1905677 (Refugee)

[2022] AATA 744

1905677 (Refugee) [2022] AATA 744 (2 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1905677

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Shahyar Roushan

DATE:2 March 2022

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 02 March 2022 at 2:06pm

CATCHWORDS

REFUFEE – protection visa – Afghanistan – Federal Court of Australia remittal – imputed political opinion – opposition to the Taliban – perceived association with Western forces – race – Hazara – religion – Shia – mental health issues – sectarian violence – security situation – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 46A, 65, 425, 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 (Cth) (the Act).

   Background

2. According to his Protection visa application, the applicant is a national of Afghanistan. He is of Hazara ethnicity and a Shi’a Muslim. He was born in [Town 1], [in District 1], Uruzgan, Afghanistan. Before coming to Australia, he worked as a farmer and shepherd on his family’s farm in Uruzgan, as [two specified roles] for [Employer 1] in Kabul and, for a period of time, as a labourer and [Occupation 1] in Iran.

3. The applicant arrived in Australia [in] July 2012 as an Unauthorised Maritime Arrival (UMA). The Minister lifted the bar under s 46A(1) of the Act to allow applicant to lodge a Protection visa application. The applicant applied for a Protection visa on 7 November 2012 and on 19 May 2014 a delegate of the Minister refused his application.

4. On 2 June 2014, the applicant applied for a review of the delegate’s decision. On 8 June 2016, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.

5. [In] July 2016, the applicant unsuccessfully applied to the Federal Circuit Court of Australia for a judicial review of the first Tribunal’s decision. [In] November 2018, however, the Full Federal Court remitted the matter to the Tribunal by consent to be determined according to the law.

6. The matter was considered by the presently constituted Tribunal (the Tribunal) pursuant to the order of the Court.

   Claims and evidence

   Protection visa application

7. The applicant made the following claims in a Statutory Declaration dated 29 October 2012.

8. He was born in [Town 1], [District 1], Uruzgan Afghanistan in [year]. [Town 1] is a Hazara village with a large Hazara community comprising of [number] houses. His mother, [and specified family members] remain in Uruzgan. His father is deceased. He has one [sibling] who lives in Australia and is an Australian citizen.

9. In Afghanistan, he faced problems due to his religion, faith, and appearance. He travelled to Iran in mid-2007 for four years for work opportunities.

10. His late brother [Brother A] owned and ran a [Service 1] business, which provided [Service 1] to the US and Western forces military. His brother was viewed by the Taliban and insurgents with ‘concern and blame’. On a number of occasions, the applicant was singled out by the Taliban and asked to tell his brother to cease doing this work. His brother dismissed the threats and was killed by the Taliban [in] April 2010 after they launched two missile rockets at his [vehicle], causing an explosion.

11. The applicant was singled out by the Taliban on two separate occasions and received written threats in the three months following his brother’s death. He fled to Pakistan where he remained for six months. He intended to bring his wife and [children] to Pakistan, but the conditions deteriorated, and it was not safe for Hazaras.

12. The situation became unsafe for him in Pakistan, and he decided to flee. He found a smuggler through a friend and paid for his transit through [specified countries]. He paid another smuggler to take him to [Australia].

13. As a Shi’a Hazara. he fears facing harm at the hands of the Taliban, Pashtuns or associated insurgents. The Taliban are also interested in him because of his association with his late brother who was viewed as a supporter of Western forces.

14. If he returns to Afghanistan, he will be killed by the Taliban, Sunni Pashtuns and Lashkar Jhangvi because he is a young Hazara Shi’a Muslim. He will be identified as a Hazara because of his appearance.

15. The local authorities are unable to protect him, and the government is unable to control the Taliban and Sunni Pashtun activities against the Hazaras.

16. There is nowhere safe that he can relocate to within Afghanistan as the whole country is under the control of the Taliban and Pashtun groups.

    The interview

17. The applicant attended an interview with the Department on 11 September 2013. The interview was conducted with the assistance of an interpreter in the Hazaragi and English languages. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.

18. The applicant was invited to a further interview with the Department on 31 March 2014, but he did not attend that interview.

