1313638 (Refugee) [2015] AATA 3365 (28 August 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
CASE NUMBER:	1313638
COUNTRY OF REFERENCE:	Afghanistan
MEMBER:	Filip Gelev
DATE:	28 August 2015
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.

Statement made on 28 August 2015 at 4:07pm

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.

1.  	
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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
2.  	The applicant who claims to be a citizen of Afghanistan, applied for the visa [in] July 2012 and the delegate refused to grant the visa [in] September 2013. 
3.  	The applicant appeared before the Tribunal on 28 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. 
4.  	The applicant was represented in relation to the review by his registered migration agent. 
Relevant law
5.  	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
6.  	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). 
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) 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.
8.  	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.
9.  	There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
10.  	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.
11.  	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.
12.  	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.
13.  	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.
14.  	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.
15.  	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
16.  	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’).
17.  	‘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.
18.  	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.
Section 499 Ministerial Direction
19.  	In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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. The Tribunal has considered the most recent DFAT Country Information Report on Afghanistan (dated 26 March 2014) and the DFAT Thematic Information Report – Conditions in Kabul (3 October 2014).
CONSIDERATION OF Claims and evidence
20.  	The issues in this case are as follows:
a)	Whether the applicant is an Afghan national, a Tajik, and a Shi’a Muslim from the [District 1] of Logar Province;
b)	If so, whether the independent information indicates there is a real chance his Shi’a religion, residence in Australia, or a combination of the two, would cause him to suffer serious harm amounting to persecution at the hands of the Taliban or some other insurgent group, if he returned to his home area now or in the reasonably foreseeable future; and
c)	If so, whether or not it would be safe and reasonable for him to relocate to Kabul to avoid that persecution.
Country of nationality
21.  	Having regard to the copies of the applicant’s national ID (Taskera) card provided to the Department of Immigration, the applicant’s ability to speak the Dari language fluently and his written and oral evidence, the Tribunal accepts the applicant was born in Afghanistan and therefore he is a national of Afghanistan. 
22.  	Based on the above, the Tribunal finds that the country of reference for the assessment of the applicant’s claims in relation to ss.36(2)(a) and (aa) in this case is Afghanistan. 
23.  	The Tribunal accepts the applicant’s evidence that in Pakistan he lived as “an illegal refugee”. 
24.  	On the evidence before it, the Tribunal finds the applicant does not have a present right to enter and reside in any other country than Afghanistan. 
25.  	The Tribunal therefore finds the applicant is not prevented from protection in Australia by s.36(3) of the Act.
Applicant’s claims
26.  	The applicant has consistently maintained since his arrival in Australia that he is a Hazara Shi’a and he has provided detailed evidence about his home area in [District 1]. 
27.  	In addition, as noted, he provided a copy of his Afghan national ID card (taskera), which supports his identity and place of origin in [District 1], Logar, and, while it has not been independently verified, in the circumstances, the Tribunal is prepared to afford him the benefit of the doubt and accept that the document he has provided is a copy of a genuine document. He has consistently spoken in the Dari language. On the oral and written evidence before it, the Tribunal accepts that:
(a)	The applicant was born around [date] in [his home] village, [District 1], Logar province and he lived there until 2009;
(b)	He is Tajik by ethnicity and Shi’a Muslim;
(c)	He is single and has no children. His father died around the [year] deceased. His mother and [younger] brother reside in Pakistan;
(d)	His father had a shop in [Town 2] in Pakistan and used to travel between [Town 2] and his home in Afghanistan on a regular basis;
(e)	After the father’s death around [year] and until 2012, when he travelled to Australia, the applicant was living in [Town 2], Pakistan; 
(f)	He does not have the right to enter and reside in Pakistan;
(g)	He has never resided in Kabul and has no relatives or known connections in Kabul;
(h)	He has no formal education and no vocational skills. The applicant worked in his [relative’s] [store] in 2009-2011 and as a [occupation] in a [shop] in [Australia], but has no formal or vocational skills. 
28.  	The applicant claims that he would be subjected to serious harm by the Taliban or some other Sunni extremist groups because of his religion and his Tajik ethnicity, his residence in Australia and his political opinion.
29.  	According to the applicant’s statutory declaration of 15 July 2012, he also fears a man called [Mr A]. [Mr A] is the [cousin] of a certain [Mr B], who [injured himself] and died. The appllcant witnessed [Mr B’s] death. The applicant, who was about [age] at the time, and some of the other children ran to [Mr B’s] family to tell them about the accident. Then [Mr A], who was also about [that] old at that time, “came” (the statutory declaration did not explain where he came to); he was angry and fired a gun. He shot and killed one of the other youths called [Mr C], he shot and wounded another youth called [name].  

You better not tell anyone that I shot these people. If anyone asks, you have to say that [Mr C] killed [Mr B]. He [[Mr B]] didn’t [injure himself] and die by natural causes, got it? Otherwise I’ll kill you. 
