1908781 (Refugee)

[2021] AATA 3199

1908781 (Refugee) [2021] AATA 3199 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908781

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Denis Dragovic

DATE:23 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 23 June 2021 at 5:14pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – Federal Circuit Court remittal – ethnicity and religion – Hazara Shia – imputed political opinion – considered to be supporter of Hazara religious/political militia – attacked, detained, interrogated and beaten by members of another militia – country information – imminent withdrawal of US troops – uncertain future security situation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591

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).

2. The applicant who claims to be a citizen of Afghanistan, applied for the visa on 18 December 2012 and the delegate refused to grant the visa on 27 March 2014.

3. A differently constituted Tribunal heard the matter and subsequently affirmed the Department’s decision on 24 June 2015.

4. The matter is before this Tribunal because of a Court order dated 28 March 2019. The reason the Tribunal decision was quashed was because:

   The Tribunal clearly rejected the claim that the applicant faced a real risk of harm from particular unknown men who may have suspected that the applicant was a supporter of Hezb-e-Wadhat.  However, the Tribunal did not deal with the claim that, as a Hazara Shia, other people might consider him to be a supporter of Hezb-e-Wadhat. The Tribunal rejected the claim that the applicant, so many years later, faced any appreciable risk of harm arising from the incident during which he was beaten and shot at.  However, the Tribunal did not address the claim that other people might impute to the applicant a political opinion of support for Hezb-e-Wadhat. 

5. The applicant appeared before the Tribunal on 18 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

6. The applicant was represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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).

9. 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.

10. 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’).

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

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

    Evidence and findings of fact

13. The matter that I turn my mind to first is the applicant’s ethnicity. The applicant claims to be Hazara. To determine whether the applicant is Hazara I began by asking a series of questions delving into the past through to the present. The following is a narration as provided by the applicant of his past.

14. The applicant was born in [Location 1], Kabul Province in [year]. His family is a part of [a named] tribe. As a [age]-year-old child his parents moved to [Location 2], a suburb of Kabul, where he lived for the next [number] years. He explained that [Location 2] is a mixed ethnic area with Tajiks, Pashtuns and a small number of approximately 30 Hazara families.

15. The applicant said that between the period of their move to [Location 2] through to the end of the premiership of President Najibullah when the Mujahadeen stormed Kabul in 1992 he and his family lived a largely peaceful life although there were threats to Hazara. He gave the example of Hezb-i-Islami, (a major insurgent group in Afghanistan) who he claimed would come at night to take people who worked for the government and kill them.

16. The applicant submitted a written statement that included his experience of being targeted:

    Some members of the Etihad-i-Safaat party attacked me and took me as their prisoner. I was taken by the men to a committee office for the Eithad-i-Safaat near an intersection called Qamber. While held at the committee office I was subjected to interrogation and was beaten throughout the time I was held. Based on what was said to me by the men I understood that I had been targeted because I was Hazara and so they believed due to this that I had been supporting the Hezb E Wadhat, The men searched my body during the interrogation as I believed they were looking for documents confirming I was a member of Hezb E Wadhat, like a membership card. The men initially did not believe me when I tried to tell them that I was not a supporter or member of the Hezb e Wadhat and I became very fearful that I was going to be killed during the time I was held. I was kept all day at the office until the men agreed to release me. When I was leaving the office three men who were outside approached me and started to beat me. I ran away and then the men started to shoot at me.

17. I asked the applicant to describe at the hearing what happened to him when he was taken. The applicant’s recollections at the hearing differed slightly from that of his statement. At the hearing he said that he asked to go to the bathroom and then ran away. He said that there was only one guard guarding him at the time and he was some distance away. When he saw that the guard wasn’t looking at him, he decided to run away. I put to him that in his statement he had said that he was released, and three people beat him on the way out as opposed to escaping. He responded that the three people who beat him did so immediately upon being taken. I put to him that he had said that he had been arrested at night while his statement suggested that he was arrested during the day; he clarified that he was arrested during the day, but he ran away at night. These are minor inconsistencies that could arise from the passage of time blurring the memory or alternatively the quality of interpretation at the various stages. As such I accept that the applicant was a victim of kidnapping for the reason of his ethnicity as described generally in both his statement and at the hearing.

