1817855 (Refugee)

[2020] AATA 3124

1817855 (Refugee) [2020] AATA 3124 (11 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817855

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Jason Pennell

DATE:11 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 April 2020 at 9.40pm

CATCHWORDS

REFUGEE – protection visa – Afghanistan – Iran – Federal Court remittal – religion – Shia Muslim – race – Hazara – police harassment – land dispute – complementary protection – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5AAA, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
Diatlov v MIMA [1999] FCA 468
DZABG v MIAC [2012] FCA 827
DZABG v MIAC [2012] FMCA 36
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Savvin (2000) 98 FCR 168
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Rishmawi v MIMA (1997) 77 FCR 421
Savvin v MIMA [1999] FCA 1265

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.The applicant who claims to be a citizen of Afghanistan applied for the visa on 10 December 2012 and the delegate refused to grant the visa on 17 July 2013. The Tribunal affirmed the delegates decision on 6 July 2015. By an order made [in] June 2017 the Federal Circuit Court of Australia (FCCA) affirmed the Tribunals decision. However, by an order made [in] May 2018 the Federal Court of Australia allowed the applicant’s and remitted the matter back to the Tribunal directing that the delegates decision to refuse to grant the applicant a Protection visa be reviewed according to law.

3.A submission was received by the applicant’s representative, that based on the findings made by both the department, the Tribunal, the FFCA and the FCA that the applicant  that the applicant was from Afghanistan and a Hazara Shia Muslim, that based on the country information, the Tribunal consider making a positive finding for the applicant on the papers. The Tribunal has considered the Department file[1] and the previous Tribunal file[2] and has decided to remit the matter without the need to conduct a hearing.  Accordingly, no hearing was conducted in relation to the review of the delegates decision.

[1] Department File No [number]

[2] RRT 1310363

4.The applicant was represented in relation to the review by his registered migration agent.

5.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

RELEVANT LAW

6.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

7.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9.Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10.There are four key elements to the Convention definition.

(a)First, an applicant must be outside his or her country.

(b)Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

(c)Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

(d)Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

1. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2) (aa). For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36 (2) of the Migration Act.

The applicant’s migration history

1. The applicant’s migration history is details in the delegate’s decision dated 17 July 2013.[3] The applicant arrived in Australia at Christmas Island [in] August 2012. He claimed to be [applicant name] and has maintained that claim thought the protection visa process and subsequent reviews by this Tribunal, the FCCA and the FCA.  

   [3]    Department File No ]number] @ f.23

2. The applicant claims he was born in Banyan province Afghanistan. The applicant resided illegally in Iran from 1992 and 2012. He claims that he completed [number] years of schooling in Iran. While living in Tehran he claims he was employed as a labourer from 2000 to 2007 and then as a [Occupation 1] from 2008 to 2012.

3. The applicant claims that he left Iran in March 2012 and travelled to Afghanistan where he spent approximately seven weeks before leaving via Kabul airport to fly to [Country 1] via [other countries]. The applicant claimed that he stayed in [Country 1] for approximately two months prior to his arrival in Christmas Island on a boat code named [codename]. The applicant claims that he approached the UHNCR office in [Country 1] but do not return for formal registration interviews.

4. The applicant claims that his mother brother and sister continue to reside in Iran. He has an uncle and cousin in [Country 3].

Country of Reference

1. The applicant claims to be citizen a citizen of Afghanistan. He claims to be a Shia Muslim and an ethnic Haraza. He submitted an untranslated photocopy of a document purporting to be his Taskera. Tazkiras are identity documents used in Afghanistan. Its reported that about 70 percent of Afghans have such documents and is reported to be the most commonly used identity document in Afghanistan.[4] The document is said to be approximately 20 pages and contains information in relation to a person’s identity.  An individual’s identity is established by testimony from the persons living relatives. If the relative appears in the local register, the applicant's identity is confirmed.[5] The document the applicant provided to the department was, however, not certified or translated.

   [4]    Canada: Immigration and Refugee Board of Canada, Afghanistan: Issuance of "taskera" (tazkira) inside or outside of Afghanistan; information contained in the document during the Taliban and post-Taliban period, 18 December 2007, AFG102680.E, available at: 9 April 2020]

   [5]    ibid

2. The delegate noted that the applicant was able to speak Hazaragi language fluently and noted that is a language commonly spoken by persons of the Haraza ethnicity. While the department expressed concerns as to the applicant’s lack of proof in relation to his identity, it accepted that he was from Afghanistan and a Harara Shia. This was accepted by the Tribunal, the FCCA and the FCA. 