30.  	Because of this incident, the applican’s mother decided to relocate the whole family to [Town 2] in Paokstan. After a few years the applicant’s uncle, who had a shop in [Town 2], told the applicant someone else had said to the [relative] “[Mr B’s] and [Mr A’s] people [are] wealthy, and they might send someone to kill us in [Town 2]”. The [relative] told the applicant it would not be safe for him to remain in Pakistan and he should leave. 
31.  	According to the delegate’s decision, a copy of which was provided with the application for review, at interview with the delegate – which took place over 2 sessions, on [dates in] July 2012 – the applicant’s evidence in relation to [Mr A] was that when [Mr A] heard about [Mr B’s] death he took his gun, came to the orchard where the accident happened and started shooting at the youth in the orchard. He was already shooting, before he had even reached the orchard and before he had a chance to ask what had happened to [Mr B] and whether he was hurt or dead. 
32.  	In order to travel to Australia, the applicant went back to [District 1] in Logar to obtain a taskera. He then returned to [Town 2]. He said that the whole trip took 5-6 days.
33.  	At interview the applicant said that [Mr A] threatened the applicant through a neighbour, rather than directly. As the delegate pointed out in his decision, this would have meant that by using the neighbour [Mr A] would have disclosed his crime, and the death threat, to one more person. Furthermore, there were other children or youths in the park when the alleged shooting took place and it is not clear why [Mr A] would have been targeting the applicant. 
34.  	According to the statutory declaration, at the time of these events [Mr A] was about [age] years old. At interview the applicant said he was [many more] years old. The applicant said that the applicant left Pakistan in the belief that [Mr A] could harm him in Pakistan. However, in order to be able to travel, the applicant returned to Logar and obtained a taskera. At interview the applicant said that before he left for Pakistan, he stayed in the village for approximately one month and he was not harmed. 
35.  	At the hearing, the Tribunal found the applicant’s evidence in relation to the death of [Mr B] somewhat vague and inconsistent, just as the delegate identified inconsistencies between the statutory declaration and the evidence at interview. 
36.  	The applicant was asked to describe [Mr B’s] death. He said he was with some other children and they were playing football. They did not have full teams, there were only about 5 or 6 players in total. [Mr B] was already nearby, doing things by himself and not participating in the soccer game. He [engaged in a specified type of activity] [then] died. One of the kids, who was playing soccer, went to [Mr B’s] family home – which was right next door to the orchard – to tell them about the incident. 
37.  	Soon after, [Mr B’s] uncle [Mr A] came out of the house with a Kalashnikov and started shooting. The Tribunal asked twice whether he was shooting continuously, considering that it is a semi-automatic weapon, or shooting one bullet at a time, but the applicant did not answer the question. [Mr A] killed one child, [Youth C], and injured another one. [Youth C] was the first child [Mr A] had seen outside of the house. [Mr A] did not ask any questions to find out what or who had caused [Mr B’s] death. 
38.  	The applicant and the other children ran away. They all saw what happened. The applicant said that he had been threatened, but he did not speak to any of the other kids. When asked why not, if there were several witnesses, he said it did not occur to him to meet with the other youth to discuss what to do and to bring the issue to the attention of an elder. 
39.  	When asked about the manner in which he had been threatened by [Mr A], the applicant gave a third version: previously he had claimed that the threat was made to him (statutory declaration) or to a neighbour (interview with the delegate), but at the hearing he said that he was hiding so when [Mr A] came to the house, he spoke and threatened the applicant through his mother. The applicant was asked whether he remembered telling the delegate that the threat was made through a neighbour. He said that he did not remember making such a claim. 
40.  	The applicant was asked whether there had been an investigation by the police or whether the case might have gone to court. He said he did not know what happened but there probably would have been a “fight” between [Youth C] and [Mr B]/ [Mr A’s] families.
41.  	The Tribunal suggested that it might seem to be an overreaction to leave the country with his entire family when there were other witnesses to the incident. The applicant said that the other witnesses might have had to flee as well; he did not know what the others did. The Tribunal finds this highly implausible in light of the fact that the applicant and his family remained in the village for about a month after the incident during which time it would have become clear whether the police would take the incident seriously and investigate it, what the other witnesses intended to do, and what [Mr A’s] intentions were. 
42.  	Furthermore, if [Mr A] wanted to harm the applicant, he had plenty of opportunity to do so. Judging by the manner in which he allegedly killed one child and injured another, he is not someone who carefully considers the consequences of his actions. 
43.  	The applicant said that [Mr A] was about [number] years old. When asked why he said in his statutory declaration that [Mr A] was about [much less] years old, the applicant said it must be a mistake – either his or of the interpreter who assisted him with the statutory declaration. 
44.  	He gave the impression to the Tribunal that he had memorised the main aspects of the claim and was incapable of providing the rich and vivid detail one might expect from a person who has lived through such a traumatic event.
