by the local villagers and [Ms A]’s husband, [Mr A]. He claims that because the punishment for a man who had a relationship with a married woman was stoning he became very scared for his life. He provided the following evidence as to this claim.
·In a statutory declaration accompanying his application for a protection visa the applicant claims that the affair started in January 2012. He said that in the same month he had gone to [Ms A]’s house and some boys in the area had been looking into her house and had seen them together. He said that the boys had started making a lot of noise and he had panicked and had run out of [Ms A]’s house. He said that one day after the incident he had spoken to [Ms A] who had told him that everyone in their community knew about the affair. He said that because the punishment for a man who had a relationship with a married woman was stoning he had become very scared for his life. He said that he had tried to call [Ms A] again a couple of days later but she had not answered the phone. He said that his wife had found out about the incident a few days later and had stopped talking to him. He said that he had heard that [Mr A] had returned to Afghanistan and wants to kill him. He said that then he had begun making plans to flee Afghanistan. He said that he had left Afghanistan in February 2012, travelling to [City 1] in [Country 2] where he had spent two and a half months before making his way to Australia.
·When he was interviewed by an officer of the Department in relation to his application [in] August 2012 the applicant said that [Ms A] had lived 10 minutes walk from his house and the affair had lasted for one or two months. He said that they had seen each other three or four times in a month. He said that children had seen them when they had been ‘engaged in doing stuff’ and had told other people about it. He said that people had been shouting outside and when he had noticed this he had run away from the back door. He said that after about two hours he had telephoned [Ms A] who had told him that everyone knew about their affair and that he was in trouble. He said that his passport had been at home and he had got his passport and had run away from there and had gone to Kabul. He said that he had only stayed in Kabul for two days. He said that after he had gone to [Country 2] he had heard from someone from his village who had come to [Country 2] that [Ms A]’s husband had come back and was looking for him.
·In response to additional questions put by the primary decision-maker in writing after the interview the applicant’s representatives said that [Ms A] had lived in a village named [Village 2] which was 30 to 40 minutes walking distance from his home and that the applicant no longer had her telephone number. They said that two or three boys had looked in through a window and had seen [Ms A] and the applicant engaged in sexual intercourse. They said that the applicant had telephoned [Ms A] before he had left his village and she had informed him that people in the village knew about the affair.
·In a submission to the Tribunal dated [in] June 2014 the applicant’s representative said he had clarified that their previous submission that [Village 2] was 30 to 40 minutes walk away from his village was incorrect and that [Village 2] was in fact an hour and a half or an hour and 40 minutes walk from his village. They repeated what the applicant had said in the statutory declaration accompanying his application for a protection visa about the discovery of the affair, namely that the boys who had seen him together with [Ms A] had made a lot of noise, that he had panicked and had run out of the house, that he had telephoned [Ms A] the following day and that it had only been then that she had told him that everyone in their community knew about the affair. They repeated that he had tried to call [Ms A] again a couple of days later but she had not answered, that around the same time his wife had found out about the affair and had stopped talking to him and that he had begun making plans to flee Afghanistan. They confirmed, however, that he claimed that it had only been after he had gone to [Country 2] that he had heard that [Ms A]’s husband knew about the affair.
·At the Tribunal hearing held in 2015 the applicant said that [Village 2] was 10 minutes drive or 30 to 40 minutes walk from [Village 1]. He said that when he had visited [Ms A] he had walked there because he did not have a car. He said that the affair had been going on for approximately one and a half months before people had found out. He said that he had gone to see her any time he had had the opportunity, once a week or twice a week. He said that people had found out because he had been going to her house regularly and he had not taken precautions. He said that maybe people had seen him coming and going. The Tribunal asked him if anything else had happened besides people seeing him coming and going and he said that when he had gone to her house the children had seen him there. He said that before the people had found him he had fled from her house and had run away. He said that the children had seen him and had started yelling and consequently the people had found out that he had been there.
·The applicant said that when he fled from [Ms A]’s house he had gone back to his own house. He said that he had stayed there for approximately two hours and he had then gone to Kabul. He said that he had not felt safe in Kabul but he had gone there because he had had a plan to obtain a passport and to leave the country. He confirmed that he had already had a passport but he said that he had had to renew his passport. He said that he had spent approximately 24 hours in Kabul and that he had then gone to [Country 2]. He said that he had left Afghanistan through the border at [Town 1]. He confirmed that having gone all the way to Kabul he had then [travelled] to cross the border at [Town 1]. He confirmed that he had spent three months in [City 1] in [Country 2] and that he had worked in [Occupation 2] there. He said that he had got this job through other Hazara people living in the suburb of [City 1] where he had been living.

