1319789 (Refugee) - [2015] AATA 3453

1319789 (Refugee) [2015] AATA 3453 (25 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1319789
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Giles Short
DATE:25 September 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 25 September 2015 at 5:20pm

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
INTRODUCTION

The applicant is a citizen of Iraq. He has said that he is a Shia Muslim and that he comes from [Town 1] in Dhi Qar Province in southern Iraq. He has said that various members of his family have been killed and that he himself was prevented from continuing his studies in Baghdad either because he is a Shia Muslim or because his father was a Shia Muslim but his mother was a Sunni Muslim. In a statutory declaration accompanying his application for a protection visa he said that he feared that if he returned to Iraq he would be killed by ‘the militia’ and Sunni extremists because of his religion as a Shia Muslim and his membership of two particular social groups, ‘children from inter-faith marriages; Shi’a and Sunni Muslims’ and ‘a failed asylum seeker from a Western country’.
The applicant’s application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision. A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Iraq and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Iraq, there is a real risk that he will suffer significant harm.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Iraq?
The applicant’s claims
The applicant is aged in his early [age]. He has said that he was born in [Town 1] (which he has said is [number] kilometres from Nasiriyah) and that he attended school there although at the hearing before me he said that for the first ten years of his life he had lived in Baghdad and had only travelled to [Town 1] to attend school. He has said that he completed [a certain grade] at school and that he then attended a vocational school where he qualified as [occupation]. He has that in January 2006 he moved to Baghdad to study at [Academy 2] and that he lived with his brother [Mr A in] Baghdad. He has said that the Academy was in [Suburb 3], a predominantly Sunni residential area, and that he was stopped on more than one occasion by people telling him not to come into the area because he was a Shia, a traitor and a spy. He has said that in 2006 his sister [Ms B]’s husband was kidnapped and killed on the way to work and his sister received a letter saying that if she did not leave her premises within 24 hours she would be killed. He has said that his sister sought refuge at his family home in [Town 1].
The applicant has said that in or around August 2007 when he was on his way to [Academy 2] he heard someone yell out his name and he saw three men in a car who verbally abused him saying that the area was only for Sunni Muslims, that Shia Muslims were not welcome and that they did not want to see him any more. He has said that [in] August 2007 his [brother] [Mr A] went missing and that he was found shot dead [in] September 2007 with the words ‘[slogan]’ carved with a razor on his back. He has said that his brother was killed because of sectarian violence and he has also referred to the fact that his brother was married to a Sunni Muslim and that his brother and his wife had a [business] in [Suburb 3].
In the statutory declaration accompanying his application for a protection visa the applicant said that he had always been mistreated and harmed because his father (who died in 1996) was a Shia Muslim but his mother was a Sunni Muslim. At the hearing before me, however, he said that he had first started experiencing these problems when he had been at the Academy in 2006. After I asked him if he had experienced similar problems in [Town 1] he said that it was like talk by which he said he meant that [Town 1] was a Shia city and people had asked why his father had married a Sunni Muslim and they had criticised him and his parents. He repeated, however, that this sort of talk and threats had only started in 2006. He said that they had come to him by car and they had said that because he was a Shia he was not allowed to come into that area. He said that they had come in a car to the Academy [and] they had called his name. He said that if anyone was Shia they did not allow them to go in. He said that they had known that he was Shia because their friends who were studying with him would have told them that he was Shia.
In the statutory declaration accompanying his application for a protection visa the applicant said that [in] September 2007 he had again heard someone yell out his name when he had been on his way to [Academy 2]. He said that they had threatened that he would face the same fate as his brother [Mr A] if he did not leave the area. He said that [in] October 2007 a car had pulled up next to him when he had once again been on his way to the Academy. He said that they had been angry that he had not listened to their previous requests and they had warned him that if they saw him in their area again he would be killed. He said that he had reported this incident to the police but they had said that they could not protect him. He said that as he had not wanted to face the same fate as his brother [Mr A] he had moved back to his home in [Town 1].
In his application the applicant said that he had only remained in [Town 1] from October 2007 until January 2008 and that he had then moved to [Erbil] where he had remained until January 2010, working in a [business]. He said that he had then moved to Basra where he had worked as [occupation]. He said that he had moved back to [Town 1] in November 2010 but once again he had only remained there for a short time before moving to Karbala in January 2011. He said that he had worked in a [business] in Karbala until he had left Iraq in May 2012. At the entry interview he said that from the end of 2010 until 2012 he had lived in Basra. He said that he had left this job two months before his journey to Australia and he made no mention of having lived and worked in Karbala.
At the hearing before me the applicant confirmed that in January 2008 he had moved to [the] city of Erbil and that he had worked in a [business] there. He said that he could not remember how long he had remained in Erbil. He said that his brain was not working. He said that after he had left [Erbil] he had gone back to [Town 1]. He confirmed that he had worked in Basra and Karbala but he said that he could not remember where he had worked first. He said, however, that he had been living in Basra immediately before he had come to Australia. He said that he had worked in a [business] in Karbala. He said that this had been for four or six months but he added that he could not remember. He said that in Basra he had worked as [occupation]. He said that he was not working in Australia. He said that he wanted to get a licence as [occupation] but he was not able to do so because he did not have residency.