45.  	The Tribunal asked the applicant how long it was between his father’s death and the time of his departure from Afghanistan. He said he thought that it was about a year, but he was not sure. The applicant was asked whether after his father’s death, and before the alleged incident when [Mr B] was killed, his mother did not plan to go to Pakistan. When asked how they were going to survive financially after the father’s savings ran out, the applicant said he was not sure but he thought that his mother would have sorted out something. Then he said that the security situation in Afghanistan was deteriorating and, indeed, she might have decided to move the family to Pakistan in any event. The applicant was advised tha the Tribunal might find that he left Afghanistan because he feared harm as a Shi’a and a Tajik and for financial reasons, not because there was a killing (of [Youth C]).
46.  	The Tribunal finds that the applicant’s family did not feel safe in the village after the death of the applicant’s father, because they no longer had the protection of an adult male. The applicant, who is the eldest sibling, was only about [age] at the time. The Tribunal finds that the applicant and his mother decided it would be better to live in Pakistan with the applicant’s paternal uncle. The Tribunal finds that the applicant has made up the claims in relation to [Mr B] and [Mr A]. 
47.  	However, the Tribunal has accepted that the applicant is a Shi’a by religion. It must now consider whether the applicant faces a real risk of persecution for a Convention reason now or in the reasonably foreseeable future, regardless of the veracity of the claims of past persecution. 
The situation in Logar province
48.  	Country information makes clear that Sunni insurgent groups, including the Taliban, the Haqqani Network, Hizb-e Islami Gulbuddin Hekmatyar (HIG) and Al Qaeda are active in Logar.   In 2012 the Taliban’s control of Logar was reportedly nearly complete.   A September 2012 report refers to an increasing insecurity in Logar, to Pul-e Alam being “mostly controlled by the Taliban” and inaccessible to Afghan forces and to Logar being an “increasing flashpoint for violence”.  The Haqqani Network is reported to have an extensive presence in Logar and Logar is reportedly “high on the priority list of eastern AOG [armed opposition group] networks” with a significant number of attacks occurring in Pul-e Alam and its immediate surroundings. 
49.  	Reports from a number of sources indicate that insurgents are committed to using the eastern provinces, including Logar, as infiltration points into Kabul and there have been a number of attacks, primarily against government and military targets, including truck bombs, roadside bombs, air attacks, mortar fire and suicide attacks which have also killed civilians. Reported attacks on civilians in 2011 include the killing of the head of a girls’ school and the beheading of 21 passengers on a bus travelling on the Logar-Paktia highway. 
50.  	According to the Institute for the Study of War: 
Logar constitutes the southern approach to Kabul. From Logar, the Haqqani network has been able to threaten the relative security of the capital, projecting suicide attackers from the Pakistan border through the south-eastern provinces into Kabul...
Two main factors aided the insurgency in their attempt to constitute an effective network in Logar: the corruption of state institutions, including the judiciary, and general ineffectiveness of district and provincial officials and institutions and the sidelining of influential religious leaders in a province with historical high levels of religious sentiment. The population was certainly more receptive to insurgents’ message since there was widespread discontent regarding the efficacy of the district and provincial government. 
51.  	A December 2014 Afghanistan Analysts Network article described the situation in Logar province, noting that the Taliban have a strong presence:
[t]he Taleban regularly pin documents detailing their rules and edicts to mosque walls; these mostly call on people not to support the government.  At night, they deliver letters to people’s door steps warning residents to stop working for government institutions or they will be killed.  In the past five months, more than 15 locals and government employees have been assassinated, locals say …. In Mohammad Agha, everyone must look after the ‘guests’ who arrive at night.  The visitors, roaming groups of Taleban, are patrolling the district and regularly knock on doors to ask for food.  If villagers in this district of Logar, a province located just southeast of the capital Kabul, refuse to help, they risk being marked as spies of the government and punished – meaning beaten or even killed. Some people of Mohammad Agha have been ‘asked’ to ‘donate’ money to Taleban ‘charity,’ which usually means not much more than re-stocking the Taleban’s financial resources.
52.  	While some reports, including a 2011 LandInfo report indicate that Tajiks and Pashtuns are “well-integrated”, there are reports of ethnic hostilities between Tajiks and Pashtuns in Logar. According to the Minority Rights Group:
The continued weakness of the central government, internal disunity and systemic corruption contribute to the poor prognosis, as does the fact that the Taliban now appear able to carry out complex, coordinated attacks in the capital. Any further escalation of the conflict or major re-alignment of power in Kabul carries the risk of large-scale bloodshed in a country still split between the Pashtun-dominated south, heartland of the Taliban, and the largely Tajik-Uzbek strongholds of the former Northern Alliance.
53.  	The applicant’s representative’s referred to an Amnesty International report from 11 August 2014 which refers to Logar as an area or a province with “a heavy Taliban presence” and a September 2014 report from the Security Sector Reform Resource Centre according to which in August and September 2014 the Taliban “threatened to take control of key districts and transportation arteries” in Logar province, among others. 
54.  	The leader of the Afghan Taliban was killed in July 2015. In the first significant attack since his death, the Taliban killed 8 people and injured at least 12 others in an attack in Logar Province on 4 August 2015.
