1901950 (Refugee)

1901950 (Refugee) [2019] AATA 3644 (6 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1901950
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Luke Hardy
DATE:6 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2019 at 2:55pm
CATCHWORDS
REFUGEE – protection visa – Afghanistan – race – Hazara – religion – Shi’ite Muslim – no specific claims under Convention grounds – purported death of uncle – hostile neighbour – Taliban movement – personal risk of harm – generalised conflict and criminality – complementary protection claims – anomalies in identity documents – applicant’s nationality – forced into marriage – death threats – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 January 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The [applicant] claims to be a citizen of Afghanistan and long-time resident of Pakistan. He arrived undocumented in Australia by air [in] October 2018. He was taken into Immigration and lodged a protection visa application on 12 December 2018. The delegate refused to grant the visa on 29 January 2019. [The applicant] then sought review by this Tribunal.
[The applicant] appeared before the Tribunal on 1 March 2019. He attended alone. He has received assistance from [legal representation]. The hearing was facilitated by an interpreter in the Dari-English medium.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision which contains a summary of evidence he reportedly gave at the protection visa interview on 9 January 2019.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims regarding nationality
[The applicant], a Shi’ite Hazara, claims he was born in Kandahar, Afghanistan in [year]. He claims he travelled when he was five with his family to Pakistan where he since resided. A taskera ID purportedly obtained from Afghanistan in 2005 states that at the time he was [age] years old, suggesting a [year] birth, but he has claimed that the age indicated in his taskera was inaccurate and placed there to help him start school in Pakistan. Perceived irregularities in the pro forma of the taskera presented to the Department of Home Affairs, along with [the applicant]’s seemingly odd explanations as to why he could not produce records of his schooling in Pakistan, in addition to seemingly misleading information he provided regarding his [social media] account led the delegate to conclude that [the applicant] was trying to conceal that he was a Pakistani national.
Claims in relation to Pakistan
[The applicant] claimed to the Department that he was raised and educated in Quetta where he attended a private school. He described a childhood friendship he had had with another student at his school, a female Sunni Pashtun named [Ms A]. He claimed that he did not keep in contact until, three years after they graduated. [Ms A] telephoned him and asked to meet him outside his house. He said he went outside to meet her, whereupon she said she wanted to go with him to see his Imam to discuss nikah (Muslim marriage), and threatened that if he did not go with her she would tell his family and hers that he had had sex with her. He claimed he went reluctantly with her to the mosque. He claimed the Imam did not object to marrying them as they were both Muslims. He claimed he took [Ms A] home to his parents. He claimed his father treated her like a ghost. He claimed his mother sent them to her friend’s house. He claimed [Ms A]’s family brought police to his family’s house (having somehow suspected that she was with him). He claimed the police took his father away He claimed his mother called him and told him to go to Karachi for a few days. He claimed he told [Ms A] he would send for her after he reached Karachi, but ultimately did not send for her. He claimed his mother arranged for someone to help get him out of Pakistan. He claimed he travelled via [one country] to [a second country] on a “red” passport, nationality unknown to him, which he handed to his accompanying people smuggler in [the second country]. He claimed that he stayed there 18 days and was given a “green” passport which he destroyed before landing in [Australia]. He claims that if he returns to Pakistan [Ms A]’s brothers and father will kill him to restore honour to their family, because Sunni Pashtun women do not, in their eyes, marry Shi’ite Hazara men. I accept that death threats amount to serious harm and therefore to persecution for the purposes of the Act.
In making these claims, [the applicant] appeared to be claiming fear of persecution in Pakistan on the basis of his “race” and “religion”. However, according to him, although he suggested that Shi’ites and Hazaras, separately and together, are harassed and looked down upon by Sunnis and Pahstuns in Pakistan, the causal factor in the serious harm feared is clearly the marriage he purportedly made with [Ms A], which suggested that the main causal factor is not one of the five factors in s.5J(1)(a) of the Act. [The applicant] indicated at the Tribunal hearing that he understood this. He agreed that his claims are complementary protection claims and that the significant harm in this case is “arbitrary deprivation of life”.
