1421119 (Refugee)

[2016] AATA 4007

1421119 (Refugee) [2016] AATA 4007 (9 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421119

COUNTRY OF REFERENCE:                  Iraq

MEMBER:James Jolliffe

DATE:9 June 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 09 June 2016 at 9:20am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Iraq , applied for the visas [in] September 2014 and the delegate refused to grant the visas [in] December 2014. The first named applicant was the only applicant to make specific protection Visa application claims. The second named applicant seeks protection as a member of the same family unit as the first named applicant and did not make any separate claims for protection. In those circumstances the first named applicant will be described as “the applicant” in these reasons.

3. The applicants appeared before the Tribunal on 16 May 2016 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 applicants were represented in relation to the review by their registered migration agent.

   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.

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. 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’).

9. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

10. The Tribunal has before it the Department and Tribunal files relating to the applicant together with information available to it from a variety of sources

11. The issue in this case is the applicant claims to fear harm if she returned to Iraq on the basis of her Shia religion. She claims to fear harm from Shia militants because she married a person of the Sunni Muslim faith .

12. For the following reasons, the Tribunal has concluded that the  matter should be remitted for reconsideration.

13. In her protection Visa application which was lodged in September 2014 the applicant claimed to have been born in Al- Basrah in Iraq on [date]. She claimed to be of the Islamic faith. She claimed to have married [in] 1988. She claimed to have no right to enter or reside temporarily or permanently in any other country other than Iraq. She arrived in Australia on a [temporary] Visa [in] August 2014 and was issued with an Iraqi passport in [2009]. She claimed to have lived in Basrah in Iraq from January 1998 until June 2014. She claimed to have been educated in Iraq for [number] years and to have obtained her [qualification]. In her application she said that she left Iraq to visit her [child] in Australia and she claimed that if she returned to Iraq she would be targeted by Shia militia and either tortured or killed because they had told her to leave Iraq. She claimed to fear harm from the Shia militia but also claimed to have an indirect fear of harm from ISIS on the basis that she is a Shia Muslim. She claimed that she could not obtain effective protection in Iraq and that her family had been threatened and abused and attacked and that they had been shot at and their house destroyed. She claimed that Iraqi authorities had not intervened on previous occasions to assist her family.

14. The applicant provided a statement in support of her protection Visa application. In that statement she referred to having married a Sunni person and that she is of the Shia faith. She claimed as a result she and her family were targeted by militants from both sects. She claimed that tension between the two groups had become more intense in the last two years. She claimed that she had been personally threatened both on the telephone and via text messages. She claimed that she was told to leave her husband and her family and her home. She claimed that she was considered a type of “traitor” for having married outside her face. She claimed that she was fearful for the safety of herself and her family. She referred to coming to Australia to visit her [child] and that she brought the second named applicant with her to Australia. She claimed that just before she came to Australia her husband had received a letter with a bullet inside it as a warning. She claimed that [in] June 2014 her husband’s [relative] and [sibling] were targeted by militants as they were going to the mosque. She claimed her husband’s [relative] was killed and her husband’s [sibling] was shot and wounded. She claimed that shortly after her husband’s mother died from a [medical condition]. She claimed that her husband’s [sibling] had since left Iraq and gone to [Country 1] to avoid being targeted again.

15. She claimed that [in] July 2014 her house had been destroyed by fire and that that was a deliberate act. She said her family had escaped but since that incident she had told [one child] to go to [Country 1] in order to avoid harm in Iraq. She claimed that shortly after her [child] went to [Country 1] [his/her] best friend was “killed in retaliation”. She claimed that her family and her husband’s family had been targeted because of her marriage to her husband. She referred to the second named applicant missing his father and his siblings. She claimed that if she returned to Iraq she would be targeted by the Shia militia and either tortured or killed because they had warned her to leave Iraq. She said that her parents had died and her only siblings live in [another country]. She said she did not have any family members or immediate family in Iraq.

16. The Tribunal received submissions on the applicant’s behalf dated 9 May 2016. In summary those submissions referred to the applicants background and the refusal by the Department delegate to grant the applicant a protection Visa. The submissions referred to the applicant’s claims in her protection Visa application and in her statement in support of that application.

17. The submissions claim that the applicant failed to attend an interview with the department delegate because her migration agent had not advised her of that interview. The submissions refer to the delegate not granting the applicant a protection Visa. In summary the submissions refer to the delegate and that the delegate found that the applicant’s claims had not been supported by supporting evidence and that the applicant had not provided sufficient detail to support her claims and that the delegate did not accept that the applicant had a well-founded fear of harm if she returned to Iraq.

18. The submissions, in summary, referred to country information in relation to Iraq and to interreligious marriages and the issues associated with inter religious marriages in terms of acceptability within Iraqi society. In summary the submissions refer to those marriages becoming more unacceptable during periods of heightened sectarian violence in Iraq. The submissions refer to the difficulties for families of inter religious marriages and to the threats of violence to members of those families during periods of heightened sectarian violence in Iraq. The submissions, in summary, refer to various sources in relation to these issues. The submissions claim that sectarian tension in Iraq creates significant difficulties for interfaith families.. One of the sources referred to is the report from the finish immigration service dated April 2015 which in part says “in Iraq, marriages between Sunnis and Shiites have been commonplace through the ages, but during the Civil War mixed marriages were not accepted. At the moment, entering into a mixed marriage is somewhat challenging”.