55.  	The security situation in Logar is discussed above. The applicant is a Shi’a in an area which is controlled by the Taliban and in which a number of AOGs are active. The UNHCR has advised that:
In areas where AGEs [anti-government elements] exercise effective control, they are reported to take advantage of the absence of governmental mechanisms or services to enforce their own parallel “judicial” structures. UNAMA has noted that these structures are illegal and have no legitimacy under the laws of Afghanistan; the severe punishments meted out by these structures, including executions, amputations, and mutilations, amount to criminal acts under Afghan laws and, in some cases, to war crimes”.
56.  	The Tribunal has had regard to the most recent DFAT Country Information Report on Afghanistan which notes  that “insurgent groups, including the Taliban, the Haqqani Network, Hezb-e-Islami Gulbuddin Hekmatyer and others, remain engaged in a violent armed conflict against the Government and its international partners” in Afghanistan.  DFAT notes that the Afghan National Security Forces (ANSF) assumed lead responsibility for security across all of Afghanistan in June 2013. It notes that ANSF, with the support of international forces, “maintains effective control over most provinces and districts, particularly major urban areas” and that “in some parts of Afghanistan, government control is weak or absent, in part due to ANSF capacity constraints” and that:
There are many areas of the country contested by insurgent forces and no part of the country can be considered totally free from conflict-related violence. The situation remains fluid and any categorical assessment on the security in a particular area could be rendered quickly inaccurate.
57.  	DFAT also note that “insurgents maintain parallel political and judicial structures in contested areas where the Government’s control is weaker, particularly in the south and east of Afghanistan” leading to human rights abuses and “also seek to propagate fear and uncertainty among the civilian population to discourage them from cooperating with the Government and international forces”.
Sectarian violence against Shi’as
58.  	Shi’as represent about 19% of the population of Afghanistan.  Afghanistan’s Constitution and laws recognise some separate legal rights for Shi’as. Article 131 of the Constitution provides that Afghanistan’s courts shall apply Shi’a jurisprudence in certain civil cases involving Shi’as.  In 2009, Afghanistan’s Parliament passed a Shi’a Personal Status Law, which recognised differing practices on issues like marriage, divorce and inheritance among Afghanistan’s Shi’a community. 
59.  	Although DFAT assesses that Shi’a Muslims face a low level of societal discrimination, primarily as a result of nepotism within the Sunni majority and that Shi’a–Sunni sectarian violence is infrequent in Afghanistan, it acknowledges that Shi’as have been subject to occasional violence.  
60.  	While sectarian attacks have not been the main focus of the Afghan Taliban, they have been occurring. There were sectarian attacks in Kabul and Mazar-e-Sharif in December 2011 specifically targeting Shi’a worshippers. Ahmed Rashid, who has reported extensively on Afghanistan and Pakistan, noted a split between more moderate Taliban and aligned Pakistani extremist Sunni groups such as Lashkar-e-Jhangvi which claimed responsibility for the attacks and which has been responsible for the killing of hundreds of Shi’a in Quetta, Pakistan over the past few years and surmised that their aim appears to be “to start a sectarian civil war. This is a tactic Al Qaeda has used in Iraq, Pakistan and, most recently, Egypt, and indicates a dangerous change of direction in the Afghan conflict – even as the US and its Western allies prepare to leave the country.”
61.  	There are also reports of sectarian tensions in Logar, a primarily Sunni province, with evidence that the bomber responsible for the December 2011 suicide bombing of the Shi’a Ashura celebrations in Kabul arrived with a group of Shi’a pilgrims from Logar province. A 2012 report refers to the arrest of a Taliban shadow district chief in nearby Bamyan province who stated that he had been given money by the Quetta Shura and “been asked to go to Bamyan province and destroy red-light areas, kill Shiites and increase Taliban's activities there.”
62.  	DFAT notes that Afghanistan’s Constitution and laws recognise some separate legal rights for Shi’as; that Shi’a Muslims (mostly Hazaras) face a low level of societal discrimination; and that, whilst Shi’as have been subject to “occasional” violence such as the Muhurram bombings referred to above, sectarian violence is infrequent in Afghanistan and it may not always be possible to differentiate between sectarian and ethnic hostility.
63.  	There is, however, persistent evidence of targeting of Shi’as by insurgents in particular areas. The UNHCR 2013 Guidelines report (at p.44) that although overt discrimination by Sunnis against the Shi’a community has reportedly decreased, violent attacks targeting the Shi’a population continue to occur.  It refers to the murder of five Hazara Shi’as by the Taliban in Andar district of Ghazni province and the murder, allegedly by the Taliban, of five Hazara Shi’as from Bamyan province when travelling on the road connecting Bamyan province to Kabul via Wardak province.  
64.  	Other reports also indicate that the incidence of targeted attacks on Shi’as has increased.  Although a 7 December 2011 Christian Science Monitor report on the December 2011 Ashura bombing considered that “the pattern does not suggest growing tensions between Sunnis and Shiites”, the Tribunal considers that on the country information cited above, this is now in question.  As noted below there have been several reports of persons travelling on the roads singled out as Shi’as and abducted or killed for that reason.  Several people were also killed in an attack on an Ismailia Shi’a mosque in Kabul in February 2014.
