1711597 (Refugee)

[2018] AATA 474

1711597 (Refugee) [2018] AATA 474 (31 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711597

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Paul Millar

DATE:31 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 January 2018 at 9:37am

CATCHWORDS
Refugee – Protection Visa  Afghanistan – Imputed political opinion – Fear of harm from extremist groups – Taliban – Association with foreign military forces – Returnee from a western country – Supporter of western ideas –  Interethnic discrimination – Security situation in Afghanistan – Witness credibility – Serious inconsistencies in submissions

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 438, 499
Migration Regulations 1994, Schedule 2

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 [in] May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Afghanistan, applied for the visa [in] April 2017.[1]  He appeared before the Tribunal by videoconference on 15 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.  The applicant was represented in relation to the review by his registered migration agent and the representative attended the hearing.

   [1] The Tribunal’s finding as to citizenship is based on copies of pages from the applicant’s Afghanistan passport at folio 72 of Department file [number].

   RELEVANT LAW

2. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.

5. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B).

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (‘the Department’) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] In this respect, the Tribunal takes account of DFAT Country Information Report Afghanistan 18 September 2017.

   FINDINGS

7. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and to the Tribunal, the applicant claims protection on the ground that because of his and his father’s work for Afghan and American forces the Taliban will harm him.[3]  The Tribunal holds the following concerns about the applicant’s credibility. 

   Credibility concerns

   The applicant’s employment

   [3] The applicant’s evidence to the Department and the Tribunal comprises the contents of his protection visa application forms (lodged in April 2017); written statements dated [in] April 2017; statutory declaration made [in] May 2017; his evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened and his evidence at the Tribunal hearing.

8. When the applicant first applied for protection, he submitted a written statement dated [in] September 2016 in which he advanced the following claims about his employment in Afghanistan.  After completing high [school] he operated a [business]. At his family’s insistence, he ceased doing this work in late December 2010 after the Taliban had tried to stop a vehicle in which he was travelling.  In January 2011 both he and his father joined Z Company which was involved in [work] for the Afghan army and American forces. The applicant undertook various roles in this [business].  The applicant left this employment in November 2012 after receiving a letter from the Taliban left at his home and in which that group asserted that he and his father were helping the enemy and should be killed.   In December 2012 he commenced [studies] and worked in [Business 1] owned by his family.  While he did this, he remained in fear of the Taliban. 

9. In his written statement, the applicant advanced the following claims about events from that time leading to his flight from Afghanistan.  In mid-February 2015, some men came to the family home and attempted to attach an explosive device to the applicant’s father’s car.  That same day the Taliban telephoned his father threatening to kill him following which he became ill and had to be taken to hospital where he died that evening.  The following day, the Taliban telephoned the applicant and said that they would kill him next. They continued to call every day and the applicant was fearful. His mother suffered from a stroke [in] February 2015 and he travelled with her to Pakistan for medical treatment. They returned to their home in Kabul after three days.  The applicant travelled to Australia in late June 2015 once he was granted a provisional partner visa.  In this written statement, the applicant did not mention undertaking any other employment in Afghanistan, his work in [Business 1] being his last form of employment.  He concluded his claims stating that the Taliban would kill him for the same reasons they wanted to kill his father which was, according to the statement, because of their work for Z Company.  

10. In his protection visa application form where asked to give details of his employment in Afghanistan the applicant gave the same information as that in his written statement lodged with that application.  The applicant withdrew this protection visa application and with this current protection visa application he submitted a written statement dated [in] April 2017 which is virtually identical to the earlier written statement.  However, he also lodged an additional brief written statement dated [in] April 2017 in which he introduced a new claim that ‘from 2012 to 2013, [he] worked with America as a [Occupation 1]’.  He said that he feared for his life due to his association with the Americans as the Taliban wanted to harm those people who worked with the Americans.  The applicant made no such claim about this work in his written statement of [September] 2016.

11. The applicant was interviewed by the delegate [in] April 2017 and repeated his claims about running a [business] and then joining Z Company.  He said that he ceased work for that company in late 2012 and undertook [studies] and worked at [Business 1] as he had claimed in his written statements.  However, he added that from November 2012 until December 2013 he worked as [Occupation 1] for Y Company at a military base. He said that his supervisor was X, a national of the United States.  He did not know if this man was in the military or a civilian but he carried a gun.  At the interview, the representative also said that while the applicant was undertaking [studies] he was doing ‘an extra job’ with an entity that supported the Afghan Military (‘the Support Entity’).  

12. By letter dated 11 May 2017, the representative submitted that from November 2012 until December 2013 the applicant worked with (not for) the Support Entity as [Occupation 1] and this was after receiving security clearance to work at the military base.  In a separate letter dated 11 May 2017 the representative again submitted that the applicant worked as [Occupation 1] at the military base run by the Support Entity.  He also assisted his previous employer Z Company with limited [support]. However he was not directly employed by the Support Entity as certain positions such as [Occupation 1] were contracted out by that organisation to Z Company. For that reason, the applicant continued to be paid by Z Company on a part time basis. 

13. [In] May 2017 the delegate refused the application finding the applicant’s evidence about his employment to be not credible.  By letter dated 23 June 2017, the representative made submissions in support of the review application.  With respect to the applicant’s employment, it was submitted that from January 2011 until November 2012 the applicant was [employed] by Z Company who subcontracted to the Afghan Army.  From November 2012 until December 2013 he worked as a [Occupation 1] and [in another role] for Z Company who subcontracted his services to W Company.  From 2012 he also worked in [Business 1].

14. At the Tribunal hearing on 15 September 2017, the Tribunal questioned the applicant about his employment history.  In his evidence, the applicant said that he operated [a] business before joining Z Company with his father early 2011.  He said that he stopped work for the company in November 2012 on a full-time basis. This was because of threats he was receiving from the Taliban because of his work for the company.  Even so, on a part-time basis he continued his work for Z Company until December 2013. He worked as [Occupation 1] in this period but he would help with other matters if needed. He ceased this work in December 2013 because of the pressure of study and also because of threats he was receiving through that period.

15. It would be clear from this discussion that the evidence of the applicant about his employment in Afghanistan, being the prime reason he claims to be at risk of harm from the Taliban, has undergone significant expansion and is inconsistent.  In his first written statement of September 2016, he makes no mention of the claims he and his representative now make to the Tribunal about his employment in the period from November 2012 until December 2013.  Indeed, those claims are not made in his further written statements of April 2017. At his interview with the delegate, the applicant did not advance these claims.  Rather, he merely told the delegate that in this period he worked as [Occupation 1] for Y Company at a military base.  To the delegate, his representative merely referred to him doing some extra work with the Support Entity.

16. It is only in written submissions made after the interview that the representative finally referred to the applicant being employed on a part-time basis by Z Company from November 2012 but stated that the work was subcontracted to that company by the Support Entity and made no mention of the applicant working for, with or being subcontracted to W Company.  If the applicant did indeed undertake the part-time employment he now claims to have undertaken over the period from November 2012 until December 2013 then he would have said so in his written statement of September 2016.  That statement is detailed and the omission of these important claims from it is inconceivable.  It is also of concern that given further opportunities to advance the claims he now makes to the Tribunal about his work in this period of time the applicant did not do so until the submissions from his representative of June 2017.  It was not until then that the complete account of the applicant’s work in this period finally emerged.

17. Pursuant to s.424A of the Act, the Tribunal put these concerns to the applicant. By letter dated 25 October 2017 the representative submitted that when the applicant made his two protection visa applications he was either in prison or detention, defending criminal charges or being threatened with deportation. It was submitted that his migration history was complex in view of the events that occurred from his arrival including imprisonment, the breakdown of his marriage, the cancellation of his partner visa, his detention and eventually the dismissal of the criminal charges. The representative submitted that in view of this background the applicant’s protection visa applications have not always included all relevant information. When he applied for protection in April 2017 he had received a letter from the Department notifying him he would be deported within a matter of days so he had no time to secure legal advice and was in a distressed and desperate frame of mind when he submitted the application.

