1935510 (Refugee)

[2022] AATA 598

1935510 (Refugee) [2022] AATA 598 (27 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1935510

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Kate Millar

DATE:27 January 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 27 January 2022 at 1:59pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – Federal Circuit Court remittal – ethnicity, religion and imputed political opinion – Hazara Shi’a and returned failed asylum seeker – brother killed by Taliban and threats to applicant – claim of sexual assault by Taliban first raised at previous tribunal hearing – mental health – country information – takeover by Taliban and continuing volatility – likelihood of identification as returnee – decision under review remitted

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant] is a citizen of Afghanistan.  He arrived in Australia as an irregular maritime arrival [in] May 2012 and lodged an application for a protection visa on 12 August 2012.  In his application he claimed to be of Hazara ethnicity and Shi’a faith and that as a result he and his family, as well as others in the Hazara community, were harassed by the Taliban. [The applicant] claimed he assisted his brother in the construction of a girls’ school, and his brother was later killed by the Taliban for transporting government products.  He states he publicly condemned the Taliban for the death of his brother.

2. [The applicant] claims to fear harm because of his Hazara race, his Shi’a religion and because of his imputed political opinion as anti-Taliban.  He states that if he returns to Afghanistan as a failed asylum seeker, it will be imputed that he is a supporter of the West.

3. [The applicant]’s application was refused by a delegate of the Minster on 1 August 2013, and this decision was affirmed by this Tribunal (differently constituted) on 28 October 2015.  The decision of the Tribunal was remitted by the Federal Circuit Court (as it then was) with the consent of the Minster [in] August 2019. 

4. This the 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).

   LEGISLATIVE FRAMEWORK

5. 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.

6. At the time [the applicant] applied for the visa, s 36(2)(a) provided 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).

7. 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) 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.

8. 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’).

9. 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.

10. DFAT have recently released a report DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2011 to January 2022) (“DFAT report”) dated 14 January 2022, and the Tribunal has had regard to this report in making its decision.  This report reflects the significant changes in Afghanistan since the Taliban assumed control in August 2021.

    CLAIMS

11. In the statutory declaration that accompanied his application, and in his entry interview, [the applicant] claims that if returned to Afghanistan, he fears harm from Pashtuns and the Taliban.  He also made the following claims.

12. He claims he will be killed by the Taliban as in 2004 his brother had a [Vehicle] which was hired to supply stones and dirt to a girls’ school in the village.  The school was previously held under tents and the community raised money to build a school.  He assisted his brother.  When they realised they were at risk by doing this type of work they stopped, and also following the pleas of his mother and other relatives because people who worked at a school or on other government projects suffered significant harm due to their involvement in this work.

13. His brother exchanged his [Vehicle] for a car which he used to transport people.  His brother also opened a shop for him, and he managed the shop and sold [items].

14. In autumn 2007 his brother was asked to deliver books for boys and girls in schools in the area.  The books were provided by the government and distributed to the principals of the schools.

15. His brother was shot by the Taliban in November 2007, and [the applicant] was told by other passengers in his car that the Taliban told them to tell other Hazaras not to carry government products or they would all face the same consequences.  His brother was taken to a hospital as he was still alive after he was shot, but he died before [the applicant] arrived at the hospital.  He asked for a blanket in which to wrap his brother’s body at the district office but was refused.  They also refused to investigate his brother’s death.

16. He denounced the Taliban for their cruel and inhumane treatment of people at a mosque on the first anniversary of his brother’s death, and again during Ashura.  A Taliban member, [Mr A], stated that transporting books for the government was a crime, a person who condemns the Taliban in public is even worse and the offender should be killed, and at that stage [the applicant] knew his life was in danger and confined himself to his home.  He said approximately two years later the Taliban infiltrated his village and the local principal was beheaded.  The girls’ school was exploded.

17. [The applicant] states he fled to Iran in July 2010, where he was also subject to harassment for being Hazara, and he decided to travel to Australia to seek asylum.