18. When the Taliban came to power in Kabul in 1996 the applicant said that it was a terrifying time and he was afraid for his family. At that time, he was living in [Location 3], which was dominated by the Sayyaf Party [this would be a reference to Abdul Rasul Sayyaf and his Islamic Union Party] who he claimed were targeting the Hazara. He said that their intent was to kill Hazara children and families.

19. He said that he decided to leave Afghanistan after about five to six months of Taliban rule in Kabul. He said that at that time the Hazara were followed, many were kidnapped and killed or robbed. He said that he was scared but that he couldn’t leave immediately as he didn’t have the money, which he eventually got from his father-in-law. He chose to flee to Pakistan as no visa was required at the time and the border was open.

20. The applicant provided a copy of his Taskera which he claimed he obtained in 1989.

21. The applicant requested and appeared to work fluently with a Hazaragi interpreter.

22. I asked the applicant whether based upon his appearance he would be considered Hazara. He said that he would be because of his flat nose and smaller eyes.

23. Country information on the physical appearance of Hazara includes:

    The Hazara are distinguished by Mongoloid (Asian) features. These features include broad faces, high and prominent cheekbones, slanted eyes and sparse beards. Most Hazara have black hair while their complexions vary depending upon the area where they live. Hazara living at higher elevation tend to have fairer complexions than Hazara in lower lying areas. There are differences in physical appearance between the various tribes of Hazara. Many Hazara are short due to lack of proper nutrition. European and Irano-Afghan facial features may also be found among the Hazara. As with all ethnic groups in Afghanistan, however, physical appearance alone is not always a conclusive and accurate indicator of an individual’s ethnic identity.[1]

    The applicant’s appearance aligns with that described in the above paragraph.

    [1] ‘Central Asian Cultural Intelligence for Military Operations’ published on Public Intelligence

24. I note that the applicant listed his tribe as one that is known to be a Hazara tribe,[2] his description of the past and in particular references to persecution as a Hazara was convincing. I note that he spoke Hazaragi fluently and his physical appearance aligns with country information for Hazara. For these reasons I accept that the applicant is Hazara and that he is visibly Hazara. I also accept that the applicant is Shia Hazara.

    [2] Program for Culture and Conflict Studies, Naval Postgraduate School with full references >

    The applicant fears returning to Afghanistan because he believes that there is an ongoing genocide against the Hazara. He said that the Hazara are being targeted by three main enemies: the Taliban, Da’esh and the government. He said that the government is a symbolic government. He referenced the recent release of what he claimed to be 6,000 Taliban prisoners who he claimed returned to the front lines to fight. He said that all Hazara are at risk. Many of those who have money are leaving.

25. I asked him if there are provinces that are predominantly Hazara and districts that are only Hazara where Hazaras could go for safety. He said maybe Ghazni. But, he claimed, the fighting is ongoing even there. He notes that when the Taliban attack the Hazara the government is not doing anything. He claimed that government planes are bombarding Hazara areas.

26. I put to him that some say that the Taliban learned from their previous mistakes and are trying to be more inclusive and bring in Tajiks and other minorities into their structures. He responded that it is not true. He said that there is a genocide against the Hazara happening at the moment. He claimed that Mullah Niazi publicly announced that he kills more than a 100 Hazara every day and that they are infidels who need to be killed.

    Relevant independent country information

27. The applicant’s fears rest on being Hazara. As such it is necessary to consider the situation facing Hazara in Afghanistan.

