1912576 (Refugee)

1912576 (Refugee) [2021] AATA 3083 (4 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1912576

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Denis Dragovic
DATE:4 June 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 04 June 2021 at 9:52am
CATCHWORDS
REFUGEE – protection visa – Afghanistan – Federal Court remittal – mental health issues – purpose of a Tribunal hearing – inquisitorial nature of the Tribunal – race – Tajik ethnicity – particular social group – returnee from the West – divorcee – alcohol consumption – witness testimony to a murder – fear of revenge killing – security situation in Afghanistan – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 424
Migration Regulations 1994, Schedule 2
CASES
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZSSM v MIBP [2013] FCCA 1489
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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Afghanistan, applied for the visa on 13 November 2012 and the delegate refused to grant the visa on 3 January 2014.
The matter is before the Tribunal because of a Court order. Specifically, the Federal Court of Australia found that the Tribunal committed jurisdictional error in its application of s.36(2B)(c):
It construed s.36(2B)(c) on the erroneous basis that a person would not be exposed to a risk personally if the risk was one to which other persons in the same area of a country were exposed to the same degree. It did not make an assessment of whether the appellant faced a real risk of significant harm in light of his status as a resident of Kabul so as to enable that risk to be the subject matter of its consideration under s.36(2B)(c). As a consequence of that error, the Tribunal could not and did not perform the comparative task required by s.36(2B)(c). Instead, it compared the risk faced by the appellant with the risk faced with other citizens of Kabul and erroneously concluded that any risk of serious harm was not faced by the appellant personally because it was one faced by other people residing there.
The applicant appeared before the Tribunal on 15 March 2021 and 11 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [two named witnesses]. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The applicant was represented in relation to the review by his lawyer, [named].
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘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.
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.
Mandatory considerations
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Mental Health
The applicant made it known through pre-hearing submissions that he was suffering from mental health challenges. At the hearing the applicant said that he has had mental health issues since 2015/2016.
In a subsequent post-hearing submission, a consultant psychiatrist, [named] provided a report. The report states that the ‘themes were primarily that of demoralisation and depression about his uncertain situation in Australia and about his future in this country. [The applicant] also described that he was very worried about his family in Afghanistan.’ The report noted that the main concerns [the applicant] described were poor concentration, inability to remember past details and ongoing anxiety along with neck pain. The consultant psychiatrist concluded that in his opinion [the applicant] ‘presents with symptoms suggestive of a depressive disorder in the context of a significant past history of trauma, ongoing uncertainty of his future in Australia and his inability to work due to having his work rights ceased.’
The applicant has been prescribed Zoloft, an antidepressant. At the first hearing the applicant stated that he was on medication, he was unsure of the name of the drug, but he confirmed that it was for his ‘nerves’. He said that the side effects of that medicine are that he becomes drowsy and sleepy. The last time he took the tablet was 2.30pm the day before the hearing. He said that taking the drug affects his memory ‘a little bit’. I asked the representative present at the hearing whether she had suggestions on how to better facilitate the applicant’s participation in the hearing. She did not have any suggestions. I decided to have breaks more often. In addition, I informed the applicant that due to the complexity of the case it is likely that the hearing will spread across two hearings and as such he should not rush and should reflect on his answers even if it takes longer.
At the second hearing I repeated these measures and note that the applicant stated that he had not taken any medicine prior to the hearing.
The representative submitted information that suggested a possible causation between depression and memory problems. The representative wrote in their submission that traumatic experiences can in some cases be difficult to recall. I have taken this information into consideration in drawing any adverse conclusions relating to the applicant’s recollection of past events.
Post-hearing submission dated 27 May 2021
The applicant’s lawyer made a post-hearing submission that needs to be addressed. The submission included a heading, ‘Illogical findings’ with subsequent and repeated statements such as ‘This finding is completely illogical…’. The material under the above-mentioned heading refers to questions that were asked by this member at the hearing at which time no findings were made. Findings are to be found in a decision record and not at a hearing unless a decision is delivered orally. This section within the submission appears to indicate a misunderstanding of the purpose of a hearing and the inquisitorial nature of the Tribunal. It is the role of the Tribunal member at a hearing to test the evidence and pursue all lines of inquiry that he or she deems necessary by putting questions to the applicant. It is not unusual for Tribunal members to ask questions that others who advocate a certain position for their client perceive to be illogical or inconsistent with the claims made or alternatively that they misidentify and subsequently mischaracterise a partial train of thought as illogical. Any assessments of the member’s process of reasoning and whether it is illogical can only be properly assessed on the basis of the decision record. As such in this respect I consider this element of the submission to be premature and poorly considered.
In addition, reference was made in this submission to the need to have put general country information under s.424A or s.424AA to the applicant. But as s.424A(3) of the Act notes, this does not apply to information that is not specifically about the applicant or another person but is about a class of persons. In this case the information wasn’t specific to the applicant but was about a class of persons.
Despite these concerning issues with the submission, where relevant I have considered and incorporated into this decision the arguments made by the applicant’s lawyer.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Evidence and findings of fact
The applicant is a Tajik, Sunni Afghan born in Kabul. He lived in [Location 1], a location variously described as a street or a suburb with a lot of shops and people from different ethnic groups, but predominantly Tajik. The applicant explained that while their shop is [at Location 1] they lived 15 minutes walking distance away.
Since his departure from Afghanistan the applicant claims that the shop is still open, but his [relative] now works there.
The applicant has [number of siblings]. He claims that his father has passed away. He said that [specified siblings] and his mother live in the same house that he grew up in and are continuing to live normally. The applicant continues to speak with his family every 10-15 days.
The applicant claims that he is wanted by a gang leader. He claims that the man, a [Mr A], has links to the government and has killed several innocent Tajiks. He claims that he was thought to have been involved in a killing in front of the applicant’s shop. At the hearing the applicant said that he did not witness the killing but when police questioned him, he told them that he believed the killing to be by [Mr A]. He claims that following his statements to the police a friend told him that he was in danger and that [Mr A] wanted to kill him, so he fled. At various stages through the application process the applicant claimed that he had seen [Mr A] running from the scene and alternatively that he heard from others that it was [Mr A].
The applicant told the Tribunal that on the day of the incident, [in] December 2011, the police arrived and began investigating taking him to the police station where he was interviewed by the police. He told the Tribunal that he explained to the police how the incident happened. He said that [Mr A] killed someone with a pistol and that he had seen him with the pistol in his hand running away from the incident. But in the statutory declaration dated 5 November 2012 he had written ‘There was a loud noise, the sound of a gun being shot. I went outside of the shop and saw a man lying on the street close to my shop…at that moment a large crowd gathered and I learnt that the killer was [Mr A].’ The applicant did not mention in this statement that he had seen [Mr A] but rather that others had mentioned him. Similarly, in a submission dated 23 April 2014 containing a record of a statement given over the telephone by the applicant, the applicant only mentions, ‘I was working in the shop in the morning of the day in question when a man was shot and killed quite close to my shop. As I said before there was a crowd around the injured man and the consensus was that [Mr A] who heads a group of armed criminals was responsible for the murder.’ But presenting the facts differently in a 28 November 2015 statement the applicant states, ‘I saw [Mr A] running away from the scene of the crime but I did not see him shoot the man.’
I note that the inconsistencies in his narration pre-date his mental health challenges and as such I don’t place much weight on whether the inconsistency arises as a result of his recent mental health challenges.
The applicant claims that when he was interviewed by the police, the member of the police assured him that whatever he explained would be safe and confidential. But when he left the police station, he claims that someone informed [Mr A] that the applicant went to the police station as a witness and had accused [Mr A] of the murder even though he did not accuse him. The applicant claimed that he didn’t know that [Mr A] had someone in the police who then went on to tell [Mr A] what he had said about the incident.
At the second hearing the applicant explained that [Mr A] fled the area after the incident. He believes that [Mr A] took this course of action as the police believed that they had a ‘witness’ and word got out. At this hearing the applicant said that he saw [Mr A] kill the man. He said that he had actually explained this to the police. He claimed that when he walked out of the police station, he told others that he hadn’t witnessed the murder so as to protect himself. I read to the applicant the three statements from [34] noting that there was some inconsistency in his claims and specifically that he had claimed not to have seen who committed the murder and in another instance that he had only seen [Mr A] running away from the incident with a gun in his hand. In response the applicant distinguished between what he said to people after he left the police station, namely that he hadn’t seen the murder, and what he had told the police, namely that he had seen the murder. I put to him that his statements do not distinguish between the two and in none does he say that he saw [Mr A] killing the man. He said that his shop doesn’t have a front door and as such you can see what happens outside.
The applicant claims that [Mr A] was absent for a month or so and then he came back. The applicant claims that he heard that [Mr A] began threatening him and hence the applicant went to hide in another part of Kabul, [Neighbourhood 1]. He said that he heard of the threats as people were coming and asking his father about him.