Meanwhile, [the applicant] presented further evidence to the Tribunal to support his claim about being born an Afghan national in Kandahar. He maintained in evidence before me that he had no right to reside in Pakistan, had never become a Pakistani national and never can become one.
As already noted, the delegate proceeded from concerns about [the applicant]’s “country of nationality” evidence to the constructive conclusion that he is a Pakistani national. He then proceeded to consider [the applicant]’s factual claims and found them to lack credibility.
Independently, I was struck in the course of the Tribunal hearing by a number of deficiencies in [the applicant]’s evidence about being forced by [Ms A] into marriage and being threatened with murder from her family. [The applicant] told me that when [Ms A] came to his house and asked him to go to see the Imam with her she only said that she wanted to discuss a question with the Imam. He told me she threatened that f he did not go she would disclose to their families that they had had sex (which, he indicated, was a lie). He told me that had [Ms A] mentioned to him that she was interested in the question of marriage he never would have gone with her. I put to him that this claim clashed with evidence he gave to the delegate. In response, he did not resolve the discrepancy, but provided a third version of events in which [Ms A] told him along their way to the mosque that her intention was to get the Imam to marry them.
[The applicant] claims that the Imam agreed to marry him to [Ms A], as he hid his objections throughout. He described to me events that are not consistent with widely reported information as to essential elements in religious marriages at mosques. The BBC provides a useful summary:
The actual Muslim wedding is known as a nikah. It is a simple ceremony, at which the bride does not have to be present so long as she sends two witnesses to the drawn-up agreement. Normally, the ceremony consists of reading from the Qur'an, and the exchange of vows in front of witnesses for both partners. No special religious official is necessary, but often the Imam is present and performs the ceremony. He may give a short sermon.
There are certain things which are basic to all Muslim marriages. Marriages have to be declared publicly. They should never be undertaken in secret…[1]
[1] “Muslim weddings,” BBC, 8 September 2009,
[The applicant], meanwhile, said there were no witnesses at his wedding, which he described as having been conducted in secret with only the Imam and the pair present. He said that he and [Ms A] signed a marriage certificate that was not witnessed. I put to him that this might be a relief to [Ms A]’s family as it would show that they were not in fact married legally or even traditionally at all. He agreed that it might. I asked [the applicant] what had happened to the document he signed and he said he did not know; then he said it was given to [Ms A]. I asked [the applicant] to tell me the date of the wedding and he said he did not remember. I consider it surprising that he cannot recall the day or date he was forced into marriage.
[The applicant] gave inconsistent evidence about his father slapping him on the face after hearing that he had been married to [Ms A]. In one version of events his father hit him having been told by him that they were married and in another he said that his father hit him after having merely guessed that the woman he had just brought into the family home was his new bride.
Since [the applicant] described this as a matter of “honour”, I asked if [Ms A] had been harmed by her family. He said he did not know. I put to him that if her family wanted to restore their honour by harming or even killing her, it would likely have become public knowledge in the community. I put to him that it would be hard to not have heard anything, and he said [Ms A]’s family loves her and would not harm her. I asked if his mother kept him up to date about [Ms A]’s circumstances and he said she did not because “I haven’t talked to her.” However, he also told me he stays in touch with his mother, who recently visited Kandahar in Afghanistan on his behalf to obtain an updated taskera for him (MDR file at f.37).
Claims in relation to Afghanistan
I put to [the applicant] that if he is not a Pakistan national then the only country I need to test his claims against is Afghanistan. I therefore asked him why he cannot reside in Kandahar where he claims he was born, or anywhere in Hazarajat. In response, he said that there is a generally poor law and order situation Afghanistan and that whether he tries to go back to Kandahar or tries to relocate to Hazarajat there is a risk he’ll be caught in crossfire or affected by explosions.