19. The submissions also refer to the applicant’s membership of a particular social group in the context of being a woman in a interfaith marriage. The submissions claim the applicant cannot relocate to a Sunni area in Iraq referred to the risk of harm to the applicant from ISIS because she is of the Shia faith. The submissions refer to executions of people by ISIS on the basis of religious affiliations. The submissions refer to the UNHCR guidelines for people who are likely to be in need of international refugee protection and that those guidelines refer to people of different Muslim beliefs living in areas either controlled respectively by Sunni or Shia groups as likely being in need of international refugee protection. The submissions claim that it would be unreasonable for the applicant to continue living in a Shia controlled area and that she would also face difficulties if she moved to a Sunni controlled area in Iraq.

20. The submissions refer to future political expectations in terms of the broader arrangements and political structure within Iraq. The submissions in that context refer to the concerns about the different factions within Iraq and raise the issue as to whether Iraq would survive as a nationstate given the tensions and arrangements. The submissions suggest that the applicant fears that Sunni extremists would target her because of her faith. The submissions in summary refer to the “real chance” test in terms of considering refugee protection claims. The submissions suggest that the applicant has a well-founded fear of persecution on the basis of her Shia religious beliefs and her membership of  particular social groups in terms of her being a woman in a mixed marriage situation and her imputed political opinion. The submissions claim that the applicant is entitled to protection in Australia.

21. As indicated in the written submissions made on her behalf the applicant did not attend an interview with the department delegate in relation to her protection Visa application. The delegate declined to grant the applicant a protection Visa. A copy of the delegates record of decision was provided to the Tribunal with the application for a review. The Tribunal was advised before the Tribunal hearing that the applicant wanted to correct the claim that her home had been firebombed [in] July 2014 and that the correct date of the incident was [date] July 2014.

    TRIBUNAL HEARING

22. The applicant appeared before the Tribunal on 16 May 2016 to give evidence and present arguments. She was represented by her registered migration agent before the Tribunal. The second named applicant did not attend the Tribunal hearing. She told the Tribunal that her passport had been lost and the loss had been reported to the police. The applicant produced a copy of her passport together with her Iraqi identification card. She also produced a further report dated [in] May 2016 from the [name] clinic in [city]. The applicant had earlier provided a report in relation to psychological assistance. In summary the report provided at the hearing referred to the applicant as having been initially diagnosed as suffering from post-traumatic stress disorder and that she had been involved in therapeutic treatment to assist with her psychological difficulties. In summary the report referred to the applicant’s progress during treatment being stalled because of ongoing “stressors”. Those stress factors included the applicant’s concerns for the welfare and safety of her husband and another [child] are overseas and that her husband had suffered a [medical condition]. The report also refers to the applicant being stressed about the outcome of her protection Visa application.

23. The applicant confirmed her name and personal details. She confirmed that [certain children] are in Australia. She said her husband was in southern Iraq and living in a rural area south of Basrah together with some other members of her immediate [family]. Those members of her family were apparently living on a [property] owned by a relative. Another [child] was currently living in [Country 1]. She confirmed that the her claims for protection was based on her religion and she claimed that she would be targeted for harm by Shia militants in Iraqi because she married a Sunni person. She also claimed to fear harm if she returned to Iraq on the basis of her membership of two particular social groups. Those groups are that the applicant is an Iraqi woman in a mixed interfaith marriage and she fears harm from Shia militants on that basis. The other particular social group is that because she is married to a Sunni person that she will be imputed with a political opinion of supporting her husband’s political views and be imputed to support the Baath party basis and be at risk of harm on that basis if she returned to Iraq.

24. She claimed to fear harm from Shia militant groups in Iraqi and named those groups as Asayb Al Alhahaq (an offshoot of the Mahdi Army or JAM in Iraq) and also claimed to fear harm from a group called Sarya Al Salam which she also claimed was another offshoot of the Mahdi Army. She also claimed to fear harm from Daesh/Isis. The Tribunal noted that the DFAT country report for Iraq dated February 2015 indicated that the levels of violence in the southern provinces of Iraq (a majority Shia area) are much lower than in other parts of Iraq. The applicant and her family have lived in Basrah (Basra) in southern Iraq and near the Iranian border. The applicant has lived in that area all her life apart from the time when she and her family relocated during the  Iraq/Iranian war. The applicant told the Tribunal that she is perceived to be a “traitor” by other Shia people and militants because she married a Sunni person. She told the Tribunal that she feared if she returned to Iraq she would be molested or raped or killed and could lose her freedom or her life. She told the Tribunal that she and her family had not been involved in any political activities in Iraq and her husband had not been involved in any militant religious activities in Iraq. She said her husband practised his religion at home and that he did not go to the mosque very often. She said she practised her faith at home.

25. She was asked about when she married her husband. She said she got married in 1985 in a religious ceremony when she was [age] years old. She said the marriage was then registered in 1988. She said she was married in a Shia religious ceremony and she had not converted when she married.

26. She told the Tribunal that she had not attended the interview with the Department delegate because her first registered migration agent had not told her about the interview and she did not know about the interview. She said her current representative had explained the Department delegate's decision to her. She confirmed to the Tribunal that she had travelled to [Country 2] between April and June 2015 to visit her sick husband who had gone to [Country 2] for medical treatment. She visited him in [Country 2] and did not enter Iraq on that occasion.