3. There was no evidence before the department or the Tribunal to indicate that the applicant is not a citizen of Afghanistan as claimed.   In addition, there was no evidence to suggest that he had the right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the applicant’s protection claims will be assessed against Afghanistan as the country of reference and as the 'receiving country'.

Claims for protection

1. The applicant’s material claims for protection are detailed in the delegate’s decision dated 17 July 2013 as follows:[6]

   (a)Being Hazara has led him to being targeted for violence and discriminated against in Iran.

   (b)About a year ago (ie 2012) the Iranian police grabbed him for the street and took him to a work site in bam and used him as slave labour. After a week the police took a group of Hazara to a border and ‘threw’ them into the Herat, Afghanistan.

   (c)He felt scared in Afghanistan as there are many attacks against Hazara Shia in Afghanistan. He travelled to his father’s village in Bamyan. There was a dispute over the ownership of the house his grandfather owned, and it was occupied by a Pashtun. They hit him and beat him, permanently damaging his hearing. He was carted for his safety, so he left to go to Kabul. He felt unsafe in Kabul so made arrangements to escape to a safer country.

   (d)He believes if her was returned to Afghanistan the Taliban would target him. He has heard stories about atrocities inflicted on Hazara lie him.

   (e)He believes that of her returns to Iran he would be seriously harmed and or killed by Iranian Police. He has previously been beaten and detained and has no reason to think that this would not continue.

The Applicant’s Evidence

[6]    Department File No [number] @ f.19

1. The applicant provided evidence and submissions to the previous Tribunal.[7] He claimed that his name was [applicant name], that at that time he was [age] years old and he was born in Afghanistan. The Tribunal notes that the applicant is currently approximately [age] years old. He claimed that he was a citizen of Afghanistan and that he was an ethnic Hazara and that his religion was as a Shia Muslim. He stated that he had never been married. His father had passed away in or about 2007 and that his mother, brother and sister remain living in Iran. He claimed that he had not lived in Afghanistan since 1993. As such he claimed that he has no immediate family in the country or any substantial links to Afghanistan.

   [7]    Tribunal Decision dated 6 July 2015 @p.4-6; AAT File 1310363 @ f.132-131

2. The applicant claimed that his parents were born in Afghanistan and that they moved to Iran when the applicant was very young. The applicant claimed that his father told him that they went to Iran because Afghanistan was too dangerous. He claimed that as Hazara they could be killed by the Taliban. The Taliban hate Hazara as they believe they are not true Muslims.

3. For many years the Hazara in Afghanistan have been targeted by the Taliban. The Taliban target the Hazara because of their ethnicity and Shia religion. The Taliban consider the Hazara as infidels and not true Muslims which he claimed as humiliating and degrading.

4. The applicant claimed that when he was young, he lived in Iran. The teachers would discriminate against him and the other students for Afghanistan. They would put them in the corner and ridicule them. The other children would use foul language to hurt them and degrade them. The harassment and ridicule would also come for people in the street, the police and the government. The applicant claimed that this treatment would upset him.

5. The applicant claimed that one day he was kicked out of the Mosque. Even though he was Shia he was not allowed to pray. He claimed that he was told that because he was from Afghanistan, he was considered dirty and not allowed to pray at the Mosque.

6. The applicant claimed that he grew up in Iran and as result the only contact he had with Afghanistan was when he was deported there in 2012. The applicant claimed that he was scared to live in Afghanistan and as a result travelled to Australia.

7. The applicant claimed that in or about 2005 he was attacked in the park by Iranian boys. He claimed that he was licked and punched and told that the people from Afghanistan are fifthly people. He stated that he had his [Body Part 1] broken and one of the attackers stabbed him in [Body Part 2]. 

8. In or about 2009 or 2010 the applicant claimed that he was playing football with some friends. The Iranian boys would not play with them. The police came and arrested the applicant and his friends. They took them to the police station and forced them to clean the station. He claimed that the police said that they forced them to clean the police station because they were from Afghanistan and that they deserved to clean the station.