18. The representative further submitted that the applicant did not understand the importance of giving a detailed employment history until she began assisting him in mid April 2017 (and, as the Tribunal understands it, after he made his current protection visa application).  It was submitted that prior to that time his employment history had been specified in his application for a partner visa but which was completed by his former brother-in-law who was not a registered migration agent and completed in English so the applicant could not check it.  It was submitted that otherwise while his employment history was given in his first application for a protection visa, he made that application when he was very stressed and depressed because of charges brought against him related to his marriage, he was unable to focus on details and the correct employment history is that given in the representative’s submissions of 23 June 2017.

19. The Tribunal has considered these submissions but rejects them.  In essence, the representative is claiming that the inconsistency and expansion of claims about the applicant’s employment are due to his distressed state of mind, the circumstances under which he made his protection visa applications and a lack of understanding about the importance of advancing all claims about his employment.  However, the applicant’s written statement of September 2016 is lengthy and he did advance a number of claims about his employment notwithstanding the factors the representative asks the Tribunal to consider.  The Tribunal considers that if he was relating a truthful account he would have related (and was well able to relate) the important claims about his work as [Occupation 1] from late 2012 in his written statement of September 2016 and he would have related those claims in far more depth in his written statements of April 2017.  His failure to do so and the manner in which his account of this employment emerged over the various stages in question was unconvincing and not credible.

20. At the interview, the delegate asked the applicant why, in his previous statements, he did not mention that from November 2012 until December 2013 he worked as [Occupation 1] for Y Company being supervised by X as he had told the delegate and why in his additional statement of [April] 2017 he just said that he worked as [Occupation 1] and gave no further details.  In response, the applicant referred to applying for protection when about to be deported and not having much time to give details.  The Tribunal rejects that response because the applicant’s written statements that he lodged with both protection visa applications are detailed and the Tribunal considers that he had ample opportunity to, at those stages, advance these important claims about his employment.

21. In submissions of 11 May 2017 the representative stated that the applicant did not previously mention this further part time work with Z Company from November 2012 because he was studying full-time.  It was submitted that he had to undertake this work to support himself as it paid relatively well. Further, working as [Occupation 1] gave him flexibility to be able to continue his [studies]. Because he did not understand or speak English at the time he did not know who he was [working for] or their positions. The Tribunal does not hold concerns as to why the applicant might want to continue to undertake part-time work for Z Company while he also studied full-time. However, none of those matters explain the applicant’s failure to advance his full claims about this particular work until his evidence at the Tribunal hearing and the written submissions his representative made to the Tribunal in June 2017.

    Recommendation letter from X

22. As stated above, at the interview with the delegate the applicant said that from November 2012 until December 2013 he worked as [Occupation 1] for Y Company supervised by X.  As stated above, at the interview, the delegate asked the applicant why in his previous statements he did not mention doing this particular work and why in his additional statement of [April] 2017 he just said that he worked as [Occupation 1] and gave no further details.  In response, the applicant also told the delegate that a ‘recommendation’ from the Americans was attached to an earlier application and he had mentioned his work with X at a later interview.

23. With respect to his comment about mentioning this recommendation at a later interview, the Tribunal notes that on the Department file is an assessment of an application made by the applicant for a Bridging Visa which records an officer of the department conducting a telephone interview with the applicant in which the applicant is recorded as saying that he had worked for the United States Army doing [certain kinds of work, including Occupation 1]. Although the officer did not record the date of this interview it was clearly conducted after the applicant made his current protection visa application as the assessment refers to the officer questioning the applicant about it in the interview.[4]  Accordingly, even if he did make those claims at that interview, that does not explain his failure to mention in his written statements of September 2016 and April 2017 the complete account he now advances about his work from November 2012.

    [4] See folios 97 – 98 on Department File [file number].

1. At the interview, the delegate also put to the applicant certain allegations about him being in Afghan security forces and killing people, allegations the applicant denied before then saying that he could give the delegate the recommendation from X as well as his telephone number. Further in the interview the applicant repeated his claim that he was at risk in Afghanistan and referred again to this recommendation from X.  At the interview, the representative said that the recommendation attached to an earlier application was the recommendation or letter from X and she would provide that to the delegate who said that he had not seen it.

2. It appears that after the interview with the delegate, but, on the same day, the representative or the applicant provided two letters to the delegate.  The first letter is from X and dated [in] December 2013.[5]    It appears on a letterhead for the Afghan military at the military base where the applicant said he worked as [Occupation 1].  It is a ‘letter of recommendation’ for the applicant as a ‘faithful [Occupation 1] for the USA Army, [Y Company] and the Afghanistan National Army’ at the military base.  In this letter, X stated that he ‘worked with and directly supervised’ the applicant for 12 months, ‘discussed his performance ….. and discussed with him ‘about being granted a visa’.  X stated that he ‘wholeheartedly endorse[d]’ the applicant’s ‘dedication and work ethic’ and he fully supported the applicant’s efforts to obtain a visa to the United States which he had discussed with him.  According to the letter, X started supervising the applicant in November 2012 and completed that supervision in December 2013.  X stated that because of the applicant’s work with Y Company which associated him with the American government his life was in constant danger from the Taliban and this prevented him from returning to his home to visit family.

   [5] See folio 88 of Department file [file number].

3. The second letter submitted to the delegate by the applicant is undated but signed by him and on the letterhead of the Afghan army at the military base.[6]  In this letter, the applicant made submissions in support of his application for a visa to the United States.  In this respect, he said that he worked as [Occupation 1] with the Afghan army where he also worked with the American army.  He stated that this placed him at risk of harm from the Taliban, a threat that prevented him from going to visit his family and so he was seeking approval for a visa.   The representative subsequently advised that this document and the letter from X were provided to United States authorities to make an application for a visa, an application the applicant did not pursue once he married.

   [6] See folio 87 of Department file [file number].

4. In submissions of 11 May 2017 the representative stated that to support his efforts to obtain a visa for the United States the applicant requested a letter of support from the Afghan Army.  He did not seek a support letter directly from X, but, asked a friend who worked at the military base to help him get one.  At this time, the applicant did not speak English but his friend did.  The friend told him that he had asked X for a support letter and X provided the letter discussed above. Because he could not speak English, the applicant was unable to read this letter.

5. The representative submitted that, after the interview with the delegate, she contacted X to request further documents to prove the applicant worked at the military base.  She submitted that ‘during these discussions, it emerged that’ X did not write this letter. It was submitted that the applicant was not aware of this but he wished to withdraw the document and did not rely on it.  [In] May 2017 the delegate obtained from the Internet information indicating that Z Company existed as a [company] in Afghanistan and, further, information, according to which, X worked for Y Company at the military base from November 2011 until November 2012.[7]  

   [7] See folios 108 – 109 of Department file [file number].

6. In submissions of June 2017 the representative stated that X was in Afghanistan between November 2011 and November 2012 during which time the applicant ‘worked in the same area as him’.  It was submitted that X worked with the Afghan Army at the military base and to which Z Company was subcontracted and X was the applicant’s supervisor but they had limited communication because the applicant did not speak English. 

7. The Tribunal finds that the applicant’s evidence about X and the recommendation letter on which he had originally relied to support his claims to reflect poorly on his credibility.  The applicant claims that he innocently relied on what is a fabricated document until his representative made contact with X in May 2017 and learned that he did not write or sign it.  Only then did the applicant cease to rely on it.  The Tribunal does not believe that the applicant was unaware until that late stage that this document was false and not written or signed by X.  First, the applicant’s evidence and submissions made by the representative are to the effect that this document was used to support an attempt by the applicant to obtain a visa to go to the United States.  The letter from X is dated December 2013 and the Tribunal assumes that the applicant was attempting to go to the United States from at least that time and up until his marriage, his representative having submitted that once he got married (in September 2014) he did not pursue going there (the applicant giving similar evidence to the Tribunal about that).

