Ground 1
41 This ground deals with the appellant's claim that there was a real risk that he would suffer significant harm within the meaning of s 36(2)(aa) of the Act by reason of parallel justice structures operated by the Taliban in areas under their control, including the home area of Takhar province, being parallel to the official justice system administered by the government of Afghanistan. The complementary protection claims were made relying upon the same circumstances as the refugee claims, but without reasons based upon the limited scope of the statutory version in the Act of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees. The appellant relies upon the definition of significant harm in s 36(2A).
42 The appellant's migration agent, in the submissions referenced by the Authority at [5], reproduced at [11] above, had relevantly stated (footnotes omitted, emphasis added):
Complementary Protection
In the event that you are not persuaded by our compelling arguments that [the appellant] should be determined to be a refugee, then we submit that he is owed complementary protection. We submit that as a real and foreseeable consequence of being returned to Afghanistan [the appellant] will be at real risk of significant harm in the forms of:
• arbitrary deprivation of his life, and;
• torture, and;
• cruel and inhuman treatment or punishment, and;
• degrading treatment or punishment.
We submit that [the appellant] is at real risk of significant harm in the form of arbitrary deprivation of his life and torture by reason of his ongoing family dispute. We draw upon the above cited country information which is consistent with [the appellant]'s testimony and demonstrates the scale of violence carried out against victims in a land dispute.
Furthermore, we submit that [the appellant] is at real risk of significant harm in the form of arbitrary deprivation of life, torture or cruel, inhuman and degrading treatment or punishment if he is forced to return to Afghanistan. In the context of the armed conflict in Afghanistan, the UNHCR notes that factors to be taken into account in assessing an asylum seeker's need for protection under the broader mandate criteria must consider the threat to the life or person by reason of indiscriminate violence include the number of civilian casualties, the number of security incidents, as well as the existence of serious violations of international humanitarian law which constitute threats to life or physical integrity.
Further, the UNHCR guidance states that:
More long-term and indirect consequences of violence should be considered, including:
(i) the control over civilian populations by AGEs, including through the imposition of parallel justice structures and the meting out of illegal punishments, as well as by means of threats and intimidation of civilians, restrictions on freedom of movement, and the use of extortion and illegal taxation;
(ii) the impact of violence and insecurity on the humanitarian situation as manifested by food insecurity, poverty, the destruction of livelihoods and the loss of assets;
(iii) high levels of organized crime and the ability of local strongmen, warlords and corrupt government officials to operate with impunity;
(iv) systematic constraints on access to education and basic health care as a result of insecurity; and
(v) systematic constraints on participation in public life, including in particular for women.
We note that the country information cited earlier in this submission identifies that the North/North Eastern parts of Afghanistan, including [the appellant]'s area of [appellant' province], is a stronghold of the Taliban and a deeply volatile region subject to ongoing fighting between the ASF [sc. ANSF: Afghan National Security Forces] and AGEs. We submit that if returned to [appellant' province], [the appellant] is likely to be arbitrarily deprived of his life by AGEs including the Taliban for reasons other than the refugees convention. Further, [the appellant] faces a real risk of being tortured or subjected to cruel, inhuman or degrading treatment under parallel justice structures and during kidnappings for ransom and extortion.
43 The appellant contends that a distinct aspect of this claim concerning "parallel justice structures" emphasised above was clearly supported by country information that post-dated the delegate's decision, being the Department of Foreign Affairs and Trade new country information report on Afghanistan dated 18 September 2017 (DFAT 2017 Report), referred to in the footnote to [6] of the Authority's reasons reproduced above at [11]. The Authority obtained this report for itself and found there were exceptional circumstances to justify considering it for the purposes of s 473DD of the Act.
44 The substance of this ground is that the Authority failed to consider and respond to what the appellant asserts was a substantial, clearly articulated and distinct claim, citing EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; 262 FCR 304 at [36], and like authority, for the jurisdictional responsibility to do so in the circumstances of this case. There is no issue as to that principle, only as to whether this was a separate claim that was not addressed so as to arguably breach that jurisdictional requirement. The DFAT 2017 Report is relied upon as having been overlooked by the Authority in respect of, and in practical support of, this asserted separate claim.
