IMMIGRATION ASSESSMENT AUTHORITY DECISION
20 As noted above, the IAA affirmed the Delegate's decision to refuse the Appellant a SHEV. Broadly, it did so on the basis that he did not face a real chance of persecution in "all areas of the receiving country" in accordance with s 5J(1)(c) of the Migration Act (emphasis added).
21 The IAA's reasons are detailed, and the grounds of appeal advanced make it necessary to extract some passages at length.
22 For the purposes of the present appeal, the following introductory paragraph of the IAA's reasons is important:
7. The IAA wrote to the applicant on 9 May 2017 and invited him to comment on information relating to the recent security situation in Afghanistan, and the potential for the applicant to relocate within Afghanistan, and Mazar-e-Sharif. The applicant provided a submission on these issues on 23 May 2017. I have had regard to those submissions, albeit I have not expressly referenced all information referred to in those submissions.
(Emphasis added).
23 The IAA accepted that there was a risk that the Appellant would be harmed if he were returned to his home area. However, it found that this risk did not extend beyond that area to include cities such as Kabul. The IAA found as follows:
23. I have considered whether the chance or risk of harm to him extends beyond his home area, whether due to his profile or the Taliban's network. The applicant has contended that he would be on a Taliban blacklist. While I accept that he was threatened on more than one occasion by telephone, the applicant has not convinced me that he weight and gravity of his situation or profile is such that the Taliban or any other group or persons would seek to follow, track, identify or harm him outside of his home area. His employment was brief, and several years have passed since the threats. I am prepared to accept he has a profile, albeit a very low one, and that it is confined to his home and work area and contingent on him being recognised. Country information before me indicates that the Taliban may seek to track a high profile target elsewhere in Afghanistan, however it appears that the tracking of a law profile person is unlikely, and would also be difficult in a major urban area. I find that this would be the case in relation to the applicant.
24. Given his past profile, I cannot discount that there is a more than remote chance the applicant would be targeted for serious harm if he returns to his home area … However I do not accept that [the Appellant] is on a blacklist or that his history or profile is such that he would be recognised, followed, tracked, identified or targeted outside of his home area ….
(Footnote omitted; emphasis added).
24 It is helpful for the purposes of the present appeal to extract in full the following passages from the reasons of the IAA concerning the potential implications of the Appellant's future employment for his safety on relocation to Kabul:
26. One residual question is that notwithstanding his limited profile in Afghanistan, whether he would return to employment with an international organisation. The country information indicates there are credible risks to persons with such profiles, even in major cities like Kabul where the government has effective control and there is a strong police and military presence.
27. In terms of his return to Afghanistan, the applicant did not claim he had any intention or desire to work for [C] again, or find work with a government or international organisation. The evidence before me does not suggest that his decision to apply for work with [C] was anything other than the applicant taking a job opportunity in his chosen field of computing. As a question of fact, I am not satisfied he would seek to work for [C] or a similar government or international organisation in the future.
28. In any event, I find that if the applicant feared harm on the basis of employment with the government or an international organisation elsewhere, such as Kabul, he could seek alternative employment that would not hold such a risk profile. It is apparent from his evidence that the applicant could take reasonable steps to avoid harm - he is highly educated and has excellent skills in computing and the English language. He has experience living in Kabul, and I find that he would have a network of friends and some family in the city (discussed in more detail below). Notwithstanding the difficult economic situation in Afghanistan, I am satisfied there is no impediment to him finding work with a low profile private business, that would provide a safer workplace and is not connected to a governmental or international organisation, and would avoid him developing an adverse risk profile. I am satisfied the applicant could take reasonable steps to modify his behaviour to avoid a real chance of persecution.
(Emphasis added).
25 Otherwise, the IAA rejected the proposition that the Appellant's Hazara faith; Shia ethnicity; travel to the West; or earlier employment would place him at risk of harm on return: assuming that he did not return to his home area. In that regard, it is necessary in this appeal also to reproduce at some length the following passages of the IAA's reasons:
33. The applicant also claimed that because he had lived a number of years in a foreign country they will call him a foreigner servant, he will be seen as an infidel, and there will be problems for him on return. The representative has expanded on these claims and contended that the applicant falls within the potential risk profile of individuals perceived as 'westernised'. It refers to UNHCR advice about reports of individuals who returned from Western countries having been tortured or killed by insurgents on the grounds that they had become 'foreigners' or that they were spies for a Western country. The submission also highlights the risk to those with direct, perceived and imputed support for the international community and western ideals, and indicates that the applicant's past and future employment (including as a teacher), and the use of his English skills, exposes him to risk form the Taliban and other insurgents.
