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1213315 [2012] RRTA  1137  (26 November 2012)

Last Updated: 21 February 2013

1213315  [2012] RRTA 1137  (26 November 2012)

DECISION RECORD

RRT CASE NUMBER: 1213315

DIAC REFERENCE(S): CLF2012/142522

COUNTRY OF REFERENCE: Afghanistan

TRIBUNAL MEMBER: Adam Moore

DATE: 26 November 2012

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 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 (Class XA) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, who claims to be a citizen of Afghanistan, applied to the Department of Immigration for the visa on [date deleted under s.431(2) of the Migration Act 1958 as this information may identify the applicant] July 2012, the Minister having exercised his power under section 46A(2) of the Act.
3. The delegate refused to grant the visa [in] August 2012 and notified the applicant of the refusal decision by letter dated that day. The applicant applied to the Tribunal for review of that decision [in] August 2012.

RELEVANT LAW

4. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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 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), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a protection visa.

Refugee criterion

5. 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 Refugees Convention.
6. 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.

7. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293, MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1, Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387, Appellant S395/2002 v MIMA [2003] HCA 71; (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC [2007] HCA 41; (2007) 233 CLR 51.
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)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: 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 fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. 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.

CLAIMS AND EVIDENCE

19. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
20. The applicant sets out his claims in a statutory declaration, made though an accredited interpreter, that accompanies the application for the visa. This reads (omitting formal parts):

My name is [name] and I am a [age] year old male born in [Village 1], Jaghori, Afghanistan. My ethnicity is Hazara and my religion is Shia Muslim. I have a wife, [and children] living in Pakistan with my[siblings], and my wife's sister. They are dependent upon me.

Why I left my country:

When I was around ten years old there was no government control and there was fighting. My families problems started then. My father and mother have told me the story. In the winter time we used to play at target shooting and my father hit a person by mistake. The elders came to solve the problem, and asked my father to pay compensation to the family. This family was from the Hezb-e-Islami group, who are now part of Taliban. They did not accept the compensation and said that because my father killed one of their family they would kill one from our family, my father. The people from my area went and begged them to accept the money but because they were from Hezb-e-Islami and had power, they did not accept. My father did not have a chance to sell our property or cattle, we just escaped in a jeep with a few belongings from Afghanistan across the border to Pakistan. Although I was young, I remember the trip. We did not return to Afghanistan to see what has happened to our land. We didn't have any other family in Afghanistan.

I was deported from Iran to Afghanistan in 2004 after working there illegally. I thought it would be safe enough to get my Taskera and try to get a passport, so I could go legally to Iran for work.

I had a friend who was deported same time as me, and went with him straight to [Village 1], Jaghori by taxi car, and stayed with him. I went to the district office and got my Taskera. It wasn't possible to get the passport in Jaghori so my friend and I planned to go to Ghazni. After seven or eight days we were invited to his uncle's home, and went there. While we were out his sister rang him and said three men on two motorbikes had come looking for me. She said they came to the door, they had covered faces, asked for me by name and said they had some business with me. My friend said it was not safe for me to be there and drove me straight to [a town], where cars go from around dawn to the Pakistan border. I went to Quetta.

Living in Pakistan was ok until a few years ago, when target killing started, Lashkar e Jhangvi killing Shia and Hazara people. In 2011 I was in an auto rickshaw returning from the bazaar, [location details deleted: s.431(2)], a Suzuki car overtook me, with a Hazara family inside. When I arrived in [a district] a few minutes later I saw they had killed an old man with his son in law and child, his wife was crying and shouting. I was so scared. I could see they were Hazara Shia who were attacked. I knew my life was in danger and rushed home via another route, terrified if the gunmen had a motorbike they would be following me.

Less than a month after this incident I went to the graveyard in Hazara Town in the morning to exercise. It was Friday and a lot of people were there, exercising and playing football. I was in a garden alongside the graveyard, close to a wall, and suddenly firing started from [the road]. We could see a white car up on the road. Everyone was running and hiding. I crouched down by the side of the wall. I was frozen with fear and could not move for around 45 minutes. Then the firing stopped. They killed 11 people that day. A few weeks later I left Pakistan.

What I fear might happen if I go back to my country:

If I go back to Afghanistan I think that the situation with my father is still a danger. He warned me could not go back, and they recognised me when I tried to return in 2004. I think they will find me and kill me.

Who I think will harm or mistreat me if 1 go back:

I think the people who want to kill me are the Hezb-e-Islami group, who are now part of Taliban.

Why I believe they will harm or mistreat me if I go back:

They will kill me because they still want revenge for the death of their family member.

Why I believe that the authorities in my country will not protect me if I go back:

The people who want to hurt me and kill me are connected with Taliban and have the support and power. The authorities will not be able to protect me. I don't think if I went to Afghanistan that I would have a chance to have my case heard in court. The Taliban will do what they want, and they want to kill me to pay for the death of their family member.

Why I think I will suffer significant harm:

I will suffer significant harm because I am a Hazara Shia and my family has crossed the Taliban.

Tribunal hearing

21. The applicant appeared before the Tribunal on 26 November 2012 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
22. The applicant was represented in relation to the review by his registered migration agent.
23. After explaining its role, the Convention definition of a refugee, the complementary protection regime and the purpose of the hearing, the Tribunal questioned the applicant. What follows is a summary of his evidence.
24. The Tribunal discussed with the applicant his background. He comes from [Village 1] in Jaghori, but he has been living in Quetta, Pakistan for about 20 years. He is of Hazara ethnicity and Shia Muslim faith. He is married with [children], who were born in Quetta. His wife is also from Afghanistan and of Hazara ethnicity. She left Afghanistan while still a baby. The applicant answered questions about his wife and children with some detail.
25. He paid a people smuggler USD$6000 to come to Australia. He said he had a business in Quetta and also borrowed some of the money. He travelled on a false Pakistan passport which he destroyed in Malaysia.
26. He said he could not return to Afghanistan because he has no place there and was threatened. He said he was deported from Iran to Afghanistan in 2004. He said when he was there, he obtained his Afghan taskera. He said he was with travelled back to [Village 1] with a friend from there. He said while he was visiting his friend’s uncle, his friend’s family rang him to say there were men who had come to his friend’s house and were looking for the applicant.
27. The Tribunal questioned the applicant at length about this claim. His evidence was vague, shifting and inconsistent with his prior written account. He claims that the people who were after him were Hisb-e-Islami and the Taliban, whom he said fought together. The Tirbunal said this was not correct. He said that the problem was because his father killed a man from another family accidently, playing a game called which involved shooting from one mountain top to another. He said his father was a poor man. When asked, he was unable to name the family from whom the shot man came, or the name of the people he said are after him, other than the vague claim that they were from Hisb-e-Islam. He said he only knew about this based upon what his parents had told him.
28. The Tribunal said it did not think he was being truthful about people coming to look for him in 2004. He insisted that the claim was true. The Tribunal asked the applicant about his religion. He said he was Shia and that it was important to him.
29. The Tribunal asked him about his home town. He said his family has come from there for many generations. He said his has distant, but no close, relatives there. When asked, he also said he had a house and some land there. When asked how he knew this, he said people from the area had told him. He then said he did not know if the land will be there or not. The Tribunal asked him why he did not know if the land was there or not. He said

Because I did not go there, I could not go there...