27. the applicant was asked about her claims for seeking protection. She told the Tribunal she had not encountered any problems in Iraq until 2012. She said towards the end of 2012 she had received threatening text messages which she suspected came from the two militant groups that she had identified earlier to the Tribunal. She said she did not think she would be targeted in Iraq. She said that the text messages had use words to the effect “you are an infidel – leave your husband and your home”. She said she received the text messages for about three months and then changed her SIM card. She said that she received two threatening telephone calls before she had changed the SIM. She claimed that the telephone callers had asked why she was “following her husband”. And that the caller had said words to the effect that she was considered as an “infidel/traitor”. The Tribunal asked the applicant about these claims and the applicant said that the callers had also said words to the effect “if you stay like that we’re going to kill you”. The applicant said that after she changed the SIM card she had turned the phone off and had not received any more texts or telephone calls. She said that she also did not stay at home for long periods and went to stay with relatives in Basra on occasions to avoid harm. She said that the pattern that she and her family had followed after receiving the threats was to stay one month at their home and then go away for two months. She said her husband had been [occupation] till around 2006/2007 but that he had then sold [his business] and sold assets to support the family and that her [one child] worked to support the family. She said that the only threats to her family had been made to her. She said nothing else happened (in terms of harm) between late 2012 until [July] 2014 and that someone had come in the night to the family home and thrown an incendiary device at the front of the home which had caused fire damage to the front of the house. The home had not been burned to the ground and there had not been internal damage to the home just external damage to the front of the home.

1. During the hearing the applicant’s representative had addressed the Tribunal about a number of issues raised by the Tribunal in relation to the applicant's claims. As a result the Tribunal asked the applicant further questions about her husband and the sale of his [business]. She said that her husband had gone to [Country 1] around 2008 to 2009 and remained there for about 12 months. She said that even though he had not been threatened personally he had become generally afraid because a lot of Sunni people were being killed in Iraq at that time. The applicant said that her husband was very secretive about issues and that he had made (what appeared to be to the Tribunal) a sudden decision to sell the [business]. The applicant said that there had been no other threats to her family before the family home has been attacked. She claimed that a bullet had been left in an envelope at the family home with a letter after the attack. She told the Tribunal that the letter had said words to the effect "that she would be next". She said that letter had been given to the police in Iraq. She said her husband had found that letter at the family home. The Tribunal noted that that the translated reports in relation to the fire incident at the home did not refer to the applicant receiving a threatening letter that also enclosed a bullet. One of the reports dated [in] July 2014 did refer to the applicant and said “the above mentioned person was threatened by some outlaws and they threw a firebomb at her house which burned the house of the above-mentioned person and her family”. The applicant said that she had been staying with relatives at the time that the home was attacked.

2. She said that one of her [children] had gone to [Country 1] after this incident because the applicant thought he might be at risk. The Tribunal referred the applicant to her [child]’s statement that [he/she] had provided to [a humanitarian organisation] and which was on the Department file. The Tribunal noted that the applicant's [child] had also referred to the fire bombing of the house as having occurred on [date] July 2014 when in fact the applicant had said that was a mistake and that the incident occurred on [date] July 2014. The applicant’s [child] also referred in [the] statement to receiving many threats on [his/her] phone and that the family had to leave the house or the family would be killed and that the family were targeted by many extremist militias and that [he/she] had gone to [Country 1]. The applicant told the Tribunal that she was not aware that any threats had been made to her [child] because the [child] was also secretive. The applicant was asked about her claim in her statement that a friend of her [child] had been killed in retaliation because her [child] had fled to [Country 1]. She told the Tribunal that she had heard about it but was very vague and not able to provide any real information but she believed he was shot because he was a Sunni but this appeared to the Tribunal to be speculation by the applicant. In essence the applicant was not able to provide any real details about the claim that one of her [child]’s friends had been killed in retaliation for her [child] going to [Country 1].

3. The Tribunal asked the applicant about the death of her husband’s [relative]. The Department file contained documentation in relation to that issue. The applicant said that she had no other details or knowledge about the incident involving the death of her husband’s [relative] and she did not know if the [relative] and her husband’s [sibling] had received a warning or a threat before the incident occurred. The applicant had referred to this incident in her statement in support of her protection Visa application

4. The applicant told the Tribunal that she had never been harmed in Iraq but her younger [child] had been bullied at school and received verbal abuse about Sunni issues. She told the Tribunal that she did not personally know anyone who had been killed in Iraq because of an interfaith mixed marriage but that she had heard about it happening. She told the Tribunal in responding to a question about relocation to avoid harm that she feared harm from Sunni militants if she moved into a Sunni dominated area in Iraq because she was a Shia woman in an interfaith marriage. She confirmed to the Tribunal that her claims that she had been told to leave Iraq were references to the texts and phone messages that she had given evidence to the Tribunal about and that she received in 2012. The Tribunal notes that the applicant also claimed to have received a threatening letter after the fire bombing incident in July 2014.