8. The Tribunal does not accept that the applicant would be unaware that the document was false over that lengthy period up until May 2017.  Further, information obtained by the delegate indicates that X left his work with Y Company in Afghanistan in November 2012.  The representative submitted in June 2017 that he was the applicant’s supervisor until that time.  If that is so, then the applicant would surely have been well aware that the letter of December 2013, conveying the impression that X was still in Afghanistan supervising the applicant at that time, must have been false.  The belated submission that X supervised him until November 2012 is inconsistent with the assertion in the recommendation letter and, indeed, the applicant’s evidence to the delegate at the interview, that X supervised him from November 2012 until December 2013.  

9. Finally, the sole reason the applicant claimed to be ignorant of the contents of the recommendation letter was that, at that time, he could not speak English and therefore did not know the contents of the letter.  The Tribunal is highly sceptical of that claim because the applicant used that letter to support his attempt to obtain a visa for the United States.  That is the case even though the letter contains claims about when he and X worked together that are totally at odds with the claims he now makes about that.  In addition, in submissions of June 2017 the representative stated that the applicant and X, although he was the applicant’s supervisor, had limited communication as the applicant did not speak English.  That claim is totally at odds with the claims made in the recommendation letter to the effect that the pair had discussions about the applicant’s work performance and his attempt to get a visa to go to the United States. 

10. Even if he did not speak English at the time, and while he claims a friend obtained the letter for him, it is highly unlikely that the applicant would use this document to support his attempt to go to another country but, at the same time, be unaware of its contents, in particular, contents that are in strident conflict with what he now claims is the correct position.  In the Tribunal’s view, the applicant was well aware of the falsity of this recommendation letter and the fact that he attempted to rely on it at his interview with the delegate and that he only ceased doing so once his representative learned that the document was false, is not credible. 

11. Pursuant to s.424A the Tribunal’s concerns on this issue were put to the applicant. By letter dated 25 October 2017 the representative asked the Tribunal to consider the submissions she made in her letter dated 11 May 2017 to the Department on this matter. In her letter of 25 October 2017 she, essentially, repeated those same submissions. In this respect, in her submissions of 11 May 2017, the representative claimed that once he found out that the recommendation letter was false the applicant could have refused to instruct her to convey that to the Department. She said that if the applicant had refused to give her such instructions she would have been forced to withdraw from representing him. In that event she would have been under no obligation to tell the Department that the letter was false. It was submitted that, however, the applicant made the difficult decision to tell her to inform the Department of this and that was in spite of the adverse assessment the Department might make about that. On that basis, she requested that the applicant’s ‘honesty’ be taken into consideration especially when, during the interview with the delegate, the delegate had put to the applicant allegations that he had been accused of killing innocent people and also told him that the department had photographs of him holding weapons.

12. The Tribunal has carefully considered these submissions and acknowledges that the applicant could have continued to rely on the recommendation letter even if that meant his representative would withdraw herself from the application (and its falsity thereby concealed from the Department).  However, his willingness to admit the falsity of this document only arose, in effect, once his representative found out the document was false.  His belated admission does not overcome the Tribunal’s concerns and scepticism of his claim that he did not know the document was false until his representative found out.  In her submissions of June 2017, made to the Tribunal, the representative also said that based on advice from a previous agent, the applicant assumed that the department would check the veracity of the contents of the recommendation letter.  That submission does not persuade or satisfy the Tribunal that the applicant was unaware of the falsity of this document, dated December 2013, until his representative found out in May 2017.

    Documents related to employment

13. In support of these claims about the applicant’s employment, the representative enclosed a number of documents with her submissions of June 2017.[8]  With respect to his work for Z Company the representative submitted the following documents:

    ·     Identity card issued [in] January 2011 by Z Company to the applicant as ‘[position]’ the card’s validity expiring [in] January 2012;

    ·     Emails of June 2017 from the representative to an officer of Z Company asking for evidence that the applicant worked there and that person replying that the applicant worked with the company from 2011 until 2013 in different positions;

    ·     Letter dated [in] June 2017 on the letterhead of Z Company stating that the applicant worked for the company from January 2011 until November 2012 and, on a part-time basis, from November 2012 up until December 2013. According to the letter, the applicant worked in various roles although the position of [Occupation 1] is not mentioned. The letter records the various projects on which the applicant is said to have worked one of them being [a particular work project] at the military base.

    [8] See folios 24, 25, 28, 36, 37, 39, 40, 42, 47, 48 of the Tribunal file.

14. As for the applicant’s work with W Company, the representative submitted the following documents:

    ·     Card issued by W Company recording the applicant as [a position] and specifying the ‘subcontractor company’ as W Company;

    ·     ‘[W Company] Vehicle List’ showing the applicant standing next to a vehicle;

    ·     ‘Vehicle List’ with a photograph of a vehicle said to belong to W Company;

    ·     W Company identity card issued to the applicant as a [position], the card valid until [November] 2012;

    ·     Photograph of the applicant standing next to a W Company vehicle in snow;

    ·     Document with the title W Company and listing the applicant among others as a [position] with the ‘subcontracting company’ W Company.

15. The representative submitted that the applicant had only recently gained access to these documents through the protracted process of contacting old work colleagues. In addition, a former agent told him that he would not need to produce proof of his employment with Z Company as the department would seek that itself. Further, he was not aware that his employment with Z Company was ‘a subject of mistrust’.

16. By letter dated 3 August 2017 the representative made further written submissions and enclosed further documents.[9] With respect to the applicant’s employment, she again submitted that the applicant worked for W Company and again enclosed the identity card issued by W Company valid until [a date in] November 2012. The representative also submitted emails of [July] 2017 from the applicant to an officer of W Company requesting confirmation of his work on a particular project as the staff of Z Company for which W Company was a client.  In response, on the same date, that person acknowledged the applicant and said he was happy to assist him.  The representative submitted that this person provided the applicant with a copy of a contract on which he worked involving technology in which the applicant had expertise.  In this respect, enclosed with the submissions, were various contract documents none of which made specific reference to the applicant but which appeared to relate to the engagement of W Company as a subcontractor to perform certain [work], the dates of the documents ranging from 2010 until 2012.

    [9] See folios 99 – 181 of the Tribunal file.

17. The Tribunal has carefully considered the contents of these documents but they do not persuade the Tribunal that the applicant has given a truthful account of the employment he undertook in Afghanistan, in particular, his account about his work in the period from November 2012 until December 2013.  The contents of these documents do not overcome the significant inconsistency and conflict in the applicant’s evidence about his employment as well as the significant concerns over his credibility raised by his evidence about his work for X and his reliance on a false document to support that evidence.

    Evidence about employment and education in application for a partner visa

18. In his application for a partner visa made in October 2014 before he left Afghanistan, where required to give details of all employment since birth, the applicant stated that from May 2010 and as at the time he made the application he was employed as [an occupation in his area of study] in [Business 1] in Kabul.[10] The applicant did not declare undertaking any other employment in Afghanistan.  In addition, in that application, where required to give details of all education and qualifications undertaken since birth, the applicant stated that he completed high [school] and from March 2010 and continuing as at the date of the application he was undertaking a [degree] in Kabul.

    [10] See folio 116 of Department File [file number].

19. Pursuant to s.424A of the Act, the Tribunal put to the applicant that this evidence was inconsistent with his claims to the Tribunal that for two years from [when] he finished school, he operated a [business] following which, in January 2011, he commenced work full-time for Z Company and then from November 2012 until November 2013 he worked part time for that company. The Tribunal also put to him that his evidence in his application for a partner visa was also inconsistent with his evidence in his written statement of September 2016 that in November 2012 he commenced working at [Business 1] and in December 2012 he began [studies].

