1716142 (Refugee)

1716142 (Refugee) [2017] AATA 1993 (12 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716142
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Rodger Shanahan
DATE:12 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 October 2017 at 10:52am

CATCHWORDS
Refugee – Protection Visa – Afghanistan – Ethnicity – Hazara – Religion – Shi’a – Social group – Association with western soldiers – Returnee from West – Credibility issues – False or misleading information
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Afghanistan, applied for the visa [in] December 2016.
CRITERIA FOR A PROTECTION VISA
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.
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).
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, which are extracted in the attachment to this decision.
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), which are extracted in the attachment to this decision.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that shortly after he arrived in Australia he was interviewed by DIBP personnel at [an] Airport and stated that he was not made aware before or during the entry interview that it would be used for the purposes of assessing his claims for protection.
He claimed that he was a Shi‘a Hazara and an Afghan citizen. He provided an Afghan drivers licence and his Taskera. He destroyed his current Afghan passport along with a fake [Country 1] passport during his plane flight to Australia. He was advised to do this by the people smuggler who told him that he would be immediately returned to Afghanistan if he retained his Afghan passport and he was afraid of being killed by the Taliban there.
During the entry interview he stated that he travelled from Afghanistan to [Country 2], then to [Country 3] and on to Australia. This wasn’t true but he had done this on the instructions of the people smuggler and he was very fearful of him.
The applicant claimed that his education was stopped during the civil war in Afghanistan and he worked as a shopkeeper with his father from 1999 to 2004 before he bought [vehicles] as a taxi in Kabul. This work became uncompetitive and in 2013 and 2015 he travelled to [Country 3] to organise a business for [details of business]. He stayed for about a month at a time but the second time the dealers were asking for too much money so he returned to Kabul.
He was desperate so at the beginning of 2016 he began driving passengers between Kabul and [District 1], [details of district] through a dangerous area. He didn’t know who were passengers from the ANA if they were in plain clothes, but for the Taliban anyone who carried soldiers as passengers would be killed. Around June 2016 he received a death threat by letter that was pushed under the gate of their compound – he found it on his way to work and it was stamped ‘Taliban’ at the bottom but was written in Pashto. He was too scared to go to work for a few days but had to eventually go to earn a living.
A bit over two weeks later he reported this to the police. They told him the letter said he was transporting ANA members, was an enemy of Islam and he had to leave his work or they would kill him. The police said they would investigate and told him not to travel the road to [District 1]. He did so for a week and a half but couldn’t afford to stop so he began again.
Three or four days after he began he was transporting nine passengers to [District 1] and was travelling through [location] which is a forested area. He heard the sound of gunfire from the Taliban firing towards them from the bushes but they didn’t stop. The bullet hit the window frame and cracked the window but he was able to drive through and escape. He stayed at [District 1] for two or three days and asked someone else to drive so he went as a passenger.
On return to Kabul he knew he had to leave and sold the van, met a smuggler in Kabul who arranged a visa for him to [Country 2] where he was met by another smuggler who organised a [Country 1] passport for him and gave it to him in [Country 2]. He left [Country 2] on the Afghan passport [in] August 2016 and travelled from [Country 1] on the [Country 1] passport.
If he returned to Afghanistan he would be killed by the Taliban for helping the ANA, and for being considered an infidel (Hazara Shi’a) who helped the government and the Americans. The Taliban know where he lives and they would follow him and kill him. The Islamic State would target him as an infidel who had sought asylum in the West. He would also be killed when he attended the Shi’a mosque and the Takyakhana. He couldn’t relocate anywhere in Afghanistan without being targeted.
Additional Statement
In his additional statement he also claimed that he would be denied access to government employment as he was a Hazara Shi’a. Because of instability and the number of internally displaced people in Kabul and Mazar e-Sharif he couldn’t support his family by driving in the city and would have to work outside the city and would be at a high risk of being killed by the Taliban and ISIS. The Taliban and ISIS have the capacity to carry out targeted killings in Kabul and Mazar e-Sharif against supporters of the ANA and the government doesn’t have the ability to stop them.
He couldn’t relocate but even if he tried to move the family to Mazar e-Sharif he would have to go by road which would be dangerous as they were Hazara Shi’a. His family could also be killed because they are his family and he would be targeted. They have no support network in Mazar e-Shairf and he couldn’t obtain work there and would have to be a driver outside the city.