65.  	It has also been reported that “Sunni extremists are operating along the Kabul-Kandahar Highway heading south from Kabul rendering the road; that “districts of Wardak were highly volatile and anti-Shi’a”; and that Hazara Shi’as were being killed on the Kabul-Wardak road in 2012.   It is also apparent, from the country information above, that extremist Sunni groups such as Al Qaeda and Lashkar-e Jhangvi are operating in Afghanistan and aligned with the Afghan Taliban.
66.  	Recent country information suggests that the trend toward Shi’as again becoming targets for the Taliban may be exacerbated by the emerging presence in Afghanistan of ISIS. In April 2015 the Wall Street Journal reported on the February 2015 abduction of 31 Hazara Shi’as in Ghazni and speculated as to the role of the Taliban and the influence of ISIS on these actions.  Also in an April 2105 article in The Diplomat Javid Ahmad wrote that 
[t]he Islamic State’s followers are making significant inroads and steadily gaining strength in Afghanistan, as demonstrated by their recent vicious attack in Jalalabad that left 35 people dead.  However, new reports have surfaced, though unproved, that the group’s emergence represents “a rebranding of marginalised Taliban”…
67.  	Further, the violent targeting of Shi’as by ISIS in other countries where it operates is well documented and there is increasing evidence of recent scattered self-identified ISIS presence or activity in Afghanistan (including in Logar).  One report indicates that Islamic State militants were responsible for the destruction of Shi’a shrines and the killing of a civilian in the Charkh district of Logar Province on 21 February 2015.  In February 2015 Islamic State militants killed a Taliban commander in an early morning clash between the two groups in the main Charkh district bazaar and ordered residents to stop watching TV programmes. The armed men, who called themselves IS soldiers, entered into local houses and broke down television sets, antennas, tape-recorders and other household items. 
68.  	ISIS claimed responsibility for a bombing in Jalalabad in April 2015 in which more than 30 persons were killed.  The Afghan President noted that ISIS (or IS) had claimed responsibility for the attack and the AFP report of the incident noted that “The Afghan government has also raised the ominous prospect of IS making inroads into the country.” President  Ghani had previously warned that Islamic State was already sending fighters to Afghanistan.  
69.  	Although the evidence does not yet substantiate that Shi’as generally in Afghanistan at present face a real chance of serious harm, there appears to be greater cause for concern now than at any time since the fall of the Taliban and worrying signs, particularly with indications of ISIS activity in Afghanistan, that this might become a more pervasive problem in the future, including in Logar.
70.  	Any consideration of what may happen in Afghanistan in the reasonably foreseeable future must take into account the ongoing withdrawal of international troops from Afghanistan and the implications of these changes for the security situation in the country. No independent commentators are entirely positive about the future of the country. Consideration of recent analyses suggests that many well-placed commentators predict a dire outcome, as set out by Peter Beinart in The Atlantic in his October 2014 discussion of former US Defence Secretary Leon Panetta’s book:   
It’s a plan that many of the people paying closest attention to Afghanistan fear could end in tears. That includes Obama’s generals, who according to The New York Times “had recommended leaving at least 10,000 troops in Afghanistan for several years (my italics) after the formal end of the combat mission in 2014.” (It’s unclear from Panetta’s book whether he backed the generals.) It includes commanders of the Afghan military, one of whom told The Washington Post, “Leaving in 2016 is not responsible.” It includes regional leaders like Indian Prime Minister Narendra Modi, who during his recent trip to the United States explained that he “requested to America, regarding the defense withdrawal subject—please do not repeat the mistake that you did in Iraq. … [T]he withdrawal process from Afghanistan should be very slow, and only then can we stop the Taliban from emerging its head.” And it includes regional experts like renowned Pakistani journalist Ahmed Rashid, who recently called the U.S. withdrawal plan “catastrophically wrong” and predicted it “will almost certainly mean the relapse of Afghanistan into civil war and the emergence of groups even more extreme than the Taliban, as has happened in Iraq and Syria.”
71.  	On 6 December 2014 US Defence Secretary Chuck Hagel announced that the United States will keep up to 1,000 more soldiers than previously planned into Afghanistan next year, “…in recognition of the still formidable challenge from Taliban insurgents.”  DFAT also noted in the March 2014 report cited above that there is uncertainty about the current and future political situation in Afghanistan.
Returned asylum-seekers
72.  	Media report have detailed the September 2014 killing of Afghan-Australian Sayed Habib Musawi, who was taken from a bus by the Taliban while travelling between Kabul and Gahzni on a trip to visit relatives.  A 29 September 2014 report in The Australian quotes Ghazni's deputy governor, Mohammed Ali Ahmad as saying he was killed because he was an Afghan-Australian"  "The reason if his murder was very clear - that he was a dual citizen, he came from a country that Taliban think is an infidel country".  According to the same report, Mr Musawi's family understood there were signs he had been tortured before being killed. 