    Post interview submissions

19. On 16 September 2013, the applicant’s then representative, [Representative B], made a submission to the Department in support of the application.

20. [Representative B] submitted that the applicant fled Afghanistan because of his Shi’a Muslim religion, and his brother’s perceived association with the Western forces. The applicant fears harm from the Taliban and from the Pashtun population in general. She referred to numerous pieces of country information published by the UNAMA, Human Rights Watch and online news sites in relation to the security situation in Afghanistan and the persecution of Hazara Shi’as by the predominantly Pashtun Taliban. According to this information, ‘the most intense periods of persecution of Hazaras in recent history occurred when the Taliban was in power’. It was submitted that many areas of Afghanistan, including Uruzgan, are more dangerous than ever for those likely to be targeted by the Taliban and their supporters. The Taliban has regrouped, regained in strength and the situation across the whole of Afghanistan continues to remain fluid, including in Kabul. [Representative B] also referred to extracts from the 2010 Department of Foreign Affairs and Trade (DFAT) Report on Afghanistan, a 2011 report by Amnesty International, an expert opinion by Professor William Maley, and a 2010 report published by the US Department of State, in support of the submission.

21. [Representative B] submitted that the applicant also fears harm from the Taliban due to the perception that as a Hazara, he supports the current government, the ongoing presence of foreign troops in Afghanistan and the involvement of the efforts of the international community to include Afghanistan as a ‘responsible world class citizen’. She referred to the UNHCR Guidelines which indicate that civilians associated with, or perceived as, supporting the Afghan government and the international community are one of the groups most at risk of harm in Afghanistan.

22. In addition, [Representative B] submitted that the Afghan government continues to lack the resources and the will to protect its own citizens. She referred to a report by the International Crisis Group published in 2010 which states that the Afghan National Police is ‘corrupt, brutal and predatory’, and that the Afghan National Security Forces ‘have proven a poor match for the Taliban’.

23. [Representative B] submitted that following the UNHCR Guidelines, it would be unreasonable for the applicant to be expected to relocate elsewhere as he has no family support in Kabul. The submission refers to an extract from a 2010 report by the Norwegian Refugee Council, which provides information on the difficulties faced by IDPs (Internally Displaced People) including ‘landlessness, a lack of shelter, and absence of sufficient job opportunities’ in rural areas.

24. [Representative B] submitted that in the event that the applicant is not found to be a refugee, he is owed complementary protection as he faces torture and cruel, inhuman and/or degrading treatment or punishment.

    The delegate’s decision

25. The delegate held concerns relating to the credibility of the applicant’s claims due to inconsistencies between his written claims and his oral evidence at the Departmental interview. The delegate did not accept the applicant’s claims that his family owned a [Service 1] or any related business, that his brother was killed by the Taliban, or that he had been threatened by the Taliban. Based on the available country information at that time, including the 2014 DFAT Report, the delegate was not satisfied that there is a real chance the applicant will suffer serious harm on account of his race or religion if he were to return to Afghanistan. The delegate also found that the applicant would not be of particular interest to the Taliban or insurgent groups because of his involvement in a business perceived as being supportive of Western or American forces. The delegate did not accept that there is a real chance or a real risk that the applicant will face serious or significant harm in Afghanistan.

    The review application

    The first hearing

26. On 2 June 2014, the applicant applied for a review of the delegate’s decision.

27. The applicant appeared before the first Tribunal and presented oral evidence at a hearing held on 15 October 2015 (the first hearing). Where relevant, the applicant’s oral evidence at that hearing is referred to below.  

28. At the first hearing, the applicant submitted the following documents:

    ·Copy of his Taskera, Australian driver’s licence and documents related to his bridging visa granted on 29 January 2013.

    ·Letter by [Mayor A], Mayor of [Town 2] Council (undated). [Mayor A] stated that he has known the applicant for two and a half years and that the applicant is a valued and respected member of the [Town 2] community.