For the first time, in his statutory declaration dated 11 March 2018 and repeated at the hearing held on 19 March 2018, the applicant claims that from 2002 to 2012 he was a [Occupation 1] in Afghanistan. He claims that if he returns to Afghanistan he fears being seriously harmed as he will need to travel on the roads to seek employment and may be forced to return to [Occupation 1] as he has limited skills for employment. He provided the following evidence as to this claim.
·He said he omitted this detail previously as upon arrival [in Australia] he was advised by fellow asylum seekers not to tell the truth regarding his [Occupation 1] employment as this would lead to his application being rejected.
·He said he drove from [Town 2], in Jaghori, to Kabul and to Ghazni City. He said many people knew him as a [Occupation 1] and he received much work.
·He said he was stopped and beaten by the Taliban, early in his [career], for playing music.
·He said on three or four occasions he took jobs [requiring travel] to Lashkar Gah and in 2008 he was shot at by Talibs.
·Four months before he departed in 2012 he was flagged to stop while travelling to Ghazni City but did not. He was shot at by men who appeared to be the Taliban.
·As a [Occupation 1] he has heard of many Hazara [Occupation 1] who have been abducted and killed.
·He saw the body of one man on the road from [Town 2] who had been killed and his vehicle taken.
The applicant also claims to fear return as he is Hazara and Shia. He claims that Hazaras cannot travel freely outside their area to places like Ghazni, Kandahar or Kabul because their lives are at risk. He claims he cannot live outside the Hazara areas for fear of being persecuted by Sunni Muslims. He said that Shia Muslims were discriminated against by Sunni Muslims and that the Pashtuns and the Taliban had killed many Hazaras because of their race and their religion. When he was interviewed by the officer of the Department in relation to his application [in] August 2012 he said that once he had been insulted because he was a Hazara when he had gone to Kabul. He said that one of his cousins had been killed when he had been on his way to bring [goods] back from Herat. He said that if the Taliban captured Shia Muslims they beat them, tortured them and mistreated them. He said that he could not live anywhere in Afghanistan because he was afraid of the Taliban and Pashtuns.
Information was provided to the Department and Tribunal as to difficulties faced by Hazaras and Shias on the roads. At the Tribunal hearing held in March 2018 and in his statutory declaration of March 2018 he said that all Hazara residents fear the roads in Ghazni and everyday people are persecuted on the roads by the Taliban and he outlined a number of incidents. He referred to the increasing presence of the Taliban in Ghazni province and refers to Qarabagh and Waghaz specifically.
Information was also submitted as to the deterioration of the security situation in Kabul with increasing attacks by insurgents in 2016, 2017, and 2018 on the Afghanistan government, government offices, police and courts. He outlined that there have been many attacks directed at Shias and Hazaras.
Assessment of Credibility of the Applicant’s claims
As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding aspects of the applicant’s claims and evidence, particularly those he claims led him to leave Afghanistan in 2012, which the Tribunal does not accept as true, there are other aspects of his claimed basic circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Specifically, the Tribunal accepts the following:
·The applicant is Hazara and Shia. As to his religion and ethnicity, he has been consistent at all stages of the process. He further has been interviewed in Hazaragi at the Department interview and at the Tribunal hearing. As Hazaragi is the language of the Hazaras, this adds to the Tribunal’s finding. Further, he is from Jaghori Province which the country information indicates is almost entirely populated by Hazaras.
·The applicant was born and lived in Jaghori until 2012 when he departed Afghanistan to travel to Australia. He continues to hold land in Jaghori.
·The applicant has a wife and [children], ranging in [ages] in Afghanistan. At the hearing in March 2018 he indicated his family relocated to Kabul for safety approximately four years ago. The Tribunal accepts they live in rented accommodation in Kabul and he supports them from Australia.
·The applicant worked in [Occupation 3] in Afghanistan and [Country 1] and [in related occupations] in Australia. It also accepts he farmed his small plot of land in Jaghori.
·A [sibling], who was a [Occupation 4], was killed by the Taliban in 2004 travelling from Jaghori to Ghazni. The applicant claims, which the Tribunal accepts, that he does not fear return on this basis.
·He has a sibling in [Country 3] and another in [Country 1]. Other than his nuclear family who presently rent accommodation in Kabul he has no other family residing outside Jaghori.
Notwithstanding the above, for the reasons outlined below the Tribunal finds that the applicant has embellished his claims as to why he fled Afghanistan. In particular, the Tribunal does not accept, for the reasons that follow, that the applicant fled Afghanistan as he had an affair with [Ms A] or fears return on this basis.
