1711586 (Refugee)

[2018] AATA 3706

1711586 (Refugee) [2018] AATA 3706 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711586

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Angela Cranston

DATE:22 August 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 22 August 2018 at 4:48pm

CATCHWORDS

Refugee – Protection visa – Afghanistan – Federal Circuit Court remittal – Race – Hazara – Religion – Shia Muslim – Jaghori District – Drinking alcohol – Risk of travel – Taliban – Islamic State – Attacks on roads – Attacks by extremist groups – State protection – Internal relocation – Third country protection – Decision on the papers – Hearing not required – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R(1), 425, 499

Migration Regulations 1994 (Cth), 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

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

2.    The applicant who claims to be a citizen of Afghanistan, applied for the visa on 4 August 2012 and the delegate refused to grant the visa on 13 March 2013.

3.    In his application, the applicant claimed the following:

My name is [name] and I am [an age]-year-old male born in Kabul, Kabul province Afghanistan. My ethnicity is Hazara and my religion is Shia Muslim.

I do not have a family name. My father, my siblings and my children do not use a family name as this is not custom in Afghanistan. However when I went to Iran I had to give a family name and this is why I chose [family name] as my great-grandfather was [a related name]. I am the only one in the family that uses this family name.

I am married and have [number] children. My children live with my wife in our [home village] in [named] area in Jaghori District, Ghazni province. My parents are alive and live with my [number] siblings also in [our home village].

Why I left my home country

Last summer six policeman were slaughtered by the Taleban in [Town 1]. They were beheaded and their heads placed in bag. The bodies were taken to [a location], in the centre of Jaghori, close to [a central location]. I was there and I saw the heads and the bodies. I sat under a tree and started crying as the beheaded heads of these men haunted me. A pashtun man got close to me and asked me why I was crying, I explained that I felt sorrow for the dead men and he said to me that they were infidels and it did not matter because hundreds of these infidels were killed every day. We argued about the issue and he warned me that I deserve the same fate as I was a Hazara and that they the Pashtuns had instructions from God to clean the earth of us dirty people and infidels.  

Life is very difficult in Jaghori. The Taleban controls the roads to Kandahar and Ghazni. If I am caught wearing Western-style clothes, I will be beaten. Just before our New Year Day this year, with three friends, we bought four bottles of spirits. We drank the bottles among the four of us.

From the four bottles I purchased, I gave one to my friend [named]. Unfortunately he did not keep his mouth shut and told his uncle [named], who has links with the Taleban in [Town 1] about my gift of a bottle of alcohol. In fact we drank together with other two friends.

After [the friend] told his uncle, wherever I went I was labelled as a drunk and people started calling me names, even my family accused me of being an alcoholic and a heretic because I drank some alcohol which is forbidden by our Holy Book. I got scared and decided to leave.

Aside from this incident with the purchased bottles of alcohol the most important reason for me to leave Afghanistan is the Taleban. I couldn’t move freely or walk freely between Ghazni to Jaghori without fear of getting killed and not returning back alive.

This was not my only problem. Most of the villagers had trouble with the Taleban. About three or four years ago one of the villagers was returning to Jaghori with his new bulldozer. The Taleban took them both and burnt down the bulldozer and its driver got killed in the fire.

Hazara Shias are discriminated against and persecuted. It is very difficult to survive in a place like that.

Last winter, while I was a passenger in a car going to Kabul, when we arrived at [Town 1], we were stopped by the Taleban, along with approximately other hundred people. We were forced to leave our cars sit by the road and then beaten and kicked by the Talibs.

While we were sitting, the Talibs brought three Hazara teenager boys at gunpoint and displayed them in front of us. The boys were dressed in Western-style clothes. The Taliban said that it was their duty to kill them as they were working for foreigners and as such, traitors. The three boys were beheaded in front of us and their heads were placed on their chest. We were around 150 men and being beaten we were told to get back to our cars and leave. At that point I decided that I have had enough and wanted to leave Afghanistan.

