1506877 (Refugee)

[2015] AATA 3188

1506877 (Refugee) [2015] AATA 3188 (23 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506877

COUNTRY OF REFERENCE:                  Iraq

MEMBER:David Corrigan

DATE:23 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 July 2015 at 1:42pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Iraq, applied for the visa [in] December 2014 and the delegate refused to grant the visa [in] May 2015.

3. The applicant appeared before the Tribunal on 22 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   RELEVANT LAW

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

   Refugee criterion

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

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

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

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

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

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

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

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

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

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

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

    Complementary protection criterion

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

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

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

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.  These include:

    ·Applicant’s Iraqi national identity card, citizenship certificate and ration card;

    ·Interview with the delegate dated [in] December 2014;

    ·Agent’s submission dated 17 July 2015;

    ·Translated copies of death certificate and citizenship certificate of applicant’s brother;

    ·Translated copy of letter from Iraqi [authority], dated [October] 2014, re death of applicant’s brother due to an IED explosion;

    ·Translated copy of letter from [Iraqi authority], dated [in] February 2015, re death of applicant’s brother;

    ·Translated copy of applicant’s brother’s [ID] card.

21. The applicant’s claims can be summarised as follows.  He was born in [date] and is a Shia Muslim from [Iraq]. He has lived all his life in Iraq with his mother and [siblings].  His brother [was] killed in October 2014 in a roadside bombing in Baghdad.  [In] November 2014, the applicant received a phone call from an unknown person saying that it was his turn to be killed.  When he went home, he found his [relative]’s passport and took it and left Iraq [in] November 2014.  After his arrival in Australia he contacted his family who advised him that they had received threats from extremist militias because of his brother’s role in fighting terrorism.  His family have fled their home because of these threats.

    Country of Reference

22. The applicant arrived as an unauthorised air arrival and travelled with an Australian passport of which he declared was his [relative]’s passport. The applicant has provided photocopies of his Iraqi national identity card, citizenship certificate and ration card.  A report of the Department’s Document Examination Unit (DEU) noted that the first two of these documents exhibited substrate, printing and issuing security features expected of these types of documents and found that there was no evidence of fraudulent alteration.  Based on these documents and the DEU report, I find that he is a national of Iraq for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.

    Assessment of claims

23. I have considered the applicant’s claims but I do not consider him to be a credible witness.  I do so for the following reasons:

    ·The applicant’s evidence was marked by very significant and substantial inconsistencies.  In his protection visa application and accompanying statement and in the very recent submission of the agent it was claimed that the applicant received the threatening phone call [in] November 2014.  However, at the Tribunal hearing, the applicant changed this and said he received the threatening phone call [in] October 2014.   When I put this to him for comment, he said he was not concentrating and was scared.  I have considered his response but do not accept it, particularly as he was represented when he lodged his protection visa application and the alleged event had only happened a relatively short period of time before.  I consider the applicant invented the date of [October] 2014 at the hearing to overcome the problem (discussed below) which was a basis of the delegate’s decision namely that airline ticket which he travelled on was booked [in] November 2015 prior to the alleged threatening phone call.  I find this inconsistency detract substantially from his credibility.

    ·At the hearing, the applicant told the Tribunal that his family had been staying in their home the whole time since he came to Australia.  However, this is inconsistent with his claim in his protection visa application that “they left their house as fear for their life”.  The applicant stated he was confused but I do not accept that this explanation overcomes such a significant inconsistency particularly in the light of the fact that he was represented when the protection visa application was prepared.  I find this inconsistency detract substantially from his credibility.

