1821283 (Refugee)

[2019] AATA 1102

1821283 (Refugee) [2019] AATA 1102 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821283

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Luke Hardy

DATE:21 May 2019

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.

Statement made on 21 May 2019 at 11:25am

CATCHWORDS

REFUGEE – Protection visa – Afghanistan – Shi’a Muslim– member of minority Shi’a Hazara community – fears persecution – relocation unpractical and unreasonable – fragility of state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 36, 65, 425, 499

Migration Regulations 1994, Schedule 2

CASES

MIMA v Prathapan (1998) 86 FCR 95
MIMA v Thiyagarajah (1998) 80 FCR 543
MIMA v Respondents S152/2003 (2004) 222 CLR 1
NAGV & NAGW v MIMIA (2005) 222 CLR 161

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, Mr [A], claims to be a citizen of Afghanistan. He claims to have been born and raised [in] Jaghori district in Afghanistan’s Ghazni province, also generally described as the country’s Hazarajat region. He claims he moved to Kabul where he learned English for two years before being employed as an [Occupation 1] for a company that he said was involved in services to the US military. He claims he was once kidnapped by the Taliban but managed to escape. All officials who have interviewed him in the past ultimately found themselves sceptical about the kidnapping account.

3. He arrived in Australia by boat [in] August 2012. He underwent an entry interview on 10 October 2012. He lodged a protection visa application on 31 December 2012. He was interviewed for the purposes of identification by an officer of the former Immigration Department on 25 July 2013. Over a period, he presented somewhat inconsistent identity documents, all purportedly from Afghanistan. He was interviewed by a delegate of the Minister on 8 October 2013. The delegate refused to grant the visa on 11 June 2014. The delegate found that he could not rely on Mr [A] as a credible witness in the present matter, largely due to a perception of his English being too good considering the short time he said he had been learning it, and due to issues relating the differing names in his Afghan ID material, issued on different occasions over time. The delegate accepted that Mr [A] was fluent in Hazaragi and looked like a Hazara but, although he accepted for the purpose of the decision that he was an Afghan national, he opined that he was from Pakistan or Iran.

4. Mr [A] sought review by the former Refugee Review Tribunal on 18 June 2014. The Tribunal has since merged into the AAT. The previously-constituted Tribunal re-examined Mr [A]’s nationality claims in close detail and made a more confident finding to the effect that he was an Afghan national. However, the previously-constituted Tribunal found that Mr [A] could relocate to Kabul, his last point of exit from Afghanistan, where his family still remained. The previously-constituted Tribunal did not believe that the firm for which Mr [A] claimed to have worked was remotely as significant as claimed. Upon review, the previously-constituted Tribunal affirmed the delegate’s decision on 20 August 2015.

5. Mr [A] appealed the previously-constituted Tribunal’s decision in the Federal Circuit Court on a number of grounds. In relation to the first of these, the Court found that the previously-constituted Tribunal failed in its s.425 obligations by failing to contact his former employer in circumstances when it was invited and given information enabling it to do so, an “obvious enquiry about a critical fact” before making conclusions as to the nature and significance of Mr [A]’s work with that firm. The appeal to the Court had four other grounds that were not made out and need not concern us here given that two of them relate to an invalid non-disclosure certificate and given my overall finding in this case.

6. The matter was remitted to the Tribunal for reconsideration according to the law on 11 July 2018. It was constituted to me, the presently-constituted Tribunal, on 1 March 2019.

7. Mr [A] appeared before the Tribunal in Melbourne on 20 May 2019 to give evidence and present arguments. He was accompanied by his advisor, a registered migration agent.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi-English medium.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

9. The main issue in this case is whether Mr [A], on agreed facts, is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.

10. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

    Evidence before the presently-constituted Tribunal

11. Mr [A] presented to me as a person fluent in Hazaragi, the language of Afghanistan’s Hazara minority, spoken by Hazaras in that country and also in countries of refuge such as Pakistan and Iran. His eyes and complexion struck me, from experience, as being highly consistent with those of Hazaras generally. Considering these factors cumulatively, I accept that he is an ethnic Hazara.