20. By letter dated 25 October 2017, the representative submitted that the applicant’s brother-in-law completed the application forms for him but at that time the applicant did not understand English and was not able to check if the information in the application form was correct and complete.  The application contents were not translated back to the applicant and the brother in law was not a migration agent.  Even if his brother-in-law completed the applications for him and he did not have sufficient English-language capacity to check if the contents of the form were accurate, the Tribunal can see no valid reason why the form should omit the applicant’s claims about employment with Z Company at least given the form required the applicant to declare all of his employment in Afghanistan. Similarly, the Tribunal can see no valid reason why the application should contain evidence about when the applicant began [studies] and when he began working at [Business 1] that is inconsistent with his evidence to the Tribunal and in his written statement on those matters.  The Tribunal is not satisfied that these inconsistencies could arise because the application forms were completed by somebody else and the applicant was unable to check their contents.

21. The representative also submitted that charges brought against the applicant in Australia by the family of his former spouse were dismissed and they showed a lack of attention to detail which was also manifest in the manner in which the brother in law completed the partner visa application.  The Tribunal rejects that submission as the issue that concerns the Tribunal is not an absence of detail, but, rather, the very basic inconsistency between the two applications (partner and protection) on fundamental aspects of the applicant’s life, namely, his education and employment.

22. In submissions of 23 June 2017 the representative stated that although the applicant did not mention his employment for Z Company in his application for a partner visa, since applying for protection he has consistently claimed that he was employed by that company.  The Tribunal agrees that since applying for protection the applicant has claimed to have worked for Z Company but his evidence about this, as discussed above, has been inconsistent.  In addition, that does not excuse or explain the omission of this evidence about his employment from his application for a partner visa.  In these same submissions, the representative made the same submissions as those in her letter of 25 October 2017 about the applicant’s brother-in-law completing the application forms for him and the applicant being unable to check if the information in the application form was correct and complete.  For the reasons given above, the Tribunal rejects those submissions.

    Omission of important claims from compliance interviews

23. [In] June 2016 compliance and detention interviews were conducted with the applicant by an officer of the department.[11]  During the [first interview] the applicant was asked if there were any reasons he could not go back to Afghanistan and his response was recorded as being that he could not return to Afghanistan because he was ‘wishing to clear charges’ and sue his brother-in-law.  As well, he referred to having [a large number of] guests at his wedding and therefore could be killed on return.  At the conclusion of the interview the applicant was recorded as saying that he came to Australia to make a new life for himself after his marriage.  During the [second interview], the applicant was asked why he could not return to Afghanistan and he was recorded as saying that he would be killed ‘due to issues in ex’s family’.

    [11] See folios 74 - 84 of Department file [file number].

24. Pursuant to s.424A of the Act, the Tribunal put to the applicant that, although given these opportunities to do so, he did not claim that he was afraid to return to Afghanistan because of any fear of being harmed by the Taliban including that this was due to the events he claims occurred in Afghanistan and that caused him to flee from that country. By letter dated 25 October 2017, the representative submitted that the applicant omitted these claims at these interviews because he was focused on the consequences of the breakdown of his marriage, the representative referring to the cancellation of the applicant’s partner visa, being arrested and imprisoned and having to tell family and friends in Afghanistan what happened to him. Further, he was distressed at the time, he did not fully appreciate the purpose of these interviews, he did not have a migration agent and he was being moved from prison to detention.

1. The Tribunal acknowledges all of these claims but they do not explain or excuse the applicant’s failure, when given the specific opportunity, to advance the fundamental ground of his protection visa application, namely, his fear of the Taliban due to the employment undertaken by him and his father and based on instances of harm he claims occurred in Afghanistan.  While it was claimed he did not appreciate the purpose of the interviews, he clearly understood enough to advance a fear of returning to Afghanistan (based on the failure of his marriage).  His failure to advance in these interviews his fear of the Taliban, as he now claims, is inexplicable.

2. In submissions dated 11 May 2017, the representative submitted on this issue that at these interviews the applicant was told by someone who had been helping him not to mix up his claims based on a fear of harm from the family of his former spouse and a fear of harm from the Taliban. She submitted that the applicant would not reveal who this person was only that the person had assisted and been kind to him but was not a registered migration agent.  For that reason, the applicant did not want this person to get into trouble. To the delegate, when this same issue was put to him, the applicant gave the same response as his representative. The Tribunal is not persuaded by these claims and, if the applicant had truly fled Afghanistan to avoid being harmed by the Taliban and if he truly fears returning there for that reason, then he would have said so at these interviews when asked questions that afforded him that opportunity.

3. In her submissions of 23 June 2017 the representative stated that at the time of these interviews the applicant had been in prison in Australia for one year on the basis of allegations made by the family of his former spouse that were found to be false. It was submitted that the applicant, therefore, at the time of the interviews was focused on clearing his name and addressed the most obvious concerns to him at the time which were the false allegations made by his former spouse’s family. Further, he did not understand that the purpose of the interviews was to determine if Australia owed him protection obligations.

4. Again, these submissions do not persuade the Tribunal.  If the applicant truly feared harm in Afghanistan from the Taliban, he would not have mentioned only a fear of returning there related to the breakdown of his marriage.  He would not have failed to mention his fear of harm from the Taliban.  If asked why he could not return to Afghanistan during these interviews, the Tribunal can see no valid reason why the applicant should omit his fear of the Taliban regardless of what he understood to be the purpose of the interviews.

   Evidence about the employment of the applicant’s father

5. In his written statement of September 2016, with respect to his father’s employment in Afghanistan, the applicant said that in March 2002 his father became a member of [Group 1].  The applicant said that his father’s role was to [provide advice to the Afghani Government] on various issues and he worked under a body which the applicant named as a particular government department. He said that his father stopped doing this work in June 2007 due to threats from the Taliban and, in July 2007, he began employment with V Company, his director being V.  This company undertook [work] including [kinds of work], its main client being the American army at [Location 1].  For doing this work, the applicant’s father and V received threats from the Taliban.  In his written statement of April 2017, the applicant repeated these same claims.

6. The Tribunal understood from the applicant’s evidence in his written statements that his father’s work related to [certain kinds of work] at [Location 1] was carried out in his employment with V Company.  Further, the Tribunal understood from this evidence that this work commenced in July 2007.  Through his representative, the applicant submitted to the Tribunal, a number of documents related to his father’s employment that appeared to be in conflict with these claims.[12] Those documents were:

   ·     ‘Certificate of Appreciation’ dated [in] April 2005 presented by [a particular government department] in Afghanistan to the applicant’s father of ‘[V Company]’ for recognition of his work at [Location 1] related to [a particular task];

   ·     ‘Certificate of Appreciation’ dated [in] September 2004 issued by a [company] to the applicant’s father for his [work];

   ·     ‘Certificate of Appreciation’ that is undated but issued by [a particular government department] to the applicant’s father for his [work for] the military at [Location 1];

   ·     ‘Certificate of Appreciation’ dated [in] October 2004 issued by a [segment of the military] to the applicant’s father for work related to a [particular project] at [Location 1].

   [12] See folios 38, 41, 44 and 46 of the Tribunal file.

7. The impression conveyed by these documents is that the applicant’s father was working for V Company at [Location 1] well before July 2007 and in the period in which, in his written statement, he said that his father was working for [Group 1].  The Tribunal received these documents prior to the Tribunal hearing, but, because their contents appeared to be in conflict with the applicant’s claims in his written statements, the Tribunal questioned the applicant at the hearing about his father’s employment.  Notwithstanding this level of detail in his written statements, at the Tribunal hearing, the applicant was vague when questioned on this matter. 

8. When asked for his father’s occupation once the Taliban lost power, the applicant said he could not recall. He thought that his father had worked [in a particular role helping provide advice to the Afghani Government].  When asked what work his father performed in that position, the applicant said that he did not know. When asked what year his father stopped working in that position, the applicant said that he had no idea about dates.  At this point the Tribunal reminded the applicant of his evidence in his written statements about his father’s work [in Group 1] between March 2002 and June 2007.  When asked if that information was correct, the applicant said that he thought that it was but with respect to dates he had no idea. He then said that there had been some misunderstanding before the Department and his representative at the time he made the statements told him to estimate dates and therefore he could not say if the dates given in his written statements were correct or not.