28. It is important to note that for the purposes of s 36(2)(a) and s 5H(1), namely whether the applicant faces a well-founded fear of persecution, it is not sufficient to consider what harm the applicant faces presently, was he to return to Afghanistan, but rather circumstances he faces into the reasonably foreseeable future. In CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, a case involving a Hazara appellant, Mortimer J expanded on the nature of this forward-looking test:

    In my opinion, the prospects of success of the proposed new ground of appeal depend in part on the understanding of what is meant by the now well-established and orthodox approach to the determination of risk of harm to a person occurring in the future: that is, is there a real chance a person may suffer serious harm on return to her or his country and nationality: see generally Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J), 429 (McHugh J). To make that assessment, there must be speculation about the future, and the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is ‘foreseeable’ or ‘reasonably foreseeable’: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ); NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]; Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [27] (Heerey, Moore, Goldberg JJ); SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292 at [7] (Flick J).

    The ‘reasonably foreseeable future’ is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the ‘well-founded’ aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical ‘on the ground’ circumstances she or he will be living in. Using ‘reasonably foreseeable’ also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.

29. As withdrawal by U.S. troops is set to be completed by 11 September 2021, only a few months from the time of this decision, it is my view that what will happen in the weeks and months after this date is within the scope of ‘reasonably foreseeable’ future. But as Mortimer J noted, such decision making will need to be based upon ‘probative material, without extending into guesswork’.

30. Probative material includes expert views on possible outcomes of the withdrawal. As such I have reviewed commentary by leading international scholars, U.S. government assessments as well as Afghan and Pakistani analysts on the future of Afghanistan. I am providing a few extracts representative of their views in the following paragraphs.

31. Representative of the view that peace after the withdrawal of U.S. troops is possible is an article by Mirwais Wakil and Prof. Anthony Pahnke helpfully titled, ‘Peace is possible in Afghanistan: Once American and NATO troops leave, it is the only realistic course of action’.[3] The key points made are that neither the Taliban nor the Afghan government possess the ability to defeat the other and as such there is an impasse. As a result, interests will prevail. The authors then go on to describe the possible wealth that could be accrued to the people (and presumably the leadership) if they were to make peace. The article notes some caveats such as that the Taliban will need to integrate into the political system and human rights cannot be ignored and that the Taliban must know that they can’t ‘erase the freedoms that women have earned’. Ultimately, economic prosperity is critical as, ‘This money would help stop young men from choosing the path of war and, instead, to rebuild their country. Local Taliban leaders, therefore, would have a more difficult time recruiting people who wish to dedicate their time to jobs, families and school’.

    [3] Mirwais Wakil and Anthony Pahnke, ‘Peace is possible in Afghanistan: Once American and NATO troops leave, it is the only realistic course of action’ Al Jazeera, 5 May 2021 >

    NBC News referenced a U.S. Defense Intelligence Agency report that provides some insight into the capabilities of the Taliban:

    The report cited analysis from the Defense Intelligence Agency saying that from Jan. 1 through March 31, 2021, the Taliban's military strategy was to prepare for large-scale offensives against provincial centers, complex attacks against the Afghan National Defense and Security Forces' bases, and degrading the Afghan forces' capabilities.

    In the first two months of 2021, the Taliban surrounded the provincial capitals of Baghlan, Helmand, Kandahar, Kunduz, and Uruzgan provinces to prepare these offensives, and they continued assassinating government employees, security officials, and journalists, the report says.

    Citing information from the Defense Intelligence Agency, the report says al Qaeda continues to rely on the Taliban for protection, and that ties between the two groups have strengthened.