Firstly, he has given different answers about how far his village is from [Ms A]’s village. When he was interviewed by an officer of the Department in relation to his application [in] August 2012 he said that [Ms A] lived about 10 minutes walk from his house. In answers to written questions after the interview he said that her village was 30 to 40 minutes walk from his home. At the hearing in 2015 he likewise said that it was 30 to 40 minutes walk but 10 minutes drive. However in their submission to the Tribunal dated [in] June 2014 his representatives said that he had clarified that their previous submission that [Ms A]’s village was 30 to 40 minutes walk away from his village was incorrect and that her village was in fact an hour and a half or an hour and 40 minutes walk from his village. When the inconsistencies were raised with him the applicant repeated that it was 30 or 40 minutes walk from her house to his house. The Tribunal is of the view that these inconsistencies in his evidence cast doubt on whether he is telling the truth about this affair and is of the view if he had the affair as claimed he would be consistent as to the distance of [Ms A]’s village throughout the process.
Further, he has also given different evidence about how long he stayed in his village after people found out about his relationship with [Ms A]. When he was interviewed by the officer of the Department in relation to his application [in] August 2012 and again at the hearing in 2015 he said that he had only stayed in his village for two hours before he had left and had gone to Kabul but according to his statutory declaration and the submission which his representatives made he stayed in his village and he called [Ms A] on the day after he was found at her house. He and his representative said that it had been then that [Ms A] had told him that everyone in their community knew about their relationship. The applicant repeated that he had left his village after two hours but, as the Tribunal raised with him at the hearing in 2015 he said in the statutory declaration accompanying his application that it had only been on the day after this incident that he had spoken to [Ms A] and that she had told him that everyone knew about their relationship.
As referred to above, the applicant said that [Ms A] had called him when he had been in the car on his way to Kabul and her voice had not been clear. He said that after that he had called her back and she had told him that everybody knew about their relationship and that he should leave the village to save his life. He confirmed that he was claiming that he had already fled before she had told him that everyone knew about the relationship. However, in his original account he claimed that he had gone back to his home and that he had only decided to leave his village after [Ms A] had called him or he had called [Ms A] and she had told him that everyone knew about their relationship. The applicant repeated that when he had been in her house the children had seen him and had started yelling. He said that he had been scared and he had left her house straight away. However the issue here is what he claims he did after he left [Ms A]’s house and how long he remained in his village before going to Kabul. The Tribunal is of the view that the inconsistencies in his evidence with regard to whether he only remained in his village for two hours or whether he remained there for a few days likewise cast doubt on whether he is telling the truth about this affair.
Having regard to the problems with his evidence identified above the Tribunal does not accept that the applicant had an affair with a married woman named [Ms A] who lived in a neighbouring village named [Village 2] as he has claimed. It follows it does not accept, therefore, that he fled Afghanistan because he feared that he would be killed by [Ms A]’s husband, [Mr A], nor that he genuinely fears that he will be stoned to death as an adulterer if he returns to Afghanistan. The Tribunal does not accept on the evidence before it that the applicant is a member of the particular social groups of ‘Hazara adulterers’ or ‘Afghan adulterers’ nor that there is a real chance that he will be killed or otherwise persecuted by [Mr A], friends of [Mr A] or the government because of his claimed affair or that he will be viewed as an apostate because he has broken Sharia law as submitted by his representatives.
For the reasons that follow, the Tribunal also does not accept as true that he ever was a [Occupation 1] and faced any of the difficulties he claims in Afghanistan or will face any difficulties in his [profession] were he to return to Afghanistan in the reasonable foreseeable future.
Firstly, despite being questioned as to his employment at the entry interview, Department interview and Tribunal hearing held in March 2015, the applicant never referred to being a [Occupation 1] in Afghanistan or facing any difficulties as now claimed. The first time he claimed this was in his statuary declaration of March 2018. He also repeated the claim at the hearing held on 19 March 2018. When the Tribunal’s concern as to the credibility of this claim was raised at the hearing, he referred to being advised not to mention being a [Occupation 1] while in detention by fellow asylum seekers otherwise his claim for protection would be refused. As the applicant has been assisted by a representative throughout the process including in the preparation of his statutory declaration and application for protection visa, except at his entry interview, the Tribunal does not accept if he was a [Occupation 1] for ten years and faced the difficulties he claims he would not have mentioned it prior to March 2018.
Further, the Tribunal initially at the hearing held in March 2018 asked the applicant as to his employment in Afghanistan and he did not refer to being a [Occupation 1]. Only later in the hearing when discussing his fear of returning did he then discuss being a [Occupation 1] in Afghanistan. When the concern was raised with the applicant he referred to mental issues. The Tribunal is of the view if he had been a [Occupation 1] in Afghanistan for ten years as recently claimed he would of stated this when asked the question as to his employment in Afghanistan. It does not accept on the basis of a psychological report referring to depression, which does not indicate memory loss, that mental issues is the reason he did not mention it initially.
Further, in contrast to his claim that he has faced a series of events on the roads as a [Occupation 1] as outlined above, at the Tribunal hearing held in 2015 he stated that he had not faced any trouble on the roads except that on one occasion the road had been closed because of an accident. The Tribunal is of the view of he faced the difficulties he now claims, including being shot at he would have advised this prior to March 2018 in his recent statutory declaration and hearing.