18. Prior to the Tribunal hearing on 13 August 2013, [the applicant] made a new claim that he was sexually assaulted by the Taliban in 1998 when he was [age] years old.  This claim was contained in a submission from his representative. 

19. [The applicant] has since submitted letters from a psychiatrist from [Organisation 1] dated 2 August 2017 and 20 October 2020 stating he has been treating [the applicant] for PTSD and anxiety and depression due to torture and rape by the Taliban, the killing of his brother, and the hardships he has experienced.  His psychiatrist reports his wife is also suffering chronic ill health. 

20. A report from [the applicant]’s general practitioner dated 28 July 2017 states he has a history of significant torture and abuse, and grave concerns are held about his safety and wellbeing.

21. [The applicant] has provided reports and ultrasound scans regarding his wife’s health.

    ASSESSMENT OF CLAIMS

22. [The applicant] provided with his application a taskira (Afghan identify document), his father’s taskira, his mother’s voting card, a marriage certificate and his father’s completion of public service card.  Translations of these documents were not included in the material before the Tribunal.  However, it has not been disputed that [the applicant] is a citizen of Afghanistan.

23. [The applicant] has consistently claimed to be Hazara and Shi’a, and he used a Hazaragi interpreter in his entry interview, his interview with the Department and at the previous Tribunal hearing.  The Tribunal accepts he is Hazaragi and is of the Shi’a religion. 

    Recent events in Afghanistan

24. Much of the country information previously provided and considered in this matter has been overtaken by events, with the Taliban taking power in Afghanistan in August 2021. The Taliban is reported by DFAT to be a factional organisation, with the most powerful faction being the hard-line Haqqani Network, a Sunni Islamicist militant organisation listed by the United States as a terrorist organisation.[1]

    [1] DFAT Report [2.14]

25. DFAT report that the Afghan National Army provided little resistance to the Taliban taking power.  In early September 2021, the Taliban announced the formation of an interim government and declared an Islamic Emirate of Afghanistan.[2] DFAT report the Taliban promised an inclusive government representative of Afghanistan’s ethnicities, and claims it has fulfilled this role by the appointment of Uzbeks, Tajiks and a single Hazara, mostly to technical roles in the government.[3]  The Taliban is reported to be struggling to regulate the behaviour of tens of thousands of foot soldiers and their regional commanders, which means the behaviour on the ground including violence to at-risk groups may be inconsistent with proclamations from central Taliban authorities.[4]

    [2] [2.4]

    [3] [2.11]

    [4] [2.13]

26. Islamic State in Khorasan Province (ISKP) have carried out terrorist attacks against both the pervious Afghan government and the Taliban.[5]  ISKP strongly opposes Shi’a Muslims and the West.  It has claimed responsibility for suicide bombings on Shi’a mosques and a hospital in October and November 2021.  ISKP and the Taliban have reported to have been in conflict for some time, while also opposing the Afghan and US governments.  With the removal of these two targets, ISKP is reported to be fighting the Taliban regime.[6]  While the cessation of hostilities between the government and the Taliban has made some parts of the country free of armed conflict, the situation is reported to be highly volatile.[7]

    [5] [2.20]

    [6] [2.24]–[2.25]

    [7] [2.26]

27. The European Asylum Seekers Office Country Guidance: Afghanistan from November 2021 states that at this date, the situation in Afghanistan remains volatile, rendering any conclusive assessment of international protection needs difficult.  The following elements are highlighted:

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

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

    ·     While the frequency of security incidents and the number of civilian casualties have generally decreased since the Taliban takeover, the future risk of indiscriminate violence in any part of the country should be assessed with caution and based on the most recent information concerning the dynamics in the particular area as well as the country as a whole.[8]

    [8] p.9

28. This is relevant to [the applicant] as he claims to have a profile where he would be targeted by the Taliban; namely that he is Hazara, Shi’a, and is imputed to be anti-Taliban.  He also claims he will be targeted because he is a returnee from the West.