9. The applicant claimed that prior to his return to Afghanistan the Iranian police grabbed him form the street and took him to a work site in Bam and forced him to work as a labourer. He claimed that he had no choice because when he questioned them, he was bashed. After approximately one week he was taken to the border and thrown into Herat Afghanistan.

10. The applicant claimed that he felt scared in Afghanistan as there were many attacks against Hazara Shia. The applicant claimed that he travelled to his father village in Bamyan. There was a dispute over the ownership of a house his grandfather owned but that was occupied by a Pashtun. They hit him and beat him, permanently damaging his hearing. The applicant claimed that he was scared for his safety. Having no support, he left for Kabul.

11. The applicant claimed that in Kabul there are suicide bombings aimed at killing Hazara. The applicant felt unsafe and as a result decided to travel to a safer country.

12. The applicant claims to have found it very difficult to live in Iran because he has no rights. Being for Afghanistan he had no right to attend school or to work. He claimed that to attend school he was to pay a lot of money.

1. The applicant claims that he has no immediate family in Afghanistan. He claims that as a Hazara Shia it is difficult to live in Afghanistan and that he is scared to live there.

2. In particular, the applicant claimed as follows[8]:

   [8] Department File No [number] @ f.36-37

   What I fear night happen if I go back to my country?

   I believe that if I return to Iran I would be seriously harmed and or killed by Iranian police. I have been and detained and have no reason to think this will continue.

   I fear that O were returned to Afghanistan, the Taliban would target me. I have heard very frightening stories about the atrocities inflicted on Hazara like me.

   Who I think will harm or mistreat me if I go back?

   I fear the Iranian police and government authorities. I fear the Iranian people who harass and discriminate against me. The Taliban will attack me if I go back to Afghanistan.

   Why I believe they will harm or mistreat me if I go back?

   I will be targeted by the Iranian police because they have done so in the past. The police and the authorities target Afghanistan people. They will pay particular attention to me because I have been to Australia.

   Why I believe that the authorities in my country will not protect me if I go back?

   The authorities in Iran are the ones against me. There is no one to protect me. The Afghanistan authorities do not bother to protect people like me. I am poor and not important to protect.

   Why I believe I will suffer significant harm?

   I have suffered degrading treatment all my life. I have suffered beatings by the police because I am Afghanistan. I have not reason to think this will stop. I did not grow up in Afghanistan so I would find it difficult to go and live there without any family supports. As well the Taliban would target me because I am Hazara and I am Shia.

   Why I cannot relocate.

   There is nowhere for me to live in Iran. I easily identified as from Afghanistan and would suffer the same or worse no matter where I live.

COUNTRY INFORMATION

1. The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). In particular, the DFAT Country Information Report Afghanistan dated 27 June 2019 (‘the DFAT Report’) notes the following:

   ‘Economic Overview[9]

   [9] DFAT Report @p.10

   2.10 ……………………………

   2.14 Kabul’s size, centrality and status as the national capital means it offers a greater range of employment opportunities than other areas of Afghanistan, particularly in work related to government and the international community. However, the substantial drawdown of the international presence and associated reduced aid and other financial flows since 2011 has had a major impact on Kabul’s economy. The recent large-scale influx of internally displaced persons and returnees from abroad has placed considerable pressure on Kabul’s labour market. While reliable statistics are unavailable, unemployment and underemployment are widespread in Kabul, as they are elsewhere in Afghanistan. However, wages and the quality and availability of public services still tend to be higher in Kabul than in other parts of the country. In addition to trade and other service industries, a small number of larger private businesses have established themselves in Kabul, including in food processing, textile production, and light manufacturing.