    First Tribunal’s decision

29. On 8 June 2016, the first Tribunal affirmed the delegate’s decision. The first Tribunal expressed concerns in relation to the applicant’s credibility due to inconsistencies in his evidence regarding his involvement in the [Service 1] business, his brother’s death, the threats he purportedly received from the Taliban, the dates of his residence in Iran and Pakistan, and his employment in Afghanistan and Iran. On the basis of these credibility concerns, the first Tribunal was not satisfied that the applicant has been truthful about his experiences in Afghanistan or that his evidence can be relied upon. The first Tribunal was not satisfied that there is a real chance or a risk the applicant will suffer serious or significant harm if he returns to Afghanistan now or in the reasonably foreseeable future as a result of any involvement in a [Service 1] business with his brother or for any related reasons.

30. The first Tribunal, nevertheless, found that there is a real chance that the applicant will face serious harm for the reason of his race and/or religion if he were to return to Afghanistan and travel to his home area due to the heightened risk of being kidnapped by insurgents whilst travelling on roads. However, the first Tribunal also found that the applicant would be able to reasonably relocate to Kabul to avoid this harm. Accordingly, it found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act and that he is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Judicial review

31. [In] March 2019, the Full Federal Court remitted the matter to the Tribunal by consent after the Minister conceded that the first Tribunal erred in failing to consider a claim or integer of the appellant’s claims as to why he could not reasonably relocate to Kabul for the purposes of considering his complementary protection claim and thereby failed to consider a mandatory relevant consideration on the review.

    The second hearing

32. Following the remittal of the matter, the Tribunal wrote to the applicant on 11 June 2021 and invited him to appear before the Tribunal in person on 28 July 2021 at 10:00 am.

33. On 19 July 2021, the Tribunal again wrote to the applicant to inform him that, in light of NSW government stay-at-home restrictions covering Greater Sydney, Wollongong, Central Coast, Blue Mountains and Shellharbour, the Administrative Appeals Tribunal (AAT) will be closed to the general public until further notice and that the hearing, which was scheduled to occur in-person at the AAT Sydney Registry will be rescheduled. The applicant was advised that he will be notified as soon as a new hearing date is available.

34. On 23 July 2021, [Representative A] [of agency], provided to the Tribunal a copy of an Appointment of Representative form, signed by the applicant on 19 June 2021. In her covering email, [Representative A] confirmed that she had received instructions to represent the applicant with respect to this matter and that she had been informed by him that his hearing on 28 July 2021 ‘has been vacated.’ [Representative A] also advised the Tribunal of her unavailable dates between August and November 2021.

35. On 26 October 2021, a Tribunal officer contacted [Representative A] to enquire whether the applicant would meet the Tribunal’s COVID-19 safety related requirements for an in-person hearing. [Representative A] undertook to contact the applicant in order to obtain the relevant information.

36. On 1 November 2021, a Tribunal officer again contacted [Representative A] in relation to the information requested on 26 October 2021. [Representative A] confirmed that the applicant can satisfy the Tribunal’s COVID-19 safety-related requirements for an in-person hearing.

37. On 2 November 2021, the applicant was invited under s 425 of the Act to appear before the Tribunal on 1 December 2021 at 10:00 am. The invitation stated that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. On the same date, the applicant was sent a COVID-19 declaration form for visitors to the AAT. The Tribunal also sent the applicant’s representative SMS reminders about the hearing on 24 November 2021 and 30 November 2021. The SMS reminders stated:

    Your AAT hearing is on 01/12/21. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately…

38. The applicant did not appear before the Tribunal on the day and at the scheduled time and place and the Tribunal received no further communication or correspondence from the applicant or his representative. In these circumstances, on 1 December 2021, the Tribunal decided to dismiss the application without further consideration of that application or the information before the Tribunal.

39. On 2 December 2021, the applicant, through [Representative A], applied for reinstatement. In her request for reinstatement, [Representative A] stated that she had failed to inform the applicant of the details of the hearing. She stated: ‘We have been impacted in our AAT preparation by the combined effect on our office systems of coronavirus pandemic lockdowns and ongoing emergency in our client base stemming from Taliban takeover in Afghanistan.’ She further stated: ‘I accept my responsibility in my error and I feel regret. In hindsight, I should have emailed and requested a rescheduling but I have failed to fully acknowledge the extend of the sustained and unprecedented pressure which both myself and my staff have been under.’

40. Having carefully considered the request, the Tribunal considered it appropriate to reinstate the application.

41. The Tribunal invited the applicant to a new hearing (the second hearing) and the applicant appeared before the Tribunal on 21 January 2022 to present oral arguments. The hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. [Representative A] was also in attendance. Where relevant, the applicant’s oral evidence at the second hearing is referred to below. 

    Submissions to the Tribunal

42. On 12 December 2021, a Statutory Declaration declared on 11 December 2021 by the applicant was submitted to the Tribunal, in which the applicant stated that he wishes to rely on the contents of his Statutory Declaration, declared on 29 October 2012 and submitted in support of his Protection visa application with the exception of an ‘embellishment’, which he seeks to correct. The following information was provided in the applicant’s Statutory Declaration of 11 December 2021.

43. He speaks Hazaragi and does not speak English. He is illiterate and he did not receive any education as a child.  

44. He was born in [Town 1], [District 1], Daikundi (or Daykundi, formerly Uruzgan). His Afghan National Identity Document (serial [number]) issued [in] 1990 (Afghan date [specified]) records his age as [age] and through deduction, it places his year of birth as [year]. The document records his father’s name as [Father A], his paternal grandfather’s name as [Grandfather A] and his place of birth as [District 1], Uruzgan.

45. He married his wife, [named], in 1995. He has [number] children, [named]. His family moved from [District 1] to Kabul after he came to Australia. [Child A] is currently in [Country 1] and has been issued with an UNHCR refugee card. In November 2021, following the Taliban’s takeover of Afghanistan on 15 August 2021, his wife, [Child B] and [Child C] fled Kabul and travelled to Iran. His daughter [Child D] remains in Kabul with her husband and daughter.

46. His father had a first wife who passed away prior to marrying his mother, [named], who was his father’s second wife. The applicant’s father died in 1972 when the applicant was [age] years of age. After the applicant’s father died, his mother, remarried [name], his stepfather. He has a number of siblings, including ‘half-brothers’ and ‘half-sisters’. His mother passed away very recently and his half-brother, [Brother A], passed away in or about 2006/2007 from natural causes. With the exception of one half-sister who resides in Melbourne, all other siblings remain in Afghanistan.

47. There was an ‘embellishment’ in relation to his initial claims when he entered [Australian territory]. He told Australian authorities that his brother, [Brother A], was killed by the Taliban when his [Vehicle 1] was destroyed. He was advised by his fellow travellers to [Australia] that if he did not add to the real facts then he could not be sure of obtaining asylum in Australia. He listened to this advice and added fictitious information to his claims stating that there was a [Service 1] business and [Brother A] died when missiles blew up his [Vehicle 1].

48. He was fearful that if he subsequently retracted this false ‘embellishment’, then his application for protection would not succeed. Due to this fear, he did not correct this ‘embellishment’ before the first Tribunal and stated that the first Tribunal was correct in its assessment of his claims regarding his brother. He was not able to provide proper details as the events he stated were not real events.

49. When completing his Protection visa application, due to interpreting issues and the fact that it was emotionally difficult for him to speak about his experiences, details of his employment history were missed and was not canvassed in detail in his supporting Statutory Declaration. In addition, his Statutory Declaration failed to record other important details of his life and other instances of the Taliban impacting his life beyond the reference to the ‘embellishment’ in relation to his brother’s death which his Statutory Declaration mainly focussed on.

1. He had failed to attend the second Departmental interview in relation to his Protection visa due to a misadventure. His interview was first scheduled in Sydney, NSW but was cancelled. The interview was subsequently scheduled in Melbourne. He was working in [a town in regional] NSW at that time. His then representative contacted him without an interpreter a few days before the interview to inform him of the arrangements. As a result, he was unable to attend. 

2. In 2010, when he was driving from Jaghori, Ghazni via [Village 1] to [District 1] in Daikundi Province, he was confronted by the Taliban at the Taliban roadblock in [Village 1]. He had to pass the Taliban roadblock in [Village 1] every time he drove from Jaghori to [District 1]. The Taliban collected ‘road tax’ when stopping vehicles and he was used to the routine of paying. On this particular occasion, he paid the ‘road tax’ however his contribution was considered to be ‘short’. He was then hit with a rifle butt which resulted in his skull being cracked. He was rendered unconscious for three hours and did not see the extent of his blood loss. [Another traveller] had sought help for him by organising [a taxi driver] travelling from Jaghori to [District 1] to come and collect [him]. He regained consciousness when he was being moved into his house and local medics came to his house to clean the wound, stop the bleeding and bandage his head.

3. His wound took three months to heal, and he never had an assessment as to whether or not there was any brain injury from the impact to his brain. The scar on [his head] remains where there is a visible indentation or change from the original curve or the shape of his skull. The wound and scar are clearly [visible]. This injury was a traumatic experience for him and had a serious mental impact for him which made him too fearful of the job being [an Occupation 2] as he felt he could be bashed to death with impunity.  This incident was a significant factor in his decision to flee Afghanistan.

4. He fears if he is deported or forcibly returned to Afghanistan, he will be harmed by the Taliban, Daesh or Anti-Shi’a/Anti-Hazara extremists due to his race, religion and imputed political opinion ‘for having foreign connections and/or living in a Western nation’. Shi’a Hazaras have long faced discrimination in Sunni majority Afghanistan and have been continuously persecuted by the Taliban. In early July 2021, the Taliban fighters massacred nine ethnic Hazara men in the village of Mundarakht, Malistan District after taking control of Afghanistan’s Ghazni Province. The Taliban and other radical groups are known to carry out violence against Hazara people. They target Hazara people, torture them, take them hostage and kill them. He regularly hears news reports on attacks by suicide bombers against Hazara crowds in all parts of Afghanistan. The Taliban target Hazaras in mosques, sports centres, hospitals and education centres. The situation in Afghanistan is extremely dangerous for Shi’a Hazaras following the Taliban seizure of power on 15 August 2021. The security situation in Afghanistan is extremely dangerous now and there is a very high threat of terrorist attacks and there have been many bombings in Kabul. In addition, many Daikundi Hazara farmers have been evicted from their farmlands by the Taliban and become internally displaced people.

5. The applicant also provided the following additional documents:

   ·Two photographs showing [his injury] (included in his Statutory Declaration)

   ·Afghanistan National Identity Document, issued in his name [in] 1990

   ·UNHCR ID card, issued in the name [Child A], born on [date]

   ·Driver licence (Vic) issued to [the applicant’s half-sister]

   ·Copy of a previously submitted letter of support by [Mayor A], Mayor of [Town 2] Council.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

9. 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’).

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

    Analysis, findings and reasons

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

12. In affirming the delegate’s decision, the first Tribunal raised a number of concerns in relation to the applicant’s credibility. These concerns were essentially based on the applicant’s unpersuasive evidence in relation to his claimed involvement in a [Service 1] business with his brother and his brother’s death at the hand of the Taliban, as well as other inconsistencies in his evidence concerning the dates when he lived in Iran and Pakistan and his employment in Afghanistan and Iran.

13. In his Statutory Declaration of 11 December 2021, the applicant acknowledged that he had falsified the claims put forward in relation to the [Service 1] business and the death of his brother. The applicant stated that he had failed to correct this information due to his fear that if he retracted this ‘false embellishment’, his ‘asylum claim would fail’. He also stated that he had not received adequate representation at the time of his appearance before the first Tribunal in order to properly present all of his claims and the relevant details.

14. The Tribunal is unimpressed by the applicant’s significant delay in identifying and correcting the false claims he had put forward in connection with his application for a Protection visa, as well as his application for review. His conduct raises serious concerns as he has effectively challenged the integrity of Australia’s visa-related processes. The Tribunal has considered the explanations provided in relation to this conduct and remains troubled by the applicant’s past persistent attempts to achieve a favourable immigration outcome through false and misleading representations.

15. Despite its concerns in relation to the applicant’s credibility, the applicant has consistently claimed, and the Tribunal accepts, that he was born and resided in [District 1], Daikundi Province. The Tribunal accepts that the applicant has not resided anywhere else in Afghanistan, even for short periods of time. The Tribunal further accepts that he is of Hazara ethnicity and identifies as Shi'a Muslim. The fact that the applicant is a Hazara Shi’a has never been disputed.

16. The recent country information before the Tribunal indicates that the political and security landscape in Afghanistan has been significantly impacted following the Taliban takeover of the country in August 2021.

17. In early September 2021, the Taliban announced the formation of an ‘interim government’, declared once again an ‘Islamic Emirate of Afghanistan’ and appointed ‘mostly Pashtun and chiefly long-serving Taliban commanders’ to key government positions.[1] According to DFAT, the Taliban, who had previously presided over a period of considerable hardship for ethnic and religious minorities, promised an ‘inclusive’ government that would be representative of Afghanistan’s ethnicities and claimed to have fulfilled this by appointing a handful of Uzbeks, Tajiks and ‘a single Hazara’ to mostly technical roles.[2]

    [1] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022.

    [2] Ibid.

18. The Taliban is divided into factions of moderates and hardliners with different aims and expectations of governance. The factional nature of the Taliban, with different sub-groups within the organisation are competing for influence and control. The group also appears to be struggling to regulate the actions of tens of thousands of foot soldiers, which means that ‘behaviour on the ground, including violence towards at-risk groups, may be inconsistent with proclamations from the central Taliban authorities, or may reflect local grievances.’[3]

    [3] Ibid.

19. DFAT has assessed that whilst Afghanistan’s security situation remains volatile, the country as a whole is relatively ‘less dangerous’, due to the cessation of most armed conflict after the Taliban takeover in August 2021. Nevertheless, DFAT has also noted that Afghanistan ‘remains a dangerous country with ongoing threats of terrorism and kidnapping and other forms of violence.’[4]

    [4] Ibid.

20. The European Asylum Seekers Office (EASO) has also confirmed that the situation in Afghanistan remains volatile, rendering any conclusive assessment of international protection needs particularly difficult.[5] EASO highlighted the following elements:

    ·Due to the short time since the Taliban takeover, information is in general limited and/or conflicting.  Limitations with regard to reliable reporting should also be taken into account, as under-reporting from Afghanistan or certain parts of the country is likely.

    ·While the future behaviour of the Taliban lacks certain predictability, profiles targeted by the Taliban may be at an increased risk, taking into account this actor’s increased capabilities and territorial control.

    ·While the frequency of security incidents and the number of civilian casualties have generally decreased since the Taliban takeover, the future risk of indiscriminate violence in any part of the country should be assessed with caution and based on the most recent information concerning the dynamics in the particular area as well as the country as a whole.[6]

    [5] EASO, Country Guidance: Afghanistan Common analysis and guidance note, November 2021,

    [6] Ibid.

21. In February 2022, the UK Home Office reported that the Taliban generally maintains control of all areas of the country and that ‘the levels of indiscriminate violence arising out of conflict have significantly diminished in all areas of the country.’[7] The same report, however, also referred to a briefing to the UN Security Council on 26 January 2022 by the Secretary-General’s Special Representative for Afghanistan, Ms Deborah Lyons, stating: ‘Since my previous briefing it appears that the de facto authorities have attempted to constrain the Islamic State’s ability to carry out major attacks, and yet small-scale attacks are still being carried out, particularly against religious minorities.’[8]

    [7] UK Home Office, Country Policy and Information Note - Afghanistan: Security situation, February 2022, AFG CPIN Security situation (publishing.service.gov.uk)

    [8] Ibid.

22. The recent sources consulted by the Tribunal suggest that the Islamic State in Khorasan Province (ISKP) is a significant contributor to the volatility and incidents of violence in Afghanistan. ISKP is the Afghanistan offshoot of Daesh and is strongly opposed to Shi’a Muslims and the West. The group has been responsible for multiple mass-casualty terrorist attacks since the Taliban takeover. According to DFAT,

    ISKP carried out dozens of terrorist attacks in 2020 and 2021 against the erstwhile Afghan national government and also the Taliban. Terrorist attacks remain possible anywhere in the country, but major attacks are most likely in key cities given the increased profile ISKP gets from such attacks...

    ISKP grew in strength in 2021, including through recruitment of disaffected Taliban members, as well as fighters released from prisons…ISKP has claimed responsibility for the bombing at Kabul’s Hamid Kharzai airport on 26 August 2021; the suicide bomb attack on a Shi’a mosque in Kunduz province on 8 October 2021, which killed more than 70 people, chiefly Hazaras; and another suicide bombing of a Shi’a mosque in Kandahar province, the Taliban’s ‘home’ province, which killed 63 people on 15 October 2021, as well as the hospital bombing in Kabul on 2 November 2021 which killed 25. ISKP has also reportedly been responsible for dozens of smaller attacks since August 2021.[9]

    [9] DFAT, n1, above.

23. There are credible reports of continued high levels of sectarian-motivated violence against the Shi’a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. EASO has reported that attacks by insurgent groups have mainly been attributed to ISKP, who consider Hazara/Shi’a as heretical and legitimate targets. The ISKP also targets the Hazara due to their perceived closeness and support for Iran and the fight against the Islamic State in Syria. Attacks on the Hazara/Shi’a minority population have targeted places of gathering, such as mosques, religious commemorations, weddings and other sites, including hospitals in Hazara-dominated neighbourhoods in large cities, including Kabul and Herat, where the Shi’a community has been disproportionately represented among civilian casualties.[10]

    [10] EASO, n5, above.

24. Similarly, the UK Home Office has reported an increase in attacks by ISKP targeting civilians, particularly Shi’a Hazaras, since the Taliban takeover. These attacks appear to have occurred mostly in northern and southern provinces as well as in Kabul City.[11]

    [11] UK Home Office, n7, above.

25. There are also reports of Hazara civilians being abducted or killed while travelling along the roads by other armed groups such as the Taliban. However, other reasons for targeting these individuals may also be identified, such as non-political communal disputes or the individual being a member of Afghan National Security Forces or having a job in the government or the NGO sector.[12]

    [12] Ibid.

26. In its most recent Thematic Report in relation to Afghanistan, DFAT referred to statements by the Taliban, ‘indicating possible support’ for the Hazara victims of ISKP violence. However, the Report also stated:

    While the Taliban may be attempting to disrupt ISKP and prevent its attacks on Hazaras, this, along with the Taliban’s professed amnesty, does not indicate that it has put aside its historical antipathy towards Hazaras. Since its takeover in August 2021, the Taliban has summarily executed Hazaras who were former members of the security forces... Furthermore, hundreds of Hazara families have been forcibly evicted from their homes in central Afghanistan. The Taliban claims these evictions are ‘property disputes,’ but NGOs have described them as a form of ethnic cleansing (although one source suggests these evictions may be the result of local score-settling, rather than ethnically-based).[13]

    [13] DFAT, n1, above.

27. DFAT has assessed that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. DFAT has also assessed that Shi’as face a high risk of being targeted by ISKP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, and that this risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.[14]

    [14] Ibid.

28. The Tribunal has accepted that the applicant is a Hazara and Shi’a. The Tribunal further accepts that the applicant will continue to identify and associate with the Hazara Shi'a community should he return to Afghanistan.

29. Having carefully considered the evidence before it, the Tribunal finds that, if the applicant were to return to Afghanistan, there is a real chance that he will face threats to his life or liberty, significant physical harassment and/or significant physical ill-treatment. The Tribunal is satisfied that such treatment amounts to persecution. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his race and religion. The Tribunal finds that effective state protection against the harm the applicant fears is not available to him. The Tribunal is not satisfied that the applicant would be able to avoid the harm he fears by internally relocating within Afghanistan.

30. 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).

31. As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided, the Tribunal does not consider it necessary to assess other protection claims arising from his evidence.

    DECISION

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

    Shahyar Roushan
    Senior Member