4.    The protection visa application was rejected and the Department’s decision was affirmed on review. That decision was remitted back to the Tribunal on the basis that the Tribunal erred in considering whether the real risk of significant harm the applicant faced was one faced by the population of the country generally and not faced by the applicant personally.

5. A further Tribunal decision was remitted back to the Tribunal on the basis that Tribunal breached s.425 due to a mistranslation by the interpreter which could have affected the overall assessment of the applicant’s credibility.

6.    Given the agreed set of facts in previous Tribunal hearings about the applicant’s race, religion and location and given the current, relevant, extensive research conducted by a previous Tribunal member in AAT Decision 1710341, 26 March 2018, the Tribunal has decided to proceed to make a decision on the papers and without hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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).

9.    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.

10. 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’).

11. 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.

12.      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 24 August 2012, including the applicant’s statutory declaration as to his claims and identity documents.

·The Tribunal (differently constituted) decisions dated 30 July 2013 and 22 April 2014.

·Written submissions from the applicant’s representatives.

·AAT Decision 1710341, 26 March 2018

·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

1. 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?

2. 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, the Tribunal accepts that the applicant was born in Afghanistan and is a citizen of that country and was born in Kabul in [year] but lived, as he claimed, in [their village] in [named] area in Jaghori from approximately [year] until 2012 when he departed Afghanistan apart from three trips to Iran in [specified years].

3. 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.

4. 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?

5. The evidence indicates that the applicant travelled to Iran for employment in [specified years]. He also claims he was deported as he did not hold a permit. The Tribunal accepts his evidence that neither he nor his family have Iranian passports or visas for Iran. In its November 2013 Country Information Report for Iran, DFAT stated that refugees, whether registered or unregistered, would not be permitted to re-enter Iran if they had travelled to a third country. The relevant information reads:

   The Iranian Government does not allow re-entry by registered refugees if they visit a third country. Unregistered refugees who leave Iran are not allowed to return through regular means[1].

   [1] Department of Foreign Affairs and Trade 2013, DFAT Country Information Report Iran, 29 November, Section 5.22, p.25 <CIS26780> 

6. On the basis of independent country information and as the applicant does not hold an Iranian passport or visa to enter Iran, nor does his family, the Tribunal accepts the applicant cannot enter Iran 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?

7. The Tribunal accepts from the evidence provided that his home is in Jaghori and that he lived there from [year] until 2012 when he departed Afghanistan, apart from three trips to Iran to work. 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.

8. 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

9. The applicant claims he left Afghanistan because after he claimed to have witnessed an incident in which he claimed six Hazara policemen had been beheaded in [Town 1] and an incident in which he claimed that he had drunk alcohol.

10. 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 Pashtuns and the Taliban. He said that Shia Muslims were discriminated against by Pashtuns and that they and the Taliban had killed many Hazaras because of their race and their religion. Information was provided to the Department and Tribunal as to difficulties faced by Hazaras and Shias on the roads. The applicant has also stated 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 [Town 1] specifically.

    Assessment of Credibility of the Applicant’s claims

11. 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 has lived in Jaghori until 2012 when he departed Afghanistan to travel to Australia. He has his family’s land in Jaghori.

    ·The applicant has a wife and children, [and other family] in Jaghori, Afghanistan. The Tribunal accepts they live in Jaghori and he supports them from Australia.

    ·The applicant worked as an assistant to a [tradesperson] in Iran. and has farmed his family plot of land in Jaghori.

12. 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 because he witnessed the beheading of six Hazara policemen or that he drank alcohol.

13. Firstly, the Tribunal is of the view that if six Hazara police had been beheaded in [Town 1] 2011, then such an incident would have been reported. Neither does the Tribunal accept that if the bodies were taken to the centre of Jaghori, which is a hazara stronghold, that a Pashtun man would challenge the applicant, a hazara man over his display of sorrow over the fate of the said policemen.

14. Equally, the Tribunal is of the view that if the Talib’s brought three Hazara teenager boys at gunpoint and displayed them in front of 150 men and then beheaded them because they were dressed in Western-style clothes and accused them of working for foreigners that this would have also been reported.