5. The Tribunal referred to the possibility of relocation if the applicant feared harm in her home area in Iraq. The Tribunal noted that the DFAT country report for Iraq dated February 2015 referred to southern Iraq and including the province of Basra as having remained significantly more secure than other parts of Iraq in recent years. That report also indicates that while generalised violence does occur it is at a significantly lower level than in Baghdad. That report also indicates that the Department had been informed in early 2014 that security forces in Basra have been responsive to minority communities request for protection from violence although they did not always have the capacity to respond effectively. The report also notes that the department had also been told that state protection was difficult to access in practice without strong tribal or political affiliations. The Department's overall assessment was that state protection in southern Iraq is significantly better than that provided to minorities in central Iraq but the problems remain in that minority groups generally cannot rely on state protection. The applicant responded by saying that the situation was more stable if both parties to a marriage were Shia in Basra. The Tribunal noted that the applicant had reported the firebombing of the home to the police in terms of seeking state protection. The applicant said the family had reported the bombing but did not expect that anything would be done by the authorities. The Tribunal also noted that the Department file contained a petition from supporters in Australia in support of the applicant's claims for seeking protection in Australia.

6. The applicant had nothing further to add relation to her claims but told the Tribunal that she was living in stress

7. The Tribunal referred to the country information contained in the DFAT country report for Iraq was dated February 2015. In summary the Tribunal referred to the overall security situation in Iraq referred to in that report. The Tribunal noted that since early 2013 sectarian violence had escalated in certain parts of Iraq and that government forces as a January 2014 remained in control of various parts of Iraq and including Basra. The Tribunal also noted that other parts of Iraq were not under government control. The report also noted that violent crime had significantly increased since the beginning of 2013 in Iraq and that militia had used extortion and kidnapping to raise funds and that acts of violence had become prevalent in recent years. Crimes were said to have either a criminal or religious motivation although the report noted that militia groups abuse religious arguments to justify criminal acts in Iraq. The report noted in discussing Sunni armed opposition groups that there were a range of such groups and that since early 2013 Sunni extremist groups had increased attacks on a range of targets and particularly those associated with the Iraqi government. The report indicates the extent of violence in Iraq in recent years and this included attacks on moderate individuals often on the basis that they were perceived to be collaborating with the government.

8. The report indicates that the targets of attacks included places of worship and civilian targets such as markets and other public places. The report notes that levels of violence in the southern provinces which are a majority Shia area are much lower but that Sunni groups have attacked locations in the southern provinces but the casualty rate is much lower than elsewhere in Iraq. The report also refers to Shia armed opposition groups and refers to the Madhi army and offshoots such as Asaib al Haq (referred to by the applicant as Asayb Al Alahaq(AAH). These groups are said in the report to have conducted attacks on Sunnis and share an anti Sunni outlook. The report notes that these militias had been resurgent in 2014 in response to increasing sectarianism and calls to defend Shia religious sites. The report notes that young Sunni males had been frequently kidnapped, tortured and murdered. The Department assessment is that there are credible reports of conflict between Shia militias for political and/or criminal dominance in predominantly Shia parts of Baghdad and Basra. The report notes that political parties in Iraq are largely based on ethnic and religious lines and that the concentration of political power in the hands of the majority ethnic Shia group since the overthrow of Saddam Hussein in 2003 have left minorities feeling aggrieved. The report notes that religion and ethnic extraction have played a role in motivating violence in Iraq and these motivations can sometimes be difficult to distinguish and that societal discrimination against ethnic and religious minorities is widespread. The report notes that all religious communities in Iraq have been threatened by some level of sectarian violence in recent years. The report notes in discussing Shia and Sunni issues that in Sunni dominated areas Shia can face instances of societal discrimination. The report notes that Shia communities are subject to both general and targeted violence by Sunni linked insurgent groups and extremists. Shia are more likely to face violence in Baghdad than in the rest of Iraq. Shia dominated provinces have experienced pure violent attacks on the relocation to those provinces would mean Shia were less likely to become victims of sectarian based violence.

9. The Department assessment overall is that Shia in Shia dominated areas and provinces of southern Iraq are at a low risk of generalised violence but face a moderate risk of generalised violence in Baghdad. The Department assessment is that Sunnis living in Shia dominated provinces generally face moderate levels of societal discrimination and that Sunnis in the southern provinces had complained of unfavourable treatment. The Department's view in the report is that relocation( by Sunnis) to Sunni dominated provinces would likely reduce discrimination but that the levels of violence are generally higher in those provinces and there are less economic opportunities and poor services.

10. The report refers to incidents of violence in Iraq and notes that Shia armed opposition groups have undertaken successful attacks on various Sunni institutions and individuals in recent years and that they have also allegedly undertaken execution style killings and targeted assassinations of young mainly Sunni males since mid-2013. This is said to have mainly occurred in central Iraq but they have also been instances in the southern provinces. Those killings have frequently been preceded by letters warning Sunni residents to leave or be killed. Reference is made to an example in late 2013 in the province of Basra where there was an increasing number of attacks and threats on Sunni residents and mosques and that young  Sunni males were kidnapped and murdered(see paragraph 3.55 of the DFAT country report for Iraq dated February 2015).