30. After the applicant said this, the Tribunal pointed out that he had earlier said that he went there in 2004. He said he went for the taskera in 2004.
31. The Tribunal asked the applicant if he had any relatives in any other parts of Afghanistan. He said that he did not.

COUNTRY INFORMATION

Situation of the Hazara in Afghanistan

32. The US Naval Postgraduate School’s Program for Culture and Conflict Studies[1] provides an historical background summary in relation to the Hazara, describing them as a distinct ethnic and religious group of noticeably different physical appearance from the Pashtun majority, who have often been the target of discriminatory and violent repression. The great majority of Hazara are Shi’a Muslim. Due to these differences and “..[a]s the traditional underclass of Afghan society, Hazara were exploited and made to work as servants and labourers. As a result there tends to be an anti-government and anti-Pashtun bias among the Hazara.” The Hazara today mostly live either in the Hazarajat in mountainous central Afghanistan, centred on Bamiyan province and including areas of Ghowr, Uruzgan, Wardak, and Ghazni province, or in and around Kabul, Herat, Mazar-e-Sharif and Samangan.
33. The NPS article notes further that due to atrocities committed against them by the Taliban, including the 1998 massacres of Hazara in Mazar-e Sharif and Bamiyan, the Hazara are mostly opposed to the Taliban. Politically, many Hazara support Hezb-e Wahdat (Islamic Unity Party of Afghanistan).
34. In addition to the atrocities mentioned above, in the late 1990s the Taliban blockaded the Hazarajat, bringing great hardship to the region. More recently, there have been differing views put forward about the current circumstances of Hazaras in Afghanistan. There has been some very positive reporting about their present general situation, in contrast to the hardship and persecution of the past, including the New York Times’ “Hazaras hustle to head of class in Afghanistan”[2] and the Christian Science Monitor’s “Afghanistan’s success story: The liberated Hazara minority”[3].
35. A 2012 Hazara Community Update from the Australian Department of Foreign Affairs and Trade (DFAT) indicates that Hazara participation in politics has increased significantly and Hazaras enjoyed considerable electoral success in the 2010 Afghan parliamentary elections and now comprise 20 percent of the Lower House [4]. Writing for the Los Angeles Times, Borzou Daraghi quotes University of Kabul political science lecturer Wadir Safi as saying “Every year they are expanding their presence. They are the ones in power now. They are a minority but they are very united.”[5]
36. The Hazara Community Update indicates also that while Hazaras continue to face societal discrimination in Afghanistan, they were not being persecuted on any consistent basis and did not face “systemic violence or any existential threat”. The Update is based on information from the UNHCR, the Afghanistan International Human Rights Commission (AIHRC), the Provincial Reconstruction Team (PRT) in Ghazni province, the diplomatic community in Kabul, international immigration consultants operating in Afghanistan and a Hazara MP.
37. The Update indicates that with major positive changes in the situation for minorities in Afghanistan have come increases in the political participation of Hazaras and ongoing educational gains, but that mindsets outside the classroom have not changed to the same extent. Discrimination against Hazaras in the form of extortion, illegal taxation, forced labour, physical abuse and detention continued, particularly at the hands of Pashtuns, Tajiks and Uzbeks, but Hazaras also discriminated against other ethnic groups in areas in which they were dominant. Nepotism within ethnic and tribal communities tended to make educational advancement or government employment difficult for Hazaras.
38. The Update states in summary that “...the challenges facing the Hazara community were economic rather than security-based...” and notes that “UNHCR did not regard minority ethnicity as a major cause of flight for displaced persons.” Further, the contacts consulted for the Update did not consider there were significant protection issues for returnees.
39. Current overviews of Afghanistan from Amnesty International and Human Rights Watch make no mention of persecution of Hazaras or other Shi’as, by either government or non-state actors; neither does the U.S. Department of State’s International Religious Freedom Report 2010: Afghanistan. The US Department of State 2010 Country Report on Human Rights Practices - Afghanistan[6], does not find targeted persecution of Hazaras or Shi’as although it outlines ongoing ethnic tensions between Hazaras and Pashtuns and Kuchis.
40. A contrary view is put by Professor William Maley in his December 2011 paper On the Position of the Hazara Minority in Afghanistan. Professor Maley urges extreme caution in accepting many of the views put forward in DFAT cable CX240092 of February 2010 Afghanistan: Situation of the Hazara Minority and observes that like many of the international organisations upon which they rely as informants, DFAT officials are severely constrained in their capacity to gather information. He also notes that in determining whether a well-founded fear of persecution exists, it is necessary to look beyond “...temporary, insignificant or cosmetic changes” and states that “...there is no reason to believe that the underlying factors (both ethnic and sectarian) fuelling hostility towards Hazaras have dissipated.”
41. Professor Maley goes on to note that the formation of the Interim Administration under Hamid Karzai put an end to official discrimination against Hazaras but did nothing to secure them against Taliban attack in the vast areas of Afghanistan not under the control of Kabul. He refers to the massacre of Hazara travellers near the Uruzgan-Helmand border in 2004 and the beheading of eleven Hazaras in Uruzgan in 2010 and quotes a “highly-respected Kabul-based observer” who has told him that “[d]ozens of Hazaras have been killed or abducted and never heard of while travelling between Ghazni and Jaghori and also through Wardak Province to Behsud and Bamiyan.”
42. Writing about Afghanistan in 2010, Associate Professor Alessandro Monsutti described a country riven by ethnic, religious and political differences, in which Hazaras continue to occupy the bottom rung of the social hierarchy and suffer a range of privations and discrimination for reasons historical, ethnic, religious and political. He indicates also that they are differentially at risk of harm from the Taliban, Pashtuns generally and from Kuchis[7].
43. In January 2012 Associate Professor Monsutti provided comment to the IPAO in response to specific questions about security in different districts in Afghanistan and the situation for Hazaras. In relation to political representation, he noted that

Hazaras have better political representation now than they have ever had in past. However, the situation is very fragile. Other ethnic communities are jealous of their success. The Hazaras have become bolder, however I am not very optimistic for their future. Many Hazara leaders are not cautious enough. I heard once a Pashtun saying, “in the future we will take back what Hazaras have gained”.

44. In addition, press reports detail incidents involving Hazaras such as “Taliban kill 9 members of minority in ambush”[8] and “Beheading of Afghanistan Politician seen as message from insurgents”[9]. Articles of this nature are frequently cited as evidence that Hazaras remain differentially at risk of harm in Afghanistan because of their ethnicity. Items on sites such as www.hazaranet.com and www.hazarapeople.com also argue strongly that Hazaras remain at risk of serious harm. The latter website includes a July 2012 report that the Taliban tortured and killed five Hazaras in the Jalrez district of Maidan Wardak Province:

There are different uncertified reports on this killing. The district administrator in Jalrez has told the journalists that these five people worked in foreign troops’ bases but the family members of the murdered people denies the statement of the district administrator about them. They say, the Taliban have tortured and brutally killed the people who were the only earners in their families. They were on their way to visit their families. Their bodies were found in Kote Ashro area on Tuesday 23rd July ...[10].