The applicant said that while [Mr A] had been detained for other incidents in the past he had been released quickly. As far as the applicant knows [Mr A] was never arrested or detained for the incident the applicant claimed to have witnessed.
The applicant claims that the police approached his father a second time to ask the applicant to provide more information, but his father said that he had left the country at that stage. The applicant said that since then the police had not approached the family seeking him to provide further information.
The applicant described [Mr A’s] criminal career as beginning with stealing people’s belongings and then morphing into trafficking drugs and other crimes such as kidnapping and taking hostages. I asked if his name would appear in the media to which he said that a lot of people are addicted to drugs, so his activities are not out of the normal. I put to him that kidnappings and hostage taking would appear in the media. He said that a lot of groups do the same things and kidnapping happens a lot. He said that there isn’t any reporting about him. He said that once he was commented on by others on television with regards to a murder. This was 2005 or 2006.
The applicant claims that he left Afghanistan to Pakistan after one week and that it then took him 3.5 months to get to Australia. I put to the applicant that he had written in his statutory declaration that it was 35 days before he left Afghanistan (statutory declaration dated 5 November 2012) and elsewhere that it was near three months. The applicant clarified that he had spent one week at home, but then after he noticed the threat level increase, he went to [Neighbourhood 1], where he spent a month in an old house that the family owned. He claimed that his father brought him food while he was there. The house in [Neighbourhood 1], according to the applicant, is about 35km apart, a distance he likened to being from where the Tribunal offices were to Dandenong.
The applicant said that his father informed him during the period he remained in his original home, that people came asking where he is and that they were harassing his father by asking those questions. His father also informed him of threats they were making including threatening to kill him. As a result, he moved first to [Neighbourhood 1] and then he left the country.
At the same time his [siblings] were living with him, but neither were approached by [Mr A]. The applicant surmised that as his father worked at the shop, they asked him. When the applicant had left Afghanistan for Pakistan the applicant’s father told [Mr A’s] people that his son had left the country. But the applicant claims that the threatening and harassing of his father continued until he became sick and died in 2017.
After his father passed away the applicant claimed that people would come to his family and ask about him, referring to him as an ‘infidel’ and they would provoke the people in the area against him. He claimed that they even mentioned that he is divorced. The applicant said that after his father passed away, they instead stalked his brother. He said that people came to threaten his sister and brother several times. He claimed that they stopped his brother and asked, ‘where is your infidel brother’, we have a debt on him. The applicant claimed that his brother responded to them by saying that they would be willing to settle the debt, but they told him that they need to see the applicant. The applicant claimed that [Mr A’s] henchmen would stop his brother when they saw him in the street while they were driving by.
The applicant claims that the family of the victim who was killed in front of the applicant’s store put pressure on police to investigate the death and the applicant claimed that they continued to do so and that is a reason why he couldn’t remain in the country. He is not sure about the final status of the police investigation. He believes the police put pressure on [Mr A] and hence [Mr A] was putting pressure on his family. I asked if the family had gone to the police to ask what happened to the case, he said that they had but the police didn’t tell them.
The applicant claims that after the incident and because of the level of threats to his family he left [Location 1] and moved to [Neighbourhood 1]. Even moving to [Neighbourhood 1], though, didn’t help he claimed, as the family was still found. The applicant claimed that the people harassing the family are unknown to them as every time they are different people. I asked how they would know who his family members are as [Mr A’s] henchmen seemed, according to his narration, able to identify them off the street. He said that they are a big network and presumably share information. He said that when his siblings walk on the streets these people stop and harass them. I put to him that it is hard to believe that they would have been able to recognise his siblings from fleeting glances while driving a car and only having been shown photographs of the family or even that it is hard to believe that the network shared photographs. He said that he doesn’t know.
I asked about the lack of evidence that he had told the delegate that his father continued to be harassed. I read out the delegate’s decision, “I [the delegate] asked the applicant whether anyone had been looking for him since he left Afghanistan. He said his family do not tell him anything when they speak over the phone. I put it to him that a substantial period of time had passed since the applicant heard [Mr A] wanted to kill him, yet nothing had happened to him, his family or their business. The applicant responded by saying he did not know what [Mr A] was thinking and that he ‘just ran away’”. He said that his family didn’t tell him before, nor did he ask but eventually they told him that it was not safe for him as [Mr A] was looking for him. I asked what changed their mind to tell him. He said that he doesn’t know.
In evidence provided to the previously constituted Tribunal in 2015 the applicant explained that he learned that people had been visiting his family’s house asking about the applicant. They would ask for his phone number, but his parents refused. The applicant assumes that these people are associated with [Mr A]. When I put this to him noting that at the Departmental interview he had not been aware of anyone following up about his whereabouts the applicant said that his family hadn’t shared this information with him until after his father’s death.
I asked if any other family members have been harassed by [Mr A’s] people other than his brother and sister. He said no.