45 It is necessary to reproduce the parts of the Authority's reasons as relevant to this issue, as the appellant's argument turns on what he contends was not addressed, including by reference to the supporting material in the DFAT 2017 Report. The relevant passages concern both the Authority's refugee assessment and complementary protection assessment (footnotes imbedded in square brackets):
[29] The applicant claims to fear harm from generalised violence if he returns to Afghanistan. I take into account the applicant's evidence that prior to leaving Afghanistan he lived in the family home in Takhar. His parents continue to reside in this home, although he claims that his sister now lives with her husband and his two younger brothers have gone to Iran. The applicant does not claim to have family in any other part of Afghanistan and does not have a right to reside in any other country. I am satisfied that if he returns to Afghanistan he will return to Takhar province.
[30] DFAT has assessed that the ongoing insurgency across the country means that the government struggles to exercise effective control over many parts of the country, particularly areas outside major urban centres. As a result, the government lacks the ability to adequately address human rights issues, protect vulnerable groups and prosecute human rights violators in those areas. Despite these challenges, DFAT assesses that the government maintains effective, but not absolute, control in major urban centres, particularly Kabul. While violent attacks still occur and there are major concerns over the capacity of law enforcement and judicial systems, security in these urban centres is typically better than in rural areas. [DFAT, "DFAT Country Information Report Afghanistan 18 September 2015", 18 September 2015, CISEC96CF13366, at p 21] Of the specific incidents detailed in the 2015 DFAT report, the majority were attacks on the police, military, government, judiciary or media, although these nonetheless caused significant civilian casualties. The other two attacks appeared to be attacks on civilians, including an attack at the American University, but no organisation or specific target was identified.
[31] DFAT has also noted that in contested areas in the north, AGE operate parallel political and judicial structures and impose punishments. There is a perception in some parts of the community that these systems are preferable to official ones, due to the swift and decisive action that often results as well as widespread distrust of an official system seen as corrupt, slow and ineffective. DFAT does not report that AGE engage in generalised violence against civilians in these contested areas, although some do seek to propagate fear and uncertainty among the civilian population to discourage them from cooperating with the government and international forces. [Ibid: DFAT, "DFAT Country Information Report Afghanistan 18 September 2015", 18 September 2015, CISEC96CF13366, at p 21]]
[32] The European Asylum Support Office (EASO) reported in 2016 that since the departure of foreign troops commenced in 2012, the dynamics of the conflict in Afghanistan have changed. AGE have increasingly attacked and challenged the Afghan security forces (ANSF), operating in larger units (up to several hundreds of fighters, using small arms fire, rockets, mortars and grenades). They increasingly took control over larger territories outside the urban centres and became more successful in capturing district administrative centres. Mostly the ANSF has been able to regain control quickly but certain district centres fell under the sustained control of Taliban forces. Apart from Taliban-ANSF clashes, several other insurgent groups fought against ANSF or each other during 2015 and 2016. There were reports of clashes between different Taliban factions, between different pro-government militia and between Jamiat-i-Islami and Junbish Party militiamen. Islamic State (IS) groups have attacked governmental positions in Nangharhar but also clashed with Taliban groups. [EASO, "EASO COI Afghanistan Security Situation", November 2016, CIS38A80122597, at p 26]
[33] In relation to Takhar, EASO described it as a volatile province where AGE are present in large numbers, and it is bordered by two other volatile provinces. From 1 September 2015 to 31 May 2016, Takhar Province counted 136 security incidents but I note that most of these involved attacks on government and military forces. The most significant attack aimed at civilians was an attack on female school students but at the time of this report the motive was not known. [EASO, "EASO COI Afghanistan Security Situation", November 2016, CIS38A80122597, at p 129-132] I also note that while Takhar suffered 136 security incidents, the neighbouring provinces of Kunduz and Baghlan each reported more than 400 incidents for the same period, including the capture and looting of large cities, while Badakhstan reported 109. Takhar's southern neighbour Panjshir (which is closer to Kabul than the other provinces) recorded one incident of an IED detonation in a government compound.
[34] There is no other information before me that indicates that civilians are specifically or systematically targeted in Takhar. The statistics noted above indicate that Takhar has reported significantly fewer incidents of violence, including undirected and untargeted killings of civilians, than two of its neighbouring provinces and about the same number as a third province. I note that a report of a lower incidence of violence in one place compared to another does not of itself mean that there may not be a real chance of harm in that place. However, in this case, while I accept that there may be a risk to civilians in Takhar of being harmed by generalised violence, including as bystanders, from explosive attacks or from explosive remnants of the fighting, I am satisfied that any risk the applicant may face in relation to generalised violence in Takhar is remote, and therefore I am satisfied that he does not face a real chance of harm from generalised violence.
[35] I have also considered whether the applicant may face a risk of harm in accessing Takhar. The EASO report cited above notes that the Taliban has blocked roads in the province at different times and that abductions have occurred along highways in Takhar. The information before me does not indicate that Takhar has a civilian air service to Kabul and I accept that if the applicant returns to Takhar he will need to do so by road.
[36] Information before me indicates that incidents of abduction and other harm on the road networks are generally linked to specific profiles rather than being incidents of random violence. In 2015, DFAT assessed that while all ethnic groups are subject to a high risk of violence from AGE, no particular group is systematically targeted solely on the basis of ethnicity. Although ethnicity or religion may sometimes be a contributing factor, especially in kidnappings of civilians travelling by road, insurgent groups typically target people associated with the government and the international community, or people who appear wealthier than other Afghans. [DFAT, "DFAT Country Information Report Afghanistan 18 September 2015", 18 September 2015, CISEC96CF13366, at p 10] Other information notes that Improvised Explosive Devices (IED) and landmines are often deployed on the roads and in most cases the initiating systems cannot distinguish between military and civilian targets. Kidnappings, hostage taking and summary executions of civilians on the roads are also a growing threat; however, a large part of these abductions concern Hazara people. [EASO, "EASO COI Afghanistan Security Situation", November 2016, CIS38A80122597, at pp 27, 37-38]
[37] As noted above, the applicant is a Sunni and a Tajik. He has not claimed to have any profile (including any family association) with the government, international forces or international organisations. He has not claimed that his family is, or appears to be, wealthier than other Afghans. Based on his profile I am not satisfied that he faces a real chance of being targeted by AGE or any other groups if he was to travel by road to Takhar. While I accept that he may be at risk of harm from IED and landmines, the information does not indicate that this would be a targeted risk. I have considered this further in relation to complementary protection. Having regard to all of the above I am satisfied that the applicant will not face a real chance of harm accessing Takhar for any reason associated with race, religion, nationality, membership of particular social group or political opinion.
…
[42] I have found above that the applicant does not face a real chance of harm: because of a land dispute; from the Taliban; as a male landowner and oldest male of a family; as a returned asylum-seeker from the West; or from generalised violence. As 'real chance' and 'real risk' have been found to equate to the same threshold13 and for the same reasons given above, I am also satisfied that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Afghanistan, the applicant will face a real risk of significant harm for any of these reasons.
…
[47] There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).
46 The appellant contends that [31], [34] and [37] above are contrary to the DFAT 2017 Report. In particular, reliance is placed upon the following passages in that later report (being part of the material that was not before the primary judge, but proven by additional evidence to which no objection was taken by the Minister):
Death Penalty
…
4.10 Summary executions by beheading, shooting and hanging reportedly occur frequently in areas controlled by anti-government elements, particularly the Taliban. In 2016, UNAMA documented 38 civilian deaths by summary execution, although this number is likely to be a conservative estimate given the limited access to areas controlled by anti-government elements.
…
Torture
…
4.13 UNAMA also documents torture and other abuses carried out by anti-government elements, including the Taliban, to punish civilians for alleged infractions of sharia, perceived offences, and allegations of spying or connections with the government or security forces. These punishments, inflicted within a parallel justice structure, include the use of lashings, beatings, amputations and mutilations. DFAT is not able to provide additional information on the number or frequency of such incidents.
4.14 DFAT assesses that the use of torture and significant mistreatment of detainees by government officials to obtain confessions or other information is common and widespread. DFAT further assesses that civilians living in areas controlled by anti-government elements, particularly the Taliban, are at a high risk of torture or other abuses through parallel justice structure punishments.
Cruel, Inhuman or Degrading Treatment or Punishment
4.15 Article 29 of the Constitution prohibits punishment contrary to human dignity. However, reports of cruel, inhuman or degrading punishment by both government officials and anti-government elements persist. Aside from the incidents of torture outlined above, these incidents are largely undocumented and rarely publicised. According to UNAMA, many of the parallel justice structure punishments carried out by anti-government elements as outlined in 'Torture' amount to cruel, inhuman or degrading treatment.
47 The appellant contends that notwithstanding the reference to parallel political and judicial structures in [35] of the Authority's reasons, it failed to consider those matters and instead:
(a) considered at [34] country information on levels of civilian deaths in the appellant's province and neighbouring provinces, finding that "any risk the applicant may face in relation to generalised violence in [the appellant's province] is remote";
(b) considered at [37] that there was no civilian air service the appellant's province and so he would need to return by road, where he would be at risk of harm from landmines and improvised explosive devices, but that this would not be a "targeted risk" for a Convention reason; and
(c) at [44] gave no separate consideration to the parallel justice structures claim.
48 In substance, the appellant submits that the Authority failed to give consideration to his distinct claim of being at risk of significant harm because his province was a Taliban-controlled area where they operated parallel political and justice structures involving human rights abuses. He submits that although the Authority referred to parallel justice structures at [31], this was only considered as part of "generalised violence", as is made clear by the conclusion at [34] as to the remote risk from generalised violence "including as bystanders, from explosive attacks or from explosive remnants of the fighting".
49 The appellant asserts that this did not go far enough because the parallel justice structures claim was distinct from the issue of generalised conflict-related violence. He argues that this claim was not about civilian casualties brought about by fighting between AGEs and the Afghan Security Forces, which the Authority considered in detail, but rather concerned the Taliban's imposition of alternate systems of rules involving human rights abuses against the population. He submits that because the Authority found that he would return to his province where the Taliban held control, it was required to confront his claim that he faced the real risk of harm from parallel justice structures operated in Taliban-controlled areas.
50 In support of those arguments, the appellant points to significant country information before the Authority which strongly and directly supported the parallel justice structures claim and which was not specifically referred to in the Authority's reasons for decision. The appellant submits this strengthens the conclusion that the Authority failed to apprehend and consider that separate and distinct claim.
51 Further, the appellant relies upon, in addition to the information referred to by the Authority at [31], the fact that the earlier 2015 DFAT Report stated under the heading "Cruel, Inhuman or Degrading Treatment or Punishment" that "[i]n areas where the influence of anti-government elements such as the Taliban is greater, there are reports of illegitimate parallel justice systems carrying out punishments such as executions, amputations and mutilations". He submits that the updated information in the updated DFAT 2017 Report went significantly further on the risk of human rights abuses in areas controlled by the Taliban, relying upon 4.13 and 4.14 reproduced above, and in particular the reference to a "high risk of torture", being information that was not in the DFAT 2015 Report.
52 The appellant also relies upon there being only one overt reference to the later report at footnote 5 of the Authority's reasons (reproduced above at [22]). He submits that the failure to refer to this updated country information at all, even in passing, requires an inference to be drawn that the Authority failed to consider the parallel justice structures claims. He submits that this was a material error as the claim was capable of establishing that the applicant satisfied s 36(2)(aa) of the Act.
53 The substance of the Minister's response is that the appellant's case turns on the sufficiency of the consideration of the claims that he had made, rather than upon them not having been considered at all, a characterisation which, if accepted, would necessarily be fatal to this ground. The Minister submits that the focus must be on the claims that were made, rather than focussed upon claims that might have been made if the DFAT 2017 Report had been relied upon as part of those claims, and that read in context:
(a) the complementary protection claim advanced was that Takhar province was a "deeply volatile region" with ongoing fighting between Afghan forces and anti-government elements;
(b) that there were various risks for the appellant if returned due to the consequences of the violence throughout the region;
(c) one aspect of the violence that the appellant feared was in connection with the justice structures in place, but this was not the only aspect of violence the appellant feared if he returned; and
(d) the appellant did not claim to be at particular risk of being targeted by AGEs for torture or other mistreatment, but rather claimed to be at a generalised risk of being exposed to such harm.
54 The Minister submits that it was in this context that the Authority's reasons disclose that it:
(a) understood the appellant's claim to be one of "generalised violence": [29];
(b) identified the DFAT information supporting the appellant's claim and noted that DFAT did not report that AGEs engage in generalised violence against civilians in the contested areas: [31];
(c) also referred to information consistently with the appellant's claim that Takhar was a volatile province: [33];
(d) addressed, and rejected, the asserted prospect of the appellant being subject to harm by reason of generalised violence in his province, including but not limited to the risk of being caught up in an explosive attack: [34].
55 The Minister submits that, had the Authority in fact overlooked the appellant's claim as made, or misunderstood it, it would be incongruous that it would have referred expressly in its reasons to DFAT information addressing the very point of AGEs operating parallel political and judicial structures, being one of the forms of generalised violence that the Authority considered. Rather, the Authority had regard to the appellant's submission made to the Minster's Department, and applicable country information advanced in support of the submission, that he would be at risk of generalised violence if he returned to Afghanistan, and in particular to Takhar province, and that accordingly the specific claim of harm connected to the parallel political and judicial structures was subsumed within the broader findings addressing generalised violence, citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 75 ALD 630 at [47].