    Hazara and Shi’a in Afghanistan

29. The majority of Hazaras are of the Shi’a religion.  Hazaras are visually distinct from other ethnicities in Afghanistan. A previous takeover of Kabul and much of Afghanistan by the Taliban in 1996 is reported by DFAT to have resulted in the worst single recorded massacre of Hazaras in 1998.  DFAT report that the return of the Taliban has resulted in great fear to the Hazara community, with promises of amnesty and inclusivity greeted with scepticism.[9]  The Taliban are reported to have executed Hazaras who were former members of security forces.[10]

    [9] [3.2]

    [10] [3.4]

30. Attacks by ISKP have directly targeted Shi’a mosques chiefly used by the Hazara.  It is reported ISKP issued a statement saying it would target Shi’a in their homes and centres ‘in every way, from slaughtering their necks to scattering their limbs … and the news of [ISIS’s] attacks … in the temples of the [Shi’a] and their gatherings is not hidden from anyone, from Baghdad to Khorasan.’[11]  The European Asylum Seekers Office, in its report of November 2021, also states ISKP conduct deliberate attacks against civilians, in particular members of the Hazara ethnicity and Shi’a religion and against Sikhs.[12]

    [11] [3.4]

    [12] Country_Guidance_Afghanistan_2021 (europa.eu) at [1.4]

31. DFAT reports that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. While DFAT report the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISKP terror attacks and Taliban violence, including hundreds of evictions.[13]

    [13] [3.5]

32. DFAT assesses that Shi’a face a high risk of being targeted by ISKP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.[14]

    [14] [3.9]

33. The Tribunal accepts [the applicant] is Hazara and Shi’a and is at a high risk of harassment and violence from the Taliban and ISKP because of his ethnicity and his religion.  It finds there is a real chance of him suffering serious harm due to his ethnicity and his religion in all areas of Afghanistan.

    Criticism of the Taliban

34. [The applicant] claims to have denounced the Taliban for the death of his brother at the one‑year anniversary of his brother’s death and on Ashura Day.  This was approximately two years before he states he fled to Iran.  He states that a Hazara Taliban informer told him that those who criticise the Taliban are worse than those who assist the government.

35. The previous Tribunal had concerns about when and how often [the applicant] spoke out against the Taliban and how the warnings from [Mr A] were conveyed to him.  The Tribunal also had concerns about why he remained in Afghanistan for two years after his brother was killed and then decided to suddenly leave after the attack on the girls’ school.  At the previous hearing, he said he did not leave earlier as his mother was ill and he needed to arrange for the care of his children.  The Tribunal accepted that his brother was deceased but did not accept his claims that there were spies or informants for the Taliban in his village, his claims of sexual assault, that he and his brother assisted in building a girls’ school, and that his brother transported books for the school.

36. [The applicant] reports being critical of the Taliban in approximately 2008, which is now nearly 12 years ago.  The risk to him is reduced with this time.  So is the ability to test this evidence to any meaningful degree.  The change to the circumstances in Afghanistan at this point in time means that it has become unnecessary to analyse these claims in detail.

37. Recent reports cite detention and torture of people who are critical of the Taliban on Facebook,[15] and of people deleting material critical of the Taliban in fear of retribution.[16]  If [the applicant] has denounced the Taliban as he claimed, he would hold a perceived political opinion of being anti-Taliban.

    [15] Radio Free Europe/Radio Liberty Gandhara, 'Tortured From Head To Toe': Taliban Accused Of Killing Afghan Man Over Critical Facebook Post, 3 December 2021; AVA Press, Taliban Must Be Accountable for the Targeted Killings of Civilians, 1 December 2021

    [16] BBC News, Afghanistan: social media users delete profiles over fear of attack, 28 September 2021

38. While the situation in Afghanistan is still uncertain, the Tribunal considers there is a real chance of serious harm to people who are perceived to be critical of the Taliban. 

    Alleged sexual assault

39. [The applicant] claims to have been physically and sexually assaulted by members of the Taliban when he was [age] years old after the Taliban apprehended him and his friends while they were watching a football match.  He told the previous Tribunal he had not mentioned this earlier due to his feelings of shame and humiliation.  He told his family that he had been beaten but did not tell them of the sexual assault.  He said he did not tell his representative, who otherwise prepared a detailed statutory declaration, of either the sexual assault or that he was beaten.  His claims of sexual assault have been repeated in the report of his psychiatrist at [Organisation 1], however this is an account of what [the applicant] has told his psychiatrist and does not assist the Tribunal to determine if this occurred.