In a statutory declaration dated 28 November 2015 the applicant claimed that his father-in-law had taken the applicant’s wife and children away from his home because, he believed, that the father-in-law feared they would be harmed if they remained with the applicant’s family. According to the same statement when the applicant’s mother went to the father-in-law’s house the family were no longer there and that she was unsure where they had gone.
The applicant stated that the last incident in which his family members were harassed occurred in 2020 and prior to that in 2018. He said that in 2020 the approaches occurred a few times including when his sister was going to school and when his brother was going to town. At each they asked about the applicant but neither the brother nor sister gave the people more information.
At the end of the first hearing I discussed the evidence that had been provided and explained that I had concerns over the plausibility that people unknown to the family would be able to identify them on the streets in Kabul and furthermore that they would do so even though [Mr A] was identified as a local criminal and the family had moved about 35 kilometres away to another area. I provided the applicant an opportunity to provide post hearing submissions on these issues or to clarify them at the subsequent hearing. In response the applicant provided the following post-hearing submissions:
·    Letter issued by the Review Applicant’s mother, together with English translation, dated 8 April 2021.
o   In summary she reinforces the applicant’s narrative, she claimed that they were confined to the house due to the harassment, she asks rhetorically whether one thinks that it was the applicant who killed [Mr A’s] brother, she claims people ask if the applicant has become an infidel.
o   The letter does not refer to any visits by the gang to her or her family after her move to [Neighbourhood 1]
·    Letter issued by [Mr B], a local representative in Afghanistan, together with English translation, dated 29 March 2021.
o   Testifies in writing that ‘[Mr A], a criminal gangster, appeared in that area and brutally killed a pedestrian.’
·    Letter issued by the Review Applicant’s sister, together with English translation, dated 29 March 2021.
o   The letter states that the family is threatened once a month.
·    Letter issued by [Mr C], a local representative of the [Neighbourhood 1] area in Afghanistan, together with English translation, dated 29 March 2021.
o   In summary [Mr C] states that the applicant’s family have been threatened and bullied by members of a gang several times, he does not dare mention the name of the gang for fear of reprisals on him.
o   The letter does not mention a date for the ‘several’ threats that he is aware of the family recieving
·    Letter issued by the applicant’s brother, together with English translation, dated 29 March 2021;
o   In summary the applicant’s brother states that [Mr A’s] brother was killed about a month after the killing of a man in front of the applicant’s shop, he claims that the killer of [Mr A’s] brother fled Afghanistan and that at the funeral [Mr A] said, ‘go and get me my brother’s killer and if you can’t find him, find the person who provided witness and who caused my brother to be taken away from me, find him dead or alive, otherwise I will behead you.’ He claims that [Mr A]’s people come and harass them once a month and that it is widely held that the applicant is an infidel and divorcee.
I place some weight on the written submissions listed above for the reason that the issues being discussed relate to a matter that occurred ten years ago and I have doubts that the community leaders specifically would be able to recall the details without prompting. I give greater weight to the evidence provided by the applicant’s brother and sister as I was able to test their evidence at the hearing when they gave oral evidence.
In a written submission in response to my concerns the applicant claimed that ‘Kabul is a small city, everyone knows each other. For people like [Mr A] it is easy to track people and their family because [Mr A] has money, power and his people are everywhere even in the government.’ The applicant added that he believes that [Mr A] has appointed someone from his gang to keep track of the family’s movements including when they leave for school and when they come back.
In considering the applicant’s claims regarding [Mr A] I give him the benefit of the doubt and accept that he was present at events surrounding the murder of a person in front of his shop. I accept that he was interviewed by the police and that [Mr A] learned of this and that he believes the applicant fingered him. It is not material whether the applicant actually saw the murder, but rather what perception his potential persecutor holds. I accept that shortly afterwards the family of the murdered man put pressure on the police to act and that they also took matters into their own hands and killed the brother of [Mr A]. I accept that during this period the applicant went into hiding and crossed the border into Afghanistan while the family were visited by [Mr A’s] henchmen. I also accept that the police made one further request for the applicant to give evidence immediately after his first appearance.
But ten years has passed since this incident. I do not accept that in 2021 [Mr A] is continuing to actively pursue the applicant in part because [Mr A] did not suffer any harm from the authorities in the form of a trial or conviction. To the applicant [Mr A] appears to have fled for a period of a month, waiting for the situation to cool down. It is unknown where [Mr A] fled and what impact it had on [Mr A]. There is no logical reason to believe that it would have caused him such hardship that he has borne a grudge ever since. For these reasons I do not accept that for the past ten years [Mr A] had assigned someone to watch the family. In addition, I find it implausible considering [Mr A’s] ability to obtain information about the applicant’s return through other means, such as offering a bounty to anyone who sees the applicant, that he has posted men to follow and monitor the applicant’s family. I do not accept that [Mr A] connects his brother’s murder with the applicant giving evidence against him considering blood feuds are a part of Afghan life including Tajik society[1] and such blood feuds by their very nature require the victim’s family to be publicly known as having settled the debt of the original murder.[2] As such I do not accept that at the funeral of his brother [Mr A] made a threat to kill the applicant.