[The applicant] said his uncle who used to live with his family was killed in Kandahar. At first he seemed to suggest that there was some sectarian or political aspect to the killing, saying that the Taliban had killed his uncle, but later said that his uncle had been killed by a neighbour who had been living across the road from him. He implied the neighbour was still at large. Asked the relevance of this, [the applicant] said that if he tries to go back to that house the neighbour who knows his family personally will kill him too. He later said that this would happen if his uncle’s killer and cohorts recognised him, seeming to negate the suggestion that necessarily they would. I put to him that on his evidence his mother, meanwhile, had gone back to Kandahar voluntarily, had done business with authorities there, did not appear to have disguised that she was a Hazara, and had enjoyed freedom of movement to leave for Pakistan again when she chose; no-one had evidently tried to harm her. He said she had to go to help him and that it had been a dangerous trip for her. At the hearing, I acknowledged some independent opinions to the effect that life can be relatively more dangerous for Hazaras in Kandahar.
I observed that Hazaras nevertheless still live and work in many parts of Afghanistan and asked [the applicant] why he could not go back and live in Kandahar or locate to Hazarajat. In reply, he said that whereas his mother would expect him to make money to send back to her, he would be not be able to make much of a living in Afghanistan because he would have to stay home to avoid being hit by explosions.
I put to [the applicant] that although he is a Hazara, and although he claimed to fear harm in Afghanistan, he did not appear to be claiming fear of harm for any of the five reasons cited as refugee criteria in the Migration Act. He was just citing fear of being harmed in the midst of generalised civil disturbance and poor law and order. Meanwhile, the Act says that the Tribunal is not required to make an applicant’s case for him or her (s.5AAA refers). I asked him if he could identify any discriminatory reasons why he might be harmed in Afghanistan and he said that people including gay men get kidnapped in Afghanistan. He then clarified that he is not claiming to be gay.
I put to [the applicant] that refugee protection and complementary protection are not necessarily available to people fleeing generalised violence in their homelands, and again he said that if he goes back to Afghanistan he might be killed by a person who knows him personally, just as his uncle was. I put to him that it might be hard for anyone to know him in such a way in Afghanistan since he left when he was [age], and he then said that the person who might kill him in Afghanistan knows his mother. I reminded him that his mother went voluntarily back to Kandahar and came to no harm there, and he said that everywhere he tries to go he could be killed.
Independent country information
I am aware that Hazaras have been subject to discrimination in Afghanistan and that there have been recent attacks on Shi’a worshippers such as in or near Shi’a mosques in Kabul during the Ashura festival. DFAT has the following to say about state protection of Hazaras in that country:
4.1 The continuing armed insurgency and deteriorating security situation nationwide has challenged the government’s ability to exercise effective control over large parts of the country, particularly outside major urban centres and provincial capitals. As a result, the government lacks the ability to adequately address human rights issues, protect vulnerable groups, and prosecute human rights violators in some areas of the country. In rural areas, many Afghan groups, including Hazaras, maintain their own local militias to protect themselves from criminals and insurgents, in the absence of effective state protection mechanisms.