9. When asked if his father worked in [Group 1] for five years as he had claimed in his statements, the applicant again said that he could not recall any dates about his father’s work and whatever he could remember at the time he made his written statements is what he said in them.  When again asked what work his father did in his position the applicant said that it had been long time since then, his father was an adviser and he knew nothing else other than that his father left that work because of threats from the Taliban.  He said that after leaving this employment his father then worked for V Company for which V was the general manager.  The applicant said that this company undertook [certain kinds of work]. He then mentioned safety risks at [Location 1] and the death of an American, an event also mentioned in his written statements and in which he said that this person was a point of contact in [Location 1].

10. The Tribunal understood this evidence to be consistent the applicant’s evidence in his written statement that his father’s employment involving [certain kinds of work] at [Location 1] took place when working for V Company.  However, the Tribunal was unimpressed with the applicant’s vagueness about his father’s employment prior to joining V Company.  The Tribunal accepts that, as the representative submitted at the hearing, the applicant was a very young at that time, but, in his written statements the applicant has gone into some detail about his father’s work for the government of the former president before joining V Company.  While he told the Tribunal that this work was undertaken a long time ago, the applicant described it in some detail in written statements made relatively recently, namely, in September 2016 and again in April 2017. 

11. If the applicant was able to relate that evidence in some detail in those written statements it is inconceivable that he would be so vague in his evidence to the Tribunal on this matter. In addition, the contents of the various certificates submitted to the Tribunal before the hearing, as stated above, are in conflict with the claims made by the applicant in his written statements (and about when the applicant’s father worked for V Company). This conflict was put to the applicant by the Tribunal pursuant to s.424A of the Act. By letter dated 25 October 2017 the representative submitted that the applicant was not sure of the dates of his father’s employment as his father was busy and did not discuss his work with his son, a common practice in Afghanistan. The applicant thought that it was possible that his father had started working for V Company before 2007.

12. It was claimed that in the ‘2000s’ the applicant was only a child and would not have a clear memory of his father’s working life at that time.  Since his arrival in Australia his mental state and memory have suffered due to the events surrounding the breakdown of his marriage.  The applicant may not have always correctly converted dates from the Islamic to Gregorian calendars.  It was submitted that he had not tried to hide the dates of his father’s employment and, so the representative thought, it was not in issue that his father had worked for V Company.  The representative provided a USB device said to contain a video made by V Company and said to show the applicant’s father at a military base in 2007.  The applicant would identify his father in the video if required. 

13. The Tribunal can allow for the various matters mentioned by the representative, but, notwithstanding those matters, in his written statements, the applicant has given very clear and detailed accounts about his father’s work in Afghanistan and has been somewhat precise about the periods of that employment.  None of the matters mentioned by the representative explain or excuse the inconsistency and vagueness in his evidence on this issue.  The Tribunal viewed the video provided which appeared to have been produced by V Company and related to [certain work being done] in 2007 with the involvement of American forces.  Even if the applicant’s father appears in this video that does not demonstrate that his father undertook employment for V Company in the capacity and over the periods that the applicant claimed nor does it overcome the inconsistency and vagueness in his evidence about this.

    Evidence about receiving letters from the Taliban

14. In his written statement of September 2016 (and again in his written statement of April 2017), the applicant said that [in] November 2012 the Taliban threatened to kill him and his father.  In this respect, according to his written statement, the Taliban threw a ‘night letter’ inside the applicant’s home stating that it was monitoring the activities of the applicant and his father in which they were helping the Afghan army and Americans against the Taliban.  In this letter, the Taliban also said that if they continued their activities then they would be killed. The applicant said that on the advice of his father he changed employment to begin working in [Business 1].

15. In his written statement, the applicant goes on to mention continuing to be afraid of the Taliban and events in February 2015 when the Taliban left an explosive device at the family home, following which the applicant’s father died in hospital and from which time the applicant received threatening telephone calls from the Taliban.  In this written statement, prior to receiving the night letter in November 2012, the applicant mentions his father being threatened by the Taliban, specifically, by telephone.  The only mention in this lengthy written statement of the applicant or any member of his family receiving threatening letters from the Taliban is the reference to the night letter received in November 2012.

16. In stark contrast to this evidence, to the Tribunal, the applicant said that while he and his father worked for Z Company, letters from the Taliban, in which they threatened to kill him, would be left at the homes in which the family lived. He said that they could be left there over consecutive days and then that would stop.  After a while, the Taliban would resume leaving letters.  The applicant said that because of these letters being left at the family home, the family changed address two or three times. However, when they went to a new address, the Taliban would again leave letters at those premises.

17. In addition, to the Tribunal, the applicant said that because of both telephone threats and letters from the Taliban he stopped working full-time for Z Company in November 2012 and, for the same reason, stopped working part-time for the company in December 2013. He said that, even after that time, the family continued to receive threatening letters until his father died in mid-February.  In his interview with the delegate, the applicant gave a similar account about letters being thrown into the family home at the different addresses at which they lived. 

18. Pursuant to s.424A of the Act, the Tribunal put to the applicant that his evidence about receiving threatening letters from the Taliban appeared to be inconsistent. On the one hand, according to his written statements, only one threatening letter was received which caused the applicant to change employment in November 2012. On the other hand, according to his evidence to the Tribunal (and to the delegate), there were a number of threatening letters received from the Taliban causing the applicant to, not only change his employment, but, causing the family, to have to move, a number of times, to different premises. By letter dated 25 October 2017, the representative submitted that the applicant mentioned only one night letter in his written statements because that triggered a significant event in his life which she described as ‘ceasing to be a subcontractor to the Afghanistan National Army via his employment with [Z Company]’.

19. The Tribunal rejects that submission.  The Tribunal does not believe that the applicant would, for that reason, mention in his detailed written statements receiving just one night letter.  The receipt of these letters (including at different locations) would be significant events in themselves and the applicant has not offered a satisfactory explanation for failing to mention in his written statements the full extent to which he and his family received these letters.

    Conclusions on credibility

20. At the beginning of the hearing the Tribunal advised the applicant that although the delegate may have found certain aspects of his evidence to be credible, the Tribunal would nevertheless have to make its own assessment as to whether or not he was relating a truthful account and this was a purpose of the questions the Tribunal would be asking him.  Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  In reaching this conclusion, the Tribunal considered the following submissions made by the representative related to the general issue of the applicant’s credibility.[13]

    [13] These submissions appear variously in written submissions from the representative dated 11 May 2017,  23 June 2017 and 25 October 2017 as well as in oral submissions made at the Tribunal hearing.

21. In this respect, it was submitted that the applicant did not ever read his written statement of April 2017 carefully as he was trying to lodge his protection visa application as soon as possible. While that claim is made, the length of the statement conveys the impression that considerable care was taken in its preparation.  The representative’s submission does not persuade the Tribunal to overlook the concerns it holds about the applicant’s credibility.  It was submitted that the applicant could not fully engage at the interview with the delegate because it was rushed; the interpreter’s time was limited; the applicant was not present in person, giving evidence over the telephone and therefore being unable to fully explain himself. The Tribunal has considered all of those matters but whatever the circumstances prevailing at the interview, they do not explain or excuse the concerns the Tribunal holds about the applicant’s credibility which have a far greater span than merely relating to his evidence at that interview.

22. It was submitted that decisions about when and what to apply for were made by the applicant when he was in tension and fear so that would have been a confusing time for him. He had experienced periods of extreme stress, anxiety and depression since arriving in Australia having been accused, charged and jailed on the basis of false accusations (about violent behaviour related to the breakdown of his marriage). It was submitted that his memory and approach to the protection visa application process had not been clear, ordered or the subject of calm consideration. The Tribunal has dealt with above these submissions related to the applicant’s mental state and experiences since his arrival in Australia.  The Tribunal is not satisfied that the concerns it holds about his credibility can be explained or excused on these grounds. 