[1] Country of Origin Research and Information (CORI), Thematic Report Afghanistan: Blood Feuds, February 2014, available at: 3 June 2021]
[2] ibid
Despite the evidence of the applicant and while placing some weight on the written and oral submissions of the witnesses, I do not accept that the applicant’s family have been visited once a month by the gang or that they were at all threatened subsequent to their move to [Neighbourhood 1] for the reasons given above and in addition to the implausible evidence the applicant gave of his brother and sister being stopped in the street by [Mr A’s] henchmen. [Neighbourhood 1] is approximately 35 kilometres away from the area [Mr A] operated in. The family moved to [Neighbourhood 1] to be away from the operational area of [Mr A]. Yet, the applicant claimed that the people who stopped his brother and sister in the street, years after they had moved, who were unknown to his siblings and were different people at different times were able to pick them out among many others while driving. I find this implausible, such that I find the claim not credible. Furthermore, to make a finding on the applicant’s response when I put this concern to him, I find it implausible and as such do not accept that [Mr A]’s criminal network would be distributing photos of the family such that gang members may see them walking in the street, identify them and harass them.
Security situation in Afghanistan and the applicant’s Tajik ethnicity
I put to the applicant that Tajiks are the major ethnic group in Afghanistan along with Pashtuns. Country information states ‘Tajiks are located throughout most of the Kabul province. Tajiks are the second largest ethnic group in Afghanistan, after the Pashtuns and comprise between 25-30% of the population.’[3] The applicant had no comment.
[3] Naval Postgraduate School, Program for Culture and Conflict, ‘Kabul’
We discussed the security situation, specifically as it arose from terrorist activity (not including criminal activity). I noted that according to the South Asia Terrorism Portal Kabul experienced 398 terrorism related deaths in 2018, down to 245 civilian deaths in 2019 and 214 in 2020. Relative to a population of over 4.4 million I put to him that this did not appear to amount to a real risk. The applicant responded that with the US leaving and the Taliban and Islamic State presence the situation will rapidly change. He also noted that there are Tajik groups such as Harakat and Wahdat that will continue to fight against the Taliban. He fears that no one can predict that situation. He said that many Tajiks living there don’t have the means to leave or live elsewhere. He said that he hears of a lot of people who have died. He said that the reporting isn’t correct. He suggested that the government doesn’t want to be seen as weak and hence the numbers are underreported.
I noted that in the most recent DFAT report it states, ‘Groups particularly vulnerable to targeted killings by AGEs [anti-government entities] were individuals perceived as supporting or otherwise connected to the government or pro- government armed groups, whether through current or former employment or family ties. AGEs have also targeted tribal elders and religious scholars/ leaders.’[4] The applicant said that he disagrees. He rhetorically asked, why hit schools, mosques and universities if that is the case. He said that the people who are connected to the government are protected but others are not.
[4] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Afghanistan’, 27 June 2019 at [4.2]
I asked the applicant to describe what he fears will happen if the Taliban take over. He said that they will apply Sharia law, they would force people to go to the mosque, they would come to Tajik shopkeepers and harass them. He explained that there is a colloquial reference to Tajiks as thieves and robbers so the Taliban would come and demand the weapon that he as a shop keeper would be presumed to have. In addition, he believes that he would be perceived as being associated with the former Northern Alliance. The Taliban would ask him, as he is Tajik, if he is a part of the Northern Alliance (who were fighting against the Taliban and committed atrocities against captured Taliban fighters) and refer to him then as doing non-Islamic things.
I put to him that if the Taliban come to power his problem of [Mr A] disappears as [Mr A]has, according to the applicant’s evidence collaborated with the government, and in addition is a criminal. He said that during the Taliban time [Mr A] had agreed that his sister should marry a Taliban member. He said that as a result he has close relations with the Taliban. The applicant said that whoever is in power, people such as [Mr A] gravitate to that side.
I have reviewed country information on the situation in Afghanistan and specifically the situation for Tajiks. Kabul based political analyst Sayed Nasir Musawi commented, ‘The Afghan government insists it can keep the Taliban at bay, but the insurgents have made huge gains in the countryside over the past months and engage daily with local security forces. The Taliban are now present in almost every Afghan province, have full or partial control of thousands of districts, and have effectively encircled several cities -- a similar situation to 1996, when they took over most of the country. Their tactics have spurred speculation they are waiting for the last US troops to leave before launching all-out attacks to retake power by force.’[5]
[5] AFP, ‘Australia Shutters Embassy In Afghanistan, Sparking Exodus Fears’, 28 May 2021
Along with Australia deciding to close its embassy in Kabul other Western countries are taking measures to minimise risk to their nationals and Afghan nationals who assisted their missions:
The Telegraph newspaper, meanwhile, reported Friday that Britain was preparing to relocate hundreds of embassy workers and their families to avoid a "Saigon moment" -- the panicked 1975 helicopter evacuation of the US embassy in South Vietnam as the Viet Cong and communist forces seized the city.
The UK has expanded its scheme giving military interpreters asylum, the newspaper said, and was offering residency to embassy staff who might be at risk.
Washington said late Thursday it was "rapidly" formulating plans to evacuate potentially thousands who worked for coalition forces in Afghanistan over the past two decades.[6]
[6] ibid