Does he have a well-founded fear of persecution in relation to Jaghori, Afghanistan or while travelling on the roads to and from Jaghori and from Kabul as a person of Hazara and Shia religion?
As noted above the Tribunal accepts the applicant is of the Hazara ethnicity and Shia religion and found his home area is Jaghori. The question then arises whether he will face a well-founded fear of persecution in relation to Jaghori and/or while travelling on the roads to Jaghori from Kabul or to and from Jaghori in Ghazni. With regard to the latter the information, as outlined below, indicates that at present there is no possibility of the applicant travelling by air into Jaghori, Ghazni or to Bamiyan and then travelling to Jaghori through the Hazarajat.
Risk in Jaghori
The issue of whether persons of Hazara ethnicity and Shia religion are per se at risk in Afghanistan for reason of their ethnicity and religion is a complicated one as the security situation in Afghanistan varies considerably, including due to a person’s location[3].
[3] DFAT Country Information Report on Afghanistan of 18 September 2017
Jaghori district is predominately populated by Hazara, and therefore Shia[4]. In its December 2017 report, EASO described Jaghori district as ‘exclusively populated by Hazara.’[5] Sources indicate that Jaghori is safe. DFAT in its September 2017 Thematic Report on Hazaras in Afghanistan notes that international and domestic observers agree that the security situation in the Hazarajat, of which Jaghori is part of, is considerably better than in most other parts of Afghanistan. It notes that as Hazaras comprise the vast majority of the population in most districts it reduces ethnic tension. As Hazaras are visually distinct, non-Hazaras 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. [6]
[4] Ghazni Provincial Handbook: A Guide to the People and the Province’, Fishstein, P & Russell, G, IDS International, 01 May 2010, p.20, CIS28173
[5] ‘Afghanistan: Security Situation December 2017’, EASO, 01 December 2017, p.120, CISEDB50AD8102
[6] DFAT Thematic Report – Hazaras in Afghanistan 18 September 2017
During 2017, the Office for the Coordination of Humanitarian Affairs (OCHA) described Jaghori district as ‘seemingly safe’[7] and as having ‘been spared from violence in general’.[8] This is reflected by the latest European Asylum Support Office (EASO) security data. In its December 2017 report, EASO recorded a low number of security incidents in Jaghori district. Of the 1,215 security incidents between 1 September 2016 and 31 May 2017, 6 incidents were recorded in Jaghori district.[9] Similarly, in its preceding report, covering the period between 1 September 2015 and 31 May 2016, EASO recorded 1,292 security incidents in Ghazni province, of which 1 occurred in Jaghori district.[10]
[7] Afghanistan Humanitarian Bulletin Issue 63 | 01 – 30 April 2017’, United Nations Office for the Coordination of Humanitarian Affairs, 30 April 2017, CISEDB50AD8189
[8] Humanitarian Bulletin Afghanistan’, UNOCHA, Issue 64, 31 May 2017, p.2, CISEDB50AD8193
[9] Afghanistan: Security Situation December 2017’, EASO, 01 December 2017, p.123, CISEDB50AD8102
[10] ‘EASO Country of Origin Information Report Afghanistan Security Situation November 2016’, EASO, 1 November 2016, p.95, CIS38A80122597
The Department’s 2015 COIS paper on Hazaras in Afghanistan states that:
Hazaras in the Hazara dominated districts are relatively safe from Taliban attack, according to most sources, and no reports were found of insurgent attacks inside Jaghori, Malistan or Nawur.[11]
[11] Department of Immigration and Border Protection, COIS, 2015, “Afghanistan: Hazaras Issues Paper”, March.
At the hearing on 19 March 2018 the applicant indicated that he did not face difficulties from the Taliban or ISIS while living in Jaghori. He indicated that Hazaras are currently safe living in Jaghori but faced difficulties when travelling outside.
Therefore, having regard to the information and evidence before it, the Tribunal is of the view that persons of Hazara ethnicity and Shia religion do not face a real chance of persecution involving serious harm in Jaghori District by virtue of their religion and ethnicity alone.
Air Travel to Jaghori, Ghazni City and Bamiyan
As to travel by air, there is no information to indicate the possibility exists of travelling by commercial airline directly into Jaghori.