AAT Hearing
The applicant stated at the beginning that he wished to apologise as he had been told at the airport that he had to speak the truth but he was scared and the smuggler told him not to tell the truth. The member told him that this could be raised during the hearing.
He claimed that if he returned to Afghanistan the Taliban would kill him because he had returned from a Western country and they would assume he had become Christian or an agent of this country. In the past the Taliban had believed that he was helping the government.
Asked why it would be assumed he would be Christian simply for coming to Australia given Afghans travelled to lots of countries without taking on the country’s religion, he claimed that they had assumed he had previously worked for the government so they would now think he had converted. Asked why they would make this assumption/connection, he claimed that they may have thought he converted to gain protection.
Asked if this belief was based on anything, he claimed that he based this on what he knew from Afghanistan as he had heard people had travelled outside Afghanistan and when they returned they were killed because they had tried to change their religion. He had heard this from people in Kabul who said the Taliban thought people leaving Afghanistan were converting. He was asked to provide some country information to support the claim as the Tribunal was unaware of this occurring. He claimed an Afghan who was now an Australian citizen returned to Afghanistan and was killed. He was asked to provide country information that supported his claim that this was a systemic attack and not a one-off.
He also claimed he was Shi’a and the Taliban was Sunni and because he was observant he would be killed. It was put to him that he hadn’t mentioned this previously, and he claimed he wasn’t asked the question before.
It was put to him that the Tribunal wished to take each claim individually and he was asked why he would be considered to be an agent of Australia if he returned to Afghanistan. He claimed that it would be thought that because he had sought asylum in Australia he would be with them (Australia). Asked what he meant as an agent, he claimed they thought he worked with the Australian government and would be passing on information – he claimed they would assume this. Asked what type of information they thought he would pass on, he claimed info about Taliban bases and country information.
It was put to him that Australia had an embassy, 400 military personnel and access to all the related intelligence and he was asked why the Taliban would think he had any information of value. He claimed that they would assume this because he had left the country. He had been against them and had been threatened before. He claimed that an Afghan who had travelled to a Western country would be assumed to have passed on information. It was put to him that he wouldn’t have access to much information so it was strange they would assume he would pass on information. He was asked to be specific – he claimed they would think he passed on information about Taliban positions. It was again put to him that it was difficult to see that he would have access to any information and he claimed that they knew better about what information they thought he had – he didn’t know much about it.
He also claimed that he had been helping the government – he had been a driver from Kabul to [District 1]. The Taliban had accused him of transporting the ANA in his vehicle, around May/June 2016. He received a threatening letter at his house. When he went to work in the morning there was a letter in Pashto next to his door as he left. He saw his car’s registration number and the Taliban stamp. He didn’t go to work that day. His neighbour spoke Pashto as did many on the next street. The next day he took it to a friend of his who told him it was a threat letter.
He didn’t go to work for several days and [the] next month he filed a report with the police. He had been working in the job since around January/February 2015. Prior to being a driver he had been a taxi driver in Kabul and surrounding areas. Prior to this he was a shopkeeper with his father since he was [age] – he did this for five years. He bought the taxi after this (around 2004). It was put to him that he had previously said he began in 2015. He said he had driven taxis in Kabul and environs from 2004 and from 2015 he drove a taxi.
He had also gone to [Country 3] in 2013 as he was thinking of buying [goods] to open a business. He was there for a month, collecting information, looking for places to obtain [goods] – he went alone the first time and the second with [Mr A] (who was from [District 1] and a [occupation]). When he went in 2013 for the month he was asked what he achieved and he claimed that he wasn’t familiar with [the goods for the business]. Asked if he understood purchase prices for [the goods] in [Country 3] he claimed that he didn’t. Asked if he established his supply chain – how to get them to Kabul and how much this would cost, he claimed that he didn’t. Asked if he had identified the [goods] suppliers in [Country 3] that he would use, he claimed that he got a lot of information.
It was put to him that he was being very vague and after a month in [Country 3] it appeared that he didn’t get much information at all. The Tribunal didn’t understand what he did in [Country 3] for the month. He claimed he looked at how it would work out, the prices and how he could bring them to Afghanistan. But he didn’t have any experience so he had to bring someone who knew things the next time. It was put to him that he had said he didn’t know the price or his supply chain. He claimed he found that the [goods] had to go to [country] then [town] in Afghanistan. It was out to him that he had originally said he didn’t know how he would get the [goods] to Kabul yet was now saying that he did. He claimed that he meant that he didn’t know what the selling price in Kabul would be.