Sectarian bombings

45. In December 2011 suicide bombings in Kabul and Mazar-i Sharif on Ashura Day killed 58 people and injured more than 160 with a third attack, also in Kabul, foiled by police. At the time, it was widely feared the attacks signalled an upsurge of sectarian violence in Afghanistan.[11] Responsibility for the bombings remains unclear. The Taliban denied responsibility, although some believe they mounted the attacks in an effort further to divide President Karzai’s support base.
46. Other analysts believed elements in Pakistan were seeking to open a sectarian divide between Sunnis and Shi’as in Afghanistan[12] Lister quotes Kate Clark of the Afghanistan Analysts Network as saying that such attacks are not consistent with the existing pattern of attacks by the Taliban or with the recent orders of Mullah Omar, but notes that the Taliban are “not a monolith” and that collaboration at a local level between a Taliban operative and Lashkar-e Jhangvi is quite feasible.
47. In an article entitled Afghanistan: A new Sectarian War? (12 December 2011,New York Review blog (www.nybooks.com) author Ahmed Rashid, noted that while there were no major sectarian attacks in Afghanistan between 2001 and 2011 and the Taliban have taken extra care not to aggravate the Afghan Shi’a, this changed on 6 December 2011 with the attacks reflecting tactics used in the past by Al Qaeda in Iraq, Pakistan and Egypt to start a sectarian civil war. Rashid notes further that while a sectarian war appears unlikely, “...the re-introduction of sectarian killing by non-Afghan groups has dangerously widened the scope of the war in Afghanistan and threatens to draw in neighbours such as Iran and Pakistan. And it is one more way to keep Afghanistan permanently in a state of conflict.” [13]

The security situation

48. Views about the security situation in Afghanistan currently and into the foreseeable future must be informed by consideration of the forthcoming 2014 “draw-down” of international forces and ongoing debate regarding the negotiations with the Taliban initiated in 2011. None are entirely positive. Respected commentator Dr Antonio Giustozzi suggests that the prospects for a successful political settlement in Afghanistan before 2014 appear limited because the opposition has little respect for the Karzai government, and that what happens after 2012 depends on the ability of the Taliban to adapt. He notes that there are already signs the Taliban are “...retraining their forces for more conventional operations such as taking towns and cities” and outlines the possibility of the Afghan state being reduced to Kabul and areas dominated by ethnic minorities in the event of a successful Taliban push in 2014/15.[14]
49. The International Crisis Group presents the view that recent talks with the Taliban are unlikely to result in a sustainable peace and may even destabilise the region further due to the many differing priorities and interests involved. The same report notes that

[t]he rhetorical clamour over talks about talks has led to desperate and dangerous moves on the part of the government to bring purported leaders from the three main insurgent groups – the Taliban, Hizb-e Islami and the Haqqani Network – to the negotiating table. This state of confusion has stoked fears among ethnic minorities, civil society and women that the aim of Karzai’s reconciliation policy is primarily to shore up his constituency among conservative Pashtun elites at the expense of hard-fought protections for Afghan citizens.[15]

50. A night-time attack by the Taliban at the Hotel Spuzhmai at the Kargha Lake resort area just outside Kabul in June has been interpreted as a sign that the Taliban may be returning to attacks against civilians reflecting their earlier puritanical values. In a 23 June article, Thomas Rutting wrote that the attack was the first for a long time to target predominantly civilians, although he noted that the attack on the Intercontinental Hotel in June 2011 killed a number of civilians: “The Kargha attack was definitely a step back.”[16].
51. Earlier this year, insurgent attacks in Kabul on 15 April targeting foreign embassies, NATO headquarters and the Afghan parliament attracted much attention and debate as to their significance. Insurgents also attacked targets in several provincial centres. While some praised the response of the Afghan security forces as indicative of their wider capacity to provide enhanced security after the international troops leave, others suggested they had failed to provide adequate protection and that the attacks were a success for the Taliban.
52. Defence analyst Atiqullah Amarkhel is quoted as saying the attacks were designed to demonstrate that the insurgents were not facing imminent defeat, and were “..a success for the Taleban and a failure for the security forces.”[17]. Writing for the Institute for War and Peace Reporting, Noorrahman Rahmani said insurgents should not have been able to penetrate Kabul’s defences in the first place, and notes that the insurgents’ preparedness was clearly such they had been planning the attacks for a long time. “It’s a failure of intelligence and it shows the weakness of the Afghan security forces compared with the strength of the insurgents, who aimed to sow terror and disrupt security, and succeeded in doing so.”[18]
53. Insurgent attacks during 2011 also served to heighten concerns about the security situation, the impending withdrawal of coalition forces, handover of control to Afghan forces and the US-led negotiations with the Taliban. On 13 September 2011 co-ordinated attacks attributed to the Taliban and the Haqqani Network occurred in central and western Kabul. Locations targeted included the US embassy, NATO headquarters, police buildings, and the Darulaman Road area of western Kabul.[19] While the US Ambassador played down the significance of the attack, it is seen by others as more significant, with Bill Roggio, editor of the online Long War Journal suggesting that the US and coalition focus on blaming this and other attacks on the Haqqani Network was a tactic to “salvage nascent peace negotiations with the Taliban’s more mainstream leaders.”.[20]
54. The United Nations Assistance Mission in Afghanistan (UNAMA) Mid Year Report 2011: Protection of civilians in armed conflict describes the wider security situation in Afghanistan in the first half of 2011 as providing a “grim” and “bleak” outlook for Afghan citizens. The reports noted that the conflict intensified in the “traditional” fighting districts in the south and southeast and moved also to the west and north, with civilians experiencing a decrease in protection, while anti-government elements changed tactics “with deadly results”.[21]
55. The New York Times reported on 18 August 2011 that:

[a] series of attacks by insurgents in recent days killed numerous civilians, but for the most part failed against military targets. ... an attack Friday morning rattled a residential neighborhood of Kabul, where militants set off twin blasts, killing at least four people, Afghan officials said. A gunfight broke out and shooting continued into the morning. .... The attacks reflect a growing trend over the last two years in which the great majority of civilian casualties have been caused by the Taliban and their allied insurgent groups. The United Nations in Afghanistan said in its June report to the secretary general that 80 percent of civilian casualties were caused by “antigovernment elements.”[22]

56. Other incidents during 2011 including the murders of General Mohammad Daud Daud, the Police Commander for Northern Afghanistan, in May and President Karzai’s half brother Ahmed Wali Karzai and prominent presidential ally Jan Mohammad Khan in July suggest a significant resurgence of capacity by the Taliban and their ability to infiltrate centres of power and security. Both General Daud and Ahmed Wali Karzai were reportedly murdered by trusted and long-serving security staff, a development which is seen to indicate active recruitment activity by the Taliban among existing security personnel.[23]
57. The presence and authority of the Taliban throughout Afghanistan is reportedly increasing. A 2011 report for the Civil-Military Fusion Centre, which is described as “...an information and knowledge management organisation focused on improving civil-military interaction, facilitating information sharing and enhancing situational awareness...” states that

[i]n addition to the 34 governors appointed by President Hamid Karzai, Afghanistan’s provinces also frequently contain a “shadow governor”, and in some cases, a shadow government. In 2005, on 11 provinces had Taliban shadow governors, notes The Telegraph. Today, all provinces have shadow governors. The Taliban shadow government’s level of influence remains a contentious issues, although assassinations of those close to President Karzai have created power vacuums, according to the Guardian, and have allowed the Taliban to expand their shadow governments.[24]