12. Mr [A] identifies as a Shi’a Muslim and there is no reason to suspect that he is not. Taking into account the cumulative factors above, I accept that he is a Shi’a Muslim.

13. I understand the difficulty past interviewers and decision-makers have had in dealing with the evidence regarding Mr [A]’s name and nationality. The delegate considered cumulatively the issues of Mr [A]’s various IDs, some gaps in his recollection of geographical details and his seemingly incongruous ability in English, given how little he said it had taken to learn it. As noted, the previously-constituted Tribunal undertook a thorough examination of the evidence and could find no good reason for finding other than that Mr [A] is an Afghan national. On the evidence before me, I accept that Mr [A] is a national of Afghanistan and therefore a member of an ethnic and religious minority that has faced discrimination and persecution at least in the past.

14. As noted, the previously-constituted Tribunal made findings based on what appeared at the time to have been a change in circumstances for Shi’a Hazaras in Afghanistan. The previously-constituted Tribunal also had concerns, eventually overriding ones, about the credibility of some of Mr [A]’s specific claims, particularly relating his past experiences and past employment. The previously-constituted Tribunal also found that Mr [A] could reside and work in Kabul with his mother and siblings if it remained dangerous for him to travel to his home province of Jaghori.

15. I asked Mr [A] to describe the current circumstances of his family in Kabul. He said his widowed mother and [brothers] all live together in the Dash-e-Barchi neighbourhood of Kabul, which is a predominantly Hazara area in west Kabul. He said his mother stays at home, renting out two rooms to make some income, the rest of which she receives in remittances that he sends to her, now that he is permitted to work here. He said his [brothers] attend [school]. He said one of his two sisters lives with her husband elsewhere in Kabul, the other married and settled [overseas]. 

16. Mr [A] said that his brother was only about five minutes’ walk from a mosque that was bomber during Ramadan in 2017 or 2018. He said he was not sure for the moment which year it had been. His information about the occasion and location of the bomb suggest to me that he was talking about an incident involving a suicide bomber at al-Zahra Shi’a mosque in western Kabul during Ramadan on 15 June 2017.[1] The attack reportedly killed at least four people.

    [1] “Suicide bomber strikes at Shia mosque in western Kabul,” The Guardian, 15 June 2017,

17. Whereas Mr [A] appeared to concede or acknowledge to the previously-constituted Tribunal back in 2015 that it was not enough simply to be a Shi’a Hazara for one to face a real chance of being persecuted in Kabul, the issue is one that needs reasonably to be reviewed over time. It is now four years later and it is important to consider more recent evidence regarding the current and potential circumstances for Hazaras there. Mr [A] suggests, as noted above, that attacks on Hazara gathering places in Kabul has continued and that roads to Jaghori remain dangerously vulnerable to attacks by the Taliban and Islamic State (IS) militants.

18. I have had regard to recently-published information from a range of independent sources.

19. Aljazeera[2] reported in February 2019 that at least 20 people were killed and some 70 were wounded in a suicide bombing on 5 September 2018 at a wrestling club in Mr [A]’s own neighbourhood, Dash-e-Barchi. IS claimed responsibility. The same source refers to a bombing at an education centre in the same area during the previous month, killing dozens. I note that Dash-e-Barchi is described as a relatively poor district, which would appear to suggest that it does not attract and probably cannot afford a high level of state protection.[3] The concentration of Hazaras in that area also suggests that mobility to safer areas is not generally open to them socially or economically; they also need to live near their mosques which, being Shi’a mosques, apparently do not get to be built in predominantly Sunni neighbourhoods.   

    [2] “Afghanistan's persecuted Hazaras have little hope in peace talks,” Aljazeera, 26 February 2019,

    [3] “'Goodbye, Dad': Father Remembers Afghan Twins Killed In Kabul Bombing,” Radio Free Europe – Radio Liberty, 17 August 2018,

20. The August 2018 attack appears to have been the incident of 16 August 2018 in which a suicide bomb killed 48 persons and wounded 67 others in a college in a Hazara neighbourhood in Kabul. This was reported by NBC News which drew attention to IS having claimed responsibility and to IS regarding Hazara Shi’a Muslims as apostates.[4]

    [4] “Afghanistan bombing: Attack kills 48 Hazara college hopefuls in Kabul,” NBC News, 16 August 2018,

21. The New York Times recently reported that Hazaras in Afghanistan, who have suffered “persistent” attacks by the Taliban and IS, fear the outcome of a current round of peace talks between the US military and the Taliban, citing

    hundreds of Hazara families [who] were driven from their homes during Taliban offensives last fall against government forces and Hazara militias in the provinces of Uruzgan and Ghazni, part of a traditional Hazara homeland known as Hazarajat.

22. The same source goes on to report:

    Hadi Noorzad, a Hazara from the Jaghori district in Ghazni, said he and his neighbors fled a Taliban assault in November that he said killed 50 people, including his 22-year-old cousin. Many families returned after government security forces retook the area, Mr. Noorzad said, but they still live in fear.

    “The Taliban believe Hazaras are not Muslims and so it is fine to kill Hazaras,” he said.

    Over the past three years, hundreds of Hazaras have died in suicide bombings, most of them claimed by the Islamic State. Among the deadliest was a double suicide bombing during a Hazara protest rally in Kabul in 2016 that killed more than 80 people. Less than a year earlier, Islamic State militants beheaded seven Hazara civilians kidnapped in Zabul Province.

    In March 2018, a suicide bomber killed 33 people in a Hazara area of Kabul on Nowruz, a Persian New Year holiday celebrated by Hazaras. In September, an Islamic State suicide bomber killed up to 30 people at a Hazara wrestling club in Kabul. A second bomber killed 26 more, including journalists reporting on the first bombing.

    In the Qala-e-Nazir area of west Kabul this month, six Hazara men in combat fatigues and flak vests, bearing Kalashnikov rifles and ammo pouches, searched visitors to Al Zahra mosque one snowy morning. Another guard was posted on the mosque’s roof, his assault rifle aimed at the street…

    After a mortar attack on a Hazara gathering in Kabul killed 11 people and wounded 95 on March 7, Hazara politicians again accused the government of failing to protect the ethnic minority…[5]

    [5] “They Are Thriving After Years of Persecution but Fear a Taliban Deal,” The New York Times, 27 March 2019,

23. The Lowy Institute recently published quite a detailed analysis of recent developments affecting the safety and security of Hazaras in Afghanistan, citing Taliban attacks in a number of traditionally Hazara districts in Ghazni after initial attacks in the district of Khas Uruzgan which had previously been relatively pacified by Australian security forces.[6]

    … The exact trigger for the renewed attacks remains unclear. One suggestion is that local elders, long harassed into providing “protection money” to the Taliban, finally baulked at what was being demanded. But other factors and deeper forces were almost certainly at play. The assassination on 18 October 2018 of the Kandahar police chief, General Razaq, almost certainly created a heightened disposition on the part of the Taliban to hit other potential targets while the security environment was unstable.

    The attacks work well for forces seeking to demonstrate the inability of the state to perform its central function of protecting its people. And while it is simplistic and misleading to characterise what has happened in these districts as local “ethnic” clashes, there is no doubt that the Taliban, dominated by Sunni Muslims from the Pashtun ethnic group, are likely to prefer to target those Afghans who are least “like them”.

    Shiite Hazaras fall squarely into the category of those most vulnerable to attack in this kind of situation. The Hazaras of Khas Uruzgan, Malestan, and Jaghori had long been living on borrowed time ...

    [6] Ibrahimi, N., and  Maley, W., “Afghanistan: the Hazaras are not safe,” The Interpreter, Lowy Institute, 26 November 2018,

24. Mr [A] said at the hearing that, after years of being cut off from day-to-day surviving in Afghanistan, he would be at a disadvantage trying to protect himself in Kabul or anywhere else. He said that he feared the ability of the Taliban to disrupt violently travel on all roads from Kabul to Jaghori in particular and Hazarajat generally.

    Findings in relation to s.36(2)(a) of the Act

25. Mr [A]’s claims relate to “the Convention-related factors of “race”, “religion” and, arguably, “membership of a particular social group”.

26. He fears discriminatory violence and arbitrary killing due to his being a member of Afghanistan’s minority Shi’a Hazara community.

27. As noted, I accept that Mr [A] is a Shi’a Hazara Afghan national originally from Jaghori district and more recently from Kabul where his widowed mother and most of his siblings live in the neighbourhood of Dash-e-Barchi. Concerns raised in the past about the veracity of some of Mr [A]’s claims do not cause me to doubt these particular facts.

28. In other times, issues such as the significance of Mr [A]’s past employment in Afghanistan, his education there and his claimed kidnapping at one stage by the Taliban, have led to negative findings in his case overall. However, as other decision makers have done, I have accepted that Mr [A] is a Hazara Shi’a, and determination of entitlement to a protection visa involves weighing relevant evidence regarding the reasonably foreseeable future in addition to considering facts relating to an applicant’s past experiences.

29. In this case, I give weight to the abundant independent country information from a wide range of sources describing a substantial and significant decline in the safety and security of Afghan Shi’a Hazara in Afghanistan generally and Kabul in particular, as demonstrated by several attacks on places where Hazara Shi’a have gathered, including in Mr [A]’s family district of Dash-e-Barchi. The arbitrary killing has evidently been highly discriminatory and frequently on a large scale. There is no sign that it will abate in the reasonably foreseeable future, and even as some kind of accord between the state and the Taliban is mooted, IS, which is not apparently at the negotiating table, continues to kill with impunity having, as reports suggest, moved its theatre of aggression from Syria and Iraq to other locations.   

30. In my view, the chance of Mr [A] being persecuted in Afghanistan is too great to call a remote chance; I consider it to be real.

31. For reasons given, I am satisfied that it is not safe, practical or reasonable for Mr [A] to relocate to another part of Afghanistan, given, for example, the evident danger affecting travel routes, the attacks on Hazara communities elsewhere and the inability of Hazaras to subsist and engage in their culture in predominantly Sunni areas.

32. Mr [A] said at the hearing that the state cannot guarantee his protection against non-state extremists. On this very issue, Australian courts have made it very clear that states presumably including Afghanistan are not required to guarantee the safety of their citizens from harm caused by non-state persons.[7] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence”.[8]  Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.[9]

    [7] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7,

    [8] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].

    [9] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

33. Nevertheless, the evidence does not support a finding that the level of state protection for Hazaras in Afghanistan is sufficient to be regarded as reasonable; rather, it is obviously quite fragile. I find that the discrimination on the part of the non-state agents of persecution in this case combined with the fragility of state protection, particularly for Hazaras, in Afghanistan means that Mr [A]’s argument is not undone by MIMA v Respondents S152/2003.

34. On the evidence before me, I am satisfied that Mr [A] faces a real chance of being persecuted for a Convention-related reason in Afghanistan in the reasonably foreseeable future. His claimed fear of being persecuted is well founded. He is a refugee.

35. For the reasons given above, I am satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under the Refugee Convention. Therefore he satisfies the criterion set out in s.36(2)(a).

36. In addition, I am satisfied on the evidence before me that Mr [A] does not have a right to enter and reside in any third country such as would bring s.36(3) of the Act into play. I find that Mr [A] is not caught by s.36(3) of the Act.

    DECISION

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

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

1. 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.

2. 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).

3. 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.

4. 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’).

5. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

   
   

MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah

was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.