34. The delegate considered these claims on the basis that he was a failed (Hazara) asylum seeker. I have assessed the claim on that basis, as well as consider the risks profiles of those returning from the west and individuals perceived as westernised, and other related risk profiles.
35. I accept there are reports of returnees and asylum seekers being targeted and that the UNHCR guidelines refer to reports of individuals being threatened and targeted by insurgent groups because of their perceived values, appearance or other such characteristics which link them to the west. I note the UNHCR report says little beyond the description of the group potentially at risk. A footnote in the report refers to two reports that considered the situation of young Afghan men returning to Afghanistan from the United Kingdom. It indicates that young people with western connections, mannerisms, values or appearances are reportedly at risk of being mistaken for spies, or seen as foreigners or collaborators with the government and the international community. It states that "in some cases, young people have been threatened or targeted as a result of issues connected to their original asylum claims, and, for a significant group, simply being identified as a returnee has put them at considerable risk of violence".
36. The reference in the UNHCR guidelines is general and provides little details about the types and frequency of the incidents or, most critically, where the claimed incidents against such returnees occurred. The UNHCR report also cites two examples of two Afghan men, one was an Afghan-Australia and the other an asylum seeker, who were targeted for harm while travelling in the Hazarajat.
37. DFAT also states it is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country, confirming reports of incidents in the Hazarajat, which I accept and have had regard to. However, DFAT also assesses that, in general, returnees from western countries are not specifically targeted on the basis that they are returnees from the west or because they may have sought asylum. Those reports also indicate that Hazara Shia returnees, including those from the west, who are not directly associated with the government or the international community, currently do not face a higher level of risk upon return than returnees to Afghanistan from other ethnic groups. DFAT further assesses that, because of Kabul's size and diversity, returnees are unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion.
38. He left Afghanistan in his early twenties. The applicant did not spend his formative years in Australia or the west. He did not claim to possess any western mannerisms or opinions that he considered would put him at risk on return. Moreover, he has considerable familiarity with Kabul itself. I consider his situation is far different from other young Afghan males returning to the country who possess western mannerisms and characteristics and/or may be unfamiliar with Afghan culture or vulnerable in an unfamiliar city or village.
…
40. I am not satisfied that in a major urban area like Kabul, which has a diverse ethnic and religious population and has seen considerable population growth from returnees and IDPs over the years, that the applicant would face a real chance of being seriously harmed as a returnee from the west, or because he may have sought asylum, including as a Hazara Shia. Furthermore, there is nothing before me that indicates a person who has spent time in the west would be imputed to be an infidel solely on the basis of returning to Afghanistan from the west or that they would face a real chance of harm on this basis
41. The information and evidence before me does not indicate the applicant possesses any adverse profile or political opinion, or that one would be imputed to him, even when accounting for his past experiences and background. While I acknowledge the representative's submission that there are risks to those that are even perceived as connected to those groups, I am not satisfied the applicant has any actual history or higher profile, or that he would be imputed or perceived as having such a profile or connection, even when having regard to his religion and ethnicity, his past work for [C], his past teaching experiences, his English skills, his time in Australia, or his status as a returnee from the west and as an asylum seeker. I find that any such risks would be further reduced in a large and diverse urban area like Kabul. I find there is no real chance of the applicant being harmed for these reasons in Kabul.
(Footnotes omitted).
26 As for the information that the Appellant had provided to the IAA with respect to the risk posed by Islamic State, the IAA found that attacks against low profile Hazara Shia people living in Kabul were rare. It also found that Kabul had "a higher level of government control and a greater level of security than other parts of Afghanistan".
27 The IAA further found that while Islamic State was capable of executing infrequent attacks in Kabul more generally, that risk was limited. Moreover, even that limited capacity of Islamic State was under threat. With respect to this issue, having regard to the submissions advanced on appeal it is again convenient to extract in full the following paragraphs from the IAA's reasons. The passages in bold, in particular, are relevant to later analysis:
42. I have assessed the risk to the applicant from the Taliban, other insurgents, and Islamic State on the basis of his ethnic and religious background as a Hazara Shia.
43. The IAA invited the applicant to comment on country information about Islamic state. The applicant contended in submissions that Islamic State has the capacity to carry out frequent attacks against its intended targets, including the Hazara Shia population of Afghanistan, and that Islamic State's purported geographical confinement, struggles to control territory, and inability to establish itself in other areas, is irrelevant in considering the threat the group poses to Hazara Shia Muslims in Afghanistan.
