1801329 (Refugee)
[2018] AATA 996
•4 April 2018
1801329 (Refugee) [2018] AATA 996 (4 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1801329
COUNTRY OF REFERENCE: Afghanistan
MEMBER:Roslyn Smidt
DATE:4 April 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
STATEMENT MADE ON 04 APRIL 2018 AT 3:59PM
CATCHWORDS
Refugee – Protection Visa – Afghanistan – Particular social group – Hazara – Religion – Shia Muslim – Increasing instance of sectarian violence in home country – State protection not availableLEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIMA v Respondents S152/2003 [2004] HCA 18Any 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 is a citizen of Afghanistan, applied for the visa [in] December 2016. The delegate refused to grant the visa because he did not accept that the applicant had been targeted by the Taliban and found that he did not face a real chance of suffering serious or significant harm because of his religion or his ethnicity.
The Tribunal affirmed the delegate’s decision and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
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 themselves 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.
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
The applicant is a [age] year old married man of Hazara ethnicity and Shia religion. He has provided a copy of his taskera (identity document) which states that he was born in [a] district in Wardak Province. He has also provided a driver’s license issued in Wardak [in] 2015. The applicant resided in Kabul from about [year] until he departed for Australia.
The applicant’s wife and [children] currently reside in [another country]. His parents are deceased. He has [a number of] surviving siblings, [a number] of whom now reside in Australia while the remaining [a number] reside in Kabul.
The applicant left Afghanistan on his legally obtained Afghan passport which he claims to have destroyed. He entered Australia without a passport.
SUMMARY OF THE APPLICANT’S CLAIMS
The applicant claims that he is at risk of serious or significant harm if he returns to Afghanistan because of his Hazara ethnicity, his Shia religion, his status as a returnee from a western country and because prior to leaving Afghanistan he was targeted by the Taliban for [assisting] members of the [army]. It appears that the applicant used a [Country 1] passport or a boarding pass issued to a [Country 1] national to gain entry to his flight to Australia.
FINDINGS OF FACT
The applicant claims that he is of Hazara ethnicity and that he is an observant member of the Shia religion and regularly attends mosque and participates in Shia celebrations. I accept these claims.
The applicant claims that he was targeted and threatened by the Taliban after [assisting] a member of the armed [forces]. The previous Tribunal found this claim to lack credibility as he found the applicant’s account of the incident which led to these problems implausible and that the applicant had also provided false information regarding a number of matters, including the location of other family members and his travel to Australia. I share that previous Tribunal’s concerns regarding this claim. However, as set out below, I find that there is a real chance that the applicant will face serious harm amounting to persecution if he returns to Afghanistan because of his religion and his ethnicity. It is therefore not necessary to make a firm finding of fact on these issues.
CONSIDERATION OF THE APPLICANT’S CLAIMS
Country information
Unless otherwise stated this overview is based on DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017.
Most sources estimate that about 3 million people or 10 per cent of the population of Afghanistan are Hazaras. The traditional homeland of the Hazaras is the Hazarajat, a mountainous region consisting of the provinces of Bamiyan and Daykundi and parts of the provinces of Ghazni, Ghor, Uruzgan and Wardok. Hazaras currently comprise between 40 or 50 per cent of the population of Kabul. The overwhelming majority of Hazaras follow Shia Islam.
It is well known that Afghanistan has experienced violence and war for many years. Informed observers agree that the situation has deteriorated significantly in recent years, including in Kabul, and it appears likely that this will continue for the foreseeable future
According to DFAT, the security situation Afghanistan is complex, highly fluid and varies considerably by location with a range of groups engaged in a violent armed insurgency, which means that no part of the country is free from conflict-related violence. It notes that Kabul is a significant target for suicide and complex attacks against both civilian and non-civilian targets.