4.2 The increase in the number and scale of major attacks that have taken place in Kabul since the beginning of 2016 demonstrate the limits of the government’s ability to protect its citizens even in a place where its security infrastructure is strongest. Hazaras, like other Afghans, are vulnerable to the threat posed by indiscriminate methods of attack against specific targets in Kabul. Hazaras are particularly vulnerable to religiously motivated attacks, as demonstrated by the series of attacks carried out against Shi’a in Kabul and other locations in late 2016 and early 2017.[2]
[2] DFAT Country Information Report: Afghanistan, 18 September 2017
With regard to the kidnappings, I note the following:
9.4.1 According to UNAMA, in 2016 there were 350 abduction incidents by AGEs [anti-government elements] involving 1,858 civilians. Of the civilians abducted, 85 were Hazaras (representing 3.1% of the civilians abducted). UNAMA documented a decline in the number of Hazara civilians abducted in 2016 compared to 2015, in which AGEs abducted 224 Hazara civilians. In 2016, UNAMA recorded the abduction of Hazara civilians in Baghlan, Uruzgan, Sari Pul, Daikundi, Maidan Wardak and Ghor provinces. Anti-Government Elements released most Hazara abductees unharmed, while five were killed including three in Sari Pul, one in Ghor, and one in Baghlan. In its 2017 Annual Report, UNAMA continued to record abductions by AGEs, victims of whom included Government workers and their family members, off-duty and former Afghan National Police officers, civilians perceived as opposing Anti-Government Element values, relatives of Afghan national security forces, and civilians deemed spies for the Government. However, unlike its 2016 report, UNAMA did not cite Hazaras as specific targets of abductions during 2017.[3]
[3] “Country Policy and Information Note: Afghanistan: Hazaras”, UK Home Office, August 2018,

I have had regard to the latest DFAT Thematic Report: Hazaras in Afghanistan (18 September 2017):
2.18 International and domestic observers agree that the security situation in the Hazarajat, particularly Bamiyan province, has been considerably better than in most other parts of Afghanistan in recent years. Hazaras comprise the vast majority of the population in most districts in these provinces, which reduces ethnic tension. As Hazaras are visually distinct, non-Hazaras have found it difficult to infiltrate these areas without detection. The mountainous terrain of the Hazarajat also offers a form of natural protection, with few routes for outsiders to traverse these provinces.
2.19 Some areas of the Hazarajat are more secure than others. The southern areas of Daykundi province bordering Uruzgan province tend to be less secure than the rest of Daykundi province as this area forms an unofficial border between majority Hazara and Pashtun communities, increasing localised ethnic violence. There is reportedly a greater Taliban presence in these areas, as is also the case (to a far lesser extent) in the north-eastern areas of Bamiyan province. The US State Department’s 2015 Country Report on Terrorism reported that Ghazni province was one of the most violent provinces in Afghanistan in terms of attacks on defence forces, international forces and civilians.
2.20 In its 2016 Annual Report on the Protection of Civilians in Armed Conflict, UNAMA reported that civilian casualties resulting from the armed conflict in Bamiyan and Daykundi provinces (the ‘central highland region’) increased in 2016 from 2015, although the overall number of fatalities decreased. UNAMA documented 115 civilian casualties (25 deaths and 90 injured) in 2016 compared to 58 civilian casualties (30 deaths and 28 injured) the previous year. UNAMA reported that the increase in civilian casualties in 2016 related to an increase in ground engagements in Daykundi province. By comparison, the south-eastern region (comprising Ghazni, Khost, Paktya and Paktika provinces) recorded 340 deaths and 563 injured in 2016, while the northern region (comprising Balkh, Faryab, Jawzjan, Samangan and Sari Pul provinces) recorded 384 deaths and 978 injured).
2.21 In its Midyear Report for 2017, UNAMA reported that conflict-related casualties continued to remain lower in the central highland provinces in comparison with the rest of the country. Virtually all of the civilian casualties in this region (seven deaths and 14 injured) occurred in Daykundi, and were the result of explosive remnants of war, targeted killings, and ground engagement. Bamiyan experienced just one conflict-related injury, resulting from explosive remnants of war. In comparison, the south-eastern region recorded 177 deaths and 340 injured; while the northern region recorded 137 deaths and 332 injured.
2.22 DFAT assesses that Bamiyan and Daykundi provinces continue to remain safer for Hazaras than most other parts of Afghanistan. Insurgent attacks that occur within these areas tend target government and international interests rather than being ethnically motivated.
Evident recent instability in western Afghanistan has followed civil reactions in various provinces against paying an increased “tax” or “protection money” to local Taliban figures, and some of this has involved disproportional targeting of Hazaras, reportedly due to the ease with which they can be distinguished in society:
The Taliban committed a series of atrocities against the Hazaras from 1996 to 2001. In August 1998, when the movement took control of the city of Mazar-e Sharif, it engaged in a brutal campaign and executed hundreds of Hazara civilians.