Conditions in Kabul

58. With a population estimated at more than 5 million, Kabul is a large and ethnically diverse city. Although reliable demographic information is difficult to access, Hazaras comprise a significant proportion of the city; in 2003, one estimate placed the Hazara population at 25% of the total[25] The influx of internally displaced persons and returning refugees is likely to have further increased this number.
59. Hazaras in Kabul live predominantly in West Kabul, typically in “one story mud houses twisted in narrow, dusty lanes with almost no access to electricity or running water”[26]. Increasingly, Hazaras also live in informal settlements little better than squatter camps, many in appalling conditions lacking even the most basic of services.
60. The huge influx of internally displaced persons to Kabul has given rise to increasingly dire and difficult conditions. A May 2011 study by UNHCR and the World Bank of the circumstances of IDPs, including returned refugees in Kabul, Kandahar and Herat notes that unaccompanied minors are considered “extremely vulnerable individuals”[27]. The study indicates that over 70 percent of IDPs in Kabul live in informal settlements with no access to electricity, running water or adequate sanitation and that over 90 percent have had difficulty satisfying their household’s food needs. The report points out also that access to credit is dependent on social networks and that credit from a shopkeeper who does not know the borrower well enough to assess the likelihood of repayment is unimaginable. Further, the absence of well-functioning formal safety net systems increases vulnerable individuals’ reliance on social networks for assistance.
61. The International Crisis Group reported in June 2011 on security in and around Kabul, noting that

[a]lthough the number of major attacks on Kabul has recently declined, insurgent networks have been able to reinforce their gains in provinces and districts close to the city, launching smaller attacks on soft targets. Outmanned and outgunned by the thousands of foreign and Afghan security forces in and around Kabul, Taliban attacks inside the capital are not aimed at controlling it physically but to capture it psychologically. ...
...Insecurity and the inflow of billions of dollars in international assistance has failed to significantly strengthen the state’s capacity to provide security or basic services and has instead, by progressively fusing the interests of political gatekeepers and insurgent commanders, provided new opportunities for criminals and insurgents to expand their influence inside the government. [28]

62. Professor Maley states that “...it is also a mistake to conclude that Kabul is safe for Hazaras”, noting that many attacks against Hazaras in the capital have gone unreported and that it is unrealistic to assume that Hazaras can expect protection from the agencies of the Afghan state as “[t]he generally poor quality of the Afghan National Police, often combined with ingrained antagonism towards Hazaras, means that there is little prospect that the police will be willing or able to protect vulnerable Hazaras even in Kabul.”

Situation in Ghazni

63. The Quarterly Data Report Q.2 2012 from the Afghanistan NGO Safety Office[29] indicates that although the number of armed opposition group (AOG) attacks had fallen from the previous quarter, Ghazni remained the third most insecure province in the country with 419 attacks by AOGs reported in the quarter. The report states also in relation to the transition of control from the International Military Forces (IMF) to the Afghan National Security Forces (ANSF) that “[t]ransition capitals of Ghazni and Mhitarlam remain problematic. Despite the IMF-ANSF focus, AOG have maintained open access there and position themselves as an ascendant power with an increasingly political posture.”[30]
64. The Afghanistan NGO Safety Office reported in April 2012 that “...AOG presence is markedly weak...” in Jaghori and other Hazara districts of Ghazni.[31] Despite this, a recent report from Tolo News indicates that the Taliban remain active in Jaghori, with news that in mid-September, “...a Taliban facilitator was captured in the Jaghori district of Ghazni province. The facilitator coordinated the movement of weapons, mortars and explosives in the region, according to ISAF.”[32]
65. Writing in 2010 for the Afghanistan Analysts’ Network, Thomas Ruttig indicated that Taliban activity in the Qarabagh and Jaghori areas and also in “peripheral areas of the Hazarajat” had increased markedly and was evidenced in part by the distribution of night letters appealing to the local population not to prevent the Taliban’s entry into the area and declaring closed the main road from Jaghori to Kabul.[33]
66. While many sources state that Jaghori District is 100% Hazara in population, according to the Co-operation for Peace and Unity’s 2009 report Conflict Analysis: Jaghori and Malistan Districts, Ghazni province, there is a Pashtun minority in the southeastern areas of the district. [34]Historically, Jaghori and particularly Anguri Bazaar has been highly significant as “...the major transit point connecting Hazarajat to Pakistan through the Pashtun provinces.”[35]
67. The predominantly Hazara population and small Taliban presence notwithstanding, the abuses and hardships experienced by Jaghori’s population in recent years coupled with an extremely low government presence in Jaghori has left the populace fearful of a change in their circumstances. The CPAU reports that a 2008 survey by the US Naval Postgraduate School indicates that

...villagers in Jaghori district fear the Taliban most out of all districts in Ghazni, an indication both that the return of the Taliban might put them at risk, but also that the Pashtun-dominated Taliban are currently seen as a threat. Any shift in the balance of military power from Hizb-i Wahdat to the Taliban in Jaghori or across other part of the Hazarajat could lead to a re-emergence of past conflicts which included atrocities and mass killings along ethnic lines.

68. The same survey found that on average 46% of people in Ghazni had never seen the Afghan National Police, and this was highest in Jaghori district at 90%. Similarly, 51% of people in Ghazni reported having never seen the Afghan National Army, which again was highest in Jaghori at 90%.[36]
69. An October 2011 DFAT report states, in relation to the need for residents of Jaghori to travel outside that area for health services[37]:

Excepting Kabul, Herat and Balkh which are relatively developed, access to employment and basic services (health, education, electricity, telecommunications) is generally very poor across Afghanistan. The majority of provinces have only limited medical clinics in district areas, with hospitals located in provincial centres. District clinics are generally very poorly provisioned, with erratic power supply. The government and international community continue to invest heavily in improving health service delivery. But relatively simple procedures still require patients across the country to travel to provincial capitals or to Kabul at significant expense. In Ghazni, residents of all districts requiring medical attention are likely to need to travel to Ghazni City or outside the province.

Returnees

70. According to the UNHCR, since 2002, more than 5.6 million Afghans have returned to Afghanistan, the vast majority from Pakistan and Iran. UNHCR reported in December 2010 that there had been an increase in conflict-induced displacement in Afghanistan while voluntary returns, particularly from Pakistan and Iran, were also increasing. Many returns were “occurring in the context of deteriorating conditions for Afghans outside the country rather than significant improvements in the security and human rights conditions in Afghanistan.” Nearly one third of returnees were residing in informal IDP settlements or urban areas, some alongside urban slum dwellers, in the larger urban areas of Kabul, Jalalabad, Mazar-e-Sharif and Herat.[38] The US Department of State indicates that the settlements are prone to serious deficiencies in several areas, including health, security of tenure, education, and absence of registration of child births and identity cards.[39] A 2011 assessment by the UNHCR indicated that more than 40 percent of returnees, across both rural and urban areas, have not reintegrated into their home communities, with land tenure and livelihood, basic services and access to water being particular problems experienced on return.[40]
71. DFAT advised in September 2010 that it was more difficult for returnees, particularly from Western countries, to return to their areas of origin if they had been out of Afghanistan for years and had no networks there, although depending where they came from they may be able to integrate into the “...cohesive Hazara community..” in Kabul, where “...they can move freely”.[41] In February 2009, DFAT sources indicated that harm to returnees in Kabul occurred for reasons such as robbery, pre-existing family disputes and suicide bombings, although “[a] number of these returnees/deportees were also targeted by the AGEs (anti-government elements)”. The same report states that returnees “... cannot stay in areas controlled by AGEs as they would be targeted primarily as a result of their residence in a western country. Returnees would be approached for a “financial contribution” to the jihad, and returnees are more likely to be accused of spying for foreign troops.”[42]
72. At the same time, information about returnees is likely to travel fast, as noted by the UNHCR in relation to internal relocation: “[e]ven in a city like Kabul, which is divided into neighbourhoods (gozars) where people tend to know each other, the risk remains, as news about a person arriving from elsewhere in the country or abroad may reach potential agents of persecution.”[43]