The applicant has said that in April 2011 his brother [Mr C] was kidnapped and tortured and that his [leg] was broken. He has said that his brother had to go to [Country 4] for surgery and he produced documents to the Department with regard to the medical treatment his brother had received in [Country 4]. In his statutory declaration the applicant said that he believed that his brothers had been targeted by ‘the militia’ because they were Shia Muslims but his mother was a Sunni Muslim. At the entry interview he said that his brother [Mr C] had been kidnapped because he had been in [an occupation] although he said that his brother had left the [occupation] even before he had been kidnapped.
In the statutory declaration accompanying his application for a protection visa the applicant said that [in] April 2012 he had received a telephone call from an unknown person who had said that he needed to show respect otherwise he would face his fate. He said that he had tried to report this incident to the police but they had made no attempt to protect him. He said that [in] May 2012 he had received another telephone call from an unknown person (not the same voice as before) who had said that they knew who he was and where he was going and that they would find him. He said that they had warned him not to come to Baghdad and that if they saw him they would bury him alive. He said that this had been the fifth time he had received threats so he had known that he would no longer be safe. He said that he had known that even if he avoided the area he would still be harmed or even killed.
When he was interviewed by the primary decision-maker in relation to his application [in] October 2013 the applicant said that he had been threatened because his father had been Shia and his mother had been Sunni. He said that he did not know the people who had threatened him. He said that on one occasion they had threatened him over the phone and when he had reported this number it had turned out that the number belonged to a dead person.
At the hearing before me the applicant said that at the time he had received these threatening telephone calls he had been living in [Town 1]. After I put to him that he had said that he had been living in Basra immediately before he had come to Australia he said that every week he had gone to see his mother because Basra and Nasiriyah were close. He said that he had received these threatening telephone calls because he had been going to Baghdad to try to find the papers of his brother who had been killed. He said that the police had been arresting gangs and they had started doing investigations with them. He said that this had been why he had gone to find out if they had said something about his brother. He said that if the police caught these criminals then they would tell about the people whom they had killed. After I asked him if he was saying that they had caught someone in 2012 he said that the police were always catching people but sometimes they admitted their crimes and sometimes they did not.
The applicant said that he had started thinking of leaving Iraq after he had received these two threatening telephone calls in 2012. After I put to him that at the entry interview he had said that he had had the idea of leaving Iraq for a very long time, ever since what had happened to his brothers, he said that this was correct but he had not had the opportunity. He said that he had applied for a passport but he had been told that it would take four or five months for him to be issued with a passport. The applicant has said that he left Iraq from the airport in Basra [in] May 2012 using a fraudulent passport. He has said that this passport was in his name. At the entry interview he said that he had given the people smuggler who had arranged his travel to Australia a copy of his ID card and that the people smuggler had obtained this passport for him. The applicant travelled via [several countries] to Australia, arriving by boat [in] July 2012.
When he was interviewed by the primary decision-maker in relation to his application [in] October 2013 the applicant said that his mother had passed away two months before the interview and in a submission to the Tribunal dated 10 September 2015 his representatives said that his mother had passed away from natural causes in about July 2013. They said that his brother [Mr C] had joined the Iraqi Army in April 2014 and had been killed [in] June 2014. They said that one of the applicant’s cousins who had also been in the Iraqi Army had been killed in about July 2015. In a submission to the Tribunal dated 14 March 2014 they said that another of the applicant’s cousins had been killed in a bomb blast in Baghdad in February 2014. They said that the applicant did not have specific details about this incident. At the hearing before me on 18 September 2015 the applicant confirmed that he had [sisters] living in Iraq. He said that they were all living in [Town 1] but that he was only in contact with the youngest of [them].
In their submission to the Tribunal dated [in] March 2014 the applicant’s representatives said that he identified as a Shia Muslim because his father had been a Shia Muslim but that he did not practise his religion. They said that his sister [Ms B]’s husband had been a Sunni Muslim and that the applicant believed that there might have been a link between the murder of his brother-in-law and his inter-faith marriage, given that Sunni extremists would expect a Sunni to divorce a Shia and not to remain in a mixed marriage. They said that the applicant’s brother [Mr A] had also been targeted because of his inter-faith marriage but they also said that the applicant suspected that the attack on [Mr A] had been motivated by the fact that their parents’ marriage had been an inter-faith marriage and that the family did not discriminate between the Shia and Sunni Muslim faiths. They referred to the applicant’s claim that he had suffered mistreatment and harm for reasons of his parents’ marriage and they said that individuals would insult him with comments to the effect that: ‘You are not a Shia, nor a Sunni. You are in the middle.’
The applicant’s representatives said that when the applicant had been threatened [in] September 2007 it had been clear to him that he had been being targeted for reasons of his Shia faith and being a child of an inter-faith marriage. They said that the applicant’s brother [Mr C] had already had surgery in Iraq in August 2010 for [an] issue but that when he had been kidnapped in April 2011 he had been injured in the same area of his pre-existing surgery, exacerbating his pre-existing injury and impacting on his mobility. They referred to the applicant’s evidence that his brother had been targeted because he had been [an occupation] and they said that this was the second time on which the applicant’s siblings had faced harm from people whom he believed to be ‘the militia’.
The applicant’s representatives referred to the fact that the delegate had said that available information did not indicate that there had been targeted killing of Shias in Nasiriyah or Basra and they submitted that the applicant should not expect to be trapped in Nasiriyah for the rest of his life. They submitted that there would be circumstances where he would need to travel outside Nasiriyah to other areas such as Baghdad. They also submitted that it had been a breach of his fundamental human rights that he had been unable to obtain a higher education by pursuing his studies in Baghdad.
The applicant’s representatives referred to information about sectarian tensions in Iraq and a suicide bomb attack on Shia pilgrims near Nasiriyah in January 2012. They also referred to bomb attacks in Shia areas including Nasiriyah and Basra in July, August and September 2013. They submitted that this demonstrated that these areas were unsafe and that, given the unpredictability of insurgent groups, conditions could deteriorate further at any time. They submitted that the Shia majority in Iraq was being targeted on the basis of their religious beliefs and also their membership of a particular social group and they quoted from a media release issued by Human Rights Watch in October 2005 stating that the religious or ethnic group most targeted by insurgents in Iraq at that time was Shia Muslims. They referred to information about suicide attacks, bombings and assassinations in Iraq and they submitted that ‘the frequency and severity of sectarian violence in Iraq is ongoing’ and that the Iraqi authorities were unable to protect the citizens of the country.
With regard to the applicant’s claims based on his parents’ inter-faith marriage they submitted that the information on which the delegate had relied was out of date and that the issue of mixed marriage should be considered in the context of increasing sectarian violence in Iraq but they referred to no independent evidence supporting the claim that the applicant would face a real chance of being persecuted for reasons of his parent’s mixed marriage. Indeed they referred to a country guidance decision of the UK Upper Tribunal (Immigration and Asylum Chamber), EA (Sunni/Shi’a mixed marriages) Iraq v Secretary of State for the Home Department, CG [2011] UKUT 00342 (IAC), which stated that in general there was not a real risk of persecution or other significant harm to parties to a Sunni/Shia marriage in Iraq.
In relation to complementary protection the applicant’s representatives submitted that there was a real risk that he would suffer significant harm, specifically torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, but they did not expand upon this submission.
In their further submission dated 10 September 2015 the applicant’s representatives referred to the high rate of civilian casualties in Iraq. They noted that the Australian Department of Foreign Affairs and Trade had said that the Shia-dominated provinces in Iraq had experienced fewer violent attacks and that Shias would be less likely to become victims of sectarian violence in these provinces. They submitted, however, that the southern parts of Iraq had seen numerous security incidents in 2014 and they referred specifically to a car bomb explosion in the Al-Shamiya area in Dhi Qar Province in June 2014 in which 10 civilians were reportedly injured. They referred to the UNHCR Position on Returns to Iraq (October 2014) in which UNHCR urged States not to forcibly return persons originating from Iraq until tangible improvements in the security and human rights situation had occurred. However the question for the Tribunal is not whether the applicant should be forcibly returned to Iraq but whether he meets the definition of a refugee or the complementary protection criterion.
Discussion of the applicant’s claims
At the hearing before me the applicant said that following his mother’s death in 2013 he was unable to focus. He also referred to the fact that his brother [Mr C] had been killed in 2014. At one point he said that he was short of breath because he was remembering his family but he refused my offer to take a break. He said that he was not able to sleep day and night but when I asked him if he was seeing a doctor or some other medical professional he said that he did not want to go to a doctor. I indicated to him that I would take into account what he had said at the hearing about the problems he was having in remembering things because of his mother’s death and his brother having been killed but I put to him that it was unclear to me why he would suddenly have received two telephone calls in 2012 when according to his evidence nothing had happened since he had left Baghdad in 2007. The applicant confirmed that he claimed that these telephone calls had related to the fact that he had been looking for the person who had killed his brother. He said that it had been the Sunnis who had not wanted him to be in the neighbourhood where the Academy was who had been making these telephone calls.

I put to the applicant that the documents which he had produced to the Department with regard to the medical treatment which his brother [Mr C] had received in [Country 4] in July 2011 indicated that he had undergone surgery in Iraq in around August 2010. The applicant said that his brother had had his leg broken but when they had kidnapped him they had hit him on the broken leg. I put to him that the documents which he had produced indicated that the surgery which his brother had had in Iraq in August 2010 had involved fixing his leg with plates and screws and that he had gone to [Country 4] to have these implants removed because they had been causing him a lot of problems and he had been having difficulty walking. The applicant said that his brother had not been able to sleep because of pain. I put to him that there was no mention of his brother having suffered a broken leg in April 2011. The applicant confirmed that he claimed that his brother had been kidnapped in 2011. I put to him again that the medical documents which he had produced did not support this claim. The applicant said that he did not know.
I put to the applicant that, as I had indicated, I had some difficulty accepting that he was telling the truth. I noted that he and his representatives had said that he had been singled out or targeted because his father had been a Shia Muslim but his mother had been a Sunni Muslim. I put to him, however, that the independent evidence did not suggest that children of mixed Shia-Sunni marriages had been singled out or targeted. The applicant asked why his brother had been killed if they were not targeted. He said that his brother [Mr A]’s wife had been Sunni and that after 2006 no Sunni had been able to get married to a Shia and no Shia had been able to get married to a Sunni otherwise they would have problems. He said that they would have to divorce otherwise the husband would be killed or would be kidnapped and asked for money.
I put to the applicant that his representatives had referred to a country guidance decision made by a Tribunal in the United Kingdom similar to this one in 2011 which had considered all the relevant information in relation to mixed Shia-Sunni marriages in Iraq. It had referred to the fact that the Government of Iraq estimated that around two million of Iraq’s 6.5 million marriages were mixed Shia-Sunni marriages.[1] The applicant said that if you looked back you would be able to see that there were no more Shia-Sunni marriages left. He said that in the last period his uncles had not been talking to him or his father because they were Shia. He said that until now they were not talking to him or his siblings. I put to the applicant that the information to which the UK Tribunal had referred indicated that mixed marriages had been common under Saddam Hussein.[2] The applicant said that after Saddam Hussein there had been one hundred per cent problems.
[1] UK Upper Tribunal (Immigration and Asylum Chamber), EA (Sunni/Shi’a mixed marriages) Iraq v Secretary of State for the Home Department, CG [2011] UKUT 00342 (IAC) at [31].
[2] EA, cited above, at [31].
I put to the applicant that the UK Tribunal had said that there had been problems in 2006 and 2007.[3] The applicant said that until now there were problems. I put to him that the UK Tribunal had said that more up to date information suggested that mixed marriages were now as common as same sect ones.[4] The applicant said that now there were none. He said that if a Sunni guy wanted to get engaged or to propose to a Shia girl they would not give him. I put to the applicant that it was difficult for me to accept on the basis of the independent evidence that there was a real chance or a real risk that he would be harmed because his father had been a Shia Muslim but his mother had been a Sunni Muslim. The applicant said that after Saddam had gone they had started the war and too much had gone on. He said that until now Shia would not accept them.
[3] EA, cited above, at [34].
[4] EA, cited above, at [34]-[35], [37]-[38].
I put to the applicant that he had attended school in [Town 1] in Dhi Qar Province and he had also lived and worked in Basra and in Karbala. I put to him that Dhi Qar, Karbala and Basra all remained under the control of the Iraqi Government.[5] The applicant said that all these places were Shia. I indicated to the applicant that I was looking at whether he could go back to Iraq and there were a lot of places to which he could go where he had been before and which were, as he had said, Shia. The applicant said that he did not want to go back to Iraq. He said that because he would be coming from a Western country they would think that he was a spy. He said that if the Shia did not kill him the Sunni would because they would think that he was sharing information and that he was a spy.
[5] DFAT Country Report - Iraq, 13 February 2015, paragraph 2.28; UK Home Office, Country Information and Guidance, Iraq: Security situation in Baghdad, southern governorates and the Kurdistan Region of Iraq (KRI), April 2015, paragraphs 1.1.3, 2.6.43.
I put to the applicant that the Australian Department of Foreign Affairs and Trade had issued a new Country Report in relation to Iraq on 13 February 2015 and that the Tribunal was required to take such reports into account where relevant. I put to him that the Department had said that the Shia were the majority community in Iraq with a dominant role in government.[6] The applicant said that they were but they wanted to kill everyone. He explained that he meant that if you were a Shia you were expected to fight the Sunnis and kill them and if you were Sunni you were expected to fight and kill the Shia. He said that they were all like gangs and you had to be with someone against someone. I put to the applicant that the Australian Department of Foreign Affairs and Trade had said that Shia faced little or no official discrimination in Government-controlled areas.[7] The applicant asked who had killed his brother. I put to him that he had said that it had been the Sunnis. The applicant said that he had been referring to his brother [Mr C]. I put to him that he had said that his brother [Mr C] had been killed in a military action when he had been serving in the Iraqi Army. The applicant said that the Sunnis had kidnapped them and killed them. I explained to him again that I was looking at his situation if he went back to the Government-controlled areas in the south of Iraq. I noted again that this was where he had gone to school and where he had lived and worked. I put to him that he had said that he had been living and working in Basra immediately before he had left Iraq to come to Australia. The applicant said that now he had no one in Iraq. He said that he would be killed because he had been in a Western country.
[6] DFAT Country Report - Iraq, 13 February 2015, paragraph 3.44.
[7] DFAT Country Report - Iraq, 13 February 2015, paragraph 3.44.
I put to the applicant that the Australian Department of Foreign Affairs and Trade had said that many Iraqis who had sought asylum overseas had returned to southern Iraq. It had said that a credible international organisation had told it that there were over 100 Iraqis who had returned to southern Iraq after having failed to receive asylum in Australia. It had said that this organisation was not aware of any of these returnees facing significant problems. I put to him that the Department had referred to the financial incentives offered to people to return to Iraq and it had said that as a result of these financial incentives it assessed that the prospects for Iraqis returning as failed asylum-seekers would be better than those of other people living in southern Iraq.[8] The applicant said that he did not want money. He said that Australia had respected him and protected him and he did not want to go back. He said that if he had wanted to stay in Iraq he would not have left and now if he went back he would be killed. He said that he had left there because of the threats in 2012 and he repeated that now he did not have anyone there.
[8] DFAT Country Report - Iraq, 13 February 2015, paragraphs 5.25, 5.28.
I put to the applicant that the Australian Department of Foreign Affairs and Trade had said that the Shia-dominated provinces in southern Iraq experienced fewer violent attacks by Sunni insurgent groups and that Shia living in these provinces would be less likely to become victims of sectarian violence.[9] The applicant said that now the Shia were most of the martyrs and they were pushed to go and fight against the Sunni. I put to the applicant that the Australian Department of Foreign Affairs and Trade assessed that Shias in the Shia-dominated provinces of southern Iraq were at a low risk of generalised violence.[10] The applicant said that most of the people who had been with Saddam were Shia and they were the people who now went and joined ISIS or ‘Daesh’. He said that they were the people who were doing most of the killing. He said that a year previously in his area they had had explosions and bombs and the Shia were doing this. After I queried this he said that he meant that the Sunnis were joining ISIS or ‘Daesh’ and that it was the Sunnis who were causing problems.
[9] DFAT Country Report - Iraq, 13 February 2015, paragraph 3.46.
[10] DFAT Country Report - Iraq, 13 February 2015, paragraph 3.47.
I indicated to the applicant that what I was putting to him was that the Sunnis were causing relatively fewer problems in the Shia-dominated southern provinces of Iraq.[11] The applicant said that they were paying money to people to cause all this trouble and these explosions and bombs. I put to the applicant that other evidence suggested that the problems in southern Iraq took various forms: for example a number of members of the Sunni community in Basra had been kidnapped and killed in 2014 and there had been clashes between the followers of an anti-government Shia cleric and the Iraqi security forces which had resulted in the deaths of up to 45 people in Karbala.[12] The applicant said that these militias were Shia and they attacked everyone. He said that the Shia militias were killing people and they did not care if they were Sunni or Shia. I put to him that I might not accept that there was a real chance or a real risk that he would be a victim of sectarian violence or generalised violence if he returned to the Shia-dominated provinces in southern Iraq. The applicant said that he would be killed, if not by the Shia then by the Sunni because he had asked for protection from a Western country. After I queried whether this was the right way round he said that he was a bit tired.
[11] DFAT Country Report - Iraq, 13 February 2015, paragraphs 3.46-3.47.
[12] UK Home Office, Country Information and Guidance, Iraq: Security situation in Baghdad, southern governorates and the Kurdistan Region of Iraq (KRI), April 2015, paragraphs 2.6.48-2.6.52.
The applicant’s representative said that she did not want to make any further submissions. I asked the applicant if there was anything further he wanted to say before I closed the hearing. He referred once again to the fact that his mother had died and his brother [Mr C] had been killed. He said that he had been threatened and all his family were gone. He said that he asked Australia for protection. He said that he did not believe in the sects - they all had one God - and he did not care about such things. He said that his brothers had not cared who was Shia or Sunni and they had not wanted sectarianism. He said that he did not believe that there was a difference between Shia or Sunni or Christians. He said that he felt really down and he was not able to sleep. I repeated that I thought that he should consult a doctor but that this was a matter for him.
Conclusions
In light of the applicant’s comments that he had been unable to focus since his mother’s death, that he felt really down, that he was tired and that he was not able to sleep, I have considered whether the applicant had the capacity to participate in the Tribunal hearing. There is no evidence before me from a doctor or some other medical professional and the applicant indicated that he did not want to go to a doctor despite the fact that he said that he was having difficulty sleeping. As referred to above, he declined my offer of a break in the course of the hearing. While he referred to Shia when he meant Sunni on more than one occasion, he was able to respond without difficulty to my questions about where his family were, his history and his claims although he was unable to be precise about dates or periods of time. He was also able to address the issues which I raised with him in a way which indicated that he understood the issues. Having regard to all of the evidence I consider that the applicant was able to participate effectively in the hearing before me.
I accept that the applicant’s parents are dead and that his last surviving brother, [Mr C], was killed in June 2014 while serving in the Iraqi Army. I note that he still has [sisters] living in Iraq although he said that he was only in contact with the youngest of [them]. I accept that his sister [Ms B]’s husband was killed in 2006 and that his brother [Mr A] was killed in Baghdad in 2007. In their submission to the Tribunal dated 14 March 2014 the applicant’s representatives said that his sister [Ms B]’s husband had been a Sunni Muslim and that the applicant believed that there might have been a link between the murder of his brother-in-law and his inter-faith marriage. They said that the applicant’s brother [Mr A] had also been targeted because of his inter-faith marriage but they also said that the applicant suspected that the attack on [Mr A] had been motivated by the fact that their parents’ marriage had been an inter-faith marriage and that the family did not discriminate between the Shia and Sunni Muslim faiths. However the applicant’s evidence that his brother was found with the words ‘[slogan]’ carved with a razor on his back suggests that this was primarily a sectarian killing.
I do not accept that the applicant’s brother [Mr C] was kidnapped and tortured and that his [leg] was broken in 2011 as the applicant has claimed. As I put to him, the documents which he produced to the Department with regard to the medical treatment which his brother [Mr C] received in [Country 4] in July 2011 do not support this claim. The applicant’s representatives said in their submission dated 14 March 2014 that [Mr C] had already had surgery in Iraq in August 2010 for [an] issue but that when he had been kidnapped in April 2011 he had been injured in the same area of his pre-existing surgery, exacerbating his pre-existing injury and impacting on his mobility. The applicant himself said at the hearing before me that his brother had had his leg broken but when they had kidnapped him they had hit him on the broken leg. However, as I put to him, the documents which he produced to the Department indicate that the surgery which his brother had in Iraq in August 2010 involved fixing his leg with plates and screws and that he went to [Country 4] to have these implants removed because they were causing him a lot of problems and he was having difficulty walking. The applicant himself said that his brother had not been able to sleep because of pain. As I put to him, there is no mention in the documents of his brother having suffered a broken leg in April 2011. I do not accept that the medical documents would not have referred to the fact that his brother [Mr C] had suffered a further injury to his leg in 2011 if this claim were true and I therefore do not accept the applicant’s evidence that his brother [Mr C] was kidnapped and tortured in 2011.
In the statutory declaration accompanying his application for a protection visa the applicant said that had always been mistreated and harmed because his father had been a Shia Muslim but his mother was a Sunni Muslim. At the hearing before me, however, he said that he had first started experiencing these problems when he had been at the Academy in 2006. After I asked him if he had experienced similar problems in [Town 1] he said that it was like talk by which he said he meant that [Town 1] was a Shia city and people had asked why his father had married a Sunni Muslim and they had criticised him and his parents. He repeated, however, that this sort of talk and threats had only started in 2006. The applicant said that until now Shia would not accept them but I do not accept on the basis of his evidence that he suffered mistreatment or harm amounting to persecution because of his parents’ Shia-Sunni marriage in [Town 1].
I accept that the applicant was threatened when he went to study at [Academy 2] in Baghdad in 2006 but I consider that he was threatened because the Academy was located in [Suburb 3] which, as his representatives have submitted, is a Sunni area and he was identified as a Shia Muslim. I do not accept on the evidence before me that, as he has suggested and his representatives have submitted, he was targeted because of his parents’ Shia-Sunni marriage. He has not suggested that the people who made these threats referred in any way to this issue. He has said that they told him that the area was only for Sunni Muslims, that Shia Muslims were not welcome and that they did not want to see him any more.
I do not accept that, as the applicant’s representatives submitted, the fact that he was unable to pursue his studies in Baghdad because the Academy was located in a Sunni area amounts to persecution for the purposes of the Refugees Convention. Whether any restriction on access to educational opportunities amounts to persecution will depend on the individual facts and circumstances.[13] As the Tribunal said in its decision which was the subject of that case, although denial of access to education may constitute persecution if imposed for a Convention reason,[14] restricted access to higher education is not of itself normally regarded as amounting to persecution. This will occur only where restrictions which are imposed for a Convention reason amount to a significant detriment or disadvantage.[15] In the present case I do not consider that the applicant’s representatives have established that the denial of the opportunity to continue his studies at [Academy 2] caused the applicant any significant detriment or disadvantage. The applicant had already qualified as [occupation] and his evidence is that he was working as [occupation] in Basra before he left Iraq to come to Australia.
[13] See M211 of 2003 v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [19]-[20] per Crennan J.
[14] See Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379 per McHugh J at 431.
[15] See Chan, cited above, per Mason CJ at 388.
I do not accept the applicant’s evidence that he received two threatening telephone calls in April and May 2012 and that this was what prompted him to leave Iraq. At the hearing before me the applicant linked these telephone calls to the fact that he had been looking for the person who had killed his brother but he was vague as to what investigations he had actually been undertaking in Baghdad that might have resulted in these threatening telephone calls. He said that the police had been arresting gangs and they had started doing investigations with them. He said that this had been why he had gone to find out if they had said something about his brother. However after I asked him if he was saying that they had caught someone in 2012 he said that the police were always catching people. He said that sometimes they admitted their crimes and sometimes they did not. After I put to him that it was unclear to me why he would suddenly have received two telephone calls in 2012 when according to his evidence nothing had happened since he had left Baghdad in 2007 he confirmed that he claimed that these telephone calls had related to the fact that he had been looking for the person who had killed his brother. He said that it had been the Sunnis who had not wanted him to be in the neighbourhood where the Academy was who had been making these telephone calls. I do not accept that these people would suddenly have called him in 2012 to warn him not to come to Baghdad.

Having regard to the problems I have with the applicant’s evidence outlined above I likewise do not accept that he left Iraq travelling on a fraudulent passport which he obtained with the assistance of the people smuggler who arranged his travel to Australia. At the hearing before me he explained this on the basis that he had not been prepared to wait four or five months to obtain a genuine passport but since for the reasons given above I do not accept that he received two threatening telephone calls in April and May 2012 I do not accept that he was leaving in haste. The applicant has said that the passport which he used to leave Iraq was in his own name and I do not accept that it was not a genuine Iraqi passport. I do not accept that the applicant left Iraq illegally as he has claimed.
As I indicated to the applicant, I consider it appropriate to consider his situation on the basis that he will return to the Shia-dominated southern provinces of Iraq. As I noted, he attended school in [Town 1] in Dhi Qar Province and he has also lived and worked in Basra and Karbala. He said at the hearing before me that he had been living in Basra and working as [occupation] there immediately before he left Iraq. As I put to him, Dhi Qar, Karbala and Basra all remain under the control of the Iraqi Government.[16] The Australian Department of Foreign Affairs and Trade has said that the Shia are the majority community in Iraq with a dominant role in government and that Shia face little or no official discrimination in Government-controlled areas.[17] The applicant referred to the problems caused by Sunnis but, as I put to him, the Australian Department of Foreign Affairs and Trade has said that the Shia-dominated provinces in southern Iraq experience fewer violent attacks by Sunni insurgent groups and that Shia living in these provinces would be less likely to become victims of sectarian violence. It assesses that Shias in the Shia-dominated provinces of southern Iraq are at a low risk of generalised violence.[18]
[16] DFAT Country Report - Iraq, 13 February 2015, paragraph 2.28; UK Home Office, Country Information and Guidance, Iraq: Security situation in Baghdad, southern governorates and the Kurdistan Region of Iraq (KRI), April 2015, paragraphs 1.1.3, 2.6.43.
[17] DFAT Country Report - Iraq, 13 February 2015, paragraph 3.44.
[18] DFAT Country Report - Iraq, 13 February 2015, paragraphs 3.46 and 3.47.
In their submission dated 14 March 2014 the applicant’s representatives referred to information about sectarian tensions in Iraq and a suicide bomb attack on Shia pilgrims near Nasiriyah in January 2012. They also referred to bomb attacks in Shia areas including Nasiriyah and Basra in July, August and September 2013. They submitted that this demonstrated that these areas were unsafe and that, given the unpredictability of insurgent groups, conditions could deteriorate further at any time. In their further submission dated 10 September 2015 they submitted that the southern parts of Iraq had seen numerous security incidents in 2014 and they referred specifically to a car bomb explosion in the Al-Shamiya area in Dhi Qar Province in June 2014 in which 10 civilians were reportedly injured. I accept that there continue to be sporadic security incidents in the southern provinces but I accept the advice of the Australian Department of Foreign Affairs and Trade that the Shia-dominated provinces in southern Iraq experience fewer violent attacks by Sunni insurgent groups than other parts of Iraq and that Shia living in these provinces are less likely to become victims of sectarian violence. I do not accept on the evidence before me that there is a real chance that the applicant will be a victim of sectarian violence if he returns to the Shia-dominated provinces in southern Iraq. I do not accept that, as his representatives submitted, he will be trapped in Nasiriyah for the rest of his life: as referred to above he has lived and worked in Basra and Karbala and he will be free to travel in the Shia-dominated provinces in southern Iraq.
The applicant said that he would be killed because he had been in a Western country and they would think that he was a spy. However, as I put to him, the Australian Department of Foreign Affairs and Trade has said that many Iraqis who have sought asylum overseas have returned to southern Iraq. It has said that a credible international organisation has told it that there are over 100 Iraqis who have returned to southern Iraq after having failed to receive asylum in Australia and that this organisation is not aware of any of these returnees facing significant problems.[19] I do not accept on the evidence before me that there is a real chance that the applicant will be persecuted because he will be returning to Iraq as a failed asylum-seeker from a Western country or specifically because he will be perceived as a spy because he has been in a Western country.
[19] DFAT Country Report - Iraq, 13 February 2015, paragraph 5.25.
So far as the applicant’s fears based on his being the child of a mixed Shia-Sunni marriage are concerned, as I put to him, the independent evidence does not suggest that children of mixed Shia-Sunni marriages have been singled out or targeted. Even if, as has been suggested, his sister [Ms B]’s husband and his brother [Mr A] were targeted in part because of their own mixed marriages, this would still not support the claim that the children of such marriages have been singled out or targeted. As I put to the applicant, the decision of the UK Upper Tribunal to which his representatives referred indicates that the Government of Iraq estimates that around two million of Iraq’s 6.5 million marriages are mixed Shia-Sunni marriages and that mixed marriages were common under Saddam Hussein.[20] As I put to him, while the UK Upper Tribunal said that there had been problems in 2006 and 2007 it said that more up to date information suggested that mixed marriages were now as common as same sect ones.[21] The applicant said that now there were none but I give greater weight to the independent evidence than I do to his evidence. The applicant’s representatives submitted that the issue of mixed marriage should be considered in the context of increasing sectarian violence in Iraq but they referred to no independent evidence supporting the claim that the applicant would face a real chance of being persecuted for reasons of his parent’s mixed marriage. I do not accept on the basis of the independent evidence that there is a real chance that the applicant will be persecuted because his father was a Shia Muslim but his mother was a Sunni Muslim if he returns to Iraq now or in the reasonably foreseeable future.
[20] EA, cited in footnote 1 above, at [31].
[21] EA, cited above, at [34]-[35], [37]-[38].
In their submission dated 14 March 2014 the applicant’s representatives said that he identified as a Shia Muslim because his father had been a Shia Muslim but that he did not practise his religion. They said that the applicant suspected that the attack on [Mr A] had been motivated in part by the fact that the applicant’s family did not discriminate between the Shia and Sunni Muslim faiths. The applicant himself said at the hearing before me that he did not believe in the sects - they all had one God - and he did not care about such things. He said that his brothers had not cared who was Shia or Sunni and they had not wanted sectarianism. He said that he did not believe that there was a difference between Shia or Sunni or Christians. The applicant did not claim that he had been persecuted in the past for expressing such views nor did he claim that he feared being persecuted for expressing such views if he returned to Iraq. I do not accept on the evidence before me that there is a real chance that he will be persecuted for expressing such views if he returns to Iraq now or in the reasonably foreseeable future. He also said that now the Shia were being expected or pushed to go and fight against the Sunni but neither he nor his representatives referred to any evidence that Shia were being forcibly recruited by the Shia militias. I do not accept on the evidence before me that there is a real chance that the applicant will be forced to go and fight for the Shia against the Sunni if he returns to Iraq now or on the reasonably foreseeable future.
For the reasons given above I do not accept that there is a real chance that the applicant will be killed or otherwise persecuted for reasons of his religion as a Shia Muslim or his membership of the particular social groups of Shia Muslims (as submitted by his representatives), ‘children from inter-faith marriages; Shi’a and Sunni Muslims’ or ‘a failed asylum seeker from a Western country’ (as he claimed himself). I have considered the totality of the applicant’s circumstances as a Shia Muslim and a child of a mixed Shia-Sunni marriage who will be returning to Iraq from a Western country as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Iraq now or in the reasonably foreseeable future.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm?
Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm because of his parents’ mixed Shia-Sunni marriage. I accept that he was threatened in [Suburb 3] in 2007 because he is a Shia Muslim but I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm because he was unable to pursue his studies in Baghdad because [Academy 2] was located in a Sunni area. The applicant had already qualified as [occupation] and his evidence is that he was working as [occupation] in Basra before he left Iraq to come to Australia.
Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm because, as he has claimed, he left Iraq illegally on a fraudulent passport. For the reasons given above I do not accept that this is true. I accept the advice of the Australian Department of Foreign Affairs and Trade that the Shia-dominated provinces in southern Iraq experience fewer violent attacks by Sunni insurgent groups than other parts of Iraq, that Shia living in these provinces are less likely to become victims of sectarian violence and that Shias in the Shia-dominated provinces of southern Iraq are at a low risk of generalised violence.[22] I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm in the context of the sectarian violence or the generalised violence in Iraq.
[22] DFAT Country Report - Iraq, 13 February 2015, paragraphs 3.46 and 3.47.
As referred to above, the applicant said that he would be killed because he had been in a Western country and they would think that he was a spy. As I put to him, the Australian Department of Foreign Affairs and Trade has said that many Iraqis who have sought asylum overseas have returned to southern Iraq. It has said that a credible international organisation has told it that there are over 100 Iraqis who have returned to southern Iraq after having failed to receive asylum in Australia and that this organisation is not aware of any of these returnees facing significant problems.[23] I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm because he will be returning to Iraq as a failed asylum-seeker from a Western country or specifically because he will be perceived as a spy because he has been in a Western country as he has claimed.
[23] DFAT Country Report - Iraq, 13 February 2015, paragraph 5.25.
As likewise referred to above, in their submission dated 14 March 2014 the applicant’s representatives said that he identified as a Shia Muslim because his father had been a Shia Muslim but that he did not practise his religion. They said that the applicant suspected that the attack on [Mr A] had been motivated in part by the fact that the applicant’s family did not discriminate between the Shia and Sunni Muslim faiths. The applicant said at the hearing before me that he did not believe in the sects - they all had one God - and he did not care about such things. He said that his brothers had not cared who was Shia or Sunni and they had not wanted sectarianism. He said that he did not believe that there was a difference between Shia or Sunni or Christians. The applicant did not claim that he had been harmed in the past for expressing such views nor did he claim that he feared being harmed for expressing such views if he returned to Iraq. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm for expressing such views. The applicant also said that now the Shia were being expected or pushed to go and fight against the Sunni but neither he nor his representatives referred to any evidence that Shia were being forcibly recruited by the Shia militias. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm through being forced to go and fight for the Shia against the Sunni.
I have considered the totality of the applicant’s circumstances as a Shia Muslim and a child of a mixed Shia-Sunni marriage who will be returning to Iraq from a Western country as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept, having regard to my findings of fact above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Iraq, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.
CONCLUSIONS
For the reasons given above I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in subsection 36(2) for a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non citizen in Australia who is a member of the same family unit as a non citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.’
Refugee criterion
Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’
The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.
The definition contains four key elements. First, the applicant must be outside his or her country of nationality. Secondly, the applicant must fear ‘persecution’. As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:
‘A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’
‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:
‘need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)
Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’. It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons. Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:
‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’
A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429. A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:
‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.