    ·The applicant had claimed (until the date of the hearing) that he had received the threatening phone call [in] November 2014 and that he then took steps to book a ticket in his [relative]’s name and used his [relative]’s passport to leave Iraq.   However, as referred to in the delegate’s decision (a copy of which was submitted to the Tribunal) evidence before the Department is that his airline ticket (in the name of his [relative]) was booked [in] November 2014 prior to the claimed threatening call and his booking of the ticket to leave the country.  I do not accept that the applicant’s age and claimed confusion are satisfactory explanations as to why he had claimed (up until the day of the hearing) that he had had been threatened [in] November 2014 and made arrangements to depart the country afterwards particularly as he had been represented.  That the airline ticket had already been booked prior to when he claimed he had been threatened is a factor that detracts substantially from his credibility.

    ·At the hearing, the applicant claimed that he had taken his [relative]’s passport from his bag [in] October 2014 and that he booked a ticket [in] November 2014.  He said there was not much in the bag other than some coins and a watch.  However, according to information set out in the delegate’s decision (submitted to the Tribunal) the passport was reported as lost [in] November 2014 which is a long period of time after if it was stolen [in] October 2014.  In response to this information, the applicant claimed that his [relative] failed to notice the theft, but I find this significant period of time before this [relative]’s report is a further factor that detracts from the applicant’s credibility given the importance of passports for travellers and the claim that it was in a bag with few items in it.

    ·I accept (based on the submitted documents) that the applicant’s brother was a member of [a government agency] and he was killed in Baghdad in October 2014 in a roadside IED incident in which others were injured.  The [government agency] is separate to the military and the regular police and has a role in maintaining security in the country.[1]  However, DFAT’s country report (Iraq 13 February 2015) states that they have no evidence that the families of officials or security forces are targeted by insurgent groups as a matter of course.  This authoritative information detracts from the applicant’s claims that he was targeted because of his brother. 
    

    [1] [Information deleted].

    The applicant was not involved in the military and there is no apparent reason as to why he and his other [sibling] would be targeted.

24. Given these highly significant credibility concerns, I do not accept that at any time the applicant received a phone call from an unknown person saying that it was his turn to be killed.  I do not accept that any of his family members have received threats from extremist militias because of his brother’s role in fighting terrorism.  I do not accept that his family have fled their home because of these threats or that his [other sibling] has had to flee the country because of such threats.  I do not accept that he or any of his family members are of any adverse interest to militia groups.

25. In making my findings in this decision, I have taken into account the applicant’s age and the Tribunal's “Guidelines on the Assessment of Credibility” including the effects of anxiety on applicants.  However, such factors do not overcome the very significant concerns I have with his credibility.

26. Given the country information from DFAT that that they have no evidence that the families of officials or security forces are targeted by insurgent groups as a matter of course and given my rejection of his claims that he and his family have been targeted since his brother’s death and my finding that he and his family are not of adverse interest to such groups, I find that the chance or risk that he will be persecuted or significantly harmed by such groups or anyone else for reasons of his brother’s involvement in the [government agency] and death is remote.

    Being a Shia

27. I accept that the applicant is a Shia.  However as put to him at the hearing, as noted by DFAT in their country report for Iraq (13 February 2015) the southern region in which he lives has an overwhelming Shia majority and DFAT have stated that Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence.  DFAT noted that Shia dominated provinces have experienced fewer violent attacks and they assessed that official discrimination against Shias in Shia-dominated provinces rarely occurs.  The applicant responded that he was young and had been threatened by a militia but I do not accept that this occurred.  Based on this authoritative country information (including the risk of generalised violence), I find that he does not face a real chance of persecution in the reasonably foreseeable future from anyone for reasons of his religion or actual or imputed political opinion evening taking into account his age.  Based on this authoritative country information (including the risk of generalised violence), I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there is a real risk that he will suffer significant harm on these bases.

    Cumulative assessment

28. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any Convention reason (including his religion, actual or imputed political opinion or membership of a particular social group consisting of his family) or any non-Convention related reason.  His fear of persecution is not well-founded. 

29. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there is a real risk that he will suffer significant harm.

    Conclusions

30. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

31. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

32. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   David Corrigan
   Member