Road travel

73. Reports from a variety of sources have indicated that during 2009, 2010 and 2011 main roads from Jaghori to Kabul have been closed, actually or effectively, by insurgent activity.[44] Media reports indicate that the road linking Jaghori and Ghazni was re-opened in mid-2011 by Afghan security forces[45] and was “secure enough”. However, given the strength of the Taliban in the region it is difficult to predict whether these routes will remain secure.[46] According to research conducted by the RRT’s Country Advice Service in August 2012, reports indicate that travel along key roads, particularly those from Kabul to the Hazarajat, is dangerous as militant groups including the Taliban have set up checkpoints and have killed Hazaras or those who work for or support the Afghan government and International military forces. In addition, as noted above at [67], credible reports exist of Hazaras being targeted while travelling through Maidan Wardak, south-east of Kabul.
74. A recent report for the Telegraph Group in the United Kingdom describes in detail the experience of the journalist and his photographer travelling the Kabul to Kandahar highway. The report notes that

[t]he road's importance has not been lost on the Taliban, and it has been under relentless attack for at least five years. Statistics for violence on the road are sobering. By the middle of August, there had been 190 bomb attacks along the road in 2012 alone. On top of that, there had been another 284 shooting attacks, or nearly one for every mile of road.
No proper figures for casualties are available, but the best estimate from police officials is that several dozen people have been killed or wounded travelling the highway this year, and hundreds over the past few years.[47]

75. A September 2011 DFAT report on road security in Ghazni indicates that there are two well-established routes from Kabul to Ghazni, one short and insecure, via Maidan Wardak, the other, via Parwan Road and Bamyan secure, but long and arduous. The report notes that while some international sources described travel between Ghazni City and Jaghori as 'quite safe', although long, slow and rough, others (predominately Hazaras) described travel as 'unsafe'. Some vehicles were stopped and harassed, and occupants occasionally abducted or killed. DFAT sources agreed that levels of risk on roads in Ghazni depend on the individuals involved. According to Hazara contacts, “...Hazaras tended to receive more scrutiny and were at greater risk of harassment and violence on the roads outside Hazara districts”, while other Afghan and international contacts said that locals with ties to the province and knowledge of the area were generally able to travel between Ghazni and Hazara districts without incident. “They were not aware of targeting of any particular ethnic group on the roads.” International contacts believed the majority of violence around this area was related more to criminality than the insurgency, focusing on bribes and protection. A DFAT contact in the international community advised that a long paved route to Jaghori and Malistan passes the Zardaloo area of Qarabagh district; the Afghan National Police have established checkpoints on this route, but movement of anti-government elements (AGEs) does occur in this area. AGEs have blocked the road several times for extended periods, warning locals not to work with work with the government and have the ability to conduct direct attacks or plant IEDs on this route.[48]
76. An October 2011 DFAT report on road security states[49]:

There are two established routes from Kabul to Ghazni's Hazara districts. The first takes Highway 1 via Wardak Province. It is the most direct road, but undeniably insecure, crossing the most violent districts of Ghazni province as described above. Locals with ties to the province and knowledge of the area - including Hazaras - were generally able to travel between Ghazni City and Hazara districts without incident and thousands of vehicles use the road daily.
But there are recognised dangers: the route forms the key Taliban access route linking Pakistan (through Southern provinces, into the south of Ghazni (Nawah) and then through Ghazni province) to Kabul. From Ghazni City, one would need to drive along the Highway through Andar and Qarabagh districts before turning off towards Jaghori and Malistan. After leaving Highway 1 towards Jaghori/Malistan, a long paved road to Jaghori and Malistan passes through Qarabagh district. There are ANP checkpoints on the route, but the Taliban and criminals are also active. Insurgent targeting in the district, as on roads nation-wide, is focused on road-side Improvised Explosive Devices (IEDs). The Taliban has previously blocked this road several times for extended periods - including, we understand, for a number of months in the first half of 2012 - effectively cutting off access to the highway.
The alternate route from Kabul to Jaghori/Malistan takes the Parwan Road to Bamiyan then enters Ghazni province through Nawur district. The condition of the roads is extremely poor - only secondary unsealed roads which are no better than tracks in sections. The volume of local traffic is low: in isolated Nawur district, one might pass only a handful of vehicles in an hour's driving. Even in a decent off-road vehicle, one might take four hours to drive 60km. Contacts estimated it takes around 15 hours to drive from Bamiyan to Jaghori, with traffic slowed further by snowfalls in winter. Such a detour is not inconsistent with the travelling reality in other rural areas across Afghanistan. Overall, interlocutors agreed road travel within the broad Hazara 'belt' in the central highlands region (taking in Nawur, Malistan and Jaghori) was very safe.

Relocation

77. It is widely recognised that the availability of family and tribal networks is critical to successful resettlement in Afghanistan, especially in rural areas; they are regarded by some commentators as less critical in towns and cities. This is highlighted by sources cited in the report of the 2002 Danish Fact-Finding Mission:

UNHCR Kabul said that fundamental protection is dependent on personal and social networks. The source advised that the availability of networks in the form of relatives is vital for a person's ability to live in a given area. ... The villages are closed units, and no outsiders can settle in the rural areas, whereas the situation in the town is different. In larger cities the need for relatives in the area where people wish to live is not quite as strong. .....

ICG mentioned that it is very difficult for returned refugees or internally displaced people to settle in areas, other than their areas of origin, and where they do not have a network. Accordingly, it is extremely difficult to settle in other regions, even when (e.g. as a Pashtun) people are settling in an area populated by a dominating ethnic group to which the person belongs. It will be impossible for Hazaras to settle in an area dominated by Pashtuns[50]

78. The UNHCR Guidelines 2010 point out that for relocation to be a relevant consideration, “...the area must be found to be accessible and without factors that could constitute a well-founded fear of being persecuted.” It is further noted that the Taliban and other groups such as the Hezb-e-Eslami “...have links or are closely associated with influential actors in the local and central administration. As a result, they largely operate with impunity and their reach may extend beyond the area under their immediate (de facto) control.” The Guidelines point out that the reasonableness of relocation must be considered in the context of the security, human rights and humanitarian situation in the location concerned. They state further that

In urban centres, the IDP population and growing economic migration are putting increased pressure on labour markets and resources such as construction materials, land and potable water. Widespread unemployment and underemployment limit the ability of a large number of people to meet their basic needs. The limited availability of humanitarian assistance has generally not improved this situation in a meaningful way.[51]

FINDINGS AND REASONS

Jurisdiction

79. The Tribunal finds that the delegate’s decision is an RRT-reviewable decision under section 411(1)(c) of the Act.
80. The Tribunal finds that the applicant has made a valid application under section 412 of the Act for review of an RRT-reviewable decision, as the application to the Tribunal meets the following requirements of that section: it is for review of an RRT-reviewable decision; it is made in the approved form (section 412(1)(a)); it was given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision (section 412(1)(b)); the prescribed fee (if any) for review by the Tribunal is either not yet payable pursuant to Regulation 4.31B(2) of the Migration Regulations 1994 or will not be payable at all pursuant to Regulation 4.31B(3), and thus without payment of any fee to date the application meets the requirement that it be accompanied by the prescribed fee (if any) (section 412(1)(c)); the applicant is the non-citizen who was the subject of the primary decision (section 412(2)); and according to the Minister’s department’s records the applicant was physically present in the migration zone when the application for review was made (section 412(3)).
81. As the application for review is valid under section 412 of the Act, and there is no evidence of a conclusive certificate issued by the Minister in relation to the delegate’s decision, the Tribunal must review the delegate’s decision pursuant to section 414(1) of the Act.