   2.15 The Hazarajat, a mountainous region consisting of the provinces of Bamiyan and Daykundi and parts of the provinces of Ghazni, Ghor, Uruzgan and Wardok, is the traditional homeland of the Hazara. The Hazarajat’s mountainous terrain, geographic isolation, and lack of arable land have combined to limit economic and employment opportunities. The Hazarajat is heavily dependent on agriculture for economic and employment opportunities, and is highly vulnerable to droughts and floods. Infrastructure in the region is severely underdeveloped – around 80 per cent of roads in Bamiyan province are unpaved, restricting the movement of goods and people. Access to electricity remains limited, despite construction of solar and hydroelectric facilities in the region. There has been considerable public dissatisfaction over lack of government infrastructure investment in the Hazarajat. While Bamiyan province and (to a lesser extent) Daykundi province are largely secure, ongoing armed insurgency has affected the provinces surrounding them and road transportation links between the Hazarajat and major cities are far from secure. This places considerable limits on the ability of Hazarajat producers to access large markets. It also has implications for Hazaras seeking to travel for seasonal work in other provinces, which is common for poor Afghans of all ethnicities.’

   …………….

   ‘Employment[10]

   [10] OpCit @ p.11

   2.18The poor security situation and limited development of resources mean that job creation has been unable to keep up with population growth, and few Afghans have access to productive or remunerative employment. A quarter of the labour force is unemployed, and 80 per cent of employment is vulnerable and insecure, comprising self- employment, day labour, or unpaid work. The Afghan economy struggles to absorb the high numbers of people entering the workforce each year – estimated at up to 400,000 annually – in addition to the high numbers of Afghans returning from neighbouring countries (see ‘Conditions for Returnees’). Labour force participation rates are particularly low for young Afghan women. People from all ethnicities regularly travel to find employment opportunities, including leaving Afghanistan. Poverty has increased significantly in recent years: according to the World Bank, 55 per cent of the population lived below the poverty line in 2016-17, compared to 38.3 per cent in 2012-13.’

   Hazara

   3.7The Hazara are one of Afghanistan’s fourteen recognised ethnic groups. Their name is Persian for ‘one thousand’ and relates to a legend that the Hazara descended from 1,000 troops that accompanied Genghis Khan during the Mongol conquest of Eurasia. The Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan. Hazaras living in rural Afghanistan tend to speak Hazaragi, a dialect of Persian that is mutually intelligible with Dari (Afghan Persian), one of Afghanistan’s two official languages and the most commonly used. Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian. Most Hazara are Shi’a.

   3.8Afghanistan’s Hazara population has long faced social, economic, and political discrimination, although the extent of this discrimination has varied over time. The takeover of Kabul and most of Afghanistan by the predominantly Sunni and Pashtun Taliban in 1996 marked a period of considerable repression and hardship for the Hazara nationwide: the worst single recorded massacre in the country’s recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazara. Many Hazara fled Afghanistan during this period to escape Taliban oppression.

   3.9The Hazara have made significant social, political and economic gains in Afghanistan since the fall of the Taliban in 2001, albeit from a low base. However, the continuing armed insurgency conducted by the Taliban and other groups has raised questions over the sustainability of Afghanistan’s progress. These questions have been exacerbated for Hazara since the emergence in mid-2016 of a campaign of religiously- motivated attacks against Shi’a by militant groups, including ISKP (see Shi’a). While Afghans of all ethnicities feel uncertain about Afghanistan’s future, DFAT assesses that the Hazaras’ previous experience of life under the Taliban and earlier episodes of discrimination have caused many to feel particular concern about the long-term prospects for their community. This concern is an important factor contributing to the decision of many Hazaras to leave Afghanistan.

   3.10While population estimates vary considerably between sources, the GeoHive global population statistics website estimated the population of Bamiyan province at just under 450,000 and Daykundi at around 425,000 as of 2015-16. Both provinces have a Hazara majority of around 75 per cent, with Tajik and Pashtun minorities. The Hazara make up around 40 per cent of Ghazni province’s estimated overall population of 1.2 million, which is 50 per cent Pashtun. The percentage of Hazara living in the other provinces of the Hazarajat is much smaller. Most major cities in Afghanistan, particularly Kabul, have sizeable Hazara populations. Most estimates put the Hazara at between 40-50 per cent of Kabul’s population, making them the largest ethnic group in the capital. Ethnic groups tend to cluster together in Afghan cities, and most Hazaras in Kabul live in the west of the city. Many live in informal and illegal settlements.