The Australian government has explicitly linked the closing of its embassy in Kabul with the withdrawal of Australia forces and security concerns for Embassy staff, an inference that suggests a severely deteriorating security situation in Afghanistan following the withdrawal of US troops.[7]
[7] >
In another piece:
The US Chairman of the Joint Chiefs of Staff, General Mark Milley, says Afghan government forces will face “a bad possible outcome” against the Taliban once international troops withdraw. Afghan officials too are warning that the Taliban “are preparing for war”.
Military experts predict civil war and it may well be far more bloody than the 1990s as the Taliban try to consolidate their position with or without a peace deal.
While the entire country is under threat, the danger could be more acute in areas where there's a history of Taliban enmity with Hazara, Uzbek but also Tajik populations, covering well over half of Afghanistan. There is a possibility that the chaos may bring in neighbouring countries, adding to regional turmoil.
…
Tehran, aware that the Taliban is winning the war, is calling for a broad-based government to ensure the inclusion of Hazara and Tajiks in any future government.[8]
[8] Massoumeh Torfeh, ‘Impending US retreat from Afghanistan is already raising alarm,’ 6 May 2021 >
I put to the applicant that there is a large population of Tajik residents in Kabul and that he had lived in a predominantly Tajik suburb. I asked why being Tajik would raise the risk he faced under such circumstances. The applicant responded that he fears the Taliban because they believe that the Tajiks are in charge of the government. He said that many others including his family live in fear of criminals, but he acknowledged that they act indiscriminately.
A report from Minority Rights Group indicates that the Tajiks would be at a higher risk than the general population as they had been prominent opponents to the Taliban.[9]
Returnee from the West
[9] Minority Rights Group, ‘Tajiks’, >
I noted at the hearing that DFAT ‘has no information to suggest that returnees from western countries attract negative attention from state authorities for having sought and failed to gain asylum.’[10] He responded that he will be noticed as someone who has come back from overseas and that they will think he has a lot of money. He said that as there isn’t much work in Afghanistan there is a sentiment that people returning from overseas are infidels and rich.
[10] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Afghanistan’, 27 June 2019 at [5.41]
I summarised information from the UK Home Office that while there are anecdotal accounts of returnees being involved in violent incidents ‘there is no evidence that these alleged violent incidents were a consequence of being ‘Westernised.’’[11] I also summarised DFAT information which suggests that most returnees conceal their association with the country from which they returned and keep a low profile and that ‘people in this situation do not face a significantly higher risk of violence or discrimination than other Afghans with a similar profile.’ The applicant said that he can’t hide who he is or his identity.
[11] UK Home Office, ‘Country Policy and Information Note Afghanistan: Afghans perceived as
I put to him that he has lived in Afghanistan for [number] years and 8 in Australia and that he understands Afghanistan better than Australia. He responded that he knows Afghanistan as guns, shots and war, if his country becomes safe and peaceful, he will go back, but unfortunately it has not happened. I put to him that his [number] years of lived experience in the country would allow him to return to life there like everyone else. I asked if he could keep a low profile or hide his 8 years in Australia and reintegrate into the community. He responded that Afghanistan is not safe. If someone leaves their house they don’t know if they will come back or not.
The applicant claimed that he fears harm because of recent news that Australian soldiers killed innocent Afghans. I put to him that I was unable to find any targeted killings or attempted targeted killings of Australians in Afghanistan or Afghans associated with Australia including residents returning to Afghanistan to visit or those who work for the Australian embassy. The applicant responded that people wouldn’t know whether it happened or if it was an accident. He said people hold grudges and they would threaten him. I put to him that I haven’t seen any evidence of grudges being held against Australians. He did not have a response but returned to noting that being a divorcee is a risk and that he fears [Mr A].
Being a divorcee
The applicant claimed that he fears harm arising from being a divorcee. I asked what type of harm he feared. He responded that according to his culture and Islam, divorce is very bad. As he was divorced by his wife, he believes that [Mr A] has spread rumours about him such as that he can’t provide for his family and that his absence from his father’s funeral was a reflection on the type of man he is. He claimed that this affects the way a Mullah in a mosque sees him and would lead to others turning against him. He has a fear that if he returns to the same area people would cause him harm. He doesn’t have any issue that his ex-wife left him, but he can’t bear the disrespect of others and what they will do, such as say things about him and tell such things to his face. He said that people talk and regardless of where he lived they would find out.
The applicant clarified that being a divorcee while having spent time in a Western country does not distinguish him from a normal divorcee.
I accept that the applicant will be disrespected and talked about for having been divorced by his ex-wife. I do not accept that the disrespect will escalate to violence.
The applicant’s faith
