1314620 (Refugee)

[2015] AATA 3892

1314620 (Refugee) [2015] AATA 3892 (7 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1314620

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Filip Gelev

DATE:7 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 07 December 2015 at 6:34pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Iraq, applied for the visa [in] September 2012 and the delegate refused to grant the visa [in] September 2013.

3. The applicant appeared before a different member of the Refugee Review Tribunal on 5 January 2015, 27 May 2015 and before this Tribunal on 29 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The latest DFAT Country Report on Iraq is dated 13 February 2015.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether Australia has protection obligations in respect of the applicant.

21. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Country of reference and identity

22. The applicant provided to the Department of Immigration a copy of his Iraqi national ID card and a copy of the biodata page of his Iraqi passport. He has consistently maintained in his oral and written evidence that he is a national of Iraq. He is fluent in Arabic.

23. Based on the above evidence and in the absence of any evidence to the contrary, the Tribunal finds that the country of reference for the assessment of refugee claims (s.36(2)(a)) in this case is Iraq.

24. On the evidence before it, the Tribunal finds the applicant does not have a present right to enter and reside in any other country than Iraq. The Tribunal therefore finds the applicant is not prevented from protection in Australia by s.36(3) of the Act.

25. The Tribunal also accepts the applicant’s identity is as claimed.

    The applicant’s mental health and general health

26. The applicant’s first hearing with the RRT in January 2015 was adjourned because of the applicant’s poor mental health, although the applicant did give evidence in relation to most aspects of his case.

27. The applicant explained to the RRT that he did not feel well and felt as if he was going to have a breakdown. The RRT discussed with him whether he was receiving any care or counselling for his mental health issues and he said that he was not aware that there was any where that he could receive such care. He stated that in detention he did not have any psychiatric or psychological treatment. He understood it was not available unless you specifically applied for it. He did not want people to think he was crazy.

28. On 18 February 2015 the applicant’s representatives advised that the applicant has sought professional medical assistance with respect to his mental health issues. His doctor, [Doctor A] referred the applicant to a psychologist.

29. A hearing scheduled for 20 February 2015 was cancelled at the request of the applicant.

30. At the hearing on 27 May 2015, the applicant was too unwell to give evidence. He said that he was on medication prescribed a few weeks earlier. The RRT member then read from the prescription and the applicant agreed that the medication had not been prescribed until [a few days before 27 May]. He said that he gets appointments with a GP and a psychologist, but the times between appointments is too long. He said that the medication he has been prescribed by his GP causes [side effects]. As of the date of the hearing he had only seen a psychologist twice. The psychologist said to the applicant to go back to the psychologist when he finishes the tablets. He had also been told that he is about to get an appointment to see a counsellor at [an agency].

31. The applicant was also referred to a neurologist to check whether he might have [a further condition]. He said that he had received treatment for [that condition] in Iraq, but he said that he did not get good treatment given the situation in Iraq, and he did not trust doctors in his home country. He did not want to tell anyone in Australia about it, because he did not want people to think that he is crazy. He referred to getting treatment for depression  before he came to Australia.

32. The applicant provided a certificate, dated [in] February 2015, from [Doctor B], a GP, that the applicant “has depression for the last three years”. The certificate did not include any further information such as how long the GP has known the applicant for, what this diagnosis is based on considering that at that time the applicant had not been living in Melbourne for three years.

33. The applicant attended the May 2015 hearing, but it was of rather short duration. He said that sadly he had not heard from his mother in the last 3-4 months. While he has internet 24 hours a day, she does not; thus she needs to go to a particular place, outside of home, to have access to Viber. If she does not call him, he has no way of contacting her. He broke down after only 15 or so minutes when talking about his mother. His representative said that she was trying to trace his mother through [a tracing] service.