It was put to him that he was asked about the price in [Country 3] at the end of his month visit and he said that he didn’t. he claimed he may not have understood the question. He meant he had not been able to establish the selling price in Kabul. It was put to him that this would have been the first thing he established – the selling price in Kabul even before he went to [Country 3] so he could see if the business was going to be viable. Alternatively if he was [Country 3] he could have rung up [Mr A] and asked him what the price for [the goods] in Kabul were so he could see if the prices in [Country 3] would be commercially viable. He claimed it was the first time and he had no experience so he made this mistake.
[Mr A] told him he should have called him. It was put to him that this was hard to believe if the aim of the trip was to see if it was a viable business. He claimed it was his first time and he hadn’t done any business before – he had been driving a vehicle before. It was put to him that he had worked in his father’s shop before, and he said he had but it was only [details of business]. It was put to him that the principle was the same – you had to sell something for more than you bought it for. Yet he made no effort to find out the selling price for [the goods] in Kabul. He said he had tried hard but it was a mistake.
He returned to [Country 3] in 2015 with [Mr A]. They didn’t have enough money as the prices had raised so they couldn’t make a profit. He was asked whether they had contacted the dealers in [Country 3] to see what the prices were so they could know whether it was viable and how much money they should take with them. He claimed that the USD [amount] wouldn’t allow them to buy many goods and customs would have charged them and there would not have been enough profit. Asked why they went because they would have had all of this information available to them before they went to [Country 3]. He claimed he had collected the information but the price difference between 2013 and 2015 was large.
It was again put to him that he would have known this before he left Kabul so there was no need to go to [Country 3] – he could have checked the [Country 3] prices with his contacts there by email, phone, internet. He claimed he hadn’t got people’s contact details in 2013 and he thought the prices would have stayed the same because he didn’t know the business. It was put to him that this account was difficult to believe and he may have gone to [Country 3] for purposes other than what he had claimed. He said there was no other reason and he wasn’t lying.
Regarding the Taliban targeting claim, he had never taken soldiers in his vehicle but one soldier travelled in plain clothes in his vehicle unbeknownst to him. The Taliban had the information as to how many soldiers he had taken, whereas he had no idea who was a soldier and who wasn’t. After he received the letter he didn’t go to work, a friend translated it for him and [the] next month he took it to the police. He waited for this long because he was scared to go outside. He began driving again about a week or 10 days after he told the police. This was about a month after receiving the letter.
He was then going to the country in his vehicle and he was fired upon the first time he was back in the vehicle. He was driving and heard a gunshot and the windscreen broke. He saw Taliban standing behind a tree and there was a motorbike behind them. There were about nine people in his small van. There were apple trees either side of the main road and there was other ‘jungle’ vegetation there. It was about 15-20 metres from the road. They fired only one bullet but only wanted to target him. There were no other cars around as it was early in the morning. He was the only target.
The motorbike was in the forest and tried to chase them but he accelerated and got away. The passengers said there were motorbikes but he didn’t know how many. He was asked why they didn’t just stop the vehicle as he was being targeted and the only vehicle on the road. They could have set up a checkpoint, stopped him and killed him and any soldiers on the vehicle yet they just fired a random single shot. The member had served in Afghanistan with the army and this appeared to be a very atypical Taliban tactic and difficult to believe. He claimed it may have been a lack of information they had, or they wanted to arrest or detain him. They were supposed to start the journey at 0530 but left early at 0430 and maybe God saved them. Asked if he had ever mentioned previously that he had left one hour early on this day, and he claimed he didn’t as he was never asked.
After this they got to the destination and he stayed there for two days. Someone else took his vehicle back to Kabul and he travelled in another vehicle with a hat and glasses so he was incognito. He left Afghanistan about 20 days later. His family had moved to [location] in January 2017 – they had moved to her father’s house in Afghanistan before this. Asked if he had any photographic or other evidence that he had been a taxi driver, he claimed he had photos in Afghanistan but not here.

It was put to him that there was country information that there had been attacks against Hazara at places of worship in Kabul. He said that he was an observant Muslim and he went three times a day to the mosque. Asked if anyone could support that claim that he was this observant, he claimed that in [location] he was doing his prayers regularly and his neighbours in Kabul knew and he did his prayers in his room. It was put to him that there were nearly two million Hazaras in Kabul and he was asked why he would be targeted personally. He claimed he worked and lived there normally for years but then had this threat from his driving. Were it not for this threat from the Taliban he would be okay in Kabul – prior to this his life had been normal.