11. The report, in discussing political issues, referred to ethnic and sectarian violence being widespread in various parts of Iraq and that there were reports of assassinations and intimidation of high profile members of parties in the lead up to the provincial elections in 2013 and the national elections in April 2014. The Tribunal noted that the report also referred to violence against women in Iraq being a considerable problem in the domestic abuse and so-called on a killings occur across the country. The report also notes that there are credible reports that suggest that minority women and children are among the most vulnerable groups in Iraqi society. The country report also refers to state protection and notes that the capacity of Iraq security forces to provide protection has been severely tested by violence across Iraq and that the capacity of the police force in most provinces is limited. The report notes that the ongoing weakness of state institutions has given rise to increasing influence of tribal culture in dispute resolution and particularly in the poorer southern and western regions of Iraq and that Iraqi citizens have in some places turned to local militias and religious and tribal groups to dispense justice rather than seeking out official law enforcement bodies. The report also notes that the Department assessment is that it views as credible United Nations views that in most cases internal relocation for minorities to all within central Iraq is not a reasonable option. Relocation to an area with a predominantly different ethnic or religious demographic can contribute to tensions particularly for Sunni people relocating to Shia dominated areas or vice versa. The report notes that southern Iraq and including the province of Basra has remain significantly more secure than central Iraq in recent years but the generalised violence occurs but it is significantly lower level than in Baghdad. Report also notes that the Department assessment is that state protection in southern Iraq is significantly better than that provided to minorities in central Iraq but the problems remain and that minority groups generally cannot rely on state protection.

12. The report also noted in referring to returning Iraqis who had not obtained protection in Australia that the Department had been told by a credible international organisation that it was not aware of any of those returnees facing significant problems upon their return to southern Iraq. The Department assessment in the report is that internal relocation to southern Iraq might be reasonable and practical option for Shia but that it would be difficult in practice for Sunnis or other minorities fleeing violence elsewhere in Iraq. The report notes that credible UN estimates from November 2014 indicated that over 2 million people were displaced throughout Iraq and that sectarian violence in recent years had turned previously mixed areas into mono sectarian ones. The report also notes that document fraud in relation to certain documents is common in Iraq.

13. The Tribunal referred to concerns that it had about the applicant's claims and her evidence. The Tribunal had a concern as to whether overall the applicant had a well-founded fear of harm about returning to Iraq. The Tribunal referred to a concern that the applicant had provided very little detail about her claims in her protection Visa application. The Tribunal noted that apart from the claimed events in relation to the texts and telephone calls she had not received further threats after about a three-month period in 2012. The Tribunal noted that the DFAT country report indicated or suggested that it was mainly young Sunni males who would face risks in southern Iraq and some other places in Iraq. The Tribunal indicated that it was concerned that it had found it difficult to get details from the applicant about the actual threats that had been made to her and in trying to obtain details from her about her claims. The Tribunal noted that the applicant had apparently not faced any difficulties between 1985 and late 2012 in Iraq but also noted that her husband had gone to [Country 1] between 2008 and 2009 because she said he was afraid. The Tribunal raised a concern overall about the credibility of the applicant's claims. The applicant in response said that she was not liked by other Shia people in her area because of her interfaith marriage but she had not suffered harm but that her marriage was enough for her to fear harm in the future. She said that in Iraq targeting of people occurs for different people at different times and that she did not believe that she would be targeted because she was an older person but that she had been subject to threats. She said that she had been subject to discrimination by other Shia people because of her interfaith marriage and that she had been "degraded by people" and that she had gone to Shia religious festivals but had felt humiliated when neighbours made humiliating comments to her about her being married to a Sunni person.

14. She told the Tribunal in responding to questions about fearing harm on the basis of her husband's political beliefs that issues arose about an imputation that she and her husband supported the Baath party in Iraq because her husband was Sunni. She said people who were perceived to support the Baath party were at risk of harm in Iraq. The applicant had told the Tribunal that neither she or her family were involved in political activities in Iraq and that her husband was not involved in any militant religious activities in Iraq. The Tribunal notes that the DFAT country report assesses that former senior party members face high levels of official discrimination in applying for jobs in the public sector or academic institutions in the lower profile former party members face low levels of official discrimination. The applicant did not suggest that a husband had been a member of the Baath party in Iraq rather suggested there could be an imputed risk of harm to her on the basis of political opinion because her husband is of the Sunni faith.

15. The applicant's representative made submissions to the Tribunal about her claims. As indicated the applicant's representative had previously provided written submissions to the Tribunal before the hearing and these are referred to elsewhere in these reasons stop The representative referred to the history of mixed/interfaith marriages in Iraq and noted that under Saddam Hussein that mixed marriages were not a problem in Iraq. The representative indicated that had been the situation between 1985 to 2003. The representative noted the significant sectarian violence that had occurred in Iraq between 2003 and 2006 and suggested that during that period interfaith marriages became the target of sectarian focus in terms of violence and were not accepted as they had been previously. The representative referred to the applicant's husband having sold his [business] in 2007 and that the applicant's husband was very secretive but was fearful for his safety and had sold the [business] and gone to [Country 1]. He remained there for 12 months. The representative also referred to the applicant's [child] having gone to [Country 1] after the fire bombing attack on the family home. The representative indicated that the applicant had not been aware of actual threats that had been made to her [child] because the [child] was also very secretive about these issues. The representative referred to killings that had occurred in southern Iraq. The representative referred to the applicant having been subject to discrimination by other Shia people on the basis of her interfaith marriage. The applicant's husband going to [Country 1] between 2008 and 2009 indicated or suggested that the husband was at risk of harm had he remained in Iraq at that time. The representative referred to the Refugee Convention and Complementary protection issues and submitted to the Tribunal that the Tribunal had to consider the risks to the applicant in the foreseeable future. The Tribunal asked the applicant some further questions in relation to her claims after the submissions from her representative. The applicant's representative did not seek any additional time to lodge further submissions or provide further documentation to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. On the basis of the identification documentation provided to the Department and available to the Tribunal the Tribunal accepts that the applicants are Iraqi citizens and that their identity is as they claim it to be. Without any evidence to the contrary the Tribunal accepts that the applicants have no right to enter or reside either temporarily or permanently in any other country apart from Iraq. The Tribunal accepts that Iraq is the applicants country of nationality for Convention purposes. As indicated elsewhere in these reasons only the first named applicant made claims for protection and the second named applicant has claimed protection in Australia on the basis of being a member of the same family unit as the first named applicant and has not made separate claims for protection. The Tribunal based on materials provided to the Department and available to the Tribunal, and without evidence to the contrary, accepts that the second named applicant is a member of the same family unit as the first named applicant.