The exact trigger for [recent] 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”.[4]
[4] “Afghanistan: the Hazaras are not safe,” The Interpreter, Lowy Institute, 26 November 2018,
Findings in relation to s.36(2)(a)
[The applicant], who claims to be a Shi’ite ethnic Hazara from Afghanistan, and raised in Quetta, Pakistan, where he has no right to reside, asserts that Pakistan’s authorities will not protect him from murder and/or other harm at the hands of the family of a woman he married under duress. He also claims fear of being killed or maimed in the midst of general instability in Afghanistan, should he be removed to that country, and has suggested alternately that the Taliban or a neighbour who killed his uncle will kill him if he goes there.
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]
[5] MIMA v Rajalingam (1999) 93 FCR 220.
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[7] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[8]
[7] 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
[8] Sun v MIBP [2016] FCAFC 52 at [69].
Whereas [the applicant] claims to be an Afghan national, all his claims originally relate to Pakistan where he is not a citizen and claims no right to reside. An easy course through these claims might be to set aside the Pakistan claims and deal only with [the applicant]’s protection prospects in Afghanistan. Part of the problem here is the fact that there are evident anomalies in his Afghanistan identity documents. Since the time of his primary decision, [the applicant] has received from his mother further evidence of Afghan citizenship via his mother. The grid on which all data has been entered in this document looks as though it was originally hand-drawn before the document was printed suggesting a standard of printing less modern than those used in other countries and, according to images accessible via Google[9], some other places in Afghanistan. Meanwhile, the whole subject of Afghan identity documents is evidently quite fraught due to the disruption caused by war and the lack of, or lack of reach by, central authority.[10]
[9] See
[10] Canada: Immigration and Refugee Board of Canada, Afghanistan: Identity documents carried by Afghan citizens; ease or difficulty in obtaining these documents, 1 October 2003, AFG42059.E, available at:
The delegate drew negative inferences from the printing quality and other printed characteristics in documents [the applicant] submitted in support of his Afghan nationality claims. The delegate drew negative inferences from [the applicant]’s failure to provide evidence of his schooling and from his explanations as to why he might be unable to obtain such immaterial from Pakistan. The delegate also suspected that the content of [the applicant]’s [social media] account would, or might, reveal that he is a Pakistani national. Putting all these factors together, most of them amounting to absences of particular evidence rather that actual evidence itself, the delegate constructively concluded that [the applicant] must be a Pakistani national. I do not agree that such a constructive finding is available on the evidence, although I conclude on my own reasoning that [the applicant]’s claims relating to Pakistan are far-fetched and inconsistent, lacking overall credibility.
On the empirical evidence before me, I accept that [the applicant] is an ethnic Hazara. I also accept that he is an Afghan national from Kandahar. I accept that he is a Shi’ite Muslim. I do not accept that he is a Pakistani national. I find that he has no right to return to reside in Pakistan. I am therefore only concerned with his claims in relation to Afghanistan.
That said, [the applicant]’s claims in relation to Afghanistan are vague and generalised. He has provided few facts in relation to the alleged killing of his uncle in Kandahar, and the rest of his claims relate merely to the fear of being injured or killed in the midst of generalised conflict and criminality.
Although [the applicant]’s family is Hazara and Shi’ite, I am not satisfied that any s.5J(1)(a) factor is the essential and significant factor in the death of his uncle. [The applicant] was vague about when the killing might have occurred, and provided no detail about what supposedly happened. Although the Taliban was evidently responsible for the killing of the Kandahar police chief in October 2018, the independent country information before me indicates that this was an attack deliberately targeting the government. The closest [the applicant] came to suggesting motivation in the killing of his uncle, meanwhile, was a reference to the killer having been a hostile neighbour. This description does not appear to sit with the earlier suggestion that the Taliban movement killed his uncle. In any event, I am not satisfied with [the applicant]’s evidence as to possible circumstances in which he might meet a similar fate. When he suggested the killer knows him personally, this proved to be an exaggerated claim, when he acknowledged that he had not lived in Afghanistan since infancy. He then changed the thrust of the claim, saying that the killer knew his mother personally. However, [the applicant]’s mother has evidently entered and moved around in Kandahar on a number of recent occasions without facing harm, and left again in her own time. On the evidence before me, even if I accept that [the applicant]’s uncle was killed at some time in the past in Kandahar, I do not accept that it had anything to do with the Taliban, or with any factor cited in s.5J(1)(a) of the Act. In particular, I am not satisfied that there is a “particular social group” claim here, even if I consider the social group to be the family of which [the applicant]’s uncle is a member, because I am not satisfied on the evidence that [the applicant]’s uncle was harmed for any reason cited in s.5J(1)(a). I give no weight to the purported death of [the applicant]’s uncle in assessing [the applicant]’s refugee claims.