He was asked whether he had been truthful previously in providing information to DIBP officials at the airport and subsequently. He claimed that he had been truthful about his case but not about his route as his smuggler told him not to tell the truth. He agreed that the Australian government official advised him to tell the truth. He was scared at the time also. Where he grew up telling a lie was no great matter but his lawyer advised him to tell the truth. He agreed that at the airport when he spoke to the Australian official he was advised to tell the truth, but he was afraid that he would be sent back if he told the truth so he followed what the smuggler told him not to tell the truth about his route. Asked why he needed to lie about the route, he claimed that the smuggler told him to do this or he would suffer – he realised later that this was for his benefit.
He didn’t realise that not telling the truth had many consequences but now he knew the laws here he realised that he tried to tell the truth. He didn’t recall whether the DIBP official told him there were consequences if he did not tell the truth. Asked what he didn’t tell the truth about to DIBP he repeated that it was about the route that he came to Australia by, and also that he had a [relative] in Australia. Asked if he had any other relatives in Australia, he claimed [details of relatives]. Asked if he had a sibling he claimed that his [relative] was in [city]. They had travelled together to Australia until [Location 1]. Asked if he had ever been asked whether he knew anyone by the name of his [relative] he agreed that he had but didn’t tell the truth.
He was advised about s 424AA and it was put to him that during his airport interview he had been given a warning about the consequences of giving false or misleading information and yet he gave false information. During his subsequent DIBP interview he was also warned about consequences for giving false information and yet he also gave false information despite being asked the question several times. It was put to him that despite claiming in Afghan culture telling lies was alright, yet he was given due warning of the consequences of lying to Australian officials and there needed to be a degree of personal responsibility. There were concerns that his accounts of his reasons for travel to [Country 3] were implausible, as was the account of the attack by the Taliban. There were concerns that he had knowingly and willingly fabricated stories in order to join family members in Australia.
He claimed that he had lied at the beginning because it wasn’t serious and there were no laws about this in Afghanistan. He was also scared when giving information in the airport. He claimed he really did receive a threat to his life from the Taliban. It was put to him that, in the absence of documentary evidence his account relied nearly solely on his credibility and lying to Commonwealth officials didn’t do much to support his credibility. He claimed that he realised how serious it was to tell the truth. His adviser said they would try to get some documentary evidence to support the claim.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] August 2016 without travel documents and was detained at the airport. He applied for a Safe Haven Enterprise Visa (SHEV) [in] November 2016. I have sighted a copy of his Afghan identity card and accept that Afghanistan is the applicant’s country of nationality.
The applicant is a [age] year old married Hazara male. He claimed that he feared being killed in Afghanistan by the Taliban for helping the ANA, because he was considered an infidel (Shi’a Hazara) who helped the government and the Americans, because he would be considered a Christian or a spy or an infidel because he had returned from a Western country, and he would be denied government employment because he was a Hazara or the ability to earn a living driving because of the instability.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the medical documents provided by the applicant in support of his claim. He was asked if he was medically able to attend the hearing and he confirmed that he was. I do not accept, for the reasons set out below, that the inconsistencies apparent in his evidence can be explained by any medical reasons.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a visa.
Credibility
Much of the applicant’s claim relies on acceptance or otherwise of his credibility as a witness as the information he has offered is largely his own oral testimony. In this regard he has shown a willingness to lie to Australian government officials in order to deceive them and this influences the way in which the Tribunal views his oral evidence subsequently given to it.
During interviews with Australian government officials (his entry screening interview at the airport) he had knowingly provided false information about the route he travelled to Australia. Following concerns raised with him that he was not truthful about family links in Australia (he denied having any family members here, including a [relative] [Mr B] who he had not listed in his protection visa application – folios 154/155) he provided a post-hearing submission (folio 504) in which he admitted that [Mr B] was his [relative], and that he had [other relatives] also resident in Australia.
I do not accept his various reasons for telling these lies; the smuggler told him to do so, he was scared, or that it is acceptable in Afghan culture to do so. To begin with the applicant is a mature adult male who by his own admission has travelled twice to [Country 3] where he understood and abided by the regulations covering his one month visa. This shows that he has previously understood rules and regulations that apply to individuals in foreign countries and, in the case of [Country 3] abided by them (‘..he had to leave [Country 3] before his visa expired because he may not be able to obtain another visa if he decided to return for the same purpose in future.’ – submission folio 66).