23. The Tribunal does not accept that the applicant’s mental state and his experiences since his arrival in Australia could possibly explain the significant inconsistency in his evidence about his and his father’s employment, central features of his protection claims, his willingness to rely on a false reference from X, the omission of the basis on which he seeks protection at interviews with the Department and his inconsistent evidence about receiving letters from the Taliban.  The Tribunal does not accept that his mental state and experiences in Australia were the cause of these very important credibility issues.  It was submitted that the delegate did not consider or hear the applicant’s evidence relating to knowledge the representative claimed the applicant held about a [work] method used in Afghanistan.  Even if the applicant holds such knowledge, that would not overcome the concerns the Tribunal holds about his credibility. At best, all the Tribunal could conclude is that it has no credible evidence as to how the applicant acquired that knowledge, for what purpose and in what respects, if any, it was used.

24. In reaching its conclusions on credibility, the Tribunal has also considered medical evidence the applicant submitted to the Tribunal and the Department.[14]  According to this evidence, in October 2016, a psychologist found that the applicant presented with features of generalised anxiety disorder and major depressive disorder beginning with the breakdown of his marriage in Australia.  In June 2017 a psychiatrist assessed the applicant as having an adjustment disorder with anxious mood disorder for which he was taking medication.  The psychiatrist refers to stressors as being events that have occurred since the applicant arrived in Australia, namely, the breakdown of his marriage.

    [14] See folios 59 – 62 of Department File [file number] and folio 184 of the Tribunal file.

25. The Tribunal has carefully considered this evidence and records that the applicant was well able to meaningfully participate in the hearing and give evidence.  The diagnoses of these mental health professionals are to a great degree based on information and claims that are self-reported to them by the applicant.  While the Tribunal acknowledges the diagnoses that have been made, because Tribunal finds the applicant is not a witness of truth and that the account of events on which his protection claims are based is false, it also finds that there is no credible evidence as to what has caused the mental states which these mental health professionals have assessed the applicant as having.  Quite possibly, on return to Afghanistan, his immigration status in Australia resolved, his mental state could also resolve. At any rate, no claim was made that the applicant would suffer serious harm in Afghanistan because of his mental state as assessed nor does any such claim arise on the evidence before the Tribunal.

1. In reaching its conclusions on the applicant’s credibility, the Tribunal has also taken into account various documents submitted to corroborate the applicant’s claims. The Tribunal has set out above various documents submitted by the applicant to support his claims with respect to his employment in Afghanistan and his father’s employment.  To the Department and the Tribunal, the applicant submitted a [diploma]; certificate from a ‘high security’ hospital in Afghanistan concerning the applicant’s father receiving treatment and dying there in February 2015; police documents, one with respect to the events of February 2015 and a document issued by the Jamaat-e-Islami relating to the applicant’s father.[15] The Tribunal has carefully considered the contents of these documents but they do not overcome the concerns the Tribunal holds about the applicant’s credibility which significantly discredit him as a witness.

   [15] See folios 98 – 99 of Department File [file number]; folios 22, 26, 30, 34, 35, 182 and 183 of the Tribunal file.

2. The Tribunal put to the applicant at the hearing that according to available country information, false documents are widely available in Afghanistan and that includes documents purportedly emanating from both public and private entities.[16] The Tribunal put to the applicant that, in the light of that information and in view of its concerns about his credibility, the Tribunal may not give weight to those documents.  In response, the applicant said that all of the documents he had produced had ‘legal references’ who could be contacted for verification.  From this response, the Tribunal understood the applicant to be saying that the entities that produce the various documents could be contacted for verification.  The Tribunal sees no purpose in doing this because, as discussed above, in some cases, the contents of these documents are inconsistent with the applicant’s own evidence, for example, his evidence about his father’s employment.

   [16] See DFAT Country Information Report Afghanistan 18 September 2017 at 5.27.

3. With respect to the reference from X, the applicant has demonstrated a propensity and willingness to rely on false documents. The Tribunal is willing to accept the possibility that entities that produced the documents on which the applicant relies might confirm that they issued these documents, but, given the country information about the wide availability of false documents, that would not persuade the Tribunal that the contents of these documents are true.  Accordingly, the Tribunal does not give evidentiary weight to the documents submitted to the Department and the Tribunal purporting to corroborate the applicant’s claims, including the video submitted by his representative.  

4. Because the applicant is not a witness of truth, the Tribunal disbelieves his evidence about employment and work undertaken by the applicant, his father and mother, before, during and after the rule of the Taliban (these claims being made in his evidence to the Department and to the Tribunal).  The Tribunal finds all of that evidence to be false.  The Tribunal similarly disbelieves the applicant’s evidence about his father’s involvement in a political party in Afghanistan (Jamaat-e-Islami) and knowing a Tajik leader.   The Tribunal disbelieves the applicant’s evidence about him and his parents suffering harm in their lives in Afghanistan and at any time, but, in particular, during and after the rule of the Taliban (again these claims being made in his evidence to the Department and the Tribunal).

5. Because he is not a witness of truth, the Tribunal disbelieves in addition claims made by the applicant that after he left Afghanistan the Taliban harmed his family causing them to also leave Afghanistan.  The Tribunal does not believe the applicant’s evidence that his mother suffered a stroke in February 2015 (as result of the death of his father) and had to be taken to [Country 1] for that reason.  The applicant and his mother may have travelled to Pakistan at that time but there is no credible evidence as to the reason for that.  The Tribunal disbelieves the applicant’s evidence about studying and undertaking work [in the area of his studies] in Afghanistan (and that his family owned a [business]). 

6. Overall, the Tribunal has no credible evidence about the employment and lives of the applicant and his family in Afghanistan.  The Tribunal has no credible evidence that the applicant or any member of his family ever suffered harm Afghanistan.  Reference was made to the delegate about the existence of a step family in Afghanistan but that is not relevant to the applicant’s protection claims.  The Tribunal has no credible evidence about the status and whereabouts of the applicant’s father or the remainder of his family beyond the fact that they lived in Kabul. In addition, the Tribunal has no credible evidence before it as to why the applicant left Afghanistan and came to Australia. The Tribunal has no credible evidence before it as to why the applicant does not want to return to Afghanistan. There is no credible evidence before the Tribunal that anyone in Afghanistan seeks to harm the applicant.

7. The Tribunal accepts that the applicant married in Afghanistan and is now separated from his wife who brought domestic violence related charges against him in Australia which were then dismissed.  Both the applicant and representative claimed that his former wife’s family in Afghanistan have connections to the military one of whom is a high-ranking military officer. It was submitted that it is likely that they know about the breakdown of the applicant’s marriage and the applicant will suffer harm from them.  The Tribunal has no credible evidence before it that the family members of his former spouse are connected to the regime as claimed. In addition, the Tribunal has no credible evidence before it that anyone in Afghanistan seeks to harm the applicant because of the failure of his marriage in Australia.  In view of its findings about the credibility of his protection claims, the Tribunal does not believe that the applicant entered into a marriage in Afghanistan to escape from harm.

8. For the sake of completeness, the Tribunal records that to the delegate the applicant appeared to claim he did not have a religion and only sometimes attended a mosque.  The  Tribunal has no credible evidence before it that the applicant is anything other than a Sunni Moslem (the applicant, at any rate, not claiming to fear harm on that ground).

9. The Department issued certificates pursuant to s.438(1)(b) of the Act with respect to certain information on the Department files.[17] By letter dated 12 October 2017, pursuant to s.424A of the Act, the Tribunal disclosed this information to the applicant in the following terms:

   “The Department has received allegations that the applicant was in the Afghan army and murdered many people; since his arrival in Australia he has engaged in violent behaviour; all of his protection claims are false and are made as an attempt for him and, eventually, his family, to gain the right to reside in Australia on false grounds.”

   Related to these allegations but not subject to any non-disclosure certificate, are photographs on the Department file showing the applicant with firearms.[18]  When interviewing the applicant, the delegate raised with the applicant these photographs and put to him allegations very similar to those in the Tribunal’s letter dated 12 October 2017.[19] 

   [17] See folios 94 – 96 of Department file [file number] and folios 77 – 78 of Department File [file number].