    At the same time, the Afghan Security Forces have conducted offensive operations against the Taliban but the Defense Intelligence Agency reported that these offensives ‘did not accomplish anything of strategic value’.[4]

    [4] Courtney Kube and Dan De Luce, ‘Taliban ramped up attacks against Afghans as peace talks faltered, Pentagon watchdog says’, NBC News, 19 May 2021 >

    I note that the United States has indicated that it will be expediting U.S. visa processing for Afghans who were employed by the U.S. government in Afghanistan as they are believed to be at risk of harm arising from the absence of international forces. Zalmay Khalilzad, the U.S. Special Envoy for Afghanistan was reported as sharing ‘the concerns of lawmakers for the safety of Afghans who worked as interpreters or in other jobs for U.S. troops and diplomats. He said the Biden administration was working to expedite applications for U.S. visas under a program designed for Afghans who were employed by the U.S. government’.[5] The Australian government has closed its embassy in Afghanistan prior to the withdrawal of U.S. troops.[6] Both of these actions are an implicit acknowledgement that the security situation is predicted to deteriorate, particularly for those members of society who have relied upon international forces for protection.

    [5] Courtney Kube and Dan De Luce, ‘Taliban ramped up attacks against Afghans as peace talks faltered, Pentagon watchdog says’, NBC News, 19 May 2021 Amin Saikal, ‘Australia closes embassy after misplaced participation in Afghanistan conflict,’ APSI Strategist, 3 June 2021

1. A detailed analysis of the situation published by the Future Directions think tank and written by Dr Qaisar Rashid makes the key point that the Taliban have consistently held three constants that cannot be presumed to be negotiable. These three are:

   the Taliban are unwilling to participate in the elections for four reasons. First, they consider the electoral process to be antithetical to the version of Islam that they espouse, elections being a Western concept that is not in consonance with the Muslims’ historical method of governance. Second, they are fearful of electoral defeat, which would damage their credibility, since they are a reactionary group and not a representative body of the Afghans by any measure. Third, they are bereft of any experience in contesting elections. Hence, they deliberately avoided participating in the elections whenever asked by Afghan Presidents Hamid Karzai and Ashraf Ghani. Fourth, the Taliban, having been in power previously, do not believe that they should be returned to power by the people, it being their right to continue their government, which was ended abruptly – and illegally, in their opinion – by the US. It is demeaning to them to have to ask the Afghan people to let them have the power that they see as rightfully theirs.

   The second constant is that the Taliban want Afghanistan to revert from the Islamic Republic to the Islamic Emirate of the pre-2001 era, driven by their version of Islamic Sharia. Between 1996 and 2001, the Taliban’s Sunni Islamic practices and dictates were inimical to the country’s religious minorities, whom they persecuted. The Taliban resorted to the Islamic practices of medieval ages, with harsh punishment regimes. They did not permit girls to be educated or women to participate in daily life. It is known that the Taliban are determined to have an Islamic Emirate. For instance, when the Pakistani version of the Taliban, which was founded in December 2007, overcame the north and west of Pakistan in 2008, they demanded that Sharia law take precedence over Pakistan’s constitution. In April 2009, US Secretary of State Hillary Clinton visited Pakistan and warned it of the consequences of acquiescing to the Pakistani Taliban; only then did Pakistan launch a war against the Pakistani Taliban in May 2009. The Pakistani Taliban either lost their lives or fled to Afghanistan.

   The third constant is that the Taliban consider the Kabul government a puppet of the West, unworthy of negotiations, let alone sharing power with it. That is why the Taliban has preferred to talk to the US in Doha since June 2013 and rejected the intra-Afghan dialogue.[7]

   [7] Qaisar Rashid, ‘Afghanistan: Still too Early to Expect Peace’, Future Direction International, 22 April 2021 >

   The former Pakistan ambassador to the United States and a former diplomat, Najmuddin A. Shaikh, provided his analysis in a recent article in Dawn.[8] Following an attack on a school where at least 60 Hazara were killed and an estimated 150 injured, he wrote, ‘While the Taliban did not carry out this attack there is no doubt that given their Deobandi and Salafi beliefs they regard the Hazaras as heretics. What is even more tragic is that not just the Taliban but every ethnic or religious community in Afghanistan perceives the Hazaras in the same way’. He goes on to write:

   For the Taliban, this general Afghan contempt for the Hazaras is compounded many times by the role the Hazaras played in partnership with Uzbek opponents of Gen Rashid Dostum in 1997 massacring the Taliban trapped in Mazar-i-Sharif after their abortive effort to take over the city. More than 5,000 Taliban died mostly at the hands of the forces of Hizb-i-Wahdat, the Hazara political and military party. It is unlikely but even if there is some sort of reconciliation between the Taliban and other Afghan parties, the Hazaras cannot expect to escape the revenge the Taliban, who have long memories, will take.