   3.11As noted in Security situation, Bamiyan and (to a lesser extent) Daykundi provinces have been significantly less affected by the ongoing armed conflict than most other Afghan provinces. This is not the case, however, for many of the surrounding provinces and other provinces on transportation routes to major cities. This insecurity has placed considerable limits on the ability of Hazarajat producers to access large markets. It also has implications for Hazaras seeking to travel for seasonal work in other provinces (which applies also to poor Afghans of all ethnicities). Provinces which suffered either a significant rise in civilian casualties or a sustained level of already high casualties in 2018 included Wardak (on one of the two main transportation routes to Kabul), Ghor (on the main transportation route to Herat, Samangan (on the main transportation route to Mazar-e-Sharif), Baghlan (offering transportation routes to Kabul, Kunduz, and Mazar-e-Sharif); Balkh (host province for Mazar-e-Sharif), Kabul, Kandahar (host province for Kandahar city), and Ghazni (on the southern border of the Hazarajat. Reduced civilian casualty rates were recorded, however, in the provinces of Uruzgan (on the main transportation route to Kandahar), Parwan (on the other

   main transportation route to Kabul), Herat (host province for Herat city), and Sari Pul (on the northwestern border of the Hazarajat).

   3.12Hazaras living in Kabul participate in a wide variety of economic roles. Because of their traditional focus on education, Hazaras tend to be relatively well qualified for roles in government and the international community. However, Hazaras tend to be under-represented in senior government positions. This is largely due to the importance of familial, ethnic and tribal connections in Afghanistan - those making hiring decisions for both government and private sector positions commonly place more importance on such connections than on merit. Because Hazaras have traditionally had a low social status in Afghanistan they are less likely than members of other ethnicities (Pashtuns in particular) to be in positions whereby they are able to positively discriminate in favour of other Hazaras (outside of the Hazarajat).

   3.13People from all ethnicities regularly travel to find employment opportunities, including leaving Afghanistan: many Hazara have travelled to Iran in search of work. DFAT does not have any specific information on the economic position of Hazara residing in other parts of Afghanistan, including Herat or Mazar-e-Sharif.

   3.14Most Afghans perceive Hazara to be active supporters of the government, which employs large numbers of Hazara (albeit at junior levels). This is particularly the case for Hazara women, who anecdotally make up a disproportionate percentage of female recruits in the police and army (notwithstanding the relatively small numbers of women actually serving in these roles). International organisations based in Afghanistan also employ many Hazara. Hazara are more likely to have an international connection than other ethnic groups due to the large Hazara communities residing outside of Afghanistan.

   3.15International observers have reported cases of societal discrimination against Hazara in the form of extortion of money through illegal taxation, forced recruitment and forced labour, physical abuse, and detention. As specific information is not provided in relation to these cases, including the geographic location, DFAT is not able to comment on their veracity. As noted in Race/Nationality, cases of societal discrimination are most likely to occur in areas where the ethnic group concerned is in the minority.

   3.16DFAT assesses that Hazara residing within the Hazarajat (particularly within Bamiyan province) face a lower risk of experiencing conflict-related violence than are those residing in other parts of the country, particularly those residing in Kabul. Those residing in the Hazarajat are also at a lower risk of experiencing societal discrimination in relation to employment opportunities than those residing elsewhere due to their being in the ethnic majority. While Hazara are able to secure employment within government and with the international community, their ability to obtain senior positions within government is limited due to their ethnicity. This represents a moderate risk of societal discrimination. Because Hazara are widely perceived to be supporters of the government, the risk profile described in People associated with the government or international community is applicable to them. Because the overwhelming majority of Hazara are Shi’a (or are widely perceived to be), the risk profile described in Shi’a is applicable to them.’

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[11]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[12]

   [11] s.5AAA Migration Act 1958.

   [12] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [13]    Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

   [14]    The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

5. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.

The applicant’s protection claims

Applicant’s Relevant Grounds

1. The applicant submits that his claims falls within the scope of Article 1A(2) of the  Convention ( or s.5J(1)(a) of the Act) by reason of his ethnicity and religion as a Hazara Shia Muslim. The Tribunal notes that based on the applicants evidence the delegate and the previous Tribunal, differently constituted, previously accepted that the applicant is Hazara. Therefore, based on the delegates and the Tribunals previous findings, the Tribunal accepts that the applicant is a Hazara Shia Muslim as claimed. As such, the Tribunal accepts that his claims fall within Article 1A(2) of the  Convention.

Applicant’s well-founded fear.