   [18] These photographs appear at folios 89 – 93 of Department file CLF [file number] and folios 70 – 76 of Department File [file number].

   [19] Comments in response by the applicant and representative were made at the interview with the delegate, in a statutory declaration made by the applicant on [in] May 2017 and in submissions dated 11 May 2017 from the representative.

10. In response to the Tribunal’s letter of 12 October 2017, the representative, in submissions of 25 October 2017 stated that the charges brought against the applicant with respect to violent behaviour in Australia related to the breakdown of his marriage were dismissed.  She referred to comments made by the delegate to the effect that this information was not reliable.  The representative also enclosed a decision of this Tribunal (differently constituted) in relation to an application made by the applicant for a Bridging Visa and in which, in relation to the same information, the Tribunal expressed the same scepticism.  In earlier submissions of 11 May 2017, the representative submitted, in essence, that this information was false; that allegations about the applicant being violent in Australia were false and a Court in Australia had found that to be the case. 

11. The persons who made the various allegations against the applicant and which the Tribunal had to put to him pursuant to s.424A did not appear as witnesses before the Tribunal and their credibility could not be assessed. Accordingly, the Tribunal disregards all of the allegations made against the applicant about being in the Afghan army; harming people in Afghanistan and engaging in violent behaviour in Australia. While these allegations also contain assertions that the applicant’s protection claims are false, the Tribunal disregards them and emphasises that the reasons it finds the applicant’s protection claims to be false are those given earlier in this decision.

12. Specifically in relation to the photographs of the applicant with firearms, it was submitted that the photographs depicted the applicant posing with firearms that were given to him by friends who worked with Afghan authorities. It was submitted that the applicant has never worked in the Afghan army; he has never shot or killed anyone and had never used firearms. Again, the Tribunal repeats its finding that it disregards allegations made against the applicant about these matters. Because he is not a witness of truth the Tribunal has no credible evidence as to how the applicant came to be photographed in this manner.  At any rate, the fact that the applicant was photographed holding firearms, does not in any way demonstrate that he is at risk of suffering serious harm in Afghanistan.

    Assessment of whether the applicant holds a well-founded fear of persecution within the meaning of s.5J(1) of the Act

13. The Tribunal now turns to an assessment of the risk of the applicant suffering serious harm on return to Afghanistan based on the only aspects of his protection claims the Tribunal accepts as credible. That is the Tribunal assesses the risk of the applicant suffering serious harm on the grounds that he is a [age] year old Sunni Tajik male from Kabul who will return to Afghanistan after unsuccessfully seeking asylum in Australia. 

    Country information

    Security

14. The security situation in Afghanistan is ‘complex, highly fluid, and varies considerably by location, including between rural and urban areas’.[20]  The Taliban and other anti-government insurgent and terrorist groups continue to contest the Afghan government’s control in many areas of the country.[21]  Anti-government elements have regularly conducted attacks across Afghanistan, including a significant and increasing number of high-profile attacks in Kabul.[22]  DFAT describes the most common targets for insurgent attacks as:

    “… government institutions, political figures, the [Afghan National Defence and Security Forces (‘ANSDF’)] and other Afghan and international security forces, demonstrations, foreign diplomatic missions and international organisations. Mosques, schools, hospitals and other civilian targets are also vulnerable.”[23]

    [20] DFAT Country Information Report Afghanistan 18 September 2017 (‘Country Report’)

    at 2.31.

    [21] Country Report at 2.5.

    [22] Country Report at 2.32.

    [23] Country Report at 2.32.  DFAT further describes these targets as ‘Afghans of all ethnicities working for, supporting or associated with the government and/or the international community’, including, but not limited to, ‘government employees, judges and prosecutors, judicial workers, police, and Afghan and international security force personnel’ - See Country Report at 3.19.  DFAT adds, in this category of target, that those in civil society and non-government organisations, particularly those involved in women’s rights and female workers for those groups, face a high risk of violence from anti-government elements – See Country report at 3.26 - 3.29.

15. Attacks on these targets are particularly prevalent in Kabul.[24] DFAT states that people working for, supporting or associated with the government and / or the international community (or those perceived as doing so) face a ‘high risk of violence perpetrated by anti-government elements’ where ethnicity may be a contributing factor in some cases.[25] 

    [24] Country Report at 3.19.

    [25] Country Report at 3.23.

16. Although attacks are generally directed at specific targets, the methods of attack can be indiscriminate and often result in civilian casualties.[26] In terms of those casualties, in 2016, there were approximately 3,500 deaths and 7,920 people injured, a three per cent increase on the previous year and a casualty rate that continues in 2017.[27] This includes a ‘sharp increase’ in civilian casualties in Kabul and Herat caused by attacks by Islamic State in the Khorasan Province (‘ISKP’) the majority of those attacks targeting Shias.[28] 

    Tajik ethnicity

    [26] Country Report at 2.33.

    [27] Country Report at 2.34.  The population of Afghanistan is 33.3 million - See Country Report at 2.6.

    [28] Country Report at 2.35.  DFAT states that 77% of all civilian casualties arising from suicide and complex attacks in 2016 occurred in Kabul that is 16 incidents resulting in 1,514 civilian casualties made up of 308 deaths and 1,206 injured -  See Thematic Report at 2.23.

17. Ethnic tensions do exist at a local level and can result in sporadic low-level violence over issues such as land rights or access to natural resources.[29] However, there has been no large-scale ethnic violence since 2001 when tensions significantly reduced.[30]  Overall, targeted violence on the grounds of ethnicity alone is unlikely.[31] Societal discrimination is widespread at the community level, the most common manifestation being in the form of nepotism in favour of family tribal or ethnic group members.[32]  Ethnic kinship plays a crucial role in enabling Afghans to obtain shelter, employment and security.[33]  Tajiks make up approximately 25 per cent of the Afghan population.[34]  Kabul is home to communities from virtually all of Afghanistan’s ethnic groups.[35] 

    Religion

    Muslims make up 99 per cent of the population of Afghanistan, 85 per cent of Moslems being Sunni and 14 per cent Shia.[36] It is non-Muslim communities that face considerable societal discrimination.[37] In late 2016 and early 2017 a series of sectarian attacks against Shia targets took place and ISKP claimed responsibility for all of the (five) attacks in Kabul.[38]  Because of this series of attacks, Shias are particularly vulnerable when assembling in large and identifiable groups such as during demonstrations or when attending mosques during major religious festivals.[39]

    Returnees

    [29] Country Report at 3.5.   See also Country Report at 2.36 where DFAT states that ‘competition over land rights and access to scant resources’ can occasionally adopt ‘ethnic overtones’ and escalate into ‘community level violence’.

    [30] Country Report at 3.4.

    [31] Country Report at 3.5.

    [32] Country Report at 3.3.

    [33] Country Report at 3.1.

    [34] Country Report at 2.6.

    [35] Country Report at 5.15.

    [36] Country Report at 3.6.

    [37] Country Report at 3.6, 3.7.

    [38] Thematic Report at 3.6 – 3.8.  There were ten incidents in total occurring at demonstrations, mosques and religious gatherings and in which approximately 230 people were killed – See Thematic Report at 3.6 - .38.

    [39] Thematic Report at 3.9.  The Tribunal is aware of a further attack by ISKP on a Shia cultural organisation on 28 December 2017 and an Afghan media agency in which 41 people were killed and 80 people wounded.   See ‘Afghanistan suicide bomb attack: Dozens killed in Kabul’ 28 December 2017 accessed 29 December 2017.