In February 2018 the UN Secretary-General[1] reported to the United Nations Security Council that the security situation in Afghanistan remained highly volatile following a spate of suicide and complex attacks in January 2018, in particular three major attacks in Kabul that inflicted hundreds of casualties. It also noted that minimal progress has been made towards initiating peace negotiations between the Government and the Taliban and that Islamic State in Iraq and the Levant-Khorasan Province remained resilient and conducted several attacks against the civilian population and military targets, especially in Kabul and in the eastern province of Nangarhar.
[1] UN Secretary-General, ‘The situation in Afghanistan and its implications for international peace and security', 27 February 2018, A/72/768–S/2018/165
In a report published in February 2018 the International Crisis Group[2] reported that Taliban attacks in Kabul in late January 2017 were part of an escalation in violence in Afghanistan, where the civilian population is bearing the brunt of a particularly intense winter of fighting. The report notes that there was a 50 per cent increase in such attacks by the Taliban in 2017 and suggests that the situation may well deteriorate, noting:
As the movement faces further pressure this year, the pace of spectacular attacks and urban warfare may well continue as pressure on the battlefield is unlikely to radically undermine insurgents' ability to stage them … Nor is it clear that a military build-up, despite its tragic costs, will necessarily make insurgent leaders more willing to talk. In fact, the opposite may be true: it risks empowering elements within the movement more resistant to reconciliation.
[2] International Crisis Group (ICG), The Cost of Escalating Violence in Afghanistan, 7 February 2018, available at >
While there is nothing new about violent attacks in Afghanistan, religiously motivated attacks on Shia were rare between 2001 and 2016. However late 2016 and early 2017 saw the beginning of a series of deliberate sectarian attacks against Shia targets.
This coincided with the emergence of a group called Islamic State in Khorasan Province (ISKP) which pledged allegiance to Islamic State and began to compete with the Taliban for control over territory, particularly in the north of the country.[3] The group has repeatedly carried out sectarian attacks inside Afghanistan. In July 2017 they attacked the Iraqi Embassy in Kabul saying the operation was part of an ‘open war’ between the Sunni ‘mujahideen’ and the Shiite ‘polytheists’.
[3] See for example, FDD's Long War Journal, ‘Islamic State’s Khorasan ‘province’ claims responsibility for attack on cultural center in Kabul’, 28 December 2017
According to a November 2017 report by the United Nations Assistance Mission in Afghanistan (UNAMA)[4] there were only five documented incidents against Shia Muslims between 1 January 2009 and 31 December 2015, but in early 2016 a pattern of attacks against Shia worshippers emerged, mainly claimed by ISKP. Between1 January 2016 and the publication of the report on 7 November 2017, UNAMA documented 12 incidents targeting Shia Muslim worshippers at places of worship, resulting in 689 civilian casualties (230 deaths and 459 injuries), and an increase in targeting of religious leaders.
[4] United Nations Assistance Mission in Afghanistan, Afghanistan: Human Rights and Protection of Civilians in Armed Conflict, Special Report: Attacks Against Places of Worship, Religious Leaders and Worshippers, 7 November 2017 at
Similarly 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. A number of these attacks, including the most deadly, occurred in Kabul.
UNAMA reported five separate attacks against Shia Muslim gatherings and mosques in the second half of 2016 and three in the first half of 2017. Since the publication of UNAMA’s most recent report in July 2017, two additional attacks have occurred in August 2017. Five of the attacks took place in Kabul, one in Balkh Province and four in Herat city. The first attack in Kabul was the deadliest to occur in Afghanistan since 2001.
There have been further reports of attacks on Shia mosques or in Shia-dominated areas of Kabul during 2018. On 28 December 2017 an attack was reported on the Tabayan Shia cultural centre in Kabul with reportedly 41 killed and up to 81 people injured. The bombs were reportedly placed by ISIS. On 9 March 2018 a suicide bomber blew himself up while trying to enter a gathering of a former Shia leader of the Shia Hazara community. Seven people were killed and seven injured.
Other deadly attacks in Kabul in 2018 include an attack on the InterContinental Hotel on 20 January which left at least 42 people dead; an attack involving an explosive device in an ambulance which left least 103 people dead and a suicide bomber attack near the Australian Embassy on 2 March 2018 which resulted in one death. All of these attacks resulted in significantly more people being injured than were killed.
Is the applicant at risk of persecution for a Convention reason if he returns to Afghanistan?
In its September 2017 report DFAT assessed that Hazaras, like other Afghans, are vulnerable to the threat posed by indiscriminate methods of attack against specific targets in Kabul, but were unlikely to face any greater threat than other Afghans merely because of their ethnicity. However, they were of the view that the number and scale of the attacks in late 2016 and early 2017 demonstrate that Shia, both Hazara and non-Hazara, now face a risk of being attacked by ISKP based on their religious affiliation. DFAT assesses that Shia are particularly vulnerable when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major Shia religious festivals. As discussed above, attacks by ISKP and other militant groups have continued since the DFAT report. In addition, as discussed above, reports suggest that such attacks are likely to continue and that the situation may worsen in future.
As noted above, I accept that the applicant is an observant Muslim who participates in worships at his local mosque and participates in Shia celebrations. The question which remains to be answered is whether there is a real chance that he will experience serious harm amounting to persecution because of this if he returns to his home in Kabul within the reasonably foreseeable future.
According to the evidence provided at the hearing, the applicant has not faced serious harm or discrimination in the past because of his religion. Nor is there any suggestion that any of his siblings who remain in Afghanistan have been harmed because of their religion or for any other reason. In these circumstances I find it unlikely that the applicant would face serious harm for reasons of religion, or for any other reason, if he returned to Kabul. However, in light of what appears to be a rising level of sectarian violence against Shias and the fact that he is an observant Shia and likely to attend religious festivals and other Shia events, I find that the risk that he will experience such harm cannot be dismissed as remote or insubstantial. I am therefore satisfied that there is a real chance that he will suffer serious harm for reasons of religion if he returns to Afghanistan within the reasonably foreseeable future.
In the applicant’s 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, and the State is unable to provide adequate protection against the harm.
In September 2017 DFAT noted that the government of Afghanistan had limited capacity to address security concerns. They noted that the increase in the number and scale of major attacks in Kabul since the beginning of 2016 demonstrated the limits of the government’s ability to protect its citizens even in a place where its security infrastructure is strongest. In April 2016 UNHCR reported in April 2016 that the security situation in Afghanistan remains unpredictable, with civilians continuing to bear the brunt of the conflict and violent attacks by anti-government elements targeting the Shia population continuing. They also noted concerns about the capability and effectiveness of the Afghan National Security Forces to ensure security and stability across Afghanistan.
In these circumstances 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.
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. I have therefore considered whether there is another part of Afghanistan where the applicant would not face a real chance of persecution.
While DFAT doesn't identify Hazaras as at risk of harm from insurgents because of their ethnicity alone, their report notes that they are vulnerable to being targeted based on their religious identity. It also notes that Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan.
As a Hazara who would be easily identifiable and assumed to be of Shia faith, the applicant would face at least as much risk of experiencing serious harm in those parts of Afghanistan where the Taliban, ISKP or other militant Sunni groups operate as he would in Kabul. Furthermore, while it appears that parts of the Hazarajat such as Bamiyan Province and (to a lesser extent) Daykundi Province are largely secure, continuing armed insurgency has affected the provinces surrounding them and road transportation links between them and major cities is far from secure, particularly for Hazaras who would be passing through areas where groups such as the Taliban and ISKP are active and who are at particular risk of kidnapping and abduction. In these circumstances, I find that the applicant faces a real chance of being targeted for kidnapping or other forms of serious harm if he attempts to travel from Kabul to a safer area in the Hazarajat.
In conclusion, after considering all of the relevant evidence, I am satisfied that the applicant has a well-founded fear of persecution for reasons of religion if he returns to Afghanistan within the reasonably foreseeable future.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Roslyn Smidt
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Standing
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