73.  	In October 2014 it was widely reported that the first Afghan asylum-seeker to be forcibly removed from Australia was held hostage and tortured by the Taliban within weeks of his return.  A report in the Sydney Morning Herald on 28 October 2014 stated that 
ABC's Lateline program on Monday night aired footage that Afghan police say is the interrogation of Hazara man Zainullah Naseri.
The video shows a dishevelled Mr Naseri emerging from darkness to the sound of gunfire after reportedly escaping from militants. Afghan police are heard yelling at him to keep his hands up as they take him into custody. 
….  
Mr Naseri was reportedly abducted and tortured by the Taliban for two days but managed to break free from chains around his leg using a rock.
He said he was kidnapped while travelling from Kabul to his home district of Jaghori, along the same stretch of road where Australian-Afghan Sayed Habib Musawi, also a Hazara, was reportedly killed by the Taliban last month.
Mr Naseri told the ABC he was targeted within weeks of returning to Afghanistan because militants found evidence linking him to Australia.
"They found my [Australian] driving licence, then they understood I was from Australia. They beat me, they said 'this boy is from Australia, that country is full of infidels'," he said. 
74.  	The Tribunal finds that the country information cited above regarding these attacks indicates that individuals known to have returned from Australia are liable to be imputed by the Taliban with an anti-Taliban or pro-western political opinion or both.   
Well-founded fear of persecution in Logar
75.  	The applicant has only minimal family support remaining in Logar. His father is deceased and his mother and [number of] siblings are in Pakistan. 
76.  	He is from an ethnic minority and a Shi’a returning to a highly insecure area surrounded by extremist Sunni militant groups, including the Taliban. Given the current uncertainty about how the situation will unfold in the wake of the international withdrawal, the Tribunal considers it is not possible to say there is only a remote chance that the applicant will suffer serious harm in Logar because of his ethnicity and religion and his status as a returnee from a western country. 
77.  	The Tribunal accepts the applicant faces a real chance of serious harm from the Taliban or other extremist Sunni groups by reason of his Shi’a religion, and imputed political opinion arising from his status as a returnee should he return to Logar. Given reports of increased targeting of Shi’as in Afghanistan, the fact that Shi’as are in a minority in Logar, and reports of an emerging ISIS presence in Logar, the Tribunal finds there is also a real chance of future harm to the applicant in Logar in the reasonably foreseeable future by reason of his Shi’a religion and imputed political opinion.
78.  	The Tribunal finds that the harm faced by the applicant would amount to persecution as it would involve a threat to his life or serious physical harassment or ill-treatment. The Tribunal finds that the harm would be systematic and discriminatory as it would be directed in a selective and deliberate manner towards the applicant for reasons of his religion and his imputed political opinion. The Tribunal finds that the applicant's religion and imputed political opinion would be the essential and significant reasons for the harm.
State protection 
79.  	At the hearing, the Tribunal asked the applicant whether the authorities could protect him and he replied “they can’t do anything”.
80.  	It is clear from the country information set out above and from the DFAT assessment in particular, that the government is unable to exercise effective control over parts of the country and it lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators. 
81.  	DFAT has recently advised that
[t]he ongoing insurgency, particularly in the south and east of Afghanistan means that the Government struggles to exercise effective control over parts of the country.  As a result, the Government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in those areas. 
82.  	In its most recent ‘Eligibility Guidelines’, UNHCR notes that state protection in Afghanistan is compromised by ‘high levels of corruption, ineffective governance, a climate of impunity, lack of official impetus for the transitional justice process, weak rule of law and widespread reliance on traditional dispute resolution mechanisms that do not comply with due process standards’.  
83.  	On the basis of its comprehensive assessment of the available sources at that time, it was UNHCR’s recommendation that, ‘to the extent that the harm feared is from non-State actors, State protection is on the whole not available in Afghanistan’. There is nothing in the information before the Tribunal to indicate or suggest that there has been any improvement in the underlying conditions that caused UNHCR to form that view in mid-2013.  
84.  	Indeed, in view of the prevailing unstable security situation in Afghanistan and the potential for further deterioration in the context of the draw-down of international forces, the Tribunal finds that the applicant would be unable to access state protection, in accordance with the principles in MIMA v Respondents S152/2003, from the serious harm he faces from the Taliban and other armed militants.
Relocation
85.  	Having found that the applicant faces a real chance of serious harm for reasons of his imputed political opinion if he returns to his home area, the Tribunal then considered relocation to another part of Afghanistan. The ‘internal relocation principle’ was accepted by the Full Federal Court in 1994 in Randhawa v MILGEA on the basis that ‘[t]he focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country’. The Chief Justice reasoned that: 
If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.
86.  	The High Court has confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.  Therefore, in determining whether an applicant is a person in respect of whom Australia has protection obligations, it may be necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country, free of the risk of persecution. 
87.  	In the applicant’s circumstances Kabul is the only realistic option, particularly as Tajiks constitute the largest single ethnic group in the city at 45%. Two groups of Tajiks have been identified in Kabul - the ‘Kabuli’ (original Tajik inhabitants of the city) and the Shamali Tajik (who migrated from the north of the province). The term 'Kabuli' refers to an urban identity rather than an ethnic group and originally comprised Tajiks who referred to themselves using a geographic designation rather than a kin-tribal relationship. ‘Kabulis’ differentiate themselves clearly from the Shamali Tajiks.  