44. While I accept the submissions on the deteriorating security situation in a number of provinces is a growing concern, the country information before me, including DFAT advice, also indicates that incidents of violence against Hazara Shia on the basis of religion remain infrequent in major urban areas like Kabul. Kabul has not been immune to attacks by insurgent groups, but over the last several years, attacks directed against the Hazara Shia population in the city have been rare. Instead, the threat from insurgents active in Kabul, principally the Taliban, has been directed towards high profile targets such as government institutions, political figures, the Afghan National Defence and Security Forces (ANDSF), NATO-led and International Security Assistance Force missions, other security forces, foreign missions and international organisations, as well as high profile locations such as schools, mosques and hospitals.
45. Kabul has a higher level of government control and a greater level of security than other parts of Afghanistan. The ANDSF and international forces have put in place a range of countermeasures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within the city. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in the city. While the government maintains effective control of Kabul and has a range of counter-measures in place, such attacks still occur with some frequency. Nevertheless, DFAT assesses that Kabul's size and diversity means that there are large communities of almost all ethnic, linguistic and religious groups in the city, and ethnic and religious based violence in Kabul is rare.
46. While Kabul has been comparatively secure for Hazara Shias, in the last year there has been an escalation in attacks targeting the Shia population in the city. Islamic State's local franchise, or affiliates of the group, has claimed responsibility for these attacks. These attacks raise a serious question as to whether the applicant would be at a real chance of being seriously harmed on the basis of his religion and ethnicity as a Hazara Shia within Kabul.
47. I have weighed the country information before me about whether the recent attacks in Kabul are indicative of a shift in the security situation for Hazara Shia in Afghanistan …
…
48. Recent country information suggests that Islamic State's presence and capacity in the country has moved beyond the nascent stage, however the information before me also raises questions about whether the group has the capability to orchestrate anything beyond occasional high profile attacks against soft targets …
49. A report from the Afghanistan Analysts Network (AAN) on the recent attacks states that while Islamic State seems capable of planning and executing 'occasional' attacks, it remains for now a limited threat. The AAN also assesses that it is unlikely that Islamic State can single-handedly drive the conflict in a sectarian direction. Other reports suggest that while Islamic State will probably continue to have capacity to undertake infrequent attacks in urban areas in Afghanistan in the future, Afghan, United States, and Taliban forces are intent on eliminating the group's presence in the country and this is likely to limit any Islamic State expansion over the next 12 months. In terms of its current presence within Afghanistan, reports indicate the group is confined mostly to the Pakistan border, around Nangarhar, and specifically Achin District, and not Kabul. It has been estimate that in late 2015 that there were 1,000-3,000 Islamic State fighters in Afghanistan and that US and Afghan military efforts had reduced the group's fighting strength by 15-20% as of October 2016 to roughly 1,000 personnel, as well as taking out high level leaders with the group.
50. The representative has contended that Islamic State's limitations have not been an obstacle for the group to carry out sectarian attacks against their intended targets. The AAN report indicates that Islamic State has clearly moved beyond the nascent stage, however it also emphasises that as an organisation it has struggled to expand beyond the four districts in Nangarhar in the east of Afghanistan, remaining, so far, a limited threat. I note the reference to a Vice News report from January 2017 which suggests the group is gaining ground in the east of Afghanistan. The presence of an Islamic State foothold in this part of the country is not in question, however I prefer later reporting that suggests that the group's position in the East and Nangarhar has been weakened.
51. The AAN report indicates that while the presence of Islamic State cells in Kabul is credible (drawing on existing groups of ex-Al Qaeda and Salafi fighters) and there is limited potential for future recruitment, it also emphasis that Islamic State's presence in Kabul is limited ... This suggests to me that while earlier country assessments that indicate the group is capable of executing infrequent attacks in the country remain accurate, even that limited potential is under threat.
52. Beyond the threat of future attacks, the AAN reports suggests that what has sharpened concern among Afghans is not Islamic State's capabilities, but its willingness to drive the conflict in Afghanistan in a sectarian direction. In fact, the report states there are a range of 'reassuring' factors which indicate that sectarianism is unlikely to take hold in Afghanistan in the reasonably foreseeable future. These include the fact that the attacks have been widely condemned across lines in Afghanistan, including by the Taliban. There are also strong indicators that the parties to the main conflict, the Afghan army and security forces and the Taliban, as well as Shia and Sunni religious leaders, and the population of the country more generally, remain fundamentally opposed to sectarianism.