1. In Chan v MIEA[15] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[16]

   [15] (1989) 169 CLR 379 at 396.

   [16] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being harmed or being persecuted in the event that he returns to Iraq.

3. However, to hold a ‘well found fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [17]stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

   [17]   Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that: ^[18]

   ‘’Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   [18]    MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. The applicant claims that in the event that he is returned to Afghanistan there is a real chance he will suffer serious harm by the authorities by reason of ethnicity and religion as a Hazara Shia Muslim. Based on the evidence presented to the delegate and the Tribunal as previously constituted, the Tribunal accepts that the applicant has a subjective fear of being harmed in the event he is returned to Afghanistan as claimed.  The Tribunal has considered the relevant country information and accepts that the applicant has a fear of being harmed on an objective basis by reason of his ethnicity and religion.

A past fear of persecution is not sufficient 

1. A past fear may be relevant consideration in determining of an applicant has a well-founded fear of persecution but is not sufficient for the purposes of the Convention. In Rishmawi v MIMA Cooper J expressed the opinion that a past fear as the reason for being outside the former country of nationality or former habitual residence is sufficient.[19] However, this view has not been supported by other authorities. In Savvin v MIMA, Dowsett J suggested that such an approach was inconsistent with the approach adopted by the High Court in Chan v MIEA.[20] His Honour considered that the test was not whether an applicant had the relevant well-founded fear at two different points in time. It was whether the applicant was outside the country of nationality owing to a present, well-founded fear of persecution for a Convention reason; and unable, or owing to such present, well-founded fear, unwilling to avail him or herself of the protection of that country.[21] This approach is applicable to s.5H(1) and to the complementary protection criterion pursuant to s.36(2(aa).

Applicant Iranian claims.

[19] Rishmawi v MIMA (1997) 77 FCR 421 at 430. In some respects it is difficult to reconcile this view with Cooper J’s own reasons for the conclusion that statelessness alone is not sufficient to attract refugee status, particularly his references at 427 to the object of the Convention, that is, “to provide sanctuary for those persons who had a well-founded fear of persecution for a Convention reason and not for any other reason”.

[20] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]-[62], referring to Chan v MIEA (1989) 169 CLR 379.

[21] [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60]. See also Diatlov v MIMA [1999] FCA 468 (Sackville J, 25 October 1999) at [32] and DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) at [134] (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012)). This point was not expressly discussed by the Full Court in MIMA v Savvin (2000) 98 FCR 168, but Dowsett J’s view is consistent with the Full Court’s construction of Article 1A(2).

1. The applicant’s evidence was that while he was born in Afghanistan he and his family moved to Iran when he was young. As a result, he has spent much of his life in Iran rather than Afghanistan. The applicant claimed that as a result of being from Afghanistan he suffered harassment and discrimination in Iran, including at school from both the teachers and the students, being excluded for the Mosque, being attacked and being arrested by police and being forced to clean the police station or work as a labourer.

2. In circumstances were Afghanistan has been found to be the applicant’s country of reference and receiving country for the purposes of his protection claims, his claim of having been harassed and discriminated against in Iran are not relevant for the purposes of his protection application.

3. In the absence of any evidence that a person for Afghanistan can reside in Iran legally and in circumstances where the applicant’s evidence was that he resided in Iran with his family illegally , the Tribunal finds that the applicants claims of harassment and discrimination in Iran are not relevant to his claim as a citizen of Afghanistan.

4. Accordingly, the Tribunal find that there is no real chance the applicant will be seriously harmed by reason of having been harassed and discriminated against in Iran as claimed if he is returned to Afghanistan.

The applicant’s father’s property

1. The applicant claimed that upon his return to Afghanistan he travelled to his father’s village in Bamyan. He claimed that there was a dispute over the ownership of the house his grandfather owned that was occupied by a Pashtun. The applicant claimed that they hit him and beat him, permanently damaging his hearing.

2. The Tribunal previously constituted noted that the applicant’s evidence had altered over time. The applicant stated that his grandfathers had been leased to the Pashtun or the Taliban who were using to grow opium. He claimed that when the Taliban tenants discovered that he was a relative of his grandfather they demanded that he reimburse them the money they had paid his grandfather.  He stated that they claimed that his grandfather had sold the land to [people] who were mafia and then probably went to [Country 3]. The applicant that they had intended to plant opium at the property but had not been allowed by the government. As such, they demanded their money back and beat him.