88.  	At the hearing, the applicant confirmed that he did not have any formal education whatsoever. He is illiterate, but in the past two-three years he has acquired some very basic reading skills in English.
89.  	The Tribunal asked how the applicant’s mother and brothers support themselves financially. The applicant said that he sends money from Australia and the uncle runs a shop, but it is a small shop run by the applicant’s uncle alone. 
90.  	The applicant said that he worked for a [business] for 2-2.5 years, but because of a shoulder injury he had to stop. He is hoping to go back in the next fortnight after a couple of months off work. 
91.  	The applicant advised the Tribunal that he has never been to Kabul and does not know anyone there. The applicant said that over the last 2-2.5 years he has sent his relatives about $22,000. They live with the uncle and he provides them with food and accommodation. The uncle does not give the applicant’s mother and brothers any cash. The uncle supports a wife and [a number of] children.
92.  	The Tribunal asked whether the applicant could open his own [specified business] or he needs to acquire certain skills and qualifications to ensure that the [products are registered]. He said that the business where he worked only did [specific functions]; the [other functions] was done elsewhere, by a different business. He was being paid a little over $17 an hour. The Tribunal asked him how he thought he could start a business if he is illiterate. He acknowledged that he would need a business partner. 
93.  	The applicant said that the situation in [Town 2] was quite unstable and dangerous for Shi’as, but infinitely better than Logar. He said that a taxi driver, friend of his mother’s had been stopped on the road, kidnapped and tortured.
94.  	The country information on relocation to Kabul is mixed. The UNHCR has reported of the widespread unemployment in Kabul that limits the ability of a large number of people to meet their basic needs.  DFAT has also referred to unemployment being widespread in Kabul and underemployment common, with some reports indicating that more than one third of Kabul’s residents are unemployed and another 36% earn less than $1 a day, with most having little access to clean water and sanitation, adequate housing, health services or education.  
95.  	UNHCR Guidelines and the recent DFAT ‘Thematic Report: Conditions in Kabul’, advise that traditional extended family and tribal community structures are fundamentally important for successful relocation.  Both DFAT and UNHCR stress that internally displaced Afghans rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence. DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation. This is exacerbated by Kabul’s relatively high cost of living, particularly the cost of housing.  Returnees generally have lower household incomes and higher rates of unemployment than established community members.  Although DFAT assesses that men of working age are more likely to be able to return and reintegrate successfully, UNHCR has highlighted the importance of employment skills.  While DFAT has stated that internal relocation to urban areas is more likely to be successful for single men of working age, other reports indicate that accessing that support is dependent on having a contact point from an existing network, which usually comes from the person’s village or tribe, which the applicant does not have.    
96.  	In addition, even though reports indicate that Kabul is safer than other parts of the country, there is evidence of a number of insurgent attacks against government institutions, political figures and Afghan National Security Forces, as well as other security services and international organisations, they have often involved significant civilian casualties.  
97.  	According to a United Nations Assistance Mission in Afghanistan report, there was an overall increase of 22% in civilian casualties in Kabul in 2014 compared to 2013.  In late 2014, the Washington Post referred to a recent report of the IHS Jane’s Terrorism and Insurgency Center that there had been over 80 reported insurgent attacks in Kabul in 2014, and quoted a respected Afghan journalist, who lived in the capital, that Kabul ‘city is now the front line of the war’.  
98.  	Though this is not sufficient in itself to establish a real chance that the applicant would face serious harm in Kabul, the existence of these attacks and the danger that the applicant may be caught up in them, contributes to the unreasonableness of relocation. Further, in the Tribunal’s view, the available information indicates that it is reasonable to anticipate the possibility that increased levels of insecurity and instability throughout the country will cause further large-scale displacements, with Kabul receiving increasing numbers of new residents, placing further pressure on the city’s already over-stretched infrastructure.  
99.  	The Norwegian Refugee Council Report: Still at Risk: Security of tenure and the forced eviction of IDPs and refugee returnees in urban Afghanistan, February 2014, found the following:
The arrival of large numbers of IDPs and refugee returnees in Afghanistan’s cities presents the government and the international community with both a protection and an urban development challenge. Informal settlements in Afghanistan can make up entire neighbourhoods. Some are now several decades old. Informal settlements are frequently characterised by insecure tenure, poor sanitation, lack of safe drinking water, high vulnerability to disasters and lack of investment in services and infrastructure.

Indeed, three quarters of Afghans affected by conflict have faced some form of displacement and in cities such as Kabul most of the urban poor have been IDP s or refugees at some point in their lives. Poverty, informality and marginalisation are a reality for the majority of urban dwellers in Afghanistan and much of the wider urban poor lack access to adequate housing and secure tenure.