I also note that the applicant deliberately not only lied to an Australian government official during his airport entry interview, he also did so during his subsequent protection visa interview held 11 months later. It is reasonable to believe that, even if he claimed to be fearful and beholden to a people smuggler’s advice at the point of entry, he would have had time to reflect in the intervening 11 months on the need to tell the truth. This is particularly the case given both Australian officials told him that he was required to tell the truth prior to the interview commencing.
I place no weight on his claim that the DIBP official at the airport did not make him aware that the information he provided during the interview would be used for the purposes of assessing his claim for protection (and that he would not have taken the people smuggler’s advice and lied had the official done so), given he acknowledged that he had been advised by a DIBP official to tell the truth. He also admitted that this information was given to him during his subsequent protection visa interview (folio 126) but that he remained untruthful because he believed the delegate’s mind was already made up. It lacks credibility that he would maintain a lie simply because he thought a delegate’s mind was made up and it is reasonable to believe that he would have made every effort to correct the record once the delegate advised him the penalties for providing misleading information at the start of the interview.
His alleged cultural reasoning that it is permissible in Afghan culture to lie also carries no weight in the view of the Tribunal. When he lied he was talking to an Australian government official in Australia who he agreed had advised him of the necessity to tell the truth. As noted above, the applicant had also abided by laws in [Country 3] during two previous stays there so was aware of, and obeyed laws in a foreign country previously. The same holds for his claim of being scared – this feeling was the result of a belief that he would be sent back rather than any fear for his safety at the hands of the Australian official. Regarding being afraid of the people smuggler, he never articulated what he was afraid the smuggler would or could do do to him.
And despite claiming that he simply did what the smuggler told him to say, he said during the hearing that the smuggler told him only to lie about the route, whilst he has misled officials regarding his family composition in Australia. Regardless, whether there was a smuggler or not, and whatever the smuggler did or didn’t recommend the applicant to do, it is the applicant’s responsibility to tell the truth - he was told to do so by Australian officials in interviews that spanned nearly a year, and he made a conscious decision not to. It is reasonable to believe that he should accept the consequences when his lack of integrity is revealed. I note also that his admission that he told lies only came following the interviews, by which time it would have been apparent to him that his ruse had been discovered.
Targeted by Taliban for driving ANA
I do not accept that the applicant drove a taxi that on occasion transported out of uniform ANA members and that he was threatened via letter and shot at by the Taliban as a result. His account of his employment and of the threats rely totally on his oral evidence, which I have found lacks credibility. Aspects of his claim were also implausible.
He has no photographic or other evidence that he operated a taxi which, in and of itself is not persuasive but adds to concerns. I have taken into account the documents provided post-hearing that he claimed were copies of a police report and a police request for an investigation to be conducted (folios 160, 161) or what he claims is his drivers licence (folio 163). Country information[1] indicates that document fraud is a major issue in Afghanistan and I place more weight on the implausibility of the applicant’s claims and his lack of credibility as a witness. I also note the category of licence the applicant claims to have is the same as that for a normal sedan driver (there does not appear to be any separate category for taxis) who can drive a vehicle that has up to eight seats.
[1] DFAT Country Information Report – Afghanistan, 18 September 2017, p 33.
More important in determining the truth of the applicant’s claim is the implausibility of his account regarding the ambush. Despite knowing the person that they wanted to target, the vehicle he was driving in and the road on which he was going to drive and the fact that his was the only vehicle on the road, the only action the Taliban took was a single shot at a moving vehicle and a chase by a motorbike that he claimed he outran.
It is reasonable to believe that if he were the target then a hasty roadblock could have been setup so the vehicle had to stop, at which point the applicant and any ANA soldiers could have been detained and/or executed. This could have been done quickly and efficiently and sent a strong message given people knew of the threat letter he allegedly received. I do not accept that the ambush was hastily prepared because all his passengers arrived early and he was able to leave at 0430 rather than 0530. Besides the implausibility of all the passengers arriving an hour early, he never mentioned this early start to the journey until his account was questioned. I do not accept that this was because he had never been asked before, as it is a significant issue to leave out given he believes it essentially saved his life.