   The former ambassador then concludes by saying, ‘what looms ahead is the elimination of this ethnic group’.

   [8] Najmuddin Shaikh, ‘Afghanistan’s ‘Dalits’’, Dawn, 13 May 2021 >

   Time Magazine reported in May 2021 Islamic State (IS), another insurgent group, continuing attacks against those they view as apostates including exploding a bomb at a mosque which killed 12 Sufis. This attack follows a concerted and directed escalation of violence by IS against Shia in Afghanistan.[9] 

   [9] Kathy Gannon and Tameem Akhgar, ‘Afghanistan Cease-Fire Ends Amid Calls for Fresh Peace Talks’, Time, 16 May 2021 >

   There are reports that the Taliban, predominantly Sunni Pashtun, have recruited Hazara in an effort to improve their image and be a more inclusive group. Dr Yatharth Kachiar argues that, ‘In order to establish itself as a legitimate power in Kabul, the Taliban regime must offer something beyond its narrative of fighting the ‘foreign infidel powers’ and their ‘puppet regime’. By presenting itself as a moderate group with support among all the major ethnicities in Afghanistan, the Taliban aim to quell the narrative that brands it as a fundamentalist, pro-Pashtun movement … Most importantly, by wooing the Shiite Hazaras in Afghanistan, the Taliban are sending an olive branch to its former ideological foe in the region, the Islamic Republic of Iran … The Taliban’s overtures toward the Shiite Hazara minority community of Afghanistan are mainly due to the group’s strategic interests in rebranding itself as a moderate and nationalist force and strengthening its relations with Iran. It is a calculated move and does not indicate any change in the ideology of the radical group or its deep-rooted hostility toward the Shiite Hazaras’. The author then concludes by believing that ‘Unless the Taliban agree to be a part of the democratic political structure in Kabul, any overtures shown by the radical group toward the Hazara minority community will be hollow’.[10]

   [10] Yatharth Kachiar, ‘Why Are the Taliban Wooing a Persecuted Afghanistan Minority Group? Reports that the Taliban have recruited a Hazara leader are part of broader efforts to change the militant group’s image,’ The Diplomat, 28 May 2020 >

   In another assessment of the Taliban’s claims of inclusivity Stanford Law School Professor and Executive Director of the Rule of Law Program, Mehdi J Hakimi, writes that the Taliban delegation to the Doha peace talks insisted on Hanafi jurisprudence being the basis of negotiations which would exclude Shia and other minorities. He noted that at the same talks ‘there is extremely little ethnic, religious, linguistic, cultural and professional diversity within their ranks’. Instead, he sees the rhetoric as being hollow and instead turns to the statements and actions of other insurgent groups such as Islamic State and al-Qaeda to appreciate the view towards minorities such as the Hazara.

2. The applicant’s lawyer provided an excellent submission including considerable country information in support of the applicant’s claims of fearing harm. This included:

   a.Reference to the US Department of State 2020 Human Rights Report which included events after peace negotiations with the Taliban commenced and included continuing targeted killings, forced disappearances, recruitment of child soldiers and violence against ethnic minority groups.

   b.Noted that DFAT reports ‘no part of Afghanistan can be considered completely free from conflict-related violence.’

   c.Reference was made to the 9 April 2021 United States Director of National Intelligence Annual Threat Assessment: ‘We assess that prospects for a peace deal will remain low during the next year. The Taliban is likely to make gains on the battlefield, and the Afghan Government will struggle to hold the Taliban at bay if the coalition withdraws support.’