15. Neither does the Tribunal accept that he is telling the truth about the incident in which he claims that he drank alcohol. That is because at the prior Tribunal hearing on 4 April 2014, the applicant was unable to provide any cogent explanation with regard to why he would suddenly have decided to drink alcohol at the age of [age] and initially claimed that he had not known that drinking alcohol was forbidden in Islam but then conceded that he had known that it was haram. In addition, the applicant remained in his village until he went to Kabul, 10 or 12 days before he left Afghanistan in around April 2012 and suggests that he remained in his village for more than four months after the incident in which he drank alcohol but that nothing happened to him as a result of this incident apart from the one occasion at a ceremony involving the recitation of the Koran at which he told the first Tribunal someone accompanying the sheikh had spat at him and had left the area.  The Tribunal also notes that even though the applicant had stated that he had been at home, he also stated that the whole village knew that he had drunk alcohol, that after this incident he was labelled as a drunk and people started calling him names and his home would have been the first place anyone would have looked for him.  Accordingly, the Tribunal does not accept that in these circumstances nothing would have happened to him during the period of over four months between when he says he drank the alcohol and when he actually left his village.  The Tribunal does not accept that the applicant is telling the truth about the incident in which he claims to have drunk alcohol. 

    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?

16. 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

17. 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[2].

    [2] DFAT Country Information Report on Afghanistan of 18 September 2017

18. Jaghori district is predominately populated by Hazara, and therefore Shia[3]. In its December 2017 report, EASO described Jaghori district as ‘exclusively populated by Hazara.’[4] 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. [5]

    [3] Ghazni Provincial Handbook: A Guide to the People and the Province’, Fishstein, P & Russell, G, IDS International, 01 May 2010, p.20, CIS28173 

    [4] ‘Afghanistan: Security Situation December 2017’, EASO, 01 December 2017, p.120, CISEDB50AD8102 

    [5] DFAT Thematic Report – Hazaras in Afghanistan 18 September 2017

1. During 2017, the Office for the Coordination of Humanitarian Affairs (OCHA) described Jaghori district as ‘seemingly safe’[6] and as having ‘been spared from violence in general’.[7] 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.[8] 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.[9]

   [6] Afghanistan Humanitarian Bulletin Issue 63 | 01 – 30 April 2017’, United Nations Office for the Coordination of Humanitarian Affairs, 30 April 2017, CISEDB50AD8189 

   [7] Humanitarian Bulletin Afghanistan’, UNOCHA, Issue 64, 31 May 2017, p.2, CISEDB50AD8193 

   [8] Afghanistan: Security Situation December 2017’, EASO, 01 December 2017, p.123, CISEDB50AD8102 

   [9] ‘EASO Country of Origin Information Report Afghanistan Security Situation November 2016’, EASO, 1 November 2016, p.95, CIS38A80122597 

2. 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.[10]

   [10] Department of Immigration and Border Protection, COIS,  2015, “Afghanistan: Hazaras Issues Paper”, March.

3. The applicant has indicated that he did not face difficulties from the Taliban or ISIS while living in Jaghori and that Hazaras are currently safe living in Jaghori but faced difficulties when travelling outside.

4. 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

5. As to travel by air, there is no information to indicate the possibility exists of travelling by commercial airline directly into Jaghori.

6. 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[11] states that the airport was completed on 31 December 2017,[12] the flight schedules for Kam Air,[13] Afghan Jet International,[14] Safi Airways[15] and Ariana Afghan Airlines[16] 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. [17]

   [11] For information about CAPA Centre for Aviation, please see <

   [12] New Ghazni Airport’, CAPA Centre for Aviation, undated, CIS7B83941257 

   [13]Please see <

   [14] Please see <

   [15] Please see <

   [16] Please see < COISS Afghanistan – CI 180207185025624 15 February 2018

7. 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[18] 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[19] 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 [20]and it appears on the same page as a flight schedule for Herat airport dated summer 2015.[21] 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.[22] Flight search engines such as Skyscanner, Google Flights, Kayak and Expedia do not return any results for flights between Kabul and Bamiyan airports.