40. The Tribunal acknowledges [the applicant] has made these claims, and subsequent to making these claims he provided reports following consultation with a psychiatrist at [Organisation 1].  While this claim supports his reported subjective fear of being returned to Afghanistan, there is no further information to show he would be targeted because of this assault or that the perpetrators of this assault have pursued him further.  He told the previous Tribunal that when he was tortured, he could not see their eyes.  The Tribunal infers he does not know the perpetrators and would be unable to identify them.  While in no way dismissing that this may have occurred, or that this could have a significant adverse effect on [the applicant], the Tribunal does not consider this claim of itself shows that he would be harmed by specific people or the Taliban more generally if he returns to Afghanistan now.

    Returnee from the West

41. [The applicant] claims to fear harm as a returnee from the West as a failed asylum seeker, as the Taliban will believe he is a supporter of the West.

42. DFAT further report that the Taliban have targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. The focus is on former Afghan government security forces.[17]

    [17] DFAT Report [3.25] and [3.27]

1. UNHCR have issued a non-return advisory, citing (among other things) human rights violations against civilians including those perceived by the Taliban to have a current or past association with the Afghan government, international military forces in Afghanistan or international forces in the country.[18]

   [18] 611a4c5c4.pdf (refworld.org) “UNHCR positions on Returns to Afghanistan” August 2021

2. The European Asylum Seekers Office reports Dr Andrea Chiovenda and Dr Melissa Kerr Chiovenda, anthropologists at Zayed University, described a narrative that:

   … people who want to leave are not ‘the right kind of person’ and not perceived as ‘good Muslims’. However, they separated the tradition of Pashtun men going abroad for periods to work, which is a long tradition, from other Afghans who go away and stay in non‑Muslim countries – which is not ‘the right way to do it’. They further stated that in rural Pashtun areas a person wanting to leave for Europe or the US would in general be perceived with suspicion, and even persons having Western contacts.[19]

   [19] 2021_EASO_COI_report (europa.eu) pp56-57

3. Given the difficulties reported of flights to Afghanistan, with Hamid Karzai Airport not meeting International Civil Aviation Organisation standards,[20] it is difficult to know how [the applicant] could be returned to Afghanistan or could be returned without being identified as a returnee from the West.  He would require a travel authority as he does not have a passport, which in turn can reasonably be inferred to draw him to the attention of the Taliban as a returnee from the West.

   [20] DFAT Report [4.3]

4. Given the reported targeting by the Taliban of people associated with the West, which involves harassment and the death of those associated with the West, the Tribunal considers that being a member of a particular social group of returnees from the West results in there being a real chance he would suffer serious harm as a result of being a member of this particular social group.

   Conclusion on claims

5. [The applicant] claims to have been critical of the Taliban, however this is now a considerable time in the past and the potential risk to him has become more remote.  There are reports of people critical of the Taliban being detained, tortured or killed, and while the risk is small it is nonetheless real.

6. While situation is not yet clear, the historical treatment of the Hazara and Shi’a population while the Taliban were in power in 1996–2001 and the DFAT reports that Hazaras and Shi’a face a high risk of harassment and violence, with ISKP targeting Shi’a.  The Tribunal considers there is a real chance [the applicant] would suffer serious harm due to his ethnicity and his religion.  Added to this is that he will be identified as a returnee form the West, and as a member of this particular social group faces a real chance of serious harm in combination with this ethnicity and religion.  This applies to all areas of Afghanistan.

7. The Tribunal finds [the applicant] is outside his country of origin and has a well‑founded fear of persecution.  As a result of this persecution, he is unwilling to avail himself of the protection of the Afghan government.

   CONCLUSION

8. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugee Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).

   DECISION

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

   Kate Millar
   Senior Member