The applicant described his religious beliefs while living in Afghanistan as including praying five times a day, but he said in Australia he doesn’t and in addition he drinks alcohol. He said that he doesn’t fulfil the conditions Islam has put in place. He told the Tribunal that he does not believe in the Islam that is practiced in Afghanistan. He said that he is not a religious person. I asked him why he chose to take an oath on the Koran. In response, he offered to take an affirmation. I pressed him on this issue and he responded that he doesn’t know why he made that decision. He said that he believes in Allah or a god, to him it is all the same. I asked if he believes the Koran is uncreated, a concept that I confirmed with the interpreter that the interpreter understood, to which the applicant said that the Koran is God’s word, but people don’t follow it. He said that he doesn’t believe in the Islam that is practiced in Afghanistan but believes in Islam and the Koran that is from God. He added that what is happening in Afghanistan is not according to the Koran. People are killed, robbed, raped. He said that the people who do that justify it in Islam. Islam is killing Islam.
The applicant claims that there are two types of Muslims in Afghanistan, extremists and moderates. I asked why he couldn’t find a mullah and a mosque where he could practice a moderate form of Islam. He said that they created something frightening in Afghanistan by changing Islam into what it is not. He said that it is not clear who is a moderate or who is not. He said that he can’t say much about those people who are moderate and how they practice their faith.
The applicant said that in the area he lived in some people went to the mosque and prayed and others went home to pray but if he didn’t turn up to the Friday prayer the Mullah would know.
I find that the applicant is a Muslim but would be broadly speaking considered a moderate Muslim.
Alcohol consumption
The applicant said that he drinks alcohol. He said that when his friends invite him to visit, he drinks. His drink of choice is beer or vodka. I put to him that it’s a choice he makes and asked why he couldn’t choose not to drink. He responded by saying that he is used to it. He confirmed that he is not an alcoholic but uses alcohol to deal with pressure. I asked if he couldn’t use alternative means to deal with pressure. He said that he could have found an alternative to alcohol if he had a right to work or study in Australia but if he was to return to Afghanistan, where there are no proper doctors and the work situation is not good, he believes that he could not find an alternative. He currently takes medicine that helps him deal with pressure.
I find that the applicant is not addicted to alcohol and as such it is a choice by the applicant to drink alcohol. I accept that the applicant drinks alcohol to help him cope with life’s challenges.
Mental health
The applicant described to the Tribunal his mental health problems including poor memory along with challenges concentrating. He said that sometimes he doesn’t understand what he is saying or not saying. He said that he has been having this issue since 2015/16.
The applicant confirmed that he did not have any mental health challenges while living in Afghanistan.
I noted to the applicant that the general practitioner who wrote a letter for him notes, ‘One of the main factors for his depression and lack of hope is that he is in Australia for last 9 years with no clear future or even permission to work.’ I put to him that this would change if he went back to Afghanistan. He said that he doesn’t think so. I pressed again saying that he would have a clear future and would be among his community and culture. He said that he would not be able to find treatment.
The applicant has been prescribed Vitamin D and Zoloft. Zoloft is a common antidepressant. I put to the applicant country information that there are antidepressants available to the Afghan population.[12] He said that the medicine is not good as it comes from Pakistan and the doctors are not that knowledgeable.
[12] World Health Organization and Ministry of Public Health, Afghanistan, ‘WHO-AIMS Report on Mental Health System in Afghanistan’, Kabul, 2006
I put to the applicant that the DFAT country information provided by his applicant’s lawyer acknowledges that in Afghanistan there is an availability of mental health support. The barrier is ‘cultural stigma’ and a ‘lack of outpatient mental health services.’ Regarding the cultural stigma, he said that it is true. I asked why he couldn’t overcome the cultural stigma and access the available services. He said that the doctors are not good in Afghanistan and people instead go to Pakistan for treatment.
I asked if there was a discriminatory reason that would prevent him from accessing psychiatric or psychological support? He said that people who have connections receive support and others don’t. When I asked what they receive, he said that he was unsure.
The applicant said that he is concerned that he would self-medicate on heroin. I asked why he believes this when antidepressants are available to which he responded that because there isn’t much work and life pressures are too much he would, along with a lot of other people, turn to drugs.
I acceoth that the applicant has the mental health ailments described by his doctor and clinical psychologist and that he takes the medication that has been prescribed.
COVID
The applicant raised concerns about his exposure to COVID was he to return to Afghanistan. He said that people don’t follow safety rules, they don’t wear masks, the borders are open, and the facilities are not good. He said that there is a greater chance of catching COVID in Afghanistan than in Australia. I asked if there is any discrimination in the health services provided to those with COVID. He said that he doesn’t know. He said that he had heard that the international support given to Afghanistan for COVID was illegally sold to Pakistan.
Considerations