18. In recent years hundreds of thousands of Afghans have returned to Afghanistan.[40] In 2016 and early 2017 approximately 8,000 Afghans voluntarily returned to their country from Europe.[41] Returnees from Western countries almost exclusively return to Kabul.[42] DFAT states that it has no information to suggest that returnees from Western countries attract negative attention from state authorities for having sought and failed to gain asylum.[43]  DFAT refers to ‘occasional reports’ alleging that returnees from Western countries have been kidnapped or otherwise targeted based on their having spent time in a Western country.[44]  While people identified as having ‘international associations’ and thereby facing risk of being targeted by anti-government groups, may possibly include returnees from Western countries, most returnees take measures to conceal their association with the country from which they have returned and keep a low profile on return.[45] DFAT states that people in this situation do not face a significantly higher risk of violence or discrimination than other Afghans with a similar ethnic and religious profile.[46]

    Inferences drawn from country information

    [40] Country Report at 5.19.

    [41] United Kingdom Home Office Country Policy and Information Note Afghanistan: Security and Humanitarian Situation August 2017 at 10.1.2.

    [42] Country Report at 5.20.

    [43] Country Report at 5.20.

    [44] Country report at 5.22.

    [45] Country Report at 5.22.

    [46] Country Report at 5.22.

19. From this country information, the Tribunal infers that the risk of the applicant suffering serious harm in Afghanistan in the reasonably foreseeable future is remote.  Country information indicates that although an insurgency takes place in Afghanistan, the prime targets of insurgent groups are, essentially, those working for or directly involved with the government or the international community.  The applicant is not such a person.  Although insurgent attacks in Kabul have been increasing and civilians have been indiscriminately harmed in those attacks, the Tribunal nevertheless infers that, given the number of such attacks and the number of casualties, considered in the context of the population of Kabul and Afghanistan, the risk of the applicant suffering serious harm as a civilian on this ground is remote.  As a Sunni Moslem, the risk of the applicant suffering serious harm is also remote given the country information clearly indicates that in recent attacks it is Shias who are at risk.

20. The Tribunal can accept that different ethnic groups in Afghanistan discriminate against each other.  However, as a Tajik, the Tribunal has no credible evidence that this applicant suffered discrimination.  Country information indicates that his ethnic group is represented in Kabul where he lived further reducing the risk of him suffering discrimination or harm on the ground of his ethnicity.

21. The Tribunal acknowledges ‘occasional reports’ alleging that returnees from Western countries have been harmed due to having spent time in those countries. However, this must be considered in the context of the large numbers of returnees to Afghanistan from Western countries as discussed in the country information above. While returnees may choose to conceal any association with the country in which they spent time, if the risk of the applicant suffering serious harm for having been in Australia equated with a real chance, then the Tribunal would expect to see far more reported (and substantiated) instances of harm to returnees on that basis. The country information discussed above does not reflect this and accordingly the Tribunal infers that the risk of the applicant suffering serious harm because he will return to Afghanistan after spending time in Australia including after seeking asylum here is remote. The applicant may choose not to disclose to others the fact he has been in Australia (and conceal any association with Australia as such). That is a matter for him. The Tribunal does not regard any choice he makes to do so as a modification of his conduct within the meaning of s.5J(3)(a)-(c) of the Act or that would amount to being persecuted.

    Discussion of country information and inferences with the applicant

1. At the hearing, the Tribunal discussed this country information with the applicant in general terms and put to the applicant the inferences the Tribunal draws from that information.[47] In response, the applicant claimed that since 2016 there had been an increase in civilian fatalities.  The Tribunal acknowledges the applicant’s claim but prefers the country information relied on this decision which is to the effect that overall the number of civilians affected by terrorist and militant attacks considered in the context of the population indicates that the risk of the applicant suffering serious harm as a civilian is remote.

   [47] The DFAT Country Report was issued after the Tribunal hearing and was provided to the applicant with the letter from the Tribunal dated 12 October 2017.  The sources of country information discussed with the applicant at the hearing were superseded by the Country Report but were, essentially, to the same effect.

2. The applicant said that the United States government was giving permanent residence to those who had worked for it in Afghanistan and most of his colleagues had migrated there for that reason.  The Tribunal has no independent country information before it about this particular claim.  Whatever be the approach of the government of the United states, country information relied on in this decision, for the reasons given above, indicates that the risk of the applicant suffering serious harm in Afghanistan is remote.  The applicant then said that most Tajiks had lost power, the government is Pashtun and to find employment one had to know a Pashtun.  These assertions are not supported by country information.  The country information relied on in this decision does not indicate that employment is denied outright to any particular ethnic group.  The applicant can turn to his own ethnic community in Kabul to find accommodation and employment if he needs assistance for that.

3. The applicant submitted that if he was not genuinely at risk in Afghanistan he would not have endured detention in Australia.  For the reasons given above, the Tribunal has no credible evidence before it as to why the applicant left Afghanistan and why he does not want to return there.  At his interview with the delegate, the applicant claimed that two Afghan nationals who returned to Afghanistan from Australia had been harmed and this occurred in 2014 (the delegate also referring to this in the decision to refuse the application).  The Tribunal acknowledges occasional reports of returnees being harmed, but, for the reasons given above, is of the view that the risk of this applicant suffering serious harm on return to Afghanistan because he has been in Australia and applied for protection, is remote.

4. The representative also made broad submissions about the risk of the applicant suffering harm on return to Afghanistan.  These submissions were made at the Tribunal hearing and in letters dated 11 May 2017 and 23 June 2017.  It was submitted that the applicant belongs to particular social groups (people working for or associated with the Afghan army and American forces; member of a family which supports women’s rights including to education and employment).  There is no need for the Tribunal to determine whether or not such social groups exist because the applicant’s claims about his and his parents’ employment in Afghanistan are disbelieved and that includes claims he made to the Department about his mother providing education to girls.  The representative also submitted that the applicant was at risk because of his actual or imputed political opinions based on being a supporter of communism; a supporter of liberal ideas as proclaimed by Western countries and as an asylum seeker in a western country.

5. The Tribunal has given reasons above as to why it finds that the risk of the applicant suffering serious harm because he has spent time in Australia and unsuccessfully sought asylum here is remote.  The Tribunal has no credible evidence before it as to what ideals or views the applicant holds and so rejects the claim that he is or would be perceived as a supporter of Western liberal ideas.  The Tribunal rejects the applicant’s claims about his father belonging to the Jamaat-e-Islami and any such claims that he or the applicant were or would be perceived as supporters of communism.  Again submissions were made about the applicant being at risk of harm in Afghanistan from members of the family of his former spouse and the applicant at the hearing referred to a stigma on this basis. No country information was put before the Tribunal that for being in a failed marriage the applicant would have to bear some form of stigma in Afghanistan. The Tribunal, for the reasons given above, has no credible evidence before it that these people or anyone else in Afghanistan seeks to harm the applicant on this or any ground.

6. The representative broadly submitted that there was a ‘security crisis’ in Afghanistan, an increased Australian military presence there, attacks had occurred at Mazar-e-Sharif and Amnesty International in April 2017 said that Afghanistan was not safe for returnees.  The Tribunal has set out above country information with respect to the security situation in Afghanistan.  The Tribunal has given reasons above as to why the risk of the applicant suffering serious harm in view of that security situation is remote.  While Amnesty International may have expressed a view about safety for returnees in Afghanistan, for the reasons given above, based on the country information cited in this decision, the risk of the applicant suffering serious harm in Afghanistan or on any ground, including as a returnee from a Western country, is remote.

7. The Tribunal has considered the responses of the applicant and the representative to the country information and inferences the Tribunal draws from that information. Those responses do not persuade the Tribunal to depart from those inferences and the Tribunal finds that those inferences are correct. For the reasons given above, the Tribunal finds that the risk of the applicant suffering serious harm in Afghanistan is remote. There is not a real chance that he will suffer serious harm in that country. He does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act.

   Complementary protection

8. With respect to the complementary protection criterion, for the same reasons that the Tribunal finds that the risk of the applicant suffering serious harm in Afghanistan is remote, the Tribunal finds that the risk of him suffering significant harm in Afghanistan is remote.  Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Afghanistan, there is a real risk that he will suffer significant harm.

   CONCLUSIONS

9. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

10. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Paul Millar
    Member