Notwithstanding that [the applicant] is an ethnic Hazara and a Shi’ite Muslim, his overall claims as to why he cannot return to Afghanistan were all about fear of incidental harm in the midst of generalised, violent civil disturbance. Without more, his claims do not involve well founded fear of persecution for a relevant reason.[11]
[11] See Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at 23 ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances’.
When I asked [the applicant] why he could not relocate to the regions known as Hazarajat, taking in Bamiyan and Jaghori, his response once again was simply about a fear of incidental harm in the context of generalised disturbance. Meanwhile, his characterisation of an explosive security situation in Hazarajat did not sit with independent country information. When I asked [the applicant] why it might be unreasonable or impracticable to travel to Hazarajat, he mentioned that kidnappings occur on the roads. When I asked [the applicant] what factor might cause him to be singled out for abduction on the road, he could not identify any applicable to himself. Independent country information cited above indicates that abductions generally, and abductions of Hazaras in particular, have declined dramatically in Afghanistan in recent years, such that leaves me not satisfied that [the applicant] faces a real chance of such treatment. Ultimately, [the applicant] did not provide satisfactory evidence as to why he could not safely and reasonably relocate to Hazarajat should he wish not to reside in Kandahar. He did say that he would not be able to work and therefore subsist, but this was predicated on not being able to outside of his house due to explosions everywhere, an unsupported claim that I dismiss for lacking basis in fact. I am satisfied that [the applicant] could reasonably and practicably relocate to Hazarajat.
I am not satisfied that [the applicant] faces a real chance of being persecuted in Afghanistan due to his being an Afghan national, and/or member of the Afghan minorities identified above, who has lived most of his life outside of Afghanistan in Pakistan and, albeit briefly so far, here in Australia.
On the evidence overall, I am not satisfied that [the applicant] faces a real chance of being persecuted for any reason cited in s.5J(1)(a) of the Act in Afghanistan in the reasonably foreseeable future. His claimed fear of persecution is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are 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.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. 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 (ref. MIAC v SZQRB [2013] FCAFC 33).
"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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
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.
Accepting that [the applicant] is a citizen of Afghanistan, I find that Afghanistan is the “receiving country” in this case. The harm he identifies includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”.
Regarding [the applicant]’s claims about being killed due to his familial link to his uncle, I am not satisfied on the evidence before me that I have substantial grounds for believing that, as a necessary and foreseeable consequence of t being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.
As articulated, [the applicant]’s claims regarding to his status as a Shi’ite and a Hazara, all relate to risks faced by the population generally and not to risks faced by him personally. Accordingly, those claims do not give me substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.
Whilst I accept that there is some discrimination against Hazaras and Shi’ites, separately and cumulatively, in Afghanistan, I find that it would be reasonable for [the applicant] to relocate to Hazarajat which, on the evidence before me, is an area of Afghanistan where there would not be a real risk that he will suffer significant harm.

I am not satisfied that [the applicant]’s situation as an Afghan national, or member of the Afghan minorities identified above, who has lived most of his life outside of Afghanistan in Pakistan and, albeit briefly so far, here in Australia, gives me substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.
[The applicant]’s substantive claims in relation to Pakistan are, as already found, lacking in credibility and, in any event, irrelevant.
Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 3644

6 March 2019

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