The security situation facing Afghanistan is dire. International forces are leaving which has led to some missions, including Australia, closing their embassy. Analysts and military leaders appear to unanimously agree that the situation will deteriorate. The relevant issue is to what degree will it deteriorate into the reasonably foreseeable future when considering the real chance the applicant faces of serious harm or alternatively as a necessary and foreseeable consequence of removal from Australia when considering whether he faces a real risk of significant harm. The imminent escalation of conflict will lead to increases in casualties but there is no indication that the applicant’s profile, as detailed above, will lead to the applicant being targeted for reasons of race, religion, nationality, political opinion or membership of a particular social group. While there is some information suggesting that as a result of the Tajik people participating in historical opposition movements against the Taliban the Taliban may target Tajiks, the size of the population group is large such that it is inconceivable that every Tajik simply for being Tajik faces a real chance of serious harm.
I have also considered whether at some stage [Mr A] or one of his cronies would out the applicant as a Western sympathizer or accuse him of being a spy to the Taliban. This is possible. As the situation deteriorates and the centre of power changes many things can be done without consequences that wouldn’t otherwise be able to be done. All it would take is [Mr A] learning of the applicant’s return, a flash of memory that the applicant had chosen not to keep silent but rather gave evidence to the police against him and a desire to exact revenge, teach him and others a lesson or to prove himself to others. I have accepted the applicant’s past claims that the incident with [Mr A] occurred. What has changed is not that [Mr A’s] vengeance has grown but rather the environment which tampered the ability of people to seek vengeance will deteriorate. At earlier times the cost to [Mr A] of pursuing vengeance would not make the risk worthwhile. Why seek vengeance when the last time the issue was of interest to the police he had to disappear for a month. But under the circumstances of a disintegrating security situation vengeance can be cheap. Will a weakened Afghan police risk putting a criminal with ties to the Taliban off-side? Will a resurgent Taliban care about old debts being settled as they focus on the main prize? I find that in both cases they will not.
The question then arises as to whether the applicant’s return will be known such that [Mr A] would learn of it. Kabul is a big city. I have not accepted that the applicant’s family have been pursued by [Mr A’s] gang following their move to [Neighbourhood 1]. Would [Mr A] learn of the applicant’s return within the reasonably foreseeable future? This would depend upon the size of [Mr A’s] operations, how integrated he was into the Tajik community, how wide his network spread. The applicant was unable to provide any insights in this regard nor was he able to provide any media reporting on [Mr A] that would suggest that he is a major player. Based upon this I conclude that he is not a powerful warlord or a major player such that news would quickly travel to him. I note that the applicant’s family have not been visited, harassed or pursued.
But I note that the applicant has spent eight years in Australia. There is a perception in Afghanistan, supported by country information, that Afghans who have spent time abroad in Western countries are wealthy. There is no reason to believe that the applicant would not be perceived to be wealthy. His return would be heralded by friends and neighbours. It would be a particular oddity when so many others will be fleeing Afghanistan in advance of the final withdrawal of United States troops that the applicant is returning. Former US Secretary of State Hillary Clinton has stated that she anticipates a ‘huge refugee outflow’[13] and the US government alone is working to develop plans to evacuate Afghans who had worked for them which includes up to 18,000 who have already applied for the special humanitarian visas.[14] Questions would be raised about the man who has suddenly returned into this environment. While the applicant could attempt to take a low profile, an option that in earlier circumstances would be possible, considering the circumstances of thousands of Afghans being granted US visas and others fleeing that the applicant was going in the opposite direction would be difficult if not impossible to hide.
[13] Hillary Clinton, interview with Fareed Zakaria BBC, ‘US 'rapidly' planning to evacuate Afghan interpreters’, 29 May 2021 >
As such I find that the applicant’s return would be known to the local community, it would be of interest and word would get around including to [Mr A]. I find that there is a real chance and a real risk that [Mr A] would seek to eliminate the applicant when an opportunity arose, possibly out of revenge but probably simply to enforce a perception that no one should cross him. The deteriorating security situation is what will facilitate [Mr A’s] options to eliminate the applicant. As the harm the applicant faces is not for reasons of race, religion, national, political opinion or membership of a particular social group, I find that the applicant does not trigger Australia’s protection obligations under s.36(2)(a).
Instead I find that the applicant meets s.36(2)(aa) as he faces a real risk of significant harm arising from cruel or inhuman treatment or punishment, torture and degrading treatment or punishment from [Mr A].
I now turn my mind to consider whether it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that 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. The tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
While the applicant could move to other parts of Afghanistan where he would be out of the reach of [Mr A] the circumstances of a deteriorating security situation make such a move difficult.[15] In addition, what is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant and the impact upon that person of relocating within their country.[16]
[15] SZSSM v MIBP [2013] FCCA 1489 at [98] and [100]–[104]
[16] SZATVv MIAC (2007) 233 CLR 18 at [24].