As to travel by air to Ghazni city, the provincial capital of Ghazni Province wherein Jaghori lies, the available information indicates that the airport at Ghazni city is currently being upgraded and is not yet open to domestic carriers. Although the CAPA Centre for Aviation[12] states that the airport was completed on 31 December 2017,[13] the flight schedules for Kam Air,[14] Afghan Jet International,[15] Safi Airways[16] and Ariana Afghan Airlines[17] do not list Ghazni city airport as a scheduled destination. This is confirmed by flight search engines including Google Flights, Skyscanner and Expedia who do not list Ghazni airport as an available destination. [18]
[12] For information about CAPA Centre for Aviation, please see <
[13] New Ghazni Airport’, CAPA Centre for Aviation, undated, CIS7B83941257
[14]Please see <
[15] Please see <
[16] Please see <
[17] Please see < COISS Afghanistan – CI 180207185025624 15 February 2018
Another option is for travellers to fly from Kabul to Bamiyan airport (in Bamiyan city), before continuing by road to Jaghori district. The Department’s COISS[19] ran searches over multiple dates for flights between Kabul and Bamiyan on Kam Air’s website. All returned results of either ‘no flight’ or ‘no seat’ available, even for dates several months in the future. As COISS noted this is identical to a copy of the schedule COISS found in August 2016[20] Similarly, although a flight schedule on the East Horizon website lists three flights a week from Kabul to Bamiyan, it is unclear whether this information is current (see [21]and it appears on the same page as a flight schedule for Herat airport dated summer 2015.[22] Confusingly, running any sort of search for flights on the East Horizon website returns a ‘service unavailable’ error message, making it impossible to confirm what flights are currently running.[23] Flight search engines such as Skyscanner, Google Flights, Kayak and Expedia do not return any results for flights between Kabul and Bamiyan airports.
[19] Ibid
[20] Flight selection’, Kam Air, 13 February 2018, CIS7B83941254
[21] Flight Schedule’, East Horizon Airlines, 24 August 2016, CIS38A80121632
[22] Flight schedule’, East Horizon Airlines, undated, CIS38A80121632
[23] Please see <>
For these reasons the Tribunal does not accept that there exists an option for the applicant to travel by air to Jaghori or part of the way via Ghazni City or Bamiyan.
Risk of Travel by Road
In addition to needing to travel to Jaghori by road from Kabul, the Tribunal assesses that the applicant will need to travel for work, medical treatment, and supplies outside of Jaghori into other areas of Ghazni Province. It is therefore necessary to consider whether there is a real chance that he would face serious harm for reason of his race and/or religion while travelling to Jaghori from Kabul and while travelling outside Jaghori to Ghazni City by road.

The country information indicates that while most of the Hazara majority districts of Ghazni Province are currently relatively secure, they are surrounded by or adjacent to Pashtun dominated districts which are highly insecure, where there is a Taliban presence and where ISIS is becoming active.
Ghazni province is reported to be one of the most violent provinces in Afghanistan in terms of attacks on defence forces, international forces and civilians[24]. The south-eastern region of the Hazarajat, including Ghazni, recorded 340 deaths and 563 persons injured in 2016. Several abductions of Hazaras were reported to have occurred in Ghazni province in 2015[25]. In 2015 DFAT reported the emergence of extremist groups affiliated with Islamic State or ISIS in some districts of Ghazni Province.[26]
[24] DFAT 2017 DFAT Country Information Report Afghanistan18 September at 2.18 - 2.19
[25] DFAT 2017 DFAT Country Information Report Afghanistan18 September at 2.30
[26] DFAT 2015 ‘Afghanistan: Hazara Issues Paper’ March 2015, p.21; ‘Clash between radicals: ISIL vs Taliban in Afghanistan’, Khaama Press, 26 February 2015, available at ‘ISIS linked fighters tighten grip in Afghanistan’, NBC News, 1 May 2015, available at
The European Asylum Support Office (EASO) reported in November 2016 that security in the province of Ghazni as a whole was fragile and anti-government elements posed a major challenge, targeting the Afghan national security forces, district governors, tribal leaders and NGO workers. It said that civilians had also suffered heavy casualties and referred to an incident in Jaghori district in November 2015, when Uzbek members of Islamic State abducted Hazara people and killed them in Zabul province.[27]
[27] EASO, EASO Country of Origin Information Report - Afghanistan: Security Situation, November 2016, pages 94-97.