1. The Tribunal has considered the applicant's claims to have a well-founded fear of persecution if she returned to Iraq on the basis that she fears harm because of her interfaith marriage. The applicant also  claims that she fears harm as a member of two particular social groups in that she is a Shia woman in a mixed interfaith marriage and that she fears harm that she could be imputed with a particular political opinion because she is married to a person of the Sunni faith and on that basis could be perceived to support or have supported the Baath party in Iraq. The Tribunal considers that at the core of the applicant's claims to fear harm is the fact that she is of the Shia Muslim faith and she married a person of the Sunni Muslim faith. Her evidence to the Tribunal about her claims indicates to the Tribunal that her fear of harm is based on her interfaith marriage.

2. The applicant's claims about fearing harm on the basis of those fears are referred to elsewhere in these reasons. In summary she told the Tribunal that she had not had any difficulties in Iraq because of her interfaith marriage between 1985 and late 2012. She had lived in Basra in southern Iraq for most of her life apart from when she had to relocate for a period during the Iraq/Iranian war. She said towards the end of 2012 she had received threatening text messages on her phone and she suspected that those threats had come from Shia militant groups who she named in her evidence to the Tribunal. She told the Tribunal during her evidence that she did not expect to have ever been targeted by extremists because she was an older woman. The Tribunal found it difficult in some respects to get details from the applicant in relation to her claims. She did however indicate to the Tribunal the essence of the text message threats which were to the effect "you are an infidel – leave your husband and your home". She said that the militant groups made these types of threats and that she would get these threats at least once every week. She said the threats went on for about three months before she changed her phone SIM card. She claimed that she had also received two threatening telephone calls during this period and that she had been told that she was considered an infidel and a traitor because she had married outside her Shia faith. She said that she had been told words to the effect "if you stay like that we're going to kill you". She told the Tribunal she had understood that she was being threatened to leave her home and her family because of the interfaith marriage. She said after she changed her SIM card she had turned the phone off and received no more texts or telephone calls. She also told the Tribunal that she and her family had followed a pattern of not staying permanently at their home and that they would rotate over essentially a three-month period between staying at their home and staying with relatives in Basra. The applicant claimed that this pattern was followed in order to avoid harm.

3. She told the Tribunal that she had not been aware of any threats to other members of her family but as indicated elsewhere in these reasons her [child] who moved to [Country 1] had claimed in a statement to the [humanitarian organisation] that [he/she] had received threatening messages on [his/her] phone before [he/she] left Iraq . The applicant told the Tribunal in her evidence that her husband had suddenly sold his [business] in 2006 or 2007 and had gone to live in [Country 1] between 2008 and 2009 for 12 months because he was afraid. She said that people of the Sunni faith had been killed around the time that her husband decided to sell the [business]. She said her husband and her [child] who had gone to live in [Country 1] were both secretive and did not tell her about issues.

4. She told the Tribunal that no more incidents of harm or threats had been made to her after late 2012 until [date] July 2014. On that date the applicant said the family home was attacked with an incendiary device and the front of the home was fire damaged as a result. The home was not destroyed. The applicant and her representative had provided documents to the Department that indicated that the attack on the home had been reported to Iraqi authorities. She had also claimed in her protection Visa application that her husband's [relative] and her husband's [sibling] had been attacked in June 2014 and that her husband's [relative] had been killed. The applicant was not able to provide any real details about that attack to the Tribunal. She was also not able to provide any real details in her evidence about her claim that a friend of her [child] had been killed in retaliation when her [child] relocated to [Country 1] after the fire bomb attack on the family home.

5. The applicant told the Tribunal that neither she or a family had been involved in political activities in Iraq. She gave evidence to the Tribunal about feeling humiliated and degraded because of comments made by other Shia Muslims about her interfaith marriage. She also said one of her [children] had been bullied at school about Sunni related issues. She told the Tribunal those members of her family who still live in Iraq had relocated to a relative's [property] in a rural area south of Basra and that by implication they had done so to avoid harm in their immediate home area. The Tribunal notes that the applicant had claimed in her protection Visa application that in essence she did not have any immediate family in Iraq but her evidence to the Tribunal indicated that she did have immediate family in Iraq.

6. As indicated the Tribunal has been provided with oral and written submissions from the applicant's representative in relation to her claims and those submissions have been referred to elsewhere in these reasons. The Tribunal has also been provided with, or had access to, reports in relation to the applicant receiving psychological counselling assistance while she has been in Australia.

7. The Tribunal has considered the applicant's credibility and the credibility of her claims. The Tribunal notes that there are some inconsistencies in relation to the applicant's claims. Those inconsistencies include an apparent mistake in relation to the date of the fire bomb attack on the family home. The applicant clarified that situation in her evidence and before the Tribunal hearing. The Tribunal also notes that the applicant does apparently have immediate family still living in Iraq. The Tribunal also notes that the applicant was unable to give any significant evidence in support of her claim that a friend of her [child] had been killed in retaliation for her [child] relocating to [Country 1] after the fire bomb attack on the home. The Tribunal also notes that the family home was not destroyed but that the front of the home was fire damaged as a result of the attack. The Tribunal has also referred to difficulties that it had initially in obtaining clear details from the applicant about the claimed threats that she had received and that included in relation to the text and telephone calls and the circumstances surrounding the threatening letter containing the bullet which was apparently left at the family home after the fire bombing incident. There are also some other aspects that arose out the claims that the applicant was unable to explain or did not give any significant evidence about. They were the claim that her husband has travelled to [Country 1] in the past to receive medical treatment and the inclusion in her [child]’s statement to the [humanitarian organisation] of the same mistake (as the applicant made initially) about the date of the firebombing of the family home.

8. The Tribunal has also considered the DFAT Iraq country report information that has been referred to. The Tribunal accepts that information in that report contains credible information relevant to a number of the applicant's claims. The Tribunal has also considered submissions that have been made on the applicant's behalf to the Tribunal. The country information contained in the DFAT report in many respects supports the applicant's claims in relation to the difficulties and risks of harm in Iraq generally and in relation to her claims about tensions between members of the Shia and Sunni Muslim faith's in Iraq and the acts of violence carried out by militant groups associated with those religions. While the DFAT country report indicates that young Sunni males were particularly at risk of harm in various places in Iraq the DFAT report also assesses that Sunnis living in Shia dominated areas and mixed provinces face a high risk of violence from Shia armed opposition groups. Equally relocation within Iraq to an area with a predominantly different ethnic or religious demographic can contribute to tensions in relation to both Shia and Sunni Muslims. The applicant is of the Shia Muslim faith and she married a person of the Sunni Muslim faith. The Tribunal has referred to documentation provided to the Department in relation to that marriage. The Tribunal accepts that the applicant engaged in an interfaith marriage in Iraq in 1985 and that marriage was registered in Iraq in 1988.

9. The applicant did not claim that any threats had been made to other members of her family but the evidence before the Tribunal indicates that her husband believed he was at risk and sold his [business] and moved to [Country 1] for one year. The information before the Tribunal also suggests that one of the applicant's [children] had received threats on [his/her] phone and that [he/she] had relocated to [Country 1] after the applicant feared that [he/she] might be at risk. The evidence and information before the Tribunal does not indicate or suggest that the applicant and her family were at risk because of any political or religious profile in Iraq. The applicant's claims are that she is at risk because of her interfaith marriage and that she was warned to leave her family and her home. The applicant claimed those threats came from Shia militant groups.

10. The written submissions provided on the applicant's behalf (dated May 9, 2016, page 3) by her representative and which have been referred to refers in part to the issue of interfaith marriage in Iraq and refers to a report from the "Kurdish Observer". The extract provided in the submissions, in summary, refers to changes in perceptions in Iraq from apparent acceptance many years ago of interfaith marriages to it now being a rare occasion and that the change in perception indicates or illustrates the sectarian divide that exists now in Iraq between members of the Shia and Sunni faiths. The extract also refers to a recent interfaith marriage making headlines because it is perceived to be an "act of bravery, interfaith tolerance, and patriotism as well". The submissions also referred to a report from the Finish immigration service dated 29 April 2015. That report referred to tension between Shia and Sunni populations in Iraq and in part noted "in Iraq, marriages between Sunnis and Shia have been commonplace through the ages, but during the Civil War mixed marriages were not accepted. At the moment entering into a mixed marriage is somewhat challenging". The submissions also referred to a country advice provided to the then RRT and which referred to interreligious marriages in Iraq and noted in part that while mixed marriages had been common in Iraq for centuries that during the period of heightened sectarian violence between 2006 and 2007 these unions were unacceptable and came under threat and that during this period married couples were forced to separate or even divorce and mistrust of in-laws and relatives was a serious concern (see page 2 written submissions dated May 9, 2016).  The applicant did not claim that she faced any threats during that period but did claim her husband sold his [business] during that period.

11. The DFAT country report also indicates quite clearly the sectarian tensions and violence that exists more generally in Iraq and in particular between Shia and Sunni militant groups. The DFAT country report indicates that while the southern provinces in Iraq and including Basra are generally safer in relation to state protection than in some other parts of Iraq that problems remain in that minority groups generally cannot rely on state protection. The southern provinces are said to have remained significantly more secure than central Iraq in recent years but generalised violence occurs but it is significantly lower level than in Baghdad. The difficulty for the applicant is that she is in an interfaith marriage. She claimed that she had been threatened by Shia militant groups and that she was fearful that if she relocated to a Sunni dominated area she would also be threatened by Sunni militants in those areas because of her interfaith marriage and that she is of the Shia faith

12. the Tribunal has considered the applicant's claims and her evidence and the submissions made on her behalf together with the information contained in the DFAT country report for Iraq that has been referred to elsewhere in these reasons. The Tribunal after considering the applicant's claims and her evidence accepts that overall the applicant is a credible witness. The applicant, as indicated, did have difficulties in providing clear details to the Tribunal about a number of aspects of her claims. The Tribunal notes the reports that have been provided in relation to the applicant receiving psychological assistance in Australia and that she had been identified initially as suffering from post-traumatic stress disorder. The Tribunal also notes that the applicant is a relatively poorly educated person. Those issues may have contributed to the applicant's difficulties in providing clear details and particulars to the Tribunal in relation to a number of Tribunal questions about her claims. The Tribunal as indicated has also referred to some inconsistencies in the applicant's claims. The Tribunal has considered the totality of those issues and overall accepts the applicant is a credible witness.

13. The Tribunal accepts that the applicant entered into an interfaith marriage with her husband in 1985 in Iraq.  The Tribunal accepts without any evidence to the contrary that the applicant is a Shia muslim and that her husband is of the Sunni Muslim faith.The Tribunal, after considering the totality of the evidence and its assessment of the applicant's credibility and relevant country information that has been referred to, accepts the applicant's claims that she did receive  threatening texts and telephone calls in late 2012. The Tribunal also accepts the applicant's claims that those threats were made to her because of her interfaith marriage. The Tribunal also accepts that the applicant and her family took steps to avoid harm by relocating between the family home and other relatives homes on an ongoing basis to avoid harm. The Tribunal accepts that the applicant's home was subject to an attack involving an incendiary device [in] July 2014. The Tribunal has referred to documents provided by the applicant and her representative indicating that that attack was reported to Iraqi authorities at around that time. The home was not destroyed. The Tribunal accepts that one of the applicant's [children] then relocated to [Country 1] to avoid harm. The Tribunal is also prepared to accept the applicant's claims that her husband's [relative] and her husband's [sibling] were attacked in June 2014 and that her husband [relative] died as a result of that attack. The Tribunal is not prepared to accept the applicant's claims that a friend of her [child] was killed in retaliation for the applicant's [child] relocating to [Country 1] apparently to avoid harm in Iraq after the fire bomb attack on the family home. The applicant's evidence about that incident has been referred to elsewhere in these reasons and the Tribunal's assessment of that evidence does not allow the Tribunal to accept that aspect of the applicant's claims. The Tribunal is also prepared to accept the applicant's evidence that on occasions other Shia people made humiliating and degrading comments about her because of her interfaith marriage. The Tribunal is prepared to accept that the threats to the applicant came from Shia extremist groups. Aspects of the applicant's claims are supported by country information in relation to extremist threats.

14. The Tribunal after considering the applicant's claims both individually and cumulatively finds that the applicant is at risk of harm if she returned to Iraq on the basis of her interfaith marriage and that she is a woman of the Shia faith who married a man of the Sunni faith and is at risk of harm from both Shia and Sunni militants on that basis. The Tribunal does not accept on its assessment of the evidence and country information that the applicant is at risk of harm on the basis of any perceived or imputed political opinion that she would be a supporter of the Baath party in Iraq because she is married to a Sunni Muslim person. The applicant did not provide any developed evidence in support of this claim to the Tribunal and the Tribunal notes that information contained in the DFAT country report indicates that at a society level it is broadly agreed among Iraqis that the approach that applies to the Baath party should not apply to supporters as individuals, given the pressures that forced millions of Iraqis to join that party and that linked all aspects of the state to it. The DFAT country report indicates that as a result former Baath party members face a low risk of targeted violence in Iraq but also notes that in Basra and other southern provinces anti- Baath sentiments have been historically high and they remain so. The Tribunal on the basis of the evidence does not accept that the applicant and her family were involved in any political activities and as indicated the applicant provided no real evidence in support of this claim to fear harm.

15. The Tribunal has considered the questions of relocation and state protection. It has referred to those aspects elsewhere in these reasons. The Tribunal does not accept that the country information that has been referred to indicates or supports that the applicant could relocate within Iraq to avoid harm. That information indicates the risks to the applicant are currently lower in southern Iraq (the applicant's home area is Basra in the south of Iraq) then they are elsewhere in Iraq. The applicant is not safe from harm in her home area in Iraq and therefore would not be safe elsewhere in Iraq based on country information that has been referred to and considered elsewhere in these reasons. The country information that has been referred to also indicates that the applicant could not rely on effective state protection in Iraq. The Tribunal after considering the totality of the applicant's evidence and her claims and having considered the applicant's claims both individually and cumulatively is satisfied that she has a well-founded fear of harm should she return to Iraq either now or in the reasonably foreseeable future on the basis of her interfaith marriage in that she is a Shia Muslim married to a Sunni Muslim and would be at risk of harm on that basis. The Tribunal is satisfied after having considered the totality of the evidence and available and relevant country information that has been considered and discussed that there is a real chance that the applicant would suffer serious harm on the basis of her interfaith marriage should she return to Iraq either now or in the reasonably foreseeable future. The Tribunal considers that the persecution that the applicant is at risk of suffering involves "serious harm" as required by the Act. The applicant is at risk of serious harm because of her religion and on the basis of the evidence faces a threat to her life and to her physical well-being should she return to Iraq either now or in the reasonably foreseeable future. The Tribunal is satisfied that the persecution the applicant is at risk of suffering involves systematic and discriminatory conduct within the meaning of the Act and involves deliberate or intentional conduct directed at the applicant for a Convention reason which in the applicant's case is her religion.

    Overall Summary

1. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

2. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a)

3. The Tribunal remits the matter for reconsideration with the following directions:

   (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

   (ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   James Jolliffe
   Member