100.  	The Oxford Refugee Studies Centre report entitled Afghanistan Afghanistan’s  Displaced People: 2014 and Beyond, found the following:
Return not as successful and sustainable as hoped: Though it is unclear exactly how many Afghans have returned home (some more than once) since 2001, 5.7 million is a recent estimate.1 Added to this are the 2.7 million who are still in Pakistan and Iran, and who are unlikely to return home unless there is a strong forced incentive from the host countries, namely deportation. But return has been unsustainable for many, if not a majority, due to the struggle to obtain a place to live and make a living, let alone access basic services and enjoy security and protection. Many returnees already live in secondary displacement.

Added demographic stress: With its exceptionally high birthrate (2.4%), fghanistan’s population is predicted to exceed 40 million by 2030, with ever greater competition for resources such as land, services and employment in a country that already struggles to provide for the current population of around 28 million. More stresses and vulnerabilities are likely to produce displacement and, with a larger population, any future displacement will mean larger numbers of refugees and IDPs.

Insecurity as a key driver of displacement: The recent sharp increase in violence in Afghanistan does not inspire much confidence that the push factors will be resolved any time soon. Security incidents and the killing of civilians have been steadily on the rise over the last few years, and the trend is already continuing into 2014. Civilian casualties, however, only tell us part of the story, and should be considered along with the increase in threats, intimidation and human rights violations, the rise in instances of impunity, and the lack of protection provided by the Afghan government and its security forces.
101.  	There are more than 620,000 internally displaced people in Afghanistan and according to the Norwegian Refugee Council:
…..many of them living [are] in very precarious conditions in the informal urban settlements on the outskirts of the capital Kabul. A high number of these IDPs were refugee returnees who faced hardships in attempting to integrate and enjoy a normal life following return. Over the past year, the return of refugees has significantly declined with 50% less refugees returned to Afghanistan compared the previous year. Deteriorating security, continued armed conflict and high levels of violence, combined with lack of access to basic services and livelihood opportunities are the main reasons so few refugees are seeking to return and internal displacement inside Afghanistan continues to rise.
102.  	According to the Afghan Independent Human Rights Commission: 
Lack of employment opportunities, poverty, insecurity, lack of an adequate standard of living, lack of health services, lack of education, lack of potable water, and so on are the major problems facing returnees. The Afghan Government encounters many challenges in meeting these needs and has not been able to provide an adequate standard of living for its people.
103.  	It has also been reported that there is a ‘lack of opportunities for livelihoods and shelter’ as well as ‘[a] lack of clinics, drinking water and poor education facilities in their places of origin’ and that returnees could face ‘serious socio-economic threats’ and would pose ‘serious challenges’ to the Afghan government; that ‘[m]any returnees end up living in informal settlements or begging on the street’; that there is only employment for skilled workers in Afghanistan and the cost of living is unaffordable; that there is widespread poverty in the camps on the outskirts of Kabul and the work available is limited to repairing and selling old clothes, selling wood or driving carriages. 
104.  	Other reports also indicate that returning Afghan refugees find themselves in extremely poor living conditions. The Danish Refugee Council has described returning refugees “living in muddy slum areas of the cities in Afghanistan” and that, most returnees “end up in one of the rapidly growing tent and mud house settlements, alongside a quarter million internally displaced Afghans”.
105.  	In the Tribunal’s view, when considered in the context of the overall pessimistic outlook for Afghanistan’s foreseeable future, the general insecurity, the widespread unemployment in Kabul, its general high costs of living, poor general living conditions for IDPs, the evidence that the applicant has no family or relatives or known tribal or clan ties in Kabul, that he is illiterate, that he is the primary breadwinner for his family (widow mother and [number] young siblings), that he has been outside the country since 2008-9, that at present he has no savings, that his only work experience is unskilled, gives the Tribunal little confidence in finding that, as a matter of practical reality, it would be reasonable to expect him to relocate to Kabul, and, accordingly, finds that relocation is not a reasonable option for the applicant.  
CONCLUSION
106.  	For the above reasons, the Tribunal is satisfied that the applicant has a well-founded fear of being persecuted by non-state actors, from which the state would not be able to protect him, if he returned to Afghanistan now or in the foreseeable future, and that, in the circumstances, it would not be safe or reasonable for him to relocate to another part of the country.  
107.  	The Tribunal considers that the persecution which the applicant is at risk of suffering involves ‘serious harm’ as required by s.91R(1)(b) of the Act, in that it involves significant physical harassment or ill-treatment. The Tribunal finds that the applicant’s religion and imputed political opinion, are the essential and significant reasons for his fear of persecution as required by s.91R(1)(a).  
108.  	The Tribunal is satisfied that the persecution he is at risk of suffering involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason.  
109.  	As the Tribunal has found the applicant faces a well-founded fear of persecution by the Taliban, or other Sunni extremists, now or in the reasonably foreseeable future in Afghanistan for Convention reasons, it is not necessary for the Tribunal to consider whether the applicant meets the criteria for complementary protection. 
110.  	The Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations and that he satisfies the criterion set out in s.36(2)(a) for a Protection visa.
111.  	For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
decision
112.  	The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Filip Gelev
Member