I also do not believe that he had tried to start a [business] by travelling to [Country 3] on two occasions. For someone who claimed to have worked in his father’s shop for three years and therefore would have had an understanding of cost and selling prices of goods and basic supply chains, he exhibited no understanding of any of these issues. He was also inconsistent regarding what he actually did in [Country 3] in his month visit in 2013, originally saying that he didn’t work out the purchase price or the supply chain, but then saying he had. He then said the problem was that he hadn’t established what the selling price for [the goods] in Kabul was.
Not only is this the first thing that he would have established to see if he could make a profit, even if he hadn’t, he could have called [Mr A] in Afghanistan yet failed to do so. Then, when he and [Mr A] allegedly returned to [Country 3] two years later they had insufficient funds because the prices had risen. It is implausible that he (and/or [Mr A]) wouldn’t have thought to find this information out first. It is also implausible that he didn’t have contact details for any people given he had been in [Country 3] for a month two years previously for the express purpose of establishing a [business] and it’s reasonable to believe that he would have made numerous contacts.
Returnee from/having sought asylum in a Western country
I do not accept that the applicant would be considered a Christian or other type of infidel, or a spy simply because he had returned from a Western country, nor do I accept that Islamic State would target him as an infidel who had sought asylum in the West. Whilst country information[2] indicates that there have been occasional reports of people being kidnapped or targeted having spent time in a Western country, it also notes that most returnees take measures to conceal their association with a country from which they’ve returned and keep a low profile, so that these returnees from Western countries do not face a significantly higher risk of violence or discrimination than other Afghans with a similar ethnic and religious profile. The Tribunal does not have any evidence, nor was any provided that would indicate Islamic State elements in Afghanistan consider returnees from Western countries as infidels or target them.
[2] Ibid, p 31.
Given that the applicant has no political or pro-government profile and that he claimed that it is entirely acceptable in Afghan culture to lie it is therefore reasonable to believe that the applicant would be easily able to explain away his absence from Kabul if he ever needed to and therefore not be targeted as a returnee from the West. I also note that there is there is no country information that indicates (nor was any provided by the applicant) returnees are imputed with Christian or other non-Muslim beliefs or considered to be spies.
Religion
Whilst I accept that the applicant is a Shi’a Hazara I do not accept that there is a real chance that he will suffer serious harm because of this. Country information indicates that there is a risk of Shi’a being targeted by terrorist groups in Afghanistan and that they are most at risk in large groups such as demonstrations or religious festivals. More than 70 Shi’a have been killed in three attacks on mosques or a religious festival in Kabul in the last year.[3] Although the applicant claims to be an observant Shi’a, given this relies on his oral testimony I am not satisfied that this is the case, and hence his risk profile would be significantly less than for an observant Shi’a. Regardless, given the size of the Hazara population in Kabul (estimated 40-50% of a city of several million[4]) the chances of the applicant being caught in such an attack, even if he did observe commemorations and attend mosque, are so small as to be considered a remote possibility.
Other Issues
[3] DFAT Thematic Report on Hazaras in Afghanistan, 18 September 2017, p 10
[4] Ibid, p 3
I do not accept that the applicant would be considered an infidel who helped the government and the Americans. He did not really expand on this claim at the hearing, however it appears to be based on a claim made in a previous submission (folio 490) owing to his transport of ANA soldiers and having been targeted by the Taliban previously. It is reasonable to believe that his claim to be perceived to have helped the Americans is based on a similar profile. Given I have not accepted that he worked as a taxi driver (where he claimed he drove out-of-uniform ANA soldiers and was imputed with helping the ANA), nor that he was ever attacked by the Taliban I am satisfied that he would not be considered an infidel who helped the government and the Americans. For the same reason I do not accept as true that he would be unable to earn a living as a driver because of the instability.
I also do not accept that the applicant would be denied government employment because of his ethnicity. While country information[5] indicates that the Hazara are under-represented in senior civil service positions and that there may be some discrimination on hiring due to the emphasis on tribal, family and ethnic connections, it also notes that due to their emphasis on education Hazara are also well qualified for public sector jobs. The applicant has not given an indication that he has academic qualifications that equip him for government roles, nor that he has ever sought such employment.
[5] Ibid, p 5.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason set out in 5J(1)(a) either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever a taxi driver threatened and then targeted by the Taliban, would be considered a Christian, other infidel or spy because he returned from a Western country or would be targeted as a returnee, that he would be targeted by terrorists at a Shi’a religious observance or place of worship, would not be able to earn a living as a driver or denied government employment because of his Hazara ethnicity, or considered an infidel for having helped the government or the Americans, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1993

12 October 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction