1716870 (Refugee)

1716870 (Refugee) [2018] AATA 233 (9 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716870
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Alison Murphy
DATE:9 January 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

Statement made on 09 January 2018 at 2:42pm

CATCHWORDS
Refugee – Protection visa – Afghanistan – Ethnicity – Hazara – Religion – Shia – Actual and imputed political opinion – Opposed the Taliban – Supplied goods to Hazara soldiers – Entered Australia on a false passport – Detained in Australia – Has family members in Australia and Afghanistan
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1), 5J(2)-(6) , 5K-LA, 36, 36(2)(a)- (c), 36(2A) -(2B), 65
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 and Border Protection [in] August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Afghanistan. He applied for the visa [in] September 2016. The delegate refused to grant the visa on the basis that he was not satisfied the applicant was a person to whom Australia owes protection.
The applicant is a [age] old male from Kabul, Afghanistan. He seeks to invoke Australia's protection obligations so that he does not have to return to Afghanistan, where he claims to fear harm on the basis of his Hazara ethnicity, his Shia religion, his actual or imputed political opinion as an individual who is against the Taliban and similar Sunni militant extremists and his profile as a person who is opposed to the Taliban and has sought asylum in a western country.
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is a person in respect to whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit of such a person. A summary of the relevant law is contained in Attachment A.
In assessing the applicant’s claims, I have had regard to policy guidelines prepared by the Department of Immigration and Border Protection (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – as well as 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.
For the following reasons, I have concluded that the matter should be remitted for reconsideration.
History of proceedings
The applicant arrived in Australia [in] August 2016 by air using a [Country 1] passport which he now acknowledges is false and he later produced to the Department an Afghan passport. He was refused immigration clearance [in] August 2016 and applied for the protection visa [in] February 2017. The delegate refused to grant the visa [in] August 2017, not being satisfied the applicant was a person to whom Australia owes protection.
The applicant attended a hearing before me on 4 December 2017. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
It is not in dispute that the applicant is an Afghan national. Although the applicant attempted to enter Australia on a [Country 1] passport, he later acknowledged that passport to be fake and produced to the Department an original Afghan passport. The applicant is in detention and told me at hearing his Afghan passport is in the possession of the Department and not available to him, as a result I have not viewed this passport.
The delegate records in the decision record that there is no evidence the applicant’s Afghan passport is a bogus document for the purposes of s.5(1) of the Act and the delegate considered it to be the most reliable evidence of the applicant’s identity. The delegate also noted the applicant’s claimed Afghan identity was supported by information provided in previous visa applications by the applicant’s family members in Australia and accepted the applicant is an Afghan citizen.
I find the applicant is a citizen of Afghanistan and I have assessed his claims against that country.
The applicant’s background
The applicant was born in [year] in Kabul, Afghanistan. He grew up in that city and was educated to grade 6 level before marrying at about [age] or [age].
He gave evidence his wife’s family were from Behsud where they still own some land and the applicant’s father’s family were from Maidan Warduk, although they sold their land some time ago. The applicant’s wife and children spent a lot of time in both those places where conditions were better, while the applicant continued to work in Kabul.
The applicant gave evidence he started working by selling [goods] in Kabul, later opening a small shop in rented premises. His father later came and worked in the applicant’s shop.
In 2001 when the Taliban were in power the family fled to Quetta, Pakistan, where they remained living until 2005 when they returned to Behsud, Afghanistan believing conditions had improved. The applicant and his family lived in Behsud between 2005 and 2007 when the applicant moved to [Kabul] for about 7-8 months. He returned to Quetta, Pakistan in 2008, remaining there until late 2012 or early 2013 when he returned with his family to Kabul, renting a small shop in [Town 1] about two hours away from where his family [lived]. The applicant would return home every ten days or so to see his family before returning to [Town 1] to work.
DFAT reports that about 60% of the Hazara population of Afghanistan was killed or displaced in the late 19^th century and enmity between some members of the Pashtun and Hazara communities has been strong ever since. More recently the takeover of Kabul and most of Afghanistan in 1996 by the predominantly Sunni Pashtun Taliban who routinely discriminated against Hazaras led to the killing of thousands of Hazaras in reprisals for killings of Taliban fighters, causing many to flee Afghanistan for Pakistan and elsewhere.[1] In such circumstances I accept the applicant’s account of his family’s movements into and out of Pakistan between 2001 and 2013.
[1] DFAT, DFAT Thematic Report: Hazaras in Afghanistan, 18 September 2017 at 2.1–2.7
In his visa application the applicant claims to have [children] ([all] resident in Kabul) and stated his only family member in Australia was a [cousin]. However the delegate records the applicant also has two adult sons in Australia ([Mr A] and [Mr B]) as well as a [brother], considering that the applicant had deliberately misrepresented his family composition in his visa application.
At hearing the applicant agreed his sons [Mr A] and [Mr B] were in Australia, stating that he didn’t mention them in his visa application because they were already here. He stated he was not in contact with either of his sons, as [Mr A] lived in Sydney and had his own family while he didn’t know what city [Mr A] lived in. He stated his brother was detained in Sydney and he had no way to contact him.
I find the applicant’s wife and [other] children remain living in Kabul, Afghanistan while he has two adult sons resident in Australia and a brother in immigration detention in [Australia]. Departmental records indicate one of his sons has been granted a protection visa while the other is the holder of a partner visa.
I note the applicant has been in immigration detention since his arrival in Australia in August 2016 and would have limited opportunities to enquire about or make contact with his sons and brother. However his failure to identify them in his visa application and his initial denial of their relationship to him at the departmental interview causes me to consider he deliberately sought to mislead the Australian authorities about his family members in Australia.
The applicant’s protection claims
The applicant claims to face harm if returned to Afghanistan because of his Hazara ethnicity, his Shia religion and his actual and imputed political opinion as a person who opposes the Taliban and other Sunni extremist militant groups.
Hazara ethnicity and Shia religion
The applicant has consistently stated he is of Hazara ethnicity and Shia religion and has participated in all stages of the visa process using a Hazaragi interpreter. The delegate accepted the applicant to be of Hazara ethnicity and Shia religion from Kabul, Afghanistan.
DFAT reports that ethnic Hazaras have lived in Afghanistan for centuries, they are overwhelmingly Shia Muslims and are visibly distinct from other ethnic groups in Afghanistan. Hazaras are reported to comprise approximately 10% of the population in Afghanistan (and 40-50% of the population in Kabul) and speak Hazaragi.[2]
[2] DFAT, DFAT Thematic Report: Hazaras in Afghanistan, 18 September 2017 at 2.1–2.7
I accept the applicant is of Hazara ethnicity and Shia religion and originates from Kabul, Afghanistan.
The applicant’s political opinion
The applicant claims he fled Afghanistan for Australia after he came to the attention of the Taliban for supplying goods to a group of Hazara soldiers fighting the Taliban. He claims through his shop he arranged a delivery of [goods] to be trucked from Kabul to [Town 2] and delivered to the Hazara [soldiers].
He claims the truck was stopped near Jalrez by the Taliban who confiscated the goods and interrogated the driver, [Mr C]. The applicant claims that other drivers from [Town 1] who were involved in the transport of people from Kabul to [Town 2] told him they had seen his goods being taken by the Taliban in Jalrez. The applicant claims he returned to Kabul along a different route via Behsud and then Ghazni to avoid the Taliban and searched for [Mr C] at Saripool, where the drivers begin their route. He claims other drivers told him that [Mr C] had told the Taliban everything including that the applicant had arranged the shipment and he was in great danger. The applicant claims he immediately fled [so] he would be harder to find and three weeks later drove to Kabul where he departed Afghanistan on his Afghan passport.
Jalrez and [Town 2] lie about [distance] km and [distance] km respectively along the A77 Kabul-Behsud highway which passes through Warduk province, reported to be a key transit route for militants including Taliban groups. Road security on the Kabul-Behsud Highway declined in 2016 due to increased Taliban activity when they temporarily captured a number of security posts and Taliban attacks were concentrated on a 10km section of road to the east of Jalrez.[3]
[3]
DFAT reported in September 2017 that insecurity compounded the poor condition of Afghanistan’s limited road network, particularly those roads that passed through areas contested by insurgents. It said that the Taliban, other anti-government groups and criminal elements targeted the national highway and secondary roads, and that unofficial checkpoints manned by armed insurgents were common.[4]
[4] DFAT, DFAT Thematic Report - Hazaras in Afghanistan, 18 September 2017 at 2.37–2.39
In 2016 DFAT reported that there had been ‘a series’ of reported incidents of Hazaras being kidnapped on the roads since late 2014, with a total of 97 Hazaras reported as abducted during 2015. In this context there are reports that some Hazara truck drivers were prevented from passing through these checkpoints and that only Pashtun drivers are allowed to pass.[5]
[5] DFAT, DFAT Thematic Report - Hazaras in Afghanistan, 8 February 2016 at 2.25–2.33
In view of the reported incidents affecting Hazaras and poor security on the Kabul-Behsud highway at the time, I accept the applicant’s account of his truck being intercepted near Jalrez in mid-2016 while travelling to [Town 2]. I accept Taliban interrogated his driver and may have learned that the applicant arranged the transport of goods and that it was bound for a group of Hazaras fighting the Taliban in [Town 2]. Given DFAT’s advice as to the strong and lasting enmity between Hazaras and the Pashtun community (the Taliban being made up of predominantly Pashtun Sunnis[6]), I accept the applicant’s actions together with his own Hazara ethnicity may cause him to be perceived as opposed to the Taliban.
The security situation in Afghanistan
[6] DFAT, DFAT Thematic Report - Hazaras in Afghanistan, 18 September 2017 at 2.5–2.6
Afghanistan has been riven by conflict in recent history. Following the invasion of Afghanistan by the former United States of the Soviet Union in 1979, half the Afghan population were estimated to be displaced by 1985. After the last Soviet troops departed, the Soviet backed ruler Najibullah’s government toppled in 1992 and a devastating civil war followed. In 1996 the Taliban seized control of Kabul and in 2001 the US-led bombing of Afghanistan began following the September 11 attacks on the United States.[7]
[7] BBC News, Afghanistan Profile – Timeline, 30 October 2017 at >
North Atlantic Treaty Organisation (NATO) took control of security in Kabul, commanding the United Nations-mandated International Security Assistance Force (ISAF) in Afghanistan from August 2003 to December 2014.[8] NATO assumed responsibility for security across the whole of Afghanistan in 2006 and in 2009 NATO countries pledged to increase their military commitments and dispatch extra troops. However by 2010 NATO countries had begun to exit Afghanistan and in 2012 NATO endorsed a plan to withdraw foreign combat troops and return control of security to Afghan forces. In June 2013 the Afghan army took control of all military and security operations from NATO forces and in December 2014 NATO formally ended its 13 year combat mission in Afghanistan.[9]
[8] NATO, NATO and Afghanistan, 10 November 2017 at
[9] BBC News, Afghanistan Profile – Timeline, 30 October 2017 at >
Despite the end of the ISAF combat mission, violence persisted across most of Afghanistan, with 2014 said to be the bloodiest year in Afghanistan since 2001. Afghan forces faced serious capacity issues after most of the foreign forces withdrew and the Pakistani military’s Operation Zarb-e-Azb dislodged thousands of militants from Pakistan who flooded into Afghanistan and swelled the ranks of the Taliban, allowing it to re-take large parts of Afghanistan.[10] The NATO-led follow on mission “Resolute Support” commenced in 2015, with 12,000 personnel providing further training and support for Afghan security forces. However Taliban offensives continued throughout 2015 and 2016 and in August 2017 US President Donald Trump announced he was sending more troops to Afghanistan to fight a resurgent Taliban.[11]
[10] BBC News, Why are the Taliban resurgent in Afghanistan? 5 January 2016 at
[11] BBC News, Afghanistan Profile – Timeline, 30 October 2017 at
Numerous international and domestic observers attest to the deteriorating security situation in Afghanistan during 2016-17.
DFAT reports the security situation is complex and highly fluid as a number of anti-government elements remain engaged in a violent armed insurgency against the government and its international partners. It reports that insurgent forces contest many areas of the country and no part of the country can be considered free from conflict-related violence.[12] DFAT reports a 75% increase in civilian casualties in 2016 compared to 2015, noting that while the Afghan National Defence and Security Forces (ANDSF) and international forces have put in place a range of counter measures to prevent and respond to insurgent attacks in Kabul, they vary in their effectiveness and violent attacks within the city are common.[13]
[12] DFAT, DFAT Thematic Report Hazaras in Afghanistan, 18 September 2017 at 2.23–2.26, 2.4, 4.3–46
[13] DFAT, DFAT Country Information Report Afghanistan,18 September 2017
In December 2017 the UN Secretary-General reported to the United Nations Security Council that the security situation in Afghanistan remained highly volatile with no meaningful progress towards a peace settlement, as the Taliban and Islamic State in Iraq and the Levant-Khorasan Province (ISIL-KP) showed continued capacity for inflicting mass casualties amid increased Afghan and international airstrikes.[14]
[14] UN Secretary-General ‘The situation in Afghanistan and its implications for international peace and security’, 15 December 2017, A/72/651–S/2017/1056
It was reported that in the three months between September and December 2017, the Taliban launched multiple large-scale operations to capture district administration centres. In October 2017 they also staged a series of seemingly coordinated attacks in several locations, launching four complex attacks around the country using Humvees rigged as suicide bombs, killing more than 100 people including Afghan security forces personnel and civilians.[15]
[15] UN Secretary-General ‘The situation in Afghanistan and its implications for international peace and security’, 15 December 2017, A/72/651–S/2017/1056
In February 2016 DFAT reported that the Afghan government maintained effective control over Kabul, although insurgent and criminal violence was common.[16] However in an updated report in September 2017, DFAT reported that the Afghan government has limited capacity to address security concerns in Kabul, which is a significant target for suicide and complex attacks against both civilian and non-civilian targets.[17] It reports the most common targets of insurgent attacks are government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, foreign diplomatic missions and international organisations.[18]
[16] DFAT, DFAT Thematic Report: Hazaras in Afghanistan, 8 February 2016 at 2.18
[17] DFAT, DFAT Thematic Report: Hazaras in Afghanistan, 18 September 2017 at 2.23–2.26
[18] DFAT, DFAT Country Information Report Afghanistan, 18 September 2017 at 2.31–2.35
As to whether Hazara Shias are specifically targeted for harm, the UNHCR notes that in Afghanistan ethnicity and religion are often inextricably linked, especially in the case of Hazara Shias, and as a result it is not always possible to distinguish clearly between discrimination and ill-treatment on the ground of religion and discrimination and ill-treatment on the ground of ethnicity. The UNHCR notes that while some sources report that overt discrimination by Sunnis against the Shia community has decreased, other sources report such discrimination continues and in any event, violent attacks by anti-government elements targeting the Shia population continue to occur.[19]
[19] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, HCR/EG/AFG/16/02, at pp 51-52 and 76 available at type="1">
DFAT reports the security situation in Afghanistan is complex and fluid, with a number of anti-government elements, most notably the Taliban, engaged in a violent armed insurgency against the government and its international partners.[20] Attacks are generally directed at specific targets and DFAT reports that ethnicity is rarely the primary motivating factor in incidents such as kidnappings and abductions. However DFAT notes that ethnic targeting can play a role in the selection of victims once an abduction or attack is underway, with Hazaras more likely to be selected for abduction or violence, particularly while travelling on Afghanistan’s highly insecure road network.[21]
[20] DFAT, DFAT Thematic Report Hazaras in Afghanistan, 18 September 2017 at 2.26–2.35
[21] Ibid
While DFAT doesn’t identify Hazaras as being among the most common targets of insurgents, it reports that in late 2016 and 2017 there were a series of deliberate sectarian attacks against Shia targets raising concerns that Shias are now vulnerable to being targeted based on their religious identity. DFAT assesses that the number and scale of attacks in 2016 and 2017 demonstrate that Hazaras are particularly vulnerable to religiously motivated attacks and that Shias, both Hazara and non-Hazara, now face a risk of being attacked by Islamic State based on their religious affiliation.[22]
[22] Ibid
The United States Commission on International Religious Freedom’s 2017 annual report noted that during 2016, Shia Muslims, especially ethnic Hazaras, fell victim to multiple violent and deadly attacks, as well as abductions that often ended in death. The attacks were overwhelmingly claimed by or attributed to US designated terrorist groups including the Taliban and Islamic State.[23]
The emergence of Islamic State in Afghanistan
[23] United States Commission on International Religious Freedom, ‘USCIRF Annual Report 2017 - Tier 2 countries – Afghanistan’, (Conditions for Shi’a Muslims), 26 April 2017 at >
Islamic State reportedly emerged in eastern Afghanistan in 2015, capturing a swathe of Taliban-controlled areas in Nahgahar province and challenging the legitimacy of the Taliban.[24] Founded by former Pakistani Taliban commander, Hafiz Saeed Khan, it identified itself as the Islamic State in Khorasan Province (ISKP) and pledged allegiance to Islamic State.[25] By August 2015 it had emerged as a potent battlefield force in northern Afghanistan.[26]
[24] BBC News, Afghanistan Profile – Timeline, 30 October 2017 at BBC News, Why are the Taliban resurgent in Afghanistan? 5 January 2016 at Extremism Watch, A Look at Islamic State’s Operations in Afghanistan, 29 April 2017 at
[26] The Voice Times, Islamic State Ally emerges as threat to Afghanistan, 19 August 2015 at
On 23 July 2016, two suicide bombs were detonated among Shia Hazara demonstrators gathered in Kabul leaving 85 dead and 413 injured, the majority of whom were Hazara males.[27] While the Taliban immediately denounced the attack, Islamic State claimed responsibility, later stating it was in retaliation for the support given by members of the Afghan Hazara community to the Bashar al-Assad regime in Syria.[28] The link has been noted by analysts, with the International Centre for Political Violence and Terrorism Research maintaining that Islamic State’s efforts to promote sectarian conflict in Afghanistan cannot be divorced from the situation in Syria and the attack on Kabul was a consequence of the recruitment of thousands of Afghan Hazaras by Iran’s Revolutionary Guards Corp to fight in support of Bashar al-Assad’s regime.[29]
[27] United Nations Assistance Mission in Afghanistan, Afghanistan: Human Rights and Protection of Civilians in Armed Conflict, Special Report: Attack on a Peaceful Demonstration in Kabul, 23 July 2016 at UN News Service, Afghanistan: UN condemns terrorist attack that leaves scores dead in Kabul, 23 July 2016 at
[29] >
The July 2016 bombing was merely the first of an emerging pattern of deliberate sectarian attacks on the Shia Muslim religious minority in Kabul. In the second half of 2016, the United Nations Assistance Mission in Afghanistan (UNAMA) recorded five separate attacks against Shia Muslim mosques and gatherings across Afghanistan, three of which took place in Kabul:
·On 23 July 2016, two suicide attackers targeted a peaceful demonstration in Deh Mazang Square of Kabul city protesting a decision relating to a cross-country power line project, killing at least 85 civilians and injuring 413 others – the deadliest attack recorded by UNAMA since 2001. Nearly all victims were men and members of the Shia Muslim religious minority of Hazara ethnicity. On the same day, Daesh/ISKP, claimed responsibility for the attacks through a Twitter account affiliated with the Amaq News agency, linking the attacks to the reports of Hazaras’ alleged participation in fighting in Syria on the side of the government. Anti-Shia Muslim statements were delivered in the same message. A Truth-Finding and Investigative Committee was appointed by the President on 25 July 2016 following this incident, but it has not yet published any report.
·On 11 October 2016, the day of Ashura, a major Shia Muslim commemoration, an attacker disguised in an Afghan national security force uniform entered the Karte Sakhi Mosque in Kabul, opened fire at Shia worshippers and used a hand grenade, killing 19 civilians and injuring 60 others. The attack caused minor damage to the mosque. Daesh/ ISKP also claimed responsibility for this attack by issuing another online statement containing hate language targeting the Shia Muslim religious minority.
·On 12 October 2016, an explosion occurred at the entrance of a mosque where Shia worshippers had gathered for the religious commemoration in Khojagholak area of Balkh district, Balkh province. This incident killed 18 civilians and injured 67 others, including 36 children, and also caused minor damage to the gate. No group claimed responsibility for this incident.
·On 21 November 2016, a suicide attack killed at least 40 civilians and injured 74 others, including many children, at the Baqer-ul Ulum mosque in Kabul during observance of the religious ceremony of Arbaeen, a commemoration on the 40th day after Ashura. The suicide bomber detonated the device at the mosque, deliberately targeting the large congregation composed mainly of worshippers from the Shia Muslim religious minority.123 Daesh/ ISKP claimed responsibility for this attack using derogatory expressions and calling for violence against Shia Muslims, as it called in earlier statements.
·On 22 November 2016, Anti-Government Elements detonated a remote-controlled IED that injured four Shia Muslim worshippers at the Razaiya Mosque in Herat city. No group claimed responsibility for this incident.
The attacks against the four mosques accounted for the almost six-fold increase in civilian casualties from attacks deliberately targeting religious persons and places of worship observed in 2016. UNAMA documented 377 civilian casualties (86 deaths and 291 injured) from such attacks in general, a 573 per cent increase from 2015.[30]
[30] UNAMA, Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016, February 2017, p 34-35.
Since the UNAMA report was released in February 2017, there have been further reports of attacks on Shia mosques or in Shia dominated areas of Kabul during 2017:
·     15 June 2017: an attack on the Shia al-Zahra mosque in western Kabul during religious observances of Ramadan killed at least four people and wounded eight. The attack was claimed by Islamic State;[31]
·     24 July 2017: an attack in the predominantly Shia Hazara neighbourhood in western Kabul killed four people;[32]
·     25 August 2017: an attack on the Shia Imam Zaman mosque in Kabul during Friday prayers killing at least 28 worshippers. The attack was claimed by Islamic State.[33]
·     29 September 2017: an attack on a Shia mosque in Kabul killed five civilians and injured another 20;[34]
·     21 October 2017: twin attacks on Shia mosques in the west of Kabul took place just hours apart, with as many as 88 reported killed in the attacks and dozens wounded, including women and children. Shortly prior to the attacks the UN reported that at least 84 Shias had been killed and 200 injured in attacks on mosques so far in 2017;[35]
·     28 December 2017: at least 40 people were killed and dozens wounded in a suicide blast targeting Shias at a Shia cultural centre in the west of Kabul, in an attack claimed by Islamic State. The UN stated that religious attacks in Afghanistan have sky rocketed in the past two years with the minority Shia community the main target.[36]
[31] The Age, Four Killed in Islamic State attack on mosque in Kabul, 16 June 2017 at
[32] The Age, Taliban bomb kills dozens in Kabul, 24 July 2017 at
[33]
[34]
[35]
[36]
The UN Secretary-General reported in December 2017 that ISIL-KP remained resilient in the reporting period between September and December 2017, claiming responsibility for several attacks including three suicide attacks in Kabul, two of which were against worshippers at mosques in Kabul, inflicting numerous civilian casualties:
30. Following a series of violent attacks against sectarian targets, UNAMA released a special report on 7 November documenting attacks against places of worship and religious leaders and worshippers, and particularly attacks targeting Shia Muslim congregations. Between 1 January 2016 and 7 November 2017, UNAMA documented 51 incidents of this nature, resulting in 850 civilian casualties (273 deaths and 577 injured), nearly double the number of civilian casualties recorded in such attacks during the entire seven-year period from 2009 to 2015. . .
31. In an effort to prevent attacks against sectarian targets, the Government introduced new measures in mid-September to protect places of worship identified as being at risk. These consisted of recruiting and arming about 2.500 men from local communities countrywide to protect approximately 600 mosques and Shrines from attacks.[37]
[37] UN Secretary-General ‘The situation in Afghanistan and its implications for international peace and security’, 15 December 2017, A/72/651–S/2017/1056
I consider the attacks on Shia mosques and cultural centres cited above indicate a significant change in the security situation in Kabul by introducing a sectarian dimension to the attacks. The frequency and severity of the attacks on Shias including Hazara Shias in Kabul over 2016 and 2017, together with my findings about the applicant’s personal experiences with the Taliban in Kabul in 2016, cause me to find that the applicant has a well-founded fear of persecution for the combined reasons of his Shia religion, his Hazara ethnicity and his political opinion in his home area of Kabul.
State protection
In this case, the perpetrators of the harm feared by the applicant in Kabul are non-state agents including the Taliban, ISKP and other militant groups. Harm from non-state agents may amount to persecution if:
·the motivation of the non-state actor is Convention-related,[38] and the State is unable to provide adequate protection against the harm; or
·the motivation of the non-state actor is not Convention related, but state protection from the feared harm will be discriminatorily withheld for a Convention reason.[39]
[38] The 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention)
[39] MIMA v Khawar (2002) 210 CLR 1
For the reasons set out above I have found the harm feared by the applicant in Kabul province will be directed at him for the combined reasons of his Hazara ethnicity, his Shia religion and his political opinion.
DFAT reports that the ongoing armed insurgency and deteriorating security situation nationwide has challenged the government’s ability to exercise effective control over large parts of the country, particularly outside of major urban centres and provincial capitals. As a result, the government lacks the ability to adequately protect vulnerable groups and prosecute human rights violators in some parts of the country. DFAT reports the number and scale of major attacks that have taken place in Kabul since the beginning of 2016 demonstrate the limits of the government’s ability to protect its citizens even in a place where security infrastructure is strongest.[40]
[40] DFAT, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016 at 4.1–4.2
The UNHCR reported in April 2016 that the security situation in Afghanistan remains unpredictable, with civilians continuing to bear the brunt of the conflict. It noted the conflict is increasingly affecting all parts of the country, with anti-government elements reported to have engaged in an increasing number of high-profile attacks in Kabul and other cities while also expanding their reach in rural or less populated areas. The UNHCR reports that concerns have been expressed about the capability and effectiveness of the Afghan National Security Forces in ensuring security and stability across Afghanistan and that violent attacks by anti-government elements targeting the Shia population continue to occur.[41]
[41] UNHCR, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, HCR/EG/AFG/16/02, pp 14-15 and 51-52 and 76 at >
Given this information, I find that the applicant would not be able to access state protection in Kabul to international standards in accordance with the principles in MIMA v Respondents S152/2003.
Whether the real chance of persecution relates to all areas of Afghanistan
Section 5J(1)(c) has the effect that a person has a well-founded fear of persecution only where the real chance of persecution relates to all areas of the receiving country. While the applicant has in the past spent time in other parts of Afghanistan, most notably Maidan Warduk province and Behsud in Nangahar province, country information does not suggest those areas are safer than Kabul. Rather DFAT reports that Kabul provides greater levels of security and access to state protection compared to the rest of Afghanistan, even though it remains one of the poorest cities in the world and regularly experiences security incidents.[42]
[42] DFAT, DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016 at 4.3, 5.13–5.16
DFAT reports that the Taliban and other insurgent forces have a significant presence in many areas bordering the Hazarajat, including Maidan Warduk, assessing that Hazaras in those areas face a higher risk of being affected by conflict-related violence than Hazaras living in Kabul or the Hazarajat. UNAMA reported seven incidents involving the abduction of 34 Hazara civilians in Maidan Warduk in 2016, compared to two incidents in 2015. ISKP is reportedly active in Nangahar province which has experienced a number of attacks since 2015.[43]
[43] DFAT, DFAT Country Information Report Afghanistan, 18 September 2017 at 2.35, 3.9
As to whether there are any other parts of Afghanistan where the applicant does not face a real chance of persecution, DFAT reports that conflict-related violence occurs in most areas of Afghanistan to varying degrees and that no part of the country can be considered free of conflict-related violence.[44]
[44] DFAT, DFAT Country Information Report Afghanistan, 18 September 2017 at 2.31
In light of the DFAT advice and the other country information cited in these reasons about the deteriorating security situation in Afghanistan, I find the applicant has a well-founded fear of persecution in all areas of Afghanistan for the combined reasons of his Hazara ethnicity, his Shia religion and his political opinion.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.
Alison Murphy
Member

ATTACHMENT A - 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.
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.
…

[2018] AATA 233

9 January 2018

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction