1824261 (Refugee)

[2019] AATA 6285

1824261 (Refugee) [2019] AATA 6285 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1824261

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Shahyar Roushan

DATE:29 July 2019

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 29 July 2019 at 11:19am

CATCHWORDS

REFUGEE – protection visa – Afghanistan – Federal Circuit Court Remittal – religion – Shi’a Muslim – race – Hazara – imputed political opinion – supporter of the West – particular social group – failed asylum seeker – credibility issues – previously given false information – family and tribal community essential in offering support – not reasonable for the applicant to relocate – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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).

   Background, Claims and Evidence

2. The applicant is a [age]-year-old national of Afghanistan. He is a Shi’a Muslim and of Hazara ethnicity. The applicant arrived in Australia as an irregular maritime arrival [in] July 2012. He lodged an application for a protection visa on 27 November 2012.

3. In a statutory declaration, provided in support of his application, the applicant made the following claims.

4. He is a Hazara Shi’a who was born in Kabul in [year]. He lived his entire life in Kabul until he left for Australia in 2012. As a Hazara and Shi'a, he was discriminated against on a daily basis. He stopped going to school because every day on the way there he was sworn at by Pashtuns. He stopped going to school after grade two and stayed at home with his parents. In about 2000, he went to work in his father’s [Business 1]. They did not earn much but it was enough to survive. They rented a shop from a Hazara owner and were forced to pay higher rent than others in the market. The shop was not very profitable and they had to close it.

5. The applicant and his father decided to open [Business 2] in [Neighbourhood 1], Kabul. In May 2012 the applicant came back from an English class and saw three tall, bearded men in [Business 2]. After they left, his father was very sad but did not tell the applicant what was wrong. The next day he returned from class and again saw the three men leaving [Business 2]. His father was upset and told him that the men wanted to rent [Business 2's empty premises] across the road. [Business 2] was very close to both Zone 3 and the Parliament. His father said the Taliban had rented [premises] from another [business] a few months earlier and used it as a base to attack an important site. The three men had given his father three days to give them the [premises]. They said they were watching the applicant and his father and that his father should not go to the police.

6. On the third day the applicant’s father went to [Business 2] to collect a few belongings and he told the applicant to stay at home. His father did not return home. In the afternoon his mother went to the [business] to look for him and neighbours told her they had seen his father being forced into a vehicle. The neighbours did not tell his mother who these men were but he knew that they were the same people that were threatening his father. His family waited for [number] days, but his father never returned. They were frightened to go out and search for him in case the Taliban also kidnapped them. He was very frightened that the Taliban would also come for him because they had seen him working in [Business 2]. His mother made the arrangements for him to leave Afghanistan.

   The interview

7. The applicant attended a Departmental interview on 21 June 2013 and essentially reiterated the claims made in his application for a protection visa. Where relevant, the applicant’s evidence at the interview is referred to below.

   The delegate’s decision

8. The delegate refused to grant the visas on 21 March 2014. The delegate essentially accepted the claims put forward by the applicant to the Department of Immigration and Border Protection (the Department). However, relying on the country information before her at that time, she was not satisfied that the applicant would be targeted by the Taliban due to his father’s kidnapping. The delegate was also not satisfied that the applicant will face a real chance of serious harm or a real risk of significant harm as a Shi'a’, Hazara and/or a failed asylum seeker if he were to return to Afghanistan and reside in Kabul.

   Review Application

9. On 28 March 2014, the applicant applied for a review of the delegate’s decision.

10. On 31 July 2015, the applicant’s migration agent provided a submission in relation to the facts of the case and the applicable law. Under the cover of the submission the representative provided country information and a statutory declaration, declared by the applicant on 31 July 2015. In his statutory declaration, the applicant offered the following new information:

    a.The applicant and his brother, [Mr A], were told by friends that if they disclosed their relationship with their brother [Mr B], who was residing in Australia, it would cause problems for the family. They were afraid they would be refused protection visas and returned to Afghanistan.

    b.When [Mr B] arrived in Australia in 2001, he did not disclose the true nature of his family’s composition. [Mr B] was granted a protection visa in 2004. He is now an Australian citizen.

    c.The taskera the applicant had previously submitted was fraudulently obtained and he has not been issued with any other Afghan documentation other than an Afghan driver’s license, which has been destroyed since his arrival in Australia.

    d.His mother passed away in 2011 due to natural causes and he has [number] siblings. [Number] of his sisters reside in Kabul. His brother, [Mr C] and another sister, [Ms D], arrived in Australia by boat along with his father, [Mr E], in May 2013.

    e.In 1991, his family relocated to Ghazni City due to the increased fighting occurring in Kabul. Approximately six months later, they relocated to [another location]. In 1992, they relocated to Mazar-e-Sharif.

    f.In 1998, the family fled to [Pakistan] due to the escalation of conflict in Afghanistan. In [Pakistan], he worked as an [Occupation 1].

    g.In 2000, [Mr A] and [Mr B] also fled to Pakistan.

    h.In 2003, following the defeat of the Taliban, his family returned to Mazar-e-Sharif where the applicant worked in the family’s [Business 1].

    i.In 2009, the family returned to Kabul, where [Mr C] started [Business 2]. The business was located in [Neighbourhood 1]. He worked with [Mr C] in the business on a part time basis.

    j.In May 2012, [Mr C] told him the [business] had to be closed as he had been approached by the Taliban, enquiring about renting an empty property across the road from their office. They threatened to kill [Mr C] and said they will be watching [Mr C] and the applicant when [Mr C] refused to lease the property to them. After this incident, the family kept a low profile and would only leave the house if it was absolutely necessary.

    k.[Mr C] made arrangements with an agent for the applicant to flee Afghanistan. In June 2012, he fled from Afghanistan to Pakistan on a false passport. He then transited through [a country] and [another country] before arriving in [Country 1] in July 2012. [In] July 2012, he departed [Country 1] by boat.

    The first hearing

11. The applicant appeared before a differently constituted Tribunal (the first Tribunal) and presented oral evidence at a hearing held on 3 August 2015 (the first hearing). Where relevant, the applicant’s oral evidence at that hearing is referred to below.

12. On 7 August 2015, the first Tribunal affirmed the delegate’s decision not to grant the applicant protection visas.

13. The applicant appealed the decision to the Federal Circuit Court of Australia and, [in] August 2018, the matter was remitted to the Tribunal to be determined according to law.

14. The matter is now before the presently constituted Tribunal (the Tribunal) pursuant to the order of the Court.

    The second hearing

15. On 5 April 2019, the applicant’s representative, [Ms F], submitted a number of reports and news articles in relation to the situation of Hazaras in Afghanistan, including reports by the United Nations Assistance Mission in Afghanistan; and paper by Professor William Maley, dated 13 November 2018, in relation to the return of Hazaras to Afghanistan. [Ms F] also provided a detailed statutory declaration, declared by the applicant on 4 April 2019.

16. In his statutory declaration the applicant provided the following ‘updated’ information.

    a.He is in a relationship with [Ms G] and they have two young children together, born in [year] and [year]. [Ms G] was previously married to the applicant’s brother, [Mr B]; they divorced [in] June 2018. [Ms G] travelled to Australia after she was sponsored by [Mr B], but because of their complicated history she could not be granted a Permanent Partner visa. [Ms G] applied for a protection visa for herself and the two children on 22 February 2017.

    2. He previously gave false information to immigration authorities because he was told by other immigration detainees that providing true information about his family composition would damage his case and lead to his deportation. He provided truthful information to the first Tribunal because he did not want to continue to present false information to Australian government authorities.
    3. He made false claims about [Business 2] being approached by men whom they feared were Taliban seeking to rent premises to carry out an attack in Kabul, as well as in relation to his father’s abduction. Nevertheless, at that time [Mr C] believed their lives were in danger at the hands of the Taliban after he refused to rent them the premises near [Business 2] and he decided to flee. The applicant did not have direct contact with these men and he does not believe his life is at risk because of this incident.
    4. He is at risk of harm because of his imputed political opinion and because he is a Shi’a Hazara. He believes that he will be perceived as being Westernised, a kafir and against the Taliban.

    e.He would not be safe in Kabul as a Shi’a Hazara and would not be able to safely take part in religious practices without fear of being attacked and killed. There have been many attacks against Shi'a’s in Kabul, including suicide bombings. He cannot live or travel to other areas in Afghanistan because he would be targeted and attacked for being a Shi’a Hazara.

17. The applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments (the second hearing). The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant’s representative, [Ms F], attended the Tribunal hearing. Where relevant, the applicants’ oral evidence to the Tribunal is referred to below.

18. On 13 May 2019, [Ms F] made further detailed submissions and provided additional documents in support of the applicant’s application.

19. In her covering submission, [Ms F] stated that independent country information supports a finding that the major threat to Hazaras in Kabul comes from anti-Shi’a militant groups such as the Taliban and ISIS. If the applicant returned to live in Kabul, sought to re-establish a business, attend mosque and conform to religious norms and expectations, he would face a real chance of being killed by extremists groups. This is because Hazaras are readily identified as Shi’a Muslims and have been targeted by sectarian militants on this basis. The submission referred to nine attacks targeting Hazaras in Kabul, between 23 July 2016 and 7 March 2019, including attacks on mosques and in the area where the applicant previously lived in Kabul.

20. [Ms F] submitted that the applicant has lived in Australia for over seven years and has become ‘Westernised.’ He drinks alcohol, he is publicly affectionate towards his wife and he is raising his children according to Western ‘beliefs.’ If he were to return to Afghanistan, he and his family will stand out in the suburbs of Kabul, as well as other areas of Afghanistan from which they do not originate. [Ms F] referred to the UNHCR guidelines in relation to the risks faced by Afghan returnees from Western countries. [Ms F] stated that there is a real chance the applicant could be imputed with a political opinion as a supporter of the West and an ‘infidel’ for having lived in Australia for a long period of time. He may come to the attention of Taliban informants and he may be physically attacked, kidnapped or killed.

21. In relation to whether the applicant would be able to relocate to Mazar-e-Sharif, it was submitted that, as a Shi’a Hazara, the applicant would face a real chance of harm throughout Afghanistan and would not be safe in Mazar-e-Sharif. [Ms F] referred to Professor Maley’s paper and submitted that no place in Afghanistan can be considered safe for Hazaras. She submitted that the applicant has only ever lived in Mazar-e-Sharif as a child and has no surviving family living there. Road travel will carry risk of harm and he cannot be expected to fund air travel for himself and his family every time he needed to travel to and from Mazar-e-Sharif.

22. [Ms F] further submitted that the applicant would face undue adversity if returned to Afghanistan due to lack of support networks. His [sisters] who previously lived in Kabul have fled with their families and are currently mandated refugees in [Country 1]. Without family or support networks he would struggle to find employment and his family’s capacity to subsist would be severely compromised. The representative referenced 2018 UNHCR Guidelines to support this assertion.

23. Under the cover of her submission, [Ms F] provided a large amount of country information in relation to attacks and violence against Shi’a Hazaras in Kabul, photographs of the applicant together with his family in Australia and a statutory declaration, declared by the applicant on 25 April 2019.

24. In his statutory declaration, the applicant reiterated the claims made in his statutory declarations of 31 July 2015 and 4 April 2019. He also provided the following additional information:

    a.He married his wife, [Ms G], in 2011. The marriage was arranged by their parents. They have known each other for most of their lives as her father is his first cousin. After the arrangement, he and [Ms G] were like an engaged couple. They were able to have limited contact but could not go out together or live together as husband and wife.

    b.A few months later, they had the nikah ceremony in Kabul. [Ms G] was not present, but her consent was given through her witness. They started living together as husband and wife in his family’s house in [Neighbourhood 2 in Kabul].

    c.His family helped [Ms G] to apply for a Partner visa, falsely claiming that she was the wife of his brother, [Mr B], who is an Australian citizen. At that time, she was [pregnant] with their son, [Master H]. It was not safe in Afghanistan and he wanted to help [Ms G] to find safety.

    d.The Department questioned [Ms G] about her son’s father as [Mr B] could not be his father given the date of his birth. [Ms G] told the truth and her Partner visa application was refused.

    e.[Ms G] tried to change [Master H’s] birth certificate with the Registry of Births, Deaths and Marriages. The birth certificate listed the applicant’s brother as the father. As the Registry required proof of paternity, the applicant undertook a DNA test which showed that he was the father of the child.

    f.From [July] 2012 to [October] 2012, he was in immigration detention and could not live with [Ms G]. When he was released, he went to [City 1, Australia] and resumed his marital relationship with [Ms G].

    g.He and [Ms G] now live together with their two children, his father, his brother, [Mr A], and his [sister, Ms D]. He works [in Occupation 2] and [Ms G] stays home and looks after the children. She also cares for his elderly father.

    h.All his immediate family and close relatives are in Australia or have fled Afghanistan. There is no one in his family remaining in Afghanistan who could support him, his wife and children if they return. Without family, shelter, work or support, he and his family would not survive.

    i.He and his family cannot travel safely on the roads and they cannot afford to fly within Afghanistan.

    j.He cannot relocate to Mazar-e Sharif. He has not lived there since he was a child and has no support networks to enable him to find a home or work to support his family there. Mazar-e-Sharif is not safe for Hazaras who are at risk of being targeted by violent groups such as the Taliban and Daesh because of their race and Shi’a religion.

    k.He and his wife have lived in Australia for seven years and have become Westernised. They have adopted the Australian way of life, including raising their children to be open-minded. If he and his family were to return to Afghanistan, they would stand out because of their attitudes and ways of thinking. Religious extremists could attack them, believing they are no longer good Muslims.

25. The applicant provided the following documents in support of his statutory declaration:

    a.Birth certificates for his two children, who were born in Australia. According to the certificates, his son, [Master H], was born on [date] and his daughter, [name deleted], was born on [date].

    b.DNA results dated 12 July 2017, demonstrating that the applicant is the biological father of [Master H].

    c.Bank statements in his and [Ms G’s] names. They have their own separate bank accounts because of the history of their arrival in Australia. He is the sole breadwinner in the family and supports his wife and children, making regular bank transfers to his wife’s account.

    d.Copies of UNHCR Refugee cards demonstrating that the applicant’s sisters, [names deleted], have fled Afghanistan and are residing in [Country 1] as refugees.

    e.Letter by the applicant’s father, [Mr E], confirming that the applicant and [Ms G] got married in Kabul and have been living together in Australia since 2012. He lives with the applicant and his daughter-in-law, who take good care of him. His son, [Mr A], also lives with them as [Mr A’s] wife and daughter live in [Country 1].

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

26. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.

27. 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).

1. 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.

2. 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’).

3. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Analysis, findings and reasons

4. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   The applicant’s relationship with [Ms G]

5. In affirming the delegate’s decision, the first Tribunal raised substantial concerns in relation to the applicant’s credibility. These concerns were based on the presentation of inconsistent claims by the applicant. As set out above, the applicant had raised a number of significant claims in his application for a protection visa. He had reiterated these claims at his Departmental interview held on 21 June 2013. However, in his statutory declaration of 31 July 2015 and at the first hearing the applicant essentially stated that he had provided false information to the Department in connection with his application for a protection visa. He stated that he now wanted to tell the truth.

6. In his statutory declaration of 4 April 2019, the applicant stressed his desire to tell the truth, stating that he had previously given false information to the Department because he was told by others that providing true information would undermine his case. He said he had provided truthful evidence to the first Tribunal because he did not want to continue to present false information to the Australian authorities. The applicant stated:

   …I have no reason to provide false information to the AAT and I rely on the contents of my AAT Declaration as true and correct… I wish I had never given false information to Australian immigration authorities but the only reason I did this was because I was afraid and listened to people around me…

7. Despite these declarations, the applicant’s lack of candour at the second hearing in disclosing information in relation to his personal circumstances, namely the exact nature of his relationship with [Ms G], raised serious concerns in the Tribunal's mind.  The applicant told the Tribunal that he was in a ‘relationship’ with [Ms G], who was previously married to his brother. He said they have two young children and they all live with his father and another brother in the same house. He denied being married to [Ms G] or having entered into a temporary marriage arrangement or sigha under Shi’a rites. The Tribunal put to him that it considered it odd and highly unusual that this arrangement was acceptable to [Ms G], his family and the broader Afghan community. The applicant responded that his relatives think that there has been nikah, but this is not the case. Upon being pressed in relation to his unsatisfactory responses, the applicant continued to present vague and unpersuasive evidence in relation to this matter. In the presence of his representative, the Tribunal warned the applicant that his evidence may lead to adverse findings being drawn and the Tribunal may find that he is not a credible and reliable witness. The Tribunal then adjourned the hearing for a short period of time to allow the applicant to seek advice from his representative.

8. At the resumption of the hearing and after seeking instructions from the applicant, [Ms F] submitted that the applicant and [Ms G] had entered into a religious marriage in Afghanistan sometime in 2011. [Ms F] was unaware if a marriage certificate had been issued but noted the marriage was sanctioned for religious purposes so that they could live together. [Ms G] was subsequently sponsored by the applicant’s brother, [Mr B], and arrived in Australia on a temporary Partner visa. At the time of her departure from Afghanistan, [Ms G] was pregnant. [Ms G] and the applicant’s brother were not in a genuine relationship and the Partner visa application had been made under false pretences. Subsequently, the applicant undertook a DNA test which demonstrated that he is the father of [Ms G’s] [child]. [Ms G] has now applied for a protection visa and this application is under consideration by the Department. [Ms F] submitted that the applicant had not intended to conceal this information.

9. The information provided by [Ms F] was essentially reiterated by the applicant in his statutory declaration of 25 April 2019. The Tribunal has considered this information and the additional supporting evidence provided. The Tribunal is prepared to accept that the applicant and [Ms G] entered into an Islamic marriage in Afghanistan and that they have two children together. Their marriage, however, has not been registered in Australia. This latter fact and the applicant’s initial persistent reluctance to disclose the exact nature of his relationship with [Ms G] may be attributable to an assumption that this information may be somehow detrimental to [Ms G’s] matters currently under active consideration by the Department. Nevertheless, the Tribunal remains unimpressed by the applicant’s overall lack of candour, despite his proclamations prior to the hearing that he wished to be truthful.  

   The applicant’s fears

10. In his evidence to the Tribunal, the applicant indicated that he no longer has any fears arising from his brother [Mr C] refusing to rent the Taliban a property located near his [business]. The applicant’s fears appear to relate to his ethnicity, religion and membership of the particular social group of Afghan returnees.

11. Despite its concerns in relation to the applicant’s credibility, the Tribunal accepts that he is of Hazara ethnicity and a Shi'a Muslim. The Tribunal accepts that he resided with his family in [Neighbourhood 2] area of Kabul from 2009 to 2012. On the basis of the evidence before it, including the applicant’s own assertions, the Tribunal accepts that the applicant considers Kabul as his home area.

12. The country information before the Tribunal suggests that the applicant would be at risk of harm if he were to return to his home area for the reason of his religion and ethnicity.

13. According to DFAT, there has not traditionally been a significant sectarian divide between Sunni and Shi’a in Afghanistan and conflict between communities has instead tended to be along either ethnic or political lines. Between 1 January 2009 and 31 December 2015, the United Nations Assistance Mission in Afghanistan (UNAMA) documented five incidents against Shi’as, with perpetrators and motives behind most incidents not being clearly determined.[1]

    [1] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.

14. In its most recent report on Afghanistan, DFAT reported that, since mid-2016, militants have conducted an ongoing series of major attacks against Shi’a targets, including political demonstrations and religious gatherings. The number and scale of attacks on Shi’as increased throughout 2017. Islamic State in Khorasan Province (ISKP) has claimed responsibility for many of the attacks.[2]

    [2] Ibid.

15. In its 2018 Annual Report on Protection of Civilians in Armed Conflict, UNAMA provided the following information:

    [ISKP] was formally established in January 2015, following the progressive and partial realignment of some dissident factions or fighters from the Taliban, the Islamic Movement of Uzbekistan and the Tehrik-e-Taliban Pakistan. Daesh/ISKP is present in the east of Afghanistan, with an estimated 3,000 fighters currently active, primarily in Nangarhar and Kunar provinces. Its expansion has been constrained by Afghan National Defense and Security Forces/international military forces operations (including airstrikes), local militia mobilization and, separately, Taliban offensives. As its territorial expansion became compromised, Daesh/ISKP has increasingly relied on asymmetric tactics, including suicide and complex attacks deliberately targeting civilians (including most prominently the Shia Hazara community) in Kabul, Herat and Jalalabad cities.[3]

    [3] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2018’, February 2019,

16. In 2017, UNAMA had observed:

    Since its emergence in Afghanistan, ISKP has been responsible for some of the deadliest attacks in the country, refusing to discriminate between Afghan forces, civilians, and other established anti-government forces such as the Taliban. UNAMA in its 2016 report noted that the groups’ primary tactics were suicide attacks and targeted killings, particularly targeting members of the Shia Muslim religious minority.[4]

    [4] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016’, February 2017, ort_2016_final280317.pdf. See also Khan, A, ‘Islamic State Khorasan Province (ISKP) in Afghanistan – An Assessment’, Islamabad Paper, Institute of Strategic Studies, Islamabad,  January 2019

17. In 2018, UNAMA continued to document high levels of sectarian-motivated violence by Daesh/ISKP against the Shi’a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. From 1 January to 31 December 2018, UNAMA documented 19 incidents of sectarian-motivated violence against Shi’a Muslims, resulting in 747 civilian casualties and representing a 34 per cent increase in civilian casualties from such attacks as compared to 2017. UNAMA expressed grave concern about ‘the safety and security of this religious minority population, and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.’[5]

    [5] UNAMA, n3, above.

18. UNAMA also observed that while the majority of sectarian-motivated attacks against Shi’a Muslims in 2017 occurred in places of worship, the majority of attacks against Shi’a Muslims in 2018 occurred in other civilian areas, including in Shi’a Muslim majority or ethnic Hazara neighbourhoods. UNAMA’s report referred to the following examples:

    [In] Kabul city, on the morning of 22 April, a suicide attacker detonated a body-borne IED outside the entrance of a tazkira (national identification card) distribution centre in a Hazara populated area where a large crowd of local residents were gathered to collect their tazkiras as the first step of the voter registration process. As a result, 60 civilians were killed, including 23 women and 11 children, and another 138 were injured, including 65 women and 17 children. Daesh/ISKP claimed responsibility for the attack explicitly citing a sectarian motive. On 15 August, in another egregious incident, in Dasht-i-Barchi, a Shi’a Muslim majority area of Kabul, a suicide attacker detonated explosives inside a classroom of an educational centre. As a result, 40 civilians were killed, including at least 14 females, some of whom may have been under 18, and 67 were injured, including at least five children and 14 women.[6]

    [6] Ibid

19. In relation to Kabul specifically, the report observed that the attacks perpetrated in Kabul mainly targeted civilians, including the civilian Government administration, places of worship, education facilities, election-related sites and other ‘soft’ targets. UNAMA concluded:

    Attacks on Shi’a Muslims infringe their right to freedom of religion, and the wide scope of these attacks beyond places of worship – at education centres, sports clubs, celebratory events and other social gatherings – directly impede their ability to carry out normal lives.[7]

    [7] Ibid

20. In a more recent report in relation to the security situation in Kabul, the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) referred to a number of sources in observing that Kabul is ranked high in the category of districts where the inhabitants are most impacted by the conflict and a continuing pattern of ISKP attacks on soft targets in the western Shi’a/Hazara neighbourhoods of the capital, where the group has attacked schools, mosques and training centres.[8] CGRS referred to numerous incidents in the reporting period where Shi’a Muslims were for example deliberately targeted in the ISKP-claimed attacks in Kabul.

    [8] CGRS, Afghanistan, COI Focus - Security Situation in Kabul City, 15 May 2019,

21. The applicant told the Tribunal at the hearing that he identifies as a Shi’a, but he has not strictly adhered to Shi’a practices in Australia. The Tribunal accepts these claims. The Tribunal further accepts that, as a Hazara Shi’a, the applicant will continue to identify and associate with the Hazara Shi'a community should he return to Kabul. The Tribunal finds that, if the applicant were to return to Kabul, he would likely reside in majority Shi'a/Hazara areas of Kabul, such as [Neighbourhood 2], where he also previously resided. As noted by the sources referred to above, attacks on Shi’as in Kabul have been wide in scope and not confined to places of worship.

22. The Tribunal is mindful of the fact that the security situation in Afghanistan overall is fluid. However, on the basis of the current evidence before it, the Tribunal is of the view that there is a real chance that the applicant would be subjected to serious harm in Kabul as a result of violence perpetrated by anti-Shi’a groups, including ISKP. The Tribunal finds that the serious harm the applicant will be subjected to includes threats to his life and serious physical harm. The Tribunal is satisfied that such treatment would amount to persecution within s.91R(1)(b) of the Act. The Tribunal is satisfied that the essential and significant reasons for the persecution feared are the applicant’s religion and ethnicity. The Tribunal is satisfied that the applicant does not have access to effective state protection against the harm he fears.

    Internal relocation

23. The Tribunal has considered whether it would be reasonable for the applicant to internally relocate within Afghanistan. According to DFAT’s most recent report,

    Traditional extended family and tribal community structures are the main protection and coping mechanism in Afghan society… The continuing armed insurgency and deteriorating security situation has limited the ability of Afghans to travel safely from one part of the country to another by road... Domestic commercial flights offer highly limited routes (almost all of which use Kabul as a hub), are oversubscribed, and are expensive… DFAT assesses that while there are generally options available for internal relocation in Afghanistan, there are considerable security and economic factors that limit the ability of Afghans of all ethnicities to relocate internally safely and successfully.[9]

    [9] DFAT, n1, above.

24. In previous reports, DFAT had reported that extended family and tribal community networks are essential in ‘offering support and livelihood opportunities’ for returnees. Afghans rely on these networks for safety and economic survival, including access to accommodation, employment and an adequate level of subsistence. People without these networks have difficulties as there is no government support.[10]

    [10] DFAT, DFAT Country Information Report Afghanistan’, 18 September 2015, CISEC96CF13366. See also UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, United Nations High Commissioner for Refugees (UNHCR), 19 April 2016, p.9, UN6C8EFBB3.

25. UNHCR has also expressed the view that single, able-bodied men and married couples of working age without ‘identified specific vulnerabilities’ may in ‘some circumstances’ be able to subsist without family and community support in urban and semi-urban areas that have necessary infrastructure and livelihood opportunities to meet the basic necessities of life and are under government control.[11]

    [11] UNHCR, ibid.

26. The Tribunal accepts that the applicant’s father and all of his siblings, including two of his sisters who lived in Kabul until recently, now reside outside of Afghanistan. There is no persuasive evidence before the Tribunal to suggest that the applicant has any other relatives outside of Kabul. He is uneducated and has been working [in Occupation 2] in Australia. The Tribunal has also accepted that he is married to [Ms G] and together they have two young children. In view of the country information referred to above and having regard to the applicant’s individual circumstances, the Tribunal is not satisfied that in this particular case it would be reasonable for the applicant to relocate internally. For the reasons outlined above, the Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason in Afghanistan. As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided, it has deemed it unnecessary to consider other protection claims raised by his evidence, including his fears of harm as an Afghan returnee from a Western country.

27. 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 Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a) of the Act.

    DECISION

28. The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Shahyar Roushan
    Senior Member

    
    
    

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1824261 (Refugee) [2019] AATA 6285

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