The Department outlines the various routes of road travel from Kabul to Jaghori in its 15 February 2018 country research response.[28] The independent information indicates that travelling through these routes requires passing through areas contested or controlled by the Taliban. A recent study conducted by the BBC indicates that some districts along the routes experience high and medium levels of Taliban.[29] In September 2017, the LWJ similarly reported that the Taliban contested many districts along these routes including Ghazni, Giro and Qarabagh districts in Ghazni province. Andar district is listed as being totally controlled by the Taliban, and Gelan and Ab Band are categorised as being totally controlled by the Taliban (except for the district centres).[30] This is supported by the ISW, whose territorial control map classifies districts along the three routes from Kabul to Jaghori as ‘high confidence Taliban support’ zones and ‘Taliban support zones[31]
[28] COISS Afghanistan – CI 180207185025624 15 February 2018
[29] ‘LWJ Map Assessment: Taliban controls or contests 45% of Afghan districts’, Long War Journal, 26 September 2017, CISEDB50AD8136
[30] ‘LWJ Map Assessment: Taliban controls or contests 45% of Afghan districts’, Long War Journal, 26 September 2017, CISEDB50AD8136
[31] ‘Afghanistan Partial Threat Assessment: November 23 2016 – March 2017’, Institute for the Study of War, March 2017,
Reports indicate serious ongoing concerns with road security more generally in Afghanistan. In September 2017 the Department of Foreign Affairs and Trade (DFAT) reported that ‘road transportation links between the Hazarajat and major cities are far from secure.’[32] DFAT further notes ‘Afghanistan’s highly insecure road network’ and that ‘travelling by road is a risk for Afghans of all ethnicities.’[33]
[32] DFAT Thematic Report on Hazaras in Afghanistan’, DFAT, 18 September 2017, p.4, CISEDB50AD5681
[33] Ibid
As to whether Hazara Shias are specifically targeted for harm, the UNHCR notes that in Afghanistan ethnicity and religion are often inextricably linked, especially in the case of Hazara Shias, and as a result it is not always possible to distinguish clearly between discrimination and ill-treatment on the ground of religion and discrimination and ill-treatment on the ground of ethnicity. The UNHCR notes that while some sources report that overt discrimination by Sunnis against the Shia community has decreased, other sources report such discrimination continues and in any event, violent attacks by anti-government elements targeting Shia population continue to occur[34].
[34] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, HCR/EG/AFG/16/02, at pp 51-52 and 76 available at: >
DFAT reports the security situation in Afghanistan is complex and fluid, with a number of anti-government elements, most notably the Taliban, engaged in a violent armed insurgency against the government and its international partners[35].
[35] DFAT 2017 DFAT Thematic Report Hazaras in Afghanistan 18 September at 2.26 – 2.35
USCIRF’s 2017 annual report noted that during 2016, Shia Muslims, especially ethnic Hazaras, fell victim to multiple violent and deadly attacks, as well as abductions that often ended in death. The attacks were overwhelmingly claimed by or attributed to US designated terrorist groups including the Taliban and ISIS[36].
[36] United States Commission on International Religious Freedom, ‘USCIRF Annual Report 2017 - Tier 2 countries – Afghanistan’, (Conditions for Shi’a Muslims), 26 April 2017 at >
While DFAT doesn’t identify Hazaras as being among the most common targets of insurgents, it reports that in late 2016 and 2017 there were a series of deliberate sectarian attacks against Shia targets raising concerns that Shias are now vulnerable to being targeted based on their religious identity. DFAT assesses that the number and scale of attacks in 2016 and 2017 demonstrate that Hazaras are particularly vulnerable to religiously motivated attacks and that Shias, both Hazara and non-Hazara, now face a risk of being attacked by Islamic State based on their religious affiliation[37].
[37] Ibid
According to DFAT, ‘the continuing armed insurgency and deteriorating security situation has limited the ability of Afghans to travel safely from one part of the country to another by road.’[38]
[38] ‘DFAT Thematic Report on Hazaras in Afghanistan’, DFAT, 18 September 2017, p.14, CISEDB50AD5681
DFAT notes that Hazaras travelling to and from the Hazarajat are particularly at risk of kidnapping and abduction. Kidnapping and abductions by anti-government elements occur regularly “particularly on Afghanistan’s highly insecure road network”. DFAT reported that while road travel presents risk for all ethnicities, “ethnic targeting can play a role in the selection of victims once an abduction is in progress.” DFAT found “Hazaras remain likely to be selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped” and noted the location of 2016 abductions, reported by UNAMA, bordering the Hazarajat. Owing to this, DFAT assessed Hazaras travelling to and from the Hazarajat are particularly at risk.[39]
[39] DFAT Thematic Report - Hazaras in Afghanistan 18 September 2017’, Department of Foreign Affairs and Trade, 18 September 2017, CISEDB50AD5681, p. 8
The Tribunal considers the applicant’s ethnicity and religion as increasing the risk the Taliban and or ISIS will target him if he travels on the roads into or out of Jaghori and from Kabul. The Tribunal therefore finds that, as the applicant is Hazara Shia, it is not remote or mere speculation that the applicant will be targeted and harmed by the Taliban or other non-state agent while travelling from Kabul to Jaghori or while travelling outside Jaghori in the reasonably foreseeable future, as he will have to travel though Taliban and other non-state agent controlled areas.
The Tribunal, therefore, finds that there is a real chance that the applicant will suffer serious harm at the hands of the Taliban, ISIS or other non-state agents were he to return to Jaghori in the reasonably foreseeable future. The Tribunal is satisfied he will be targeted because he is a Hazara and Shia. The Tribunal is satisfied that the applicant will suffer persecution for the essential and significant reasons of his ethnicity and religion. The Tribunal is satisfied that the harm he fears amounts to persecution in the context of Section 91R(1) given the Taliban’s and ISIS’s record of assaults, violence and killings. The Tribunal is satisfied that the persecution will involve systematic and discriminatory conduct in that it will be directed at him in a non-random way for the reasons outlined above.