   d.Experts were quoted including Michael Callen, an expert at the London School of Economics, ‘For better or worse, the US has a serious stabilising presence right now, and once that's gone there's going to be a power vacuum.’ Also, Michael Kugelman, deputy South Asia director at the Wilson Centre who said, ‘We shouldn’t underestimate the Taliban’s capacity to inflict major damage. When Afghan forces no longer have the advantage of calling in U.S. air power to fend off Taliban advances into cities, the insurgents will have a major opportunity that they will fully exploit.’

   e.Timely insights by Emeritus Prof. Maley of ANU who has written extensively about Afghanistan including the view that, ‘When security in Afghanistan deteriorates, ethnic minorities can easily find themselves in the firing line. In particular, there is a long history of persecution of and discrimination against members of the Hazara Shiite minority in Afghanistan…it is a serious mistake to conclude that Afghanistan is safe for Hazaras.’

   Considerations

3. In reviewing country information on expert opinions about the situation facing Afghanistan following the withdrawal of U.S. troops and specifically the risk faced by minorities such as the Hazara from extremist groups including the Taliban and Islamic State, I note that there is a spectrum of views. But overwhelmingly the outlook is negative. While few, such as Mirwais Wakil and Prof. Anthony Pahnke are optimistic, I am not convinced by their arguments which appear grounded in a Western worldview where money and jobs suffice to dissuade young men from pursuing their beliefs. As I have written in my alternative capacity as an academic researching extremism, applying Western views on religions other than Christianity can be misleading.[11] Furthermore, as someone who has worked in war zones around the world and studied conflict, I find the view expressed by Wakil and Pahnke, namely that self-interest and the opportunities presented by peace will ultimately prevail, naïve to the realities of war. Instead, I give weight to the views by experts such as Najmuddin A. Shaikh and in particular Dr Qaisar Rashid. Dr Rashid’s analysis is comprehensive and convincing. As such I find that was the applicant to be returned to Afghanistan he would face into the reasonably foreseeable future a Taliban who are unrepentant of their views that in the past led to systematic killing of minorities, particularly the Hazara. Furthermore, I note that other groups such as Islamic State remain active and have shown a propensity to pursue sectarian violence against civilians in the name of Islamic purity.

   [11] Dragovic, ‘Religion: Cause or Effect of Radicalisation’ in The Battle of Ideas: Can the beliefs that feed terrorism be changed? CIS Occasional Paper, 2016

4. Based upon this view of the future of Afghanistan I find that the applicant faces a real chance of serious harm. I find that the harm he faces is for reasons of race and religion and that these reasons are the essential and significant reasons. I find that the harm he faces is systematic and discriminatory.

5. I find that the state cannot provide protection as the state will either be defeated by the Taliban or the Taliban will become the de facto state. I find that the applicant cannot modify his behaviour such that he would not face a real chance of serious harm as the harm he fears arises from his innate characteristic of being Hazara and Shia.

6. I have also considered whether the applicant can relocate. During the last withdrawal of an international force in the early 1990s when the Soviet army left the country, a civil war lasted for some years before the Taliban took over all of Afghanistan including areas believed to be safe such as Mazer Sharif. This in turn led to the infamous massacres of first the Taliban and then in retribution the Hazara. I note that even with international troops present during this current period Hazara strongholds such as Ghazni are being attacked including seeing government bases overrun.[12] As such I find that the applicant cannot relocate as the harm he faces is harm that will reach to all parts of Afghanistan including Hazara strongholds such as Ghazni.

   [12] Ayaz Gul, ‘Taliban Overrun Afghan Base, Capture Troops as US, NATO Forces Exit’, Voice of America, 1 May 2021 >

   For these reasons I find 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).

   DECISION

7. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act1958 (Cth).

   Denis Dragovic
   Senior Member