34. On 28 October 2015, the day before the hearing, the applicant provided a letter from a neurologist, [Doctor C]. The letter is dated [in] June 2015 and it relates to the applicant’s “frequent [symptoms]” in the last 3 years. The [symptoms] often include [behaviour]. He reported to the GP that on one occasion he bit his tongue. The [symptoms] are activated by stress and worry, particularly thinking about his family in Iraq. The letter continues:

    He describes having wakeful myoclonus that can happen at any time of day. He describes having blank spells that can be associated with hearing voices and seeing scary things like snakes in his room. He describes getting déjà vu “all the time” and sometimes this is associated with collapses. He also describes getting nasty tastes and smells and a permanent sensation of fear which can sometimes precede convulsive episodes.

35. [Doctor C] concludes that the applicant is unlikely to be having [medical symptoms]. He requested an MRI scan and an EEG. Finally, the applicant provided a confirmation of appointment letter, dated [in] October 2015, from [a specified] Hospital. It is for an appointment at “[service]” [in] March 2016 for further medical tests or a scan.

36. At the October 2015 hearing the applicant was again unable to give evidence. The Tribunal notes that the applicant appeared extremely unwell. He had difficulty concentrating for more than a few minutes at a time. He was dishevelled and looked physically tired as if he had not slept for days; he had dark bags under his eyes and he had not shaved for several days. He avoided eye contact with the Tribunal member. While the Tribunal has no formal training in mental health, the Tribunal formed the view that the applicant was suffering from a psychiatric illness or disorder and that he would be unable to give evidence and present arguments at the hearing, especially as the Tribunal has some credibility concerns. The Tribunal considers that the reason the applicant was physically able to attend the October 2015 hearing was because he was accompanied by his case manager.

37. The applicant provided a letter, dated [in] November 2015, from [Doctor D], consultant psychiatrist, that the applicant suffers from severe post-traumatic stress disorder. While it is not aware of any statistical analysis in relation to this issue, the Tribunal observes that in its experience in recent years, it has become increasingly common for applicants to claim that they suffer from post-traumatic stress disorder even in cases where this is not immediately obvious to persons not trained in mental health. The Tribunal has absolutely no hesitation in accepting this diagnosis in the present case.

38. [Doctor D’s] letter also states that during the assessment interview the applicant had to leave the room to vomit when past traumatic events were discussed. [Doctor D] concluded that the applicant’s “sever anxiety about facing authorities and discussing his trauma leading to anxious avoidance that is the reason for postponing his hearings”.

39. The Tribunal suggested during the October 2015 hearing that in order to discharge its s.425 obligation, it may send written questions to the applicant. There are two problems with this approach. In relation to the applicant’s credibility, it is to be expected that he would claim, quite reasonably, that his inability to remember past events has been seriously compromised by his post-traumatic stress disorder. In relation to the applicant’s claim that he has converted to Christianity (discussed further below), the Tribunal would not be in a position to test his evidence in a robust way, because the applicant will have ample opportunity to research answers relating to Christianity, and plenty of time to elaborate on his subjective reasons for converting.

40. Almost a year has elapsed since the applicant’s first hearing during which – judging by the audio recording of the hearing – he appears to have been in better psychological health. On 12 November 2015 the Tribunal received a letter from the applicant’s representatives that neither the applicant’s treating GP, nor [Doctor D] have indicated that they cannot predict if the applicant’s health will improve. In the circumstances, given that over the last 12 months the applicant’s conditions has deteriorated, the Tribunal has decided to proceed without a further hearing.

    Background and claims

41. The applicant is an Iraqi national from Baghdad. At the time he arrived in Australia he was a Shia Muslim.

42. The applicant is single and has no children.

43. The applicant’s claims for protection are set out in a statutory declaration, dated [in] September 2012. The applicant said that he left Iraq [in] January 2012 as his life was in danger. Two of his brothers, [Brother E] and [Brother F], are employed by the police and at the same time they are members of the Shia militia known as the Al-Mahdi Army.

44. In 2007, the applicant was working in the family [product] shop in [location] which forms a part of Baghdad. The shop was located on a street that US military vehicles would pass through. The square in front of his shop was the hiding place for members of the Al-Mahdi Army and other Shi’a militias. Members of the Al-Mahdi Army attempted to plant an improvised explosive device (IED) in front of the shop to target US troops. The applicant saw what they were doing and had a verbal argument with them. They threatened to kill him.

45. The applicant said in the statutory declaration that he is a follower of Ali Al-Sistani, a Shi’a spiritual leader who advocates a peaceful relationship with the Americans, while members of the Mahdi Army follow Al Sadr; they consider followers of Al Sistani to be enemies and infidels and target them.

46. The applicant closed his shop and went to an American patrol vehicle. He told them about the bomb through an Arabic interpreter. She was seen by members of the Al-Mahdi Army. The Americans moved towards the area where the bomb had been placed and engaged members of the Al-Mahdi Army. One member of the Al-Mahdi Army was killed and others were injured and fled. The applicant also ran away and went home. After many hours he was advised that his shop had been bombed by the Al-Mahdi Army.

47. Members of the Al-Mahdi Army contacted the applicant’s brothers and told them that he was a supporter of and spy for the Americans. After a few hours his brothers told him that they had bombed his shop. Then his brothers called members of the Al-Mahdi Army who came and abducted him. They put a balaclava over his head and put him in the boot of a car. He was taken to a house “converted to a Sharia court designed for torture.” Later on the applicant found out that his 2 brothers were members of these particular court and sit on “the panel”. They can issue decrees to execute and torture people. The applicant was physically and mentally tortured for [number] days including by his brother [Brother F]. The applicant’s brother (the statutory declaration does not specify if it was [Brother F] or [Brother E]) suggested that the applicant and all the other prisoners should be killed. However, one of the other people there said that the house was registered in his name and he would be arrested or pursued.

1. Following his release the applicant escaped to a friend’s house in [location]. However, his friend and his friend’s father said that the applicant was an informant and a spy for the Americans; they physically assaulted him and kicked him out of the house. The applicant then stayed for 2 days in a rubbish tip as he had nowhere else to go.

2. He called his mother because she was very ill and needed medication. His mother told him to go to her because his 2 brothers were mentally torturing her and were not giving any medication. The applicant approached and American patrol vehicle, explained what happened and ask them for their protection. With the Americans’ help he got his mother out and took her to his [relative]’s house. He also stayed there but his [relative] also accused him of being an American spy. The Al-Mahdi Army had found out where the applicant was through the applicant’s brother and they were sending threatening letters and also attended the house on some occasions but his mother managed to hide him.

3. While he was at his [relative]’s house the applicant heard that the American forces had attended the street and arrested members of the Al-Mahdi Army. Very early the following morning he returned to his house with his mother. He was able to live in a hidden room while his brothers were in the other rooms.

4. Following the departure of the American forces from Iraq, members of the Al-Mahdi Army who had been arrested were released from Iraqi prisons. In January 2012 the Al-Mahdi Army discovered his hiding place and found him in the house. Two members of the Al-Mahdi Army raped him and photographed him while they were doing this. They said this was “the first step” and next they will kill him. They are distributed “this” in the community and his own tribe, [named], wanted to kill him. She received threatening phone calls from them. His father called on them to shed his blood. Because of this imminent danger the applicant fled the country.

   Delegate’s decision

5. The delegate did not accept the applicant’s claims for a number of reasons.

6. First, while the applicant claimed that he was in hiding in the family home from 2007-2012, he travelled out of the country a number of times. The applicant disclosed in his application that he travelled to [another country] in 2009. Further, as noted above, the applicant provided a copy of his passport, including pages which showed that the applicant travelled out of Iraq. There are entry and exit stamps in the passport in Arabic (someone has written on the photocopies in English the entry and departure dates). The delegate found in her decision, based on these passport stamps (a copy of the delegate’s decision was provided together with the application for review), that the applicant had travelled to [a further country] a total of five times in 2008 and 2011, and to [a third country] twice – once in 2011 and once in 2012. The Tribunal notes, however, that the second trip to [the third country] was probably when the applicant was on the way to Australia and he did not return back to Iraq following the second trip.

7. Secondly, he told the delegate that he lived in the basement of the family home. The delegate asked how it was possible that his brothers did not know that he was there. He replied that the basement had no internal stairs and there was a door at the back of the house. He conceded that he continued to go to work at [a] market in central Baghdad from 2008 to 2012, but he said he was living there with his mother and he would use her hijab as a disguise. He also claimed that his brothers did not come to the house while the Americans were there, because they (his brothers) were with the Al-Mahdi Army. The delegate found that implausible based on the fact that they were employed as police officers.

   Evidence at the RRT hearing on 5 January 2015

8. The hearing on 5 January 2015 was the only one during which the applicant gave evidence in relation to the substance of his claims for protection.

9. The applicant confirmed that the Al-Mahdi Army had asked him for protection money when he was running his or [products] shop. He said this was about two years after the fall of Saddam. He was asked about any problems he had with the Al-Mahdi Army between 2004 and 2007 he said there were incidents. He was asked to explain but could not. The RRT member tried asking the applicant in different ways what had happened to him prior to 2007, but he said that he did not remember – it was too long ago, his memory was not that good and he was trying to forget what had happened.

10. The applicant confirmed he had two brothers, [Brother F] and [Brother E], who were both in the police force. [Brother F] joined the police force after the fall of Saddam; [Brother E] has been in the police force since before the fall of Saddam. Before [Brother F] was in the police force he worked in the Republican Guards. He clarified that it was a part of the military – not a special part of the army in charge of protecting Saddam Hussein. The applicant said the service was obligatory and everybody had to serve for three years.

11. The applicant was asked about his contact with the US troops before 2007. He said that he did not have any contact with them. He explained that “later on” there was a US base very close to his house from which they used to patrol the streets. Earlier they used to come into [location] in groups of five or seven vehicles. The US troops also provided assistance by directing street repair works or food distribution.

12. The RRT asked the applicant about the incident in 2007. He said that his [products] shop was on a main road and on a “daily basis” the Al-Mahdi Army would put explosives opposite his shop. The applicant was asked over what period of time that this occurred. He then clarified that it was weekly, not daily that they would plant explosives near his shop. They did this because they were targeting the US forces patrolling the area. He said there were about three occasions on which his shop was damaged by these explosives. Once it was “small damage” and twice the damage was more serious causing him to leave the shop for a while.

13. The applicant was asked whether there was ever any occasions he spoke to the Al-Mahdi Army about these explosives. He said he talked to them once. He was asked why he had only done it once if they kept putting explosives regularly. He said it was a case of “degrading and demeaning”, because he was in conflict with them. He was asked again why he did not speak to them more than once if they put explosive on a weekly basis and damaged his shop thrice. He said they covered their faces and he did not know them personally.

14. The applicant then said there was an occasion when he asked them why they were putting explosives near his shop. He said that they did not answer him in the right or proper way. He got into an argument with them; it escalated and they ended up punching him. The RRT member put to him that the Al-Mahdi Army was powerful in control of the area and it was not clear what he hoped to achieve by approaching them. He said that he spoke to them in a peaceful and quiet way and wanted to know why they always put the explosives near his shop. The applicant said that after he was hit, he withdrew. They verbally threatened to kill him and abused him. He then closed his shop and that was the start of his problems. He then re-opened his shop. The incidents continued – they kept putting explosives in front of the shop – and he decided to approach the Americans.

15. The applicant was asked how long after this incident he reported the explosives to the US troops and he said that he could not remember. He was asked where he spoke to the Americans. He said there was a US vehicle at the end of the street sometimes. He went to them and through an interpreter told them at the time he was there, talking to the Americans, that there were explosives being planted in front of his shop. The Americans told him that they would go there. The applicant said that they knew there had been explosives planted there in the past, but he did not know that at that time there were going to be explosives planted there.

16. The applicant then went home. He said the Al-Mahdi Army then accused the applicant of being a spy. There was a battle between the US troops in the Al-Mahdi Army in front of the applicant's shop. The Al-Mahdi Army told him that they were going to kill him for being a spy and for reporting them. The applicant was asked how he knew that the Al-Mahdi Army formed this view of him and he said that they came to his home. The applicant agreed that it was the family home and his brothers also lived there but he said they were not coming there at the time.

17. They threatened him with death and also fired shots towards the house. He escaped to the house of one of his friends. He then said that the Al-Mahdi Army did not speak to him at that time. They spoke to his mother and they did not go in; she told them to go away and they did not go in “because she is an old lady”; she also reassured them her two other sons (the applicant's brothers) were in the Al-Mahdi Army.

18. The applicant then escaped from the house and went to his friend's house for [number] days. He did not stay there as his friend and his father accused the applicant of being a spy. They knew about the incident with the Americans as in his area this type of news spreads very quickly.

19. He then went to stay with his [relative]. He said he left his [relative’s] home because they made his mother suffer and asked her to pay rent. After that the applicant went to live in “a rural area”. He was asked how far it was from Baghdad and he clarified that it was inside Sadr city, it was in an area with rubbish. He stayed there for a few days. He was then asked where he went afterwards. He remained silent for some time and he finally said he was sorry, he could not remember.

20. The RRT then asked the applicant if he had ever been abducted and he said yes. It was put to him that the account he provided to the RRT was different to what was in his statutory declaration. He asked how. The RRT member told him that according to the statutory declaration he had been abducted by the Al-Mahdi Army after reporting the bomb planting to the American, he was abducted, then he escaped and went into hiding. By contrast, at the hearing he told the RRT that he talked to the Americana and then went into hiding but he did not mention the abduction.

21. The applicant then asked for a break. After the break he said he was fearful. Other Iraqis had told him that the RRT member was from the police. He indicated that he felt he was having a breakdown and after a discussion with his adviser the hearing was adjourned. Immediately before the adjournment, the RRT member advised the applicant that it had some concerns about his credibility and that the delegate had refused the application on the basis of credibility.

22. The Tribunal is reproducing the applicant’s evidence from the first hearing, because if the applicant had been able to give evidence at one of the hearings scheduled subsequent to January 2015, it is possible that he would not have been able to satisfy the Tribunal (or the RRT) that he is a person in respect of whom Australia has protection obligations.

23. With considerable hesitation, the Tribunal finds that the applicant is at risk of harm for reasons of his actual or imputed political opinion in favour of the US, the West or the international community. The applicant claims to fear harm from particular Shia militants who, he says, know him personally.

24. According to an Amnesty International report from October 2014, the main Shia militias in Iraq are as follows:[1]

    - The Badr Brigades10 (or Badr Corps or Badr Organization), the military wing of the Supreme Islamic Iraqi Council (SIIC), created in the 1980s with the backing of Iran to fight the regime of Saddam Hussein, and currently headed by Hadi al-Ameri, who also heads the Badr Organization political party and served as Transport Minister in the Government of Prime Minister Nouri al-Maliki [until September 2014].

    - The Mahdi Army of cleric Moqtada al-Sadr had become the most powerful militia following the 2003 US occupation of Iraq, but was officially dissolved in 2008. It was revived last June with the creation of its offshoot Saraya al-Salam (Peace Brigade).11

    - The ‘Asa’ib Ahl al-Haq (League of the Righteous),12 established around 2005 as a splinter group of the Mahdi Army under the leadership of Qais al-Khaz’ali and linked to General Qassem Suleimani, the head of al-Quds Force of the Iranian Revolutionary Guard Corps (IRGC). It is believed to be currently the most powerful of the Shi’a militias; in the past two years some of its members have been fighting in Syria alongside Syrian government forces battling Sunni armed opposition groups.

    - The Kata’ib Hizbullah (Hizbullah Brigades), unrelated to the Lebanese Hizbullah and reportedly an offshoot of the Mahdi Army’s “Special Groups”.

    [1]“Absolute Impunity: Militia Rule in Iraq”, Amnesty International, 14 October 2014, MDE 14/015/2014, available at: accessed 7 December 2015.

25. According to the same Amnesty International report:

    [Shia] Militia members often wear uniforms and operate both independently and alongside government forces - on the battlefield and checkpoints, and use army/security forces’ bases and detention centres – increasingly blurring the lines between them and regular forces. Qais al-Khaz’ali, leader of the ‘Asa’ib Ahl al-Haq militia said in a media interview in June: “It is like any army, in that there are divisions inside it... and each one has its specialties... The military has artillery and aerial force. We have the fighters who go down on the ground and purge the areas”. Ahmed al-Kinani, a spokesman for the militia’s political wing told media, also in June: “They are fighting side by side with the government forces on all fronts… They wear military uniforms. They are working with the security forces. It’s logical.” However, militias are not subordinate to the regular forces. On the contrary, they appear to have more authority and effective power on the ground than the beleaguered government forces, increasingly seen as weak and ineffective.

    …the line between paramilitary militias and government security and armed forces is often blurred, with the latter, operating on their own and/or alongside paramilitary militias, also involved in extrajudicial executions of captured fighters or detained suspects.

26. In the Tribunal’s view it is possible that the applicant’s post-traumatic stress disorder is due to the fact that he lived through the US led invasion of Iraq and the subsequent sectarian war in the country, rather than because he has been harmed and threatened in the past as claimed.

27. However, in light of the applicant’s serious mental health issues, the Tribunal is unable to reject the applicant’s claims. The Tribunal respectfully adopts the following general statement about the assessment of evidence (Member Bagaric, case number V0214392, 6 September 2004):

    The probative value of the evidence produced by the applicant in support of his claim that he will be persecuted …was not high. Most of the evidence came from a self-serving source (the applicant) and was littered with hearsay statements in support of his case. Nevertheless the direct evidence given by the applicant was on oath and is the only evidence in relation to such matters. There is no contrary evidence. This is not an atypical situation in a forum where the rules of evidence do not apply. The objective of providing a mechanism of review that is fair, just, economical, informal and quick militate further against the capacity to investigate thoroughly the applicant’s claims. Against this background (where the applicant’s claims are not self-contradictory and are not patently contrary to country information and there are no obvious credibility issues) the rational approach to take is to accept the claims – no matter how strongly they may conflict with one’s `hunches’. It is cardinal that determinations of this nature are determined on a forensic basis as opposed to intuition.

    With some reluctance, I accept the core material claims made by the applicant. … I do not accept that the warrant for his arrest is genuine. … This suggests that the applicant exaggerated his claim, but logically this does not undermine the whole substratum of his case. It is understandable that asylum seekers at times are prone to exaggerate and that this may lead to an inclination to fabricate evidence.

28. The Tribunal has accepted the applicant’s claims of past harm because it is unable at present to test them in a reliable manner and gives him the benefit of the doubt. If the applicant were to be granted a temporary protection visa and if his mental health were to improve when he is the holder of that visa, it may be appropriate in the future to test the veracity of the applicant’s claims robustly when he re-applies for protection. 

29. The Tribunal has significant concerns in relation to the applicant’s claims that his brothers were both police officers and in the Al-Mahdi Army, as well as that he was “in hiding” for many years while living in the same house as his brothers. The Tribunal accepts that the applicant may have co-operated with the US troops in Baghdad against the Al-Mahdi Army and that he felt protected up until the time when most of the US troops left Iraq in 2011.[2] According to his own evidence he left Iraq in January 2012 and thus he would not have been hiding for very long. It is possible that the applicant is so unwell and suffers from disturbed memory and thought to the extent that he believes some or potentially all of the claims he has made, even some which are patently absurd, such as the claim that for years he lived in the same house as other members of the family even though his two brothers wanted to harm him; in addition, he continued to work and he would leave the house to go to work daily, without suffering any harm, because he was wearing a “disguise” which consisted of his mother’s hijab.

    [2] R. Scarborough, “U.S. troop withdrawal let Islamic State enter Iraq, military leaders say”, The Washington Times, 26 July 2015, accessed at on 7 December 2015.

30. At the hearing on 5 January 2015 the applicant confirmed that he was a practising Shia Muslim. In Australia he practised at home and he sometimes went to the mosque in [Town 1] but did not attend regularly. He was asked how he had more freedom to practice his religion in Australia that he did in Iraq. He told the RRT that he had more freedom in everything in Australia. He said for example to show his solidarity with Christian people he attended church every Sunday in Australia. He went to the [Church 2] in [Town 3] and they had given him a Bible that was in English and Arabic. He went to this church because he had a friend who treated him like a son and she was a Christian and introduced him to her church. The applicant confirmed that he had not converted to Christianity but said that he probably would convert. He had been attending church for 18 months in Australia. The applicant said that before he came to Australia he had no idea about Christianity.

31. On 28 October 2015, the day before the fourth scheduled hearing, the Tribunal received a letter from [Leader G] of [Church 4]. The letter, dated [in] October 2015, stated that the applicant has been attending church services since May 2015 and he was baptised [in] June 2015. “He has attended church every Sunday since that time, and is well received by people here.” In addition, the applicant provided a copy of a baptism certificate, dated [in] June 2015.

32. It is not necessary for the Tribunal to make a finding in relation to the applicant’s religious conversion. The Tribunal notes that it is prepared to accept that his interest in the religion is genuine and he finds support in the Christian religious community with which he associates. The Tribunal accepts that if returned to Iraq the applicant will not seek to hide his newly found faith; he will not act discreetly or modify his behaviour.

1. The Tribunal accepts the following elements of the applicant’s claims:

   (1)  In 2007 he dobbed in members of the Al-Mahdi Army to US troops for trying to plant an IED in front of his shop. The US troops disabled a bomb and killed members of the Al-Mahdi Army

   (2)  Since 2012 he has been living in Australia

   (3)  Since earlier this year he has been going to church since 2014 and in 2015 he was baptised as a Christian, a religion associated in Iraq with the West.

2. The Tribunal is mindful of the fact that according to country information, including the most recent DFAT Country Report (13 February 2015), Shia groups in Baghdad and in the predominantly Shia south of the country have in recent times been targeting Sunnis.

3. Nevertheless, the Tribunal finds based on the country information, including the most recent DFAT Country Report (13 February 2015), at 3.72, that the applicant faces a moderate risk of harm as an actual or imputed supporter of the US, the West and the international community and at risk of harm at the hands of the Al-Mahdi Army, or by members of one of the new Shia militia groups - Badr Brigades10, Saraya al-Salam, ‘Asa’ib Ahl al-Haq or Kata’ib Hizbullah

4. The Tribunal finds that there is a real chance in the current situation in Iraq that, if the applicant returns there now or in the reasonably foreseeable future, he will be targeted by Shia militants for his actual or imputed political opinion.

5. The significant and essential reason for the persecution which the applicant fears is his actual or imputed political opinion as required by paragraph 91R(1)(a) of the Act. 

6. The applicant may be killed or subjected to significant physical harassment or ill-treatment, that is serious harm as required by paragraph 91R(1)(b) of the Act.

7. The persecution which he fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c) of the Act, in that it is deliberate or intentional and involves her selective harassment for a Convention reason.

8. In light of these findings it is unnecessary to consider her claims under the complementary protection criterion.

   State protection

9. In relation to state protection, the Tribunal accepts the latest DFAT Country Information Report (13 February 2015) that:

   State Protection

   5.1 The capacity of Iraq’s security forces to provide protection has been severely tested by violence across Iraq. Access to a range of public services can be affected by nepotism and corruption. On this basis, DFAT assesses that Iraqi security forces have little willingness and only limited capacity to protect the community from abuse, or to transparently punish perpetrators of crime. In addition, some abuse is likely to have been perpetrated by state actors or their proxies. At the time of writing, the government has no ability to provide state protection in areas controlled by Daesh and other opposition groups.

10. The Tribunal finds on the material before it that there is no adequate and effective state protection in Iraq.

    Relocation

11. The ‘internal relocation principle’[3] was accepted by the Full Federal Court in 1994 in Randhawa v MILGEA on the basis that ‘[t]he focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country’.[4] The Chief Justice reasoned that:

    If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.[5]

    [3] Also known as the ‘internal flight alternative’ and ‘internal protection alternative’.

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at 440-1.

    [5] (1994) 52 FCR 437 at 441.

12. The High Court has confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[6] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[7]  Therefore, in determining whether an applicant is a person in respect of whom Australia has protection obligations, it may be necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country, free of the risk of persecution.

    [6] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.

    [7] MIBP v SZSCA (2014) 314 ALR 514.

13. The Tribunal has had regard to the UNHCR Position on Returns to Iraq, published in October 2014, in particular:

    As the situation in Iraq remains highly fluid and volatile, and since all parts of the country are reported to have been affected, directly or indirectly, by the ongoing crisis, UNHCR urges States not to forcibly return persons originating from Iraq until tangible improvements in the security and human rights situation have occurred. In the current circumstances, many persons fleeing Iraq are likely to meet the 1951 Convention criteria for refugee status. When, in the context of the adjudication of an individual case of a person originating from Iraq, 1951 Convention criteria are found not to apply, broader refugee criteria as contained in relevant regional instruments or complementary forms of protection are likely to apply. In the current circumstances, with massive new internal displacement coupled with a large-scale humanitarian crisis, mounting sectarian tensions and reported access restrictions, particularly into the Kurdistan Region of Iraq, UNHCR does in principle not consider it appropriate for States to deny persons from Iraq international protection on the basis of the applicability of an internal flight or relocation alternative. ...

14. A 2013 study on health services in Iraq published by The Lancet found that in Iraq after years of ‘war, sanctions, and occupation, Iraq’s health services are struggling to regain lost momentum’ and while health care facilities have been rebuilt, Iraq’s health infrastructure is not completely restored.[8] Similarly, the most recent DFAT Country Report states (at 2.20):

    In recent years the state has made significant investments in hospitals. Nonetheless, in 2013 Iraq had an estimated 13 hospital beds per 1000 population, lower than the comparable figures in regional countries (for example, 18 in Jordan and 17.3 in Egypt)’.

    [8] ‘Health services in Iraq’, The Lancet, 16 March 2013, CIS36DE0BB2209, p.939, <>

    DFAT also advises (at 2.2.1) that in Iraq ‘many primary health care facilities are under-resourced’ and ‘many skilled health workers have moved abroad or to safer areas of Iraq, including Iraqi Kurdistan’. Consequently, primary health care facilities in rural areas are poorly staffed.

15. In light of the applicant’s significant health problems, and in particular severe post-traumatic stress disorder and undiagnosed [symptoms], the Tribunal considers that the applicant is at present unable to hold a job of any description. In such circumstances, the applicant’s ability to subsist may be threatened. In addition, he has complex medical needs that are unlikely to be met adequately anywhere in Iraq.

16. The Tribunal finds that it would not be reasonable for the applicant to relocate within Iraq.

    CONCLUSIONS

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

    DECISION

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

    Filip Gelev
    Member