Is state protection available to him?
DFAT has noted that the ability of the Afghan security forces to maintain effective state protection, particularly outside of the major cities is a source of concern. DFAT has summarised the situation as follows: ‘
The continuing armed conflict has significantly challenged the government’s ability to exercise effective control over large parts of the country, particularly outside major urban centres. In addition, the increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the government’s ability to protect its citizens even where its security infrastructure is strongest.[40]
[40] DFAT Country Information Report: Afghanistan, 18 September 2017: page 28
The UNHCR reported in April 2016 that the security situation in Afghanistan remains unpredictable, with civilians continuing to bear the brunt of the conflict. It noted the conflict is increasingly affecting all parts of the country, with anti-government elements reported to have engaged in an increasing number of high-profile attacks in Kabul and other cities while also expanding their reach in rural or less populated areas. The UNHCR reports that concerns have been expressed about the capability and effectiveness of the Afghan National Security Forces in ensuring security and stability across Afghanistan and that violent attacks by anti-government elements targeting the Shia population continue to occur[41].
[41] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, HCR/EG/AFG/16/02, at pp pp14-15 and 51-52 and 76 available at: >
In view of these reports and the number of attacks that continue to occur the Tribunal is not satisfied there is protection available to the applicant while travelling on the roads into or out of Jaghori or travelling there by road from Kabul.
Is it reasonable for him to relocate to Kabul or any other area in Afghanistan?
The Tribunal has found that there is a real chance of serious harm to the applicant while travelling on the roads into and out of Jaghori and while travelling from Kabul to Jaghori.
The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country[42]: Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.[43]
[42] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1.
[43] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
The latest UNHCR Eligibility Guidelines[44], issued in April 2016, indicate that single-able bodied men and married couples of working age without identified specific vulnerabilities are, in its view, the only persons who might reasonably be able to relocate within Afghanistan without ‘external support’. It contends that they may be able to subsist ‘without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life, and that are under effective Government control.’
[44] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, HCR/EG/AFG/16/02, available at:
The Tribunal notes that, in its September 2017 publication Thematic Report – Hazaras in Afghanistan, the Department of Foreign Affairs and Trade concluded ‘while there are generally options available for internal relocation in Afghanistan, there are considerable security and economic factors that limited the ability of Hazaras to relocate safely and successfully.’ The 2017 report goes on to identify Kabul as the most viable option for internal relocation for most Hazaras, although even in that instance, it sounds a cautionary note in the light of recent attacks, including against Shia targets:
As the capital and largest urban centre, Kabul provides the most viable option for internal relocation and resettlement for most Afghans, including Hazaras. Given the considerable growth of Kabul’s population since 2001, many Hazaras are likely to have members of their extended family resident in Kabul who can assist with their relocation. However, the cost of living is higher in Kabul than elsewhere in the country, there are considerable strains on infrastructure and services, and Kabul regularly experiences serious security incidents, including attacks directly targeting the Shi’a community (see ‘Security Situation – Kabul’ and ‘Shi’a’)[45]
[45] DFAT Country Information Report: Afghanistan, 18 September 2017: page 28
With regard to sectarian attacks on the Shia Muslim minority, the United Nations Assistance Mission in Afghanistan (UNAMA) reported in its Annual Report on Protection of Civilians in Armed Conflict: 2016 that an emerging pattern of deliberate sectarian attacks against the Shia Muslim religious minority in 2016, mainly claimed by Daesh / ISKP, raised grave concerns regarding the right to freedom of religion or belief and the protection of minorities. It outlined the following attacks on Shias in Kabul
·On 23 July 2016, two suicide attackers targeted a peaceful demonstration in Deh Mazang Square of Kabul city protesting a decision relating to a cross-country power line project, killing at least 85 civilians and injuring 413 others – the deadliest attack recorded by UNAMA since 2001. Nearly all victims were men and members of the Shia Muslim religious minority of Hazara ethnicity. On the same day, Daesh/ISKP, claimed responsibility for the attacks through a Twitter account affiliated with the Amaq News agency, linking the attacks to the reports of Hazaras’ alleged participation in fighting in Syria on the side of the government. Anti-Shia Muslim statements were delivered in the same message. A Truth-Finding and Investigative Committee was appointed by the President on 25 July 2016 following this incident, but it has not yet published any report.
·On 11 October 2016, the day of Ashura, a major Shia Muslim commemoration, an attacker disguised in an Afghan national security force uniform entered the Karte Sakhi Mosque in Kabul, opened fire at Shia worshippers and used a hand grenade, killing 19 civilians and injuring 60 others. The attack caused minor damage to the mosque. Daesh/ISKP also claimed responsibility for this attack by issuing another online statement containing hate language targeting the Shia Muslim religious minority.