Assessment under s36(2)(a) of the Migration Act 1958 (Cth) (the Act) (Refugee Status)
Outside country of nationality

82. The applicant claims to be a national of the Afghanistan and to be outside that country.
83. As is often the case with Irregular Maritime Arrivals, there is limited documentary evidence upon which to base findings of identity and nationality. In this case, the applicant provided to the delegate a copy of an Afghanistan identity card – taskera – in his own name, and a Pakistan issued Afghan citizen registration card. The applicant is currently present in Australia according to the records of the Department.
84. Based on the same considerations set out by the delegate, the Tribunal finds that the applicant is a national of Afghanistan. Being satisfied that the applicant is outside that country, it will assess his claims for protection against Pakistan.

Right to enter and reside in a third country - bar under section 36(3)

85. The applicant states in the application for the visa that he has no right to enter and reside in a third country.
86. There is, however, some material that may indicate that the applicant has the right to enter and reside in Pakistan, which is the Pakistan Registration of Afghan Citizens card he submitted, which bears the words “This card is valid throughout Pakistan and allows the holder to stay in Pakistan through December 31, 2012” It is unnecessary, however, to consider whether the applicant enjoys a right that may enliven section 36(3) of the Act, as country information about the situation for Shia Hazaras in Pakistan paints a dire picture for them, such that in the Tribunal’s assessment, section 36(4) of the Act applies because he would have a well-founded fear of persecution for reasons of race and religion in that country[52].
87. The Tribunal finds that the applicant is not barred from protection under the Convention by section 36(3) of the Act.

Assessment of claims

88. The Tribunal finds that the applicant has fabricated elements of his claims in an effort to establish that he has been personally identified by people from his town who wish him harm and who attempted to find him when he returned to his town in 2004.
89. Even with the most liberal attitude towards the applicant’s evidence, giving every allowance that ought properly be afforded a person who has taken the desperate step of illegal boat travel to arrive in Australia, and who lacks education, there are many problems with his evidence of the 2004 claimed event.
90. The applicant was unable to name the family whom he feared because of his father’s accidental killing of a man, rather he made generic claims that they were Hisb-e-Islami or Taliban, whom he, incorrectly, identified as groups who fought together (see IPAO Country Advice Request Boat ID: GIB043 3 February 2012).. He gave somewhat different evidence to the Tribunal at hearing about the claimed 2004 incident to that put by him in his written account. The Tribunal also finds it implausible that having been away from his town since 1991 (a town which on his evidence is not small, comprising some 1,000 homes), which he left with his family as a boy, he would be recognised and sought out after returning there, not to his own home, but rather to a friend’s home after 8 or 9 days. The additional implausibility is that when these people came to find him at him friend’s house, he was not there because he was, conveniently, at his friend’s uncle’s place. He could not, however, give the name of his friend’s uncle.
91. Due to the vagueness and inconsistency of his evidence when questioned, the Tribunal does not accept to be true the claim that people were searching for the applicant in 2004 when he returned to Afghanistan, let alone members of Hisb-e-Islami or the Taliban. The Tribunal has some difficulty accepting that the applicant returned to his own town at all after his deportation from Iraq in 2004. This is because, he said at one stage, when being about land he owns in his home area, he said “he did not go there” The Tribunal finds it more likely that the applicant went to one of the larger cities to obtain his taskera and then returned to Quetta, because this is where he has lived since he was a boy, and where he met and married his wife and had his children.
92. It is apparent from the preceding sentence that the Tribunal accepts that the applicant has a wife and [children] in Quetta. His evidence about these matters was consistent with that previously given by him in his application and to the delegate. The Tribunal also accepts that the applicant is of Hazara ethnicity and Shi Muslim faith. He comes from [Village 1], Jaghori, Ghazni District. The Tribunal finds that the applicant was being truthful when he said he had distant relatives and a house and land in his town.
93. As a result, the Tribunal will assess the applicant’s claims against [Village 1], Jaghori, Ghazni District on the basis of his Hazara ethnicity and Shia Muslim religion.
94. The Tribunal has considered the information cited above regarding the situation of Hazara Shias in Afghanistan today and notes that two main schools of thought are evident. The Tribunal notes that a number of the independent sources cited, including the UNHCR, DFAT, Amnesty International, Human Rights Watch, USCRIF and US DOS indicate that there is currently no evidence of targeted persecution against Hazaras or Shias, although as remarked by the US Department of State, ethnic tensions remain between Hazaras and Pashtuns, and discrimination continues against Hazaras by other ethnic groups, most notably Pashtuns. These caveats aside, these reports and the press articles cited suggest that Hazaras are enjoying greater equality, economic opportunity, access to education and participation in the political process than they have before. The Tribunal accepts that in the last decade some Hazaras, particularly in Kabul, have enjoyed significantly improved opportunities.
95. Against this, the Tribunal notes the evidence of Professor William Maley and Associate Professor Alessandro Monsutti, both of whom indicate that while some gains have been made by Hazaras, the deep-seated causes of discrimination against Hazaras remain unchanged. Both Maley and Monsutti indicate that the gains made by some Hazaras have not been enjoyed by all and further, that they may not last. Having weighed carefully the information outlined above, the Tribunal does not consider the reported absence of “targeted persecution” eliminates the likelihood that Hazaras may be harmed for reason of their ethnicity or their religion.
96. The Tribunal has had regard also to the evidence of respected commentators including Giustozzi, Ruttig and the International Crisis Group with respect to the transition of power in Afghanistan and the prospects this presents for sustainable peace and security and notes that there are strong arguments to suggest that this process is likely to lead to a resurgent Taliban. The Tribunal notes that in some areas, as described above in relation to Ghazni, the Taliban already has a strong presence and significant authority and also that a number of AOG attacks of significant scale and impact have been carried out over the past two years in Kabul. In this context, the Tribunal prefers the evidence of Maley and Monsutti as an indicator of what is likely to occur in the reasonably foreseeable future than the observations of the international agencies cited above with respect to the current situation. Taking all of the foregoing into account, the Tribunal finds that on balance, the independent evidence indicates that Hazaras in Afghanistan, if not now in areas such as Jaghori from which the applicant hails, will be at risk of harm for reason of their ethnicity and religion in the reasonably foreseeable future. The Tribunal notes in this regard that [Village 1] is a part of Jaghori that borders Qarabagh[53] which is cited by Ruttig as an area where Taliban activity has increased markedly.
97. The Tribunal also notes the country information that residents of Jaghori who require access to health services must travel to Ghazni City. The Tribunal takes into account that the applicant has young children. It would be an artificial exercise not to consider the possibility that the applicant may need to travel to Ghazni City for healthcare reasons for his family. The information above about the dangers of travel on the Jaghori – Ghazni City route shows that it whilst danger to travellers often may be due to criminal activity, it also may be caused by Taliban insurgents such that Hazaras face a higher degree of risk of harm whilst travelling.
98. On balance, the Tribunal finds that the applicant faces a real chance of serious harm, principally being killed by Taliban militants in or around [Village 1], that this would be systematic and discriminatory and have an official quality, because the country information shows that the authorities of Afghanistan are unable to control it even with the current support of international forces. As such not only does it have an official quality, but the Tribunal finds that the serious harm constitutes persecution for lack of state protection. The Tribunal finds that the essential and significant reason for the persecution is a combination of the applicant’s ethnicity and religion.
99. The Tribunal finds that the applicant has a well-founded fear of persecution in his home area in Afghanistan, now or in the reasonably foreseeable future, for reason of race and religion.
100. The Tribunal accepts that the applicant has no family in other parts of Afghanistan, such as Kabul. The country information shows that with no family or social networks, the situation for the applicant with his wife and two young children would be extremely poor for him in Kabul. Given his situation as a husband and father of two young children, the Tribunal is not of the view that it would be reasonable, in the sense practicable, for the applicant to relocate to Kabul, even if it were of the view that there would be no appreciable risk of harm to him there.

CONCLUSIONS

101. 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

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

[1] US Naval Postgraduate School, Program for Culture and Conflict Studies, <http://www.nps.edu/programs/ccs/Ghazni.html> Accessed 10 April 2011
[2] New York Times 2010, “Hazaras hustle to head of class in Afghanistan” 3 January <http://www.nytimes.com/ 2010/01/04/ world/asia/04hazaras.html?scp=1 & sq=hazaras & st=nyt> Accessed 17 June 2011
[3] Christian Science Monitor 2007 “Afghanistan’s success story: The liberated Hazara minority” 6 August, <http://www.csmonitor.com/2007 /0806/p06s02-wosc.html> Accessed 17 June 2011
[4] DFAT 2012, CX283654: AFGHANISTAN:Hazara Community Update, 12 March
[5] LATimes, 2010 “A formerly persecuted minority gains clout in Afghanistan”, 16 December, <http://articles.latimes.com/2010/dec/16/world/la-fg-afghanistan-sects-20101216> , Accessed 25 April 2012
[6] US Department of State 2010 Country Reports on Human Rights Practices – Afghanistan, 8 April 2011, <http://www.state.gov/j/drl/rls/hrrpt/2010/sca/154477.htm> Accessed 24 April 2012
[7] Monsutti, A 2010, The Situation for Hazaras in Afghanistan, 19 August
[8] New York Times 2010, “Taliban kill 9 members of minority in ambush”, 26 June <http://www.nytimes.com/ 2010/06/26/world/asia/26kabul.html> Accessed 23 May 2011
[9] Los Angeles Times, 2011, “Beheading of Afghanistan Politician seen as message from insurgents”, 8 June, <http://articles.latimes.com/2011/ jun/08/world/la-fg-afghanistan-behead-20110608> Accessed 24 April 2012
[10] Hazara People International Network 2012, The Taliban terrorists killed five Hazaras in Maidan Province, July 27, <http://www.hazarapeople.com/2012/07/27/the-taliban-terrorists-killed-five-hazaras-in-maidan-province/> Accessed 11 October 2012
[11] See for example Global Toronto 2011, “Suicide bombing kills 56 at Shiite shrine in Kabul; stokes fears of Afghan sectarian strife”, 6 December, <http://www.globaltoronto.com/suicide+bombing+kills+56+at+shiite+ shrine+in+kabul+stokes+fears+of+afghan+sectarian+strife/6442535981/story.html> Accessed 7 December 2011
[12] Tim Lister, CNN, 2011 “Attack on shrine signals new nexus of Afghan strife”, 6 December, <http://edition. cnn.com/2011/12/06/ world/asia/afghanistan-violence-analysis/inde.html? Accessed 7 December 2011
[13] Rashid, A 2011, New York Review Blog, “Afghanistan: A new Sectarian War?”, 12 December <http://www. nybooks.com/blogs/nyrblog/2011/dec/12/afghanistan-new-sectarian-war/> Accessed 11 October 2012
[14] Giustozzi, A, in Behr, T and C Salonius-Pasternak, eds, The Beginning of the End? “Afghanistan towards and after 2014”, April 2012, Finnish Institute of International Affairs
[15] International Crisis Group 2012, Talking about Talks: Towards a political settlement in Afghanistan, 26 March, <http://www.crisisgroup.org/en/regions/asia/south-asia/afghanistan/221-talking-about-talks-toward-a-political-settlement-in-afghanistan.aspx> Accessed 25 April 2012
[16] Thomas Ruttig, 2012, Afghanistan Analysts’ Network, “The attack in Kargha: Return of the Taleban Puritans?”, 23 June, <http://aan-afghanistan.com/index.asp?id=2823> Accessed 3 July 2012
[17] Mina Habib, 2012, Institute for War and Peace Reporting, “Afghan forces criticised after Kabul battles”, 17 April, <http:// iwpr.net/report-news/afghan-forces-criticised-after-kabul-battles> Accessed 24 April 2012
[18] Noorrahman Rahmani, 2012, Institute for War and Peace Reporting, “Kabul Attacks Raise Big Security Questions”, 16 April, <http://iwpr.net/report-news/kabul-attacks-raise-big-security-questions> Accessed 24 April 2012
[19] BBC News, 2011,“Afghan gun battle: Ryan Crocker says ‘not a big deal’”, 14 September, <http://www.bbc.co.uk/news/world-south-asia-14909004> Accessed 28 September 2011
[20] The Christian Science Monitor, 2011, “Who’s really behind the Kabul attacks?” 14 September, <http://www.csmonitor.com/ World/Asia-South-Central/2011/0914/Who-s-really-behind-the-Kabul-attacks> Accessed 29 September 2011
[21] UNAMA 2011, Mid Year Report 2011: Protection of civilians in armed conflict, 14 July, <http://unama. unmissions.org/Portals/UNAMA/Documents/2011%20Midyear %20POC.pdf> accessed 7 August 2011
[22] New York Times, 2011, “Insurgent Attacks Taking Toll on Afghan Civilians”, 18 August, <http://www.nytimes.com/2011/08/19/ world/asia/19afghanistan.html> Accessed 29 September 2011
[23] BBC News 2011 “Deadly week overshadows Afghan handover”, 18 July, <http://www.bbc.co.uk/news/world-south-asia-4190552> Accessed 19 July 2011 and BBC News 2011 “Shift in Taliban tactics alarms Afghanistan government”, 29 May, <http://www.bbc.co.uk/news/world-south-asia-13589764> Accessed 19 July 2011
[24] Nijssen, S 2011, Civil-Military Fusion Centre, “The Taliban’s Shadow Government in Afghanistan”, September, <https://www.cimicweb.org/Documents/CFC%20AFG%20Governance%20Archive/CFC_AFG_ Shadow_Governance_September11.pdf> Accessed 12 October 2012
[25] National Geographic Maps, < www.afghan-network.net/maps/ Afghanistan-Map.pdf> Accessed 25 April 2012
[26] Karimi, M A, 2011, “The West Side Story”:Urban Communication and the Social Exclusion of the Hazara People in West Kabul, Department of Communication, University of Ottawa, 2011, <http://www.ruor.uottawa ca/fr/bitstream/handle/10393/20322/Karimi_Mohammad_Ali_ 2011_thesis.pdf?sequence=1> Accessed 25 April 2012
[27] World Bank & UNHCR 2011, Research Study on IDPs in Urban Settings – Afghanistan, May <http:// siteresources.worldbank.org/EXTSOCIALDEVELOPMENT/Resources/244362-1265299949041/6766328-1265299960363/WB-UNHCR-IDP_Full-Report.pdf> Accessed 28 September 2012
[28] International Crisis Group 2011, The Insurgency in Afghanistan’s Heartland, Asia Report No 207 – 27 June, <http://www.crisisgroup.org/~/media/Files/asia/south-asia/afghanistan/207%20The%20Insurgency%20in%20 Afghanistans%20Heartland.pdf> Accessed 11 October 2012
[29] Afghanistan NGO Safety Office, 2012, Quarterly Data Report Q.2 2012, July, <http://www.ngosafety. org/store/files/ANSO%20Q2%202012.pdf> Accessed 27 September 2012
[30] Ibid,, p. 11
[31] Afghanistan NGO Safety Office 2012, ANSO Report – Issue 96 – 16-30 April, p. 20, <http://www.ngosafety.org/storefiles/The%20ANSO%20Report%20(16-30%20April%202012).pdf> Accessed 4 October 2012
[32] CISNET 2012, CX295324: AFGHANISTAN: “Five insurgents captured in military operations” , Tolo News, 16 April, http://www.tolonews.com/en/afghanistan/5931-five-insurgents-captured-in-military-operations-
[33] Ruttig T, 2010, Afghanistan Analysts’ Network, “A new, new Taliban front?”, 21 June, <http://afpak.foreign policy.com/posts/2010/06/21/a_new_new_taliban_front_0> Accessed 18 June 2011
[34] Berg, Gina with Christina Dennys and Idrees Zaman, 2009, Co-operation for Peace and Unity, “Conflict Analysis: Jaghori and Malistan Districts, Ghazni province”, April, <http://humansecuritygateway.com/ documents/CPAU_JaghoriMalistanDistricts_GhazniProvince_ConflictAnalysis.pdf> Accessed 4 October 2012
[35] Ibrahimi, Niamatullah, Crisis States Research Centre, 2009, “Working Paper 41 – Development as State Making – At the sources of factionalism and civil war in Hazarajat”, January, <http://www2.lse.ac. uk/internationalDevelopment/research/crisisStates/download/wp/wpSeries2/WP412.pdf> Accessed 5 October 2012
[36] Berg, Gina with Christina Dennys and Idrees Zaman, 2009, Co-operation for Peace and Unity, “Conflict Analysis: Jaghori and Malistan Districts, Ghazni province”, April, <http://humansecuritygateway.com/ documents/CPAU_JaghoriMalistanDistricts_GhazniProvince_ConflictAnalysis.pdf> Accessed 4 October 2012
[37] : CX298127: AFGHANISTAN:CIS Request AFG13987: Security Situation for Hazaras in Afghanistan, Australia: Department of Foreign Affairs and Trade (DFAT), 31 October, 2012,
[38] UNHCR 2010, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December, <http://www.unhcr.org/refworld/country,,,, AFG,,4d0b55c92,0.html> Accessed 28 June 2011
[39] US Department of State 2011, Country Reports on Human Rights Practices for 2010 – Afghanistan, April, Section 2(d), < www.state.gov/g/drl/rls/hrrpt/2010/sca/ 154477.htm> Accessed 8 November 2011
[40] UNHCR 2012, 2012 UNHCR country operations profile – Afghanistan, <http://www.unhcr.org/pages/49e486e b6.html> Accessed 3 October 2012
[41] Department of Foreign Affairs and Trade 2010, CX250180: AFGHANISTAN/PAKISTAN:AFG10736: The Hazara, 28 September
[42] Department of Foreign Affairs and Trade 2009, CX219955: AFGHANISTAN: CIS Request No. AFG 9509; Situation for Hazaras in Ghazni, Uruzgan and Dai Kundi Provinces, 3 February
[43] UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, July 2009, Rev, <http://www.unhcr.org/refworld/docid/ 4a6477ef2.html> Accessed 3 October 2012
[44] See for example Ruttig, Thomas 2010, Afghanistan Analysts Network, ‘A New Taleban Front?’, <http://www.aan-afghanistan.org/index.asp?id=831> Accessed 18 June 2011; The Guardian, 2008, “What Started as the Road to Recovery has Turned into a Highway of Terror in Afghanistan”, 20 October, (CX213274); Dennys, C. and Zaman, I. 2009, Cooperation for Peace and Unity, ‘Trends in Local Afghan Conflicts’, June, p.30 - (CIS17493)
[45] See for example Central Asia Online, 2011, “Afghan forces break the Taliban blockade”, 13 June, <http:// www.centralasiaonline.com/cocoon/caii/xhtml/en_GB/newsbriefs/caii/newsbriefs/2011/06/13/newsbrief-05> Accessed 4 October 2012; Bakhtar News Agency -Afghanistan, 2011, “Jaghori and Qara Bagh districts cleaned up from insurgents”, 13 June <http://bakhtarnews.com.af/en/index.php?news=5540> Accessed 4 October 2012
[46] Afghanistan NGO Safety Office, 2011, “The ANSO Report Issue 74”, May 2011, p.27 <http://www.afgnso. org/2011/The%20ANSO%20Report%20(16-31%20May%202011).pdf> Accessed 4 October 2012
[47] CISNET 2012, CX296017: AFGHANISTAN: “Kabul-Kandahar highway is a symbol of what's gone wrong in Afghanistan”, Telegraph Group, 9 September, <http://www.telegraph.co.uk/news/worldnews/asia/ afghanistan/9530320/Kabul-Kandahar-highway-is-a-symbol-of-whats-gone-wrong-in-Afghanistan.html> [48] CISNET, Department of Foreign Affairs and Trade, Country Information Report No. 11/56, 2011, CX272986: AFGHANISTAN:CIS Request AFG12298: Road security in Ghazni, 21 September
[49] : CX298127: AFGHANISTAN:CIS Request AFG13987: Security Situation for Hazaras in Afghanistan, Australia: Department of Foreign Affairs and Trade (DFAT), 31 October, 2012,
[50] Danish Immigration Service 2002, The Political, Security and Human Rights Situation in Afghanistan: Report on fact-finding mission to Kabul and Mazar-i-Sharif, Afghanistan and Islamabad, Pakistan, 22 September - 5 October, <http://www.nyidanmark.dk/NR/ rdonlyres/40B25CC2-2BDB-4637-AF9-A84428CB9147/0/ afghanistan_eng_2002.pdf> Accessed 28 July 2011
[51] UN High Commissioner for Refugees 2010, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December, <http://www.unhcr.org/refworld/docid/ 4d0b55c92.html> Accessed 11 October 2012
[52] See for example, UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 14 May <http://www.unhcr.org/refworld/pdfid/4fb0ec662.pdf> [53] See map on page 9 of RRT Research Response AFG41208 9 November 2012