   [18] Ibid

   [19] Flight selection’, Kam Air, 13 February 2018, CIS7B83941254 

   [20] Flight Schedule’, East Horizon Airlines, 24 August 2016, CIS38A80121632 

   [21] Flight schedule’, East Horizon Airlines, undated, CIS38A80121632 

   [22] 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

8. 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.

9. 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.

10. 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[23]. 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[24]. In 2015 DFAT reported the emergence of extremist groups affiliated with Islamic State or ISIS in some districts of Ghazni Province.[25] 

    [23] DFAT 2017 DFAT Country Information Report Afghanistan18 September at 2.18 - 2.19

    [24] DFAT 2017 DFAT Country Information Report Afghanistan18 September at 2.30

    [25] 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

11. 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.[26] 

    [26] EASO, EASO Country of Origin Information Report - Afghanistan: Security Situation, November 2016, pages 94-97.

12. The Department outlines the various routes of road travel from Kabul to Jaghori in its 15 February 2018 country research response.[27] 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.[28] 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).[29] 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[30]

    [27] COISS Afghanistan – CI 180207185025624 15 February 2018

    [28] ‘LWJ Map Assessment: Taliban controls or contests 45% of Afghan districts’, Long War Journal, 26 September 2017, CISEDB50AD8136

    [29] ‘LWJ Map Assessment: Taliban controls or contests 45% of Afghan districts’, Long War Journal, 26 September 2017, CISEDB50AD8136

    [30] ‘Afghanistan Partial Threat Assessment: November 23 2016 – March 2017’, Institute for the Study of War, March 2017,

13. 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.’[31] DFAT further notes ‘Afghanistan’s highly insecure road network’ and that ‘travelling by road is a risk for Afghans of all ethnicities.’[32]

    [31] DFAT Thematic Report on Hazaras in Afghanistan’, DFAT, 18 September 2017, p.4, CISEDB50AD5681 

    [32] Ibid

14. 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[33].

    [33] 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[34].

    [34] DFAT 2017 DFAT Thematic Report Hazaras in Afghanistan 18 September at 2.26 – 2.35

15. 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[35]. 

    [35] 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[36]. 

    [36] Ibid

16. 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.’[37]

    [37] ‘DFAT Thematic Report on Hazaras in Afghanistan’, DFAT, 18 September 2017, p.14, CISEDB50AD5681

17. 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.[38]

    [38] DFAT Thematic Report - Hazaras in Afghanistan 18 September 2017’, Department of Foreign Affairs and Trade, 18 September 2017, CISEDB50AD5681, p. 8

18. 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.

19. 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?

20. 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.[39]

    [39] DFAT Country Information Report: Afghanistan, 18 September 2017: page 28

21. 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[40].

    [40] 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?

22. 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. 

23. 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[41]: 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.[42]

    [41] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1.

    [42] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

24. The latest UNHCR Eligibility Guidelines[43], 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.’

    [43] 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:  

25. 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’)[44]

    [44] DFAT Country Information Report: Afghanistan, 18 September 2017: page 28

1. 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.’[45]

   [45] UNAMA, Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016, February 2017, pages 34-35.

2. 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[46];

   ·24 July 2017: an attack in the predominantly Shia Hazara neighbourhood in western Kabul killed four people[47];

   ·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[48].

   ·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[49].

   ·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.

   [46] The Age Four Killed in Islamic State attack on mosque in Kabul16 June 2017 at

   [47] The Age Taliban bomb kills dozens in Kabul 24 July 2017 at

   [48]

   [49]

3. 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[50].

   [50] DFAT DFAT Country Information Report on Afghanistan 18 September 2017

4. 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.[51]

   [51] DFAT Thematic Report :Conditions in Kabul 18 September 2015

5. 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 when he was young and all of his family remain in Jaghori.

6. The Tribunal finds that as a person with no family 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.

7. 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

8. 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

9. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

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

    Angela Cranston
    Member

    
    
    

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