53. The representative has contended that it is irrelevant whether sectarianism is likely to arise in Afghanistan, and that the law does not have a requirement that the harm should take place in a sectarian conflict. He posits that the key question is whether there is widespread targeted killing of Hazara Shia Muslims. I accept there is no requirement for the feared harm to occur in the context of broader sectarianism. The purpose of the assessment of sectarianism was to consider both whether Islamic State's 'goal' of achieving sectarianism is likely to take hold, and therefore whether the risks of Hazara Shias being seriously harmed in Kabul is likely to increase beyond the threat of infrequent high casualty attacks. Instead, the information before me indicates the sectarianism (and frequent threats from this) are unlikely to take hold, and that the risk to Hazara Shia are confined to the credible, but remote, risks from infrequent high casualty attacks.
54. The representative has contended that the Hazara Shia population has been among one of the biggest victims of the increased deterioration in the security situation in the country. Outside of the serious but limited threat posed by Islamic State, and ongoing risks posed to Hazara Shias on the roads in and around the Hazarajat, there is no clear indication in the country information of any escalation in other serious harm or other persecutory conduct towards Hazara Shia and any other religious and ethnic minorities in Kabul, whether by Islamic State, the Taliban or any other insurgent group, such as Lashkar-e-Jhangvi (LeJ), being the last group to orchestrate attacks against the Hazara Shia population in Kabul in 2011. Instead, the country information before me, including the numerous attacks cited by the representative, indicates that the persons and groups that remain most at risk from insurgents in Kabul and other cities like Mazar-e-Sharif, are those associated with the government, the military, the media and the international community. This is also true of a large number of attacks perpetrated by Islamic State outside of Kabul, and also more recent attacks in Kabul cited by the representative.
55. The submissions cites Professor Maley and Mr Swincer as assessing that Afghanistan is not safe for Hazara Shias. While I have weighed that advice in my assessment, the country information before me does not support such an assessment. While there are clear examples of Hazara Shias being seriously harmed and killed in incidents within the country, and DFAT, the UK Home Office and the UNHCR acknowledge these attacks the vulnerabilities of this group, the advice does not suggest to me that Hazara Shias have a high risk profile or face a real chance or risk of being seriously harmed on the basis of their religion and ethnicity alone. Even in terms of the risks on the roads in Hazarajat, the advice as to whether Hazara Shias are targeted principally on the basis of their religion or ethnicity is equivocal. I accept there may be credible risks to Hazara Shias travelling in and out of the Hazarajat and other areas in the country, including from the examples cited by Professor Maley, and I accept there has been a general deterioration in the security situation across the country, however I am not satisfied on the information before me that those risks are present throughout Afghanistan, or that the applicant would face a real chance or risk of harm for these reasons within Kabul.
56. Considering all the information before me, I am satisfied that Islamic State is a genuine, but limited and unsophisticated threat in the country. While I accept the group is able to orchestrate occasional attacks in Kabul, including against the Hazara Shia population, when having regard to the security presences and government control in the city, the limited capacity of Islamic State and its lack of territorial foothold in the area, the size and diversity and population of the city of Kabul, and the applicant's lack of other profile or proximity connected to those In high profile groups, I find there is only a remote chance, and therefore not a real chance, of the applicant being seriously harmed on the basis of his religion and/or ethnicity, or for any other reason by Islamic State or its affiliated groups. Furthermore, I am also satisfied that the attacks are not yet an indication of the risk of sectarianism in the country in the reasonably foreseeable future, and I find that there is no real chance of the applicant being seriously harmed in sectarian violence in the country.
...
60. There is no evidence before me of extortion, illegal taxation, forced recruitment and forced labor, physical abuse, and detention of Hazara Shias within Kabul. In terms of forced recruitment, the UNHCR indicates that it occurs in areas where insurgent groups like the Taliban exercise effective control over territory and the population. The limited examples of extortion and illegal taxation also appear in the context of areas where the Taliban or insurgent/militia groups have control or influence. Other examples refer to general corruption at the district and provincial level. I am not satisfied that this is the case in terms of Kabul and that there is any real chance of the applicant being targeted in these particular ways on the basis of his ethnicity and religion.
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64. In terms of generalised violence and insecurity in Afghanistan, I have considered generally the deteriorating security situation in the country and the security risks in Kabul on this basis. It is uncontentious that there has been a deterioration of the security situation in Afghanistan. While I accept that there are ongoing security challenges, I am satisfied the Afghan government and security forces retain effective control over Kabul. Further, when having regard to the size and diversity of the population in Kabul, and the applicant's lack of any profile or proximity to those with a risk profile, I find the chance of the applicant being harmed in generalised violence within Kabul is remote.
(Footnotes omitted; emphasis added).
28 In the interests of concision, I have omitted the footnotes from the above extracts. For the purposes of the present appeal however it is important to note that the IAA's reasons are extensively footnoted to a range of country information from sources that include material prepared by the Department of Foreign Affairs and Trade, the UNHCR, the United Kingdom Home Office and the European Asylum Support Office, as well as news reports and other materials.
29 The IAA accordingly found that in Kabul the Appellant would not face a real risk of being seriously harmed by reason of his ethnicity or religion by Islamic State, the Taliban, or any other insurgent group. Any risk of his otherwise being harmed as a result of generalised violence in Kabul was remote. He might face some "societal or official discrimination" in Kabul, but any such discrimination would be low level and would not affect his capacity to subsist or otherwise constitute serious harm. While accepting that not being able to return to his home village to visit family would place "pressure" on the Appellant, the IAA was satisfied that it would be reasonable for the Appellant to relocate to Kabul.
30 For those reasons, the IAA found that the Appellant he did not meet the requirements of the definition of a refugee in s 5H(1) of the Migration Act. He did not have a well-founded fear of persecution, because there was not a real chance of persecution in all areas of the receiving country (s 5J(1)(c)). He therefore did not satisfy the criterion in s 36(2)(a) of the Migration Act.
31 For similar reasons, the IAA found that the Appellant's case did not satisfy the criterion in s 36(2)(aa) of the Migration Act. Pursuant to s 36(2B), the IAA found that for the purposes of the Act there was not a real risk of him suffering significant harm if returned to Afghanistan because it would be reasonable for him to relocate to Kabul.
32 It is important to note that in reaching that conclusion, the IAA made various findings regarding the likely circumstances of the Applicant were he to relocate to Kabul. For the purposes of this appeal, the following findings are relevant:
90. In terms of finding work, the representative has contended that the applicant's English skills would not in fact be an asset, but would instead lead him to be at risk from the Taliban and other insurgents, as he would [be] linked to the west or the international community. I have found above that the applicant would not be targeted on the basis of any actual or perceived connections to the west within Kabul, let alone when considered against the size and diversity of the capital. The representative's submissions presupposes that his teaching, English or computer skills could only be used in the context of a government or international organisation, but I do not agree with that assessment. The IOM is quoted as saying that most jobs are found in the private sector (often small businesses), and there are only few opportunities in the public sector.
91. The representative also quotes the Afghanistan Independent Human rights Commission (AIHRC), through the Danish Report, as stating that Kabul has more than five million inhabitants and has reached its limits. It goes on to state that there 'is no more room for people to settle in Kabul, people cannot find a decent livelihood, and houses as well as public services such as water and sanitation are not available'. And 'the situation in Kabul is worse than in other major cities in Afghanistan because the demand for jobs and social services is higher than what the city can offer'. The quotes in the report need to be read in context. The Danish report cites the AIHRC in the context of pressures on the city from vulnerable IDPs and returnees, and the difficult conditions in the informal and illegal settlements. It does state that Kabul is under significant pressure from population movements, and that unemployment is high. I accept that is the case. The report further highlights that for people coming to Kabul from the country side without any education, the only opportunity available is often low-paid daily labour, mainly in the construction or service sector. However, the report also highlights that for people coming to Kabul from the country side without any education, the only opportunity available is often low-paid daily labour, mainly in the construction or service sector. However, the report also highlights the differences for a person in an advantaged position like the applicant. It quotes the IOM as stating that educated people have better opportunities to find a job within the government or in private companies, particularly those with foreign language or computer skills. As above, it also points to the importance of existing networks, which I am satisfied the applicant has in Kabul.
92. The representative contends that the situation has likely deteriorated given these statements are from 2012. More recent advice from DFAT continues to indicate that the influx of IDPs and returnees to the city has put pressure on the local labour market. Consistently with the Danish Report, it states that those who have foreign language and computer skills tend to be best placed to find well-paid employment in Kabul, with new arrivals from rural areas at a disadvantage due to their lack of relevant skills. DFAT assesses that many of these new arrivals also lack a network of family contacts needed to find employment. In this situation, employment may be irregular and often insecure and that many work as relatively poorly paid day labourers who seek occasional work as it becomes available. I accept the situation likely has not improved since the 2012 report, but recent advice indicates to me that a person in the applicant's situation remains in a far superior position to other IDPs and unskilled returnees. I accept there would be significant challenges for him in relocating, and that employment opportunities, accommodation and access to services are at a premium. However, I am satisfied the applicant's networks, education and skillset, as well as his experience in the city, would enable him to find work, and accommodation and access to essential services, notwithstanding the significant pressures in the city, and in Afghanistan generally.
(Footnotes omitted; emphasis added).