3. Therefore, in circumstances where the applicant and his family had lived in Iran for considerable time, had not made any prior claim to the house and its alleged that it had been sold to the current occupiers, it appears that there was no further claim to be made by the applicant for the house on behalf of his family.

4. The applicant’s evidence to the Tribunal, as previous constituted was that upon his return to Afghanistan he was that he was not specifically attacked or persecuted. As such it appears that any alleged attack the applicant had suffered as a result of any ‘land dispute’ was only a minor nature as to have been considered persecution by the applicant. In any event, the dispute, if it did occur, appears to have been a private matter and not related to the applicant’s religion or ethnicity as claimed. There was no evidence of the applicant having been pursued by the occupants of the home upon his return to Kabul. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event he returns to Afghanistan by reason of the land dispute.

Applicant as a Hazara Shia Muslim

1. The applicant claimed that he felt scared in Afghanistan as there were many attacks against Hazara Shia. The applicant claimed that he was scared for his safety in Kabul. As a result, having no support he left Kabul for Australia.

2. The Tribunal has considered the county information that reports that since 2016 militants have conducted an ongoing series of major attacks against the Shia targets, including political demonstrations and religious gatherings. In relation to the Hazara population its reported that since the emergence of a campaign of religiously motivated attacks against Shia by militant groups (including the ISKP) in 2016 any sustainability that had previously achieved has been questioned.  The ISKP have claimed responsibility for many attacks against Shia religious sites.[22] The country information[23] reports that in 2017 the scale of Shia attacks increased with religiously motivated attacks against Shia places of worship resulting in 161 deaths and 252 injuries. In 2018 a further 19 attacks occurred resulting gin n 223 deaths and 524 injuries. DFAT reports that Shia face a high risk of being targeted by ISKP and other militant groups for attacks based on their religious affiliations when assembling in large and identifiable groups such attending the Mosque or religious festivals. DFAT[24] assesses that there is an increased for those living in Shia majority or ethnic Hazara neighbourhoods such a Kabul or Herat. Hazara’s previous experience under the Taliban and earlier episodes of discrimination has caused many of the Hazara community to be concerned about the long-term prospects causing many to leave Afghanistan.[25]

   [22] DFAT Report @ p.29

   [23] ibid

   [24] ibid

   [25] DFAT Report @ p.25

3. The Tribunal notes that the applicant has limited education and no qualifications. Therefore, while Hazara participate in a wide range of economic roles, including roles in the government and international community, the opportunities for the applicant in obtaining secures employment is limited. Hazaras are subjected to societal discrimination in the form of money extortion by illegal taxation, forced recruitment and forced labour, physical abuse and detention.[26] In circumstances where the applicant has no education, no qualification and no personal contacts in Afghanistan, the Tribunal finds that there is a real risk that he will be subjected to such societal discrimination resulting in him being the victim of forced labour, physical abuse and/or detention to the extent that he would suffer serious harm by reason that he would be denied the capacity to earn a living and suffer such economic hardship that it would threaten his ability to subsist.  Accordingly, the Tribunal finds that there is a real risk the applicant will suffer serious harm in the event that he is returned to Afghanistan. 

Complementary Protection Criteria

[26] OpCit @ p.26

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

2. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. In particular, the applicant claims that there is a real risk he will suffer significant harm in the event he is returned to Afghanistan by reason that he is a Hazara Shia Muslim.

3. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[27] The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Afghanistan.

   [27] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

4. The applicant made a general claim in relation to the threat he would face as a Hazara Shia Muslim if he returned to Iran. However, based on the reasons detailed above, the Tribunal finds that there is no real risk of the applicant being significantly harmed by reason of his return to Afghanistan as a result of any threat he has received in Iran.  

5. Nevertheless, the Tribunal does accept for the reasons detailed above that there is a real risk that the applicant will suffer significant harm in Afghanistan by reason of him being a Hazara Shia Muslim.

6. At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

7. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk he will suffer significant harm as required by s36(2)(aa).

CONCLUSION

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention) and as a result ss.36(2)(a) of the Act.

2. Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) and is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

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

Jason Pennell

Senior Member