·On 21 November 2016, a suicide attack killed at least 40 civilians and injured 74 others, including many children, at the Baqer-ul Ulum mosque in Kabul during observance of the religious ceremony of Arbaeen, a commemoration on the 40th day after Ashura. The suicide bomber detonated the device at the mosque, deliberately targeting the large congregation composed mainly of worshippers from the Shia Muslim religious minority.123 Daesh/ISKP claimed responsibility for this attack using derogatory expressions and calling for violence against Shia Muslims, as it called in earlier statements.’[46]
[46] UNAMA, Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016, February 2017, pages 34-35.
There have been further reports of attacks on Shia mosques or in Shia dominated areas of Kabul during 2017 and 2018:
·15 June 2017: an attack on the Shia al-Zahra mosque in western Kabul during religious observances of Ramadan killed at least four people and wounded eight. The attack was claimed by ISIS[47];
·24 July 2017: an attack in the predominantly Shia Hazara neighbourhood in western Kabul killed four people[48];
·25 August 2017: an attack on the Shia Imam Zaman mosque in Kabul during Friday prayers killing at least 28 worshippers. The attack was claimed by ISIS[49].
·29 September 2017: a suicide bomber blew himself up outside a Shia mosque in Qala-e-Fathullah killing 22 people.
·21 October 2017: twin attacks on Shia mosques in the west of Kabul took place just hours apart, with as many as 88 reported killed in the attacks and dozens wounded, including women and children. Shortly prior to the attacks the UN reporting that at least 84 Shias had been killed and 200 injured in attacks on mosques so far in 2017[50].
·28 December 2017: an attack on the Tabayan Shia cultural centre in Kabul with reportedly 41 killed and up to 81 people injured. The bombs were reportedly placed by ISIS.
·9 March 2018: a suicide bomber blew himself up while trying to enter a gathering of a former Shia leader of the Shia Hazara community. Seven people were killed and seven injured.
[47] The Age Four Killed in Islamic State attack on mosque in Kabul16 June 2017 at
[48] The Age Taliban bomb kills dozens in Kabul 24 July 2017 at
[49]
[50]
In addition to attacks on Shias, DFAT notes that anti-government elements have conducted a significant and increasing number of high-profile attacks in Kabul. The most common targets for insurgent attacks are government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, foreign diplomatic missions and international organisations, Mosques, schools, hospitals and other civilian targets are also vulnerable. Attacks can include small arms fire, indirect (rocket) fire, suicide bombings, car bombs, improvised explosive devices (IEDs) and complex attacks involving a combination of these methods. Attacks are generally directed at specific targets, but the methods of attack can be indiscriminate and often result in civilian casualties[51].
[51] DFAT DFAT Country Information Report on Afghanistan 18 September 2017

The Tribunal notes that Kabul has a sizeable Hazara population (which the country information indicates a large proportion of which are also displaced from other areas) and a range of employment options. However it is also reported by the UNHCR and DFAT that unemployment is widespread in Kabul and there is great pressure on infrastructure, housing, water and electricity.[52]
[52] DFAT Thematic Report :Conditions in Kabul 18 September 2015
In the present case, the Tribunal considers relevant that – in addition to DFAT’s caveats about the heightened security risk to the Shia community - relocation to Kabul is difficult for the applicant because he has only spent a short time there. While his wife and children are currently living there, in rented accommodation he has indicated that he is supporting them from Australia and they are not required to travel outside the Hazara areas for employment as he will have to. It is his claim that he attends the mosque in Australia and will do so on return to Afghanistan. He claims he is in fear for his safety as a Shia and on account that he will need to travel outside the Hazara areas of Kabul to obtain employment.
The Tribunal finds that as a person with no family, other than his dependent family members or social network in Kabul, the applicant could not reasonably be expected to relocate there where unemployment is high. In addition, the country information indicates that there is an atmosphere of generalized insecurity in Kabul, with the Taliban and other armed insurgent groups increasingly carrying out attacks in the city, many of the these attacks aimed at Shias. The information indicates the situation is likely to deteriorate.
The Tribunal therefore finds that Kabul is neither a reasonable nor practicable option for the applicant to relocate to. On the basis that he has no connection either community or tribal elsewhere in Afghanistan and has [dependent] family members the Tribunal does not consider that there is any other part of Afghanistan to which it would be viable or reasonable for the applicant to relocate.
Refugee Criteria
For the reasons given above the Tribunal is satisfied the applicant has a well-founded fear of persecution for a Convention reason in Afghanistan. The Tribunal is satisfied the applicant does not have a right to enter and reside in any other country therefore he is not excluded from Australia’s protection by s.36(3) of the Act.
CONCLUSION
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Gabrielle Cullen
Member

CISEDB50AD8117

[2018] AATA 1288

26 March 2018

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