100. The applicant has a degree of mental health challenges. He is on prescription medication. He believes that alcohol helps him deal with challenges. He has been in Australia for the last eight years. Afghanistan is a community and tribal society in which strangers or new comers would be easily identified. All of this, in the context of a deteriorating security situation in which the Taliban have a grudge against Tajik’s and would be suspicious of people who may have worked for the Afghan government or foreign forces or those who are somehow associated with the West, I find, makes relocation unreasonable.

101. I find that the applicant cannot obtain state protection from [Mr A] for the reasons noted earlier, namely that during times when the security situation is deteriorating and the government’s security forces are preoccupied with an insurgency the ability of the police to provide protection will be greatly diminished.
102. I find that the threat the applicant faces is not one faced by the population of the country generally although the general situation exacerbates the situation. The threat the applicant faces is specific to the applicant due to having crossed [Mr A].
103. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
104. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Denis Dragovic
Senior Member

“Westernised”’, January 2018

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1912576 (Refugee) [2021] AATA 3083

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2202501 (Refugee) [2022] AATA 2515

Cases Citing This Decision

2202501 (Refugee) [2022] AATA 2515

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Statutory Material Cited

SZSSM v Minister for Immigration & Anor [2013] FCCA 1489

SZATV v MIAC [2007] HCA 40

SZFDV v MIAC [2007] HCA 41

[2021] AATA 3083

4 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction

Standing