1510357 (Refugee)

[2018] AATA 285

1510357 (Refugee) [2018] AATA 285 (22 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510357

COUNTRY OF REFERENCE:                  Iraq

MEMBER:K. Chapman

DATE:22 January 2018

PLACE OF DECISION:  Brisbane

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 applicants satisfy 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 22 January 2018 at 1:37pm

CATCHWORDS

Refugee – Protection visa – Iraq – Particular social group – Persons having an association with the international community – Family member killed by militia – Family members granted refugee status –Threatened by a militant group – No effective protection measures – Members of the same family unit 

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J , 5K, 5L, 5LA , 36, 65, 438, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

MIEA v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 [in] July 2015 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] December 2014. The first named applicant made written claims for protection concerning members of her family having worked for the [international military Coalition], her role as a [government employee], and on the basis of her Shia Muslim religion. The other applicants rely upon those claims on the basis of membership of the same family unit. The delegate accepted that the first named applicant has family members who worked for the [Coalition forces] (including one who was killed because he worked as an [Occupation 1]), she received threats due to this familial connection, and that she received threats as a female [government employee], however refused to grant the visas on the basis that there was not a real chance she would face serious harm in Iraq in the reasonably foreseeable future.

3. On 31 July 2015, the applicants applied for review of the decision to refuse the visas, subsequently providing a copy of that decision to the Tribunal. The first and second named applicants appeared before the Tribunal on 30 November 2017 to give evidence and present arguments, being represented by their registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CRITERIA FOR A PROTECTION VISA

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, he or she 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 because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

9. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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

    Country of reference

11. According to the protection visa application, the applicants claim to be citizens of Iraq. Given the personal details provided in that visa application, the Tribunal is satisfied the applicants are indeed Iraqi nationals. Iraq is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.

12. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Issues

13. The issues in this review are whether the first named applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Iraq, there is a real risk she will suffer significant harm. It follows that the visa applications of the other applicants turn on the outcome of the first named applicant’s claims for protection.

    Documentary evidence before the Tribunal

14. The Tribunal has its own file, and Department files, relating to the applicants before it. Information including, but not limited to, the following is contained in those files:

    a.the applicants’ protection visa application forms lodged on [date] December 2014;

    b.documents verifying that members of the family of the first named applicant worked for the [Coalition forces] in Iraq, that one was killed due to such work, and that others have fled Iraq and successfully claimed refugee status in [Country 1];

    c.statements from the first named applicant;

    d.media articles concerning Iraq;

    e.written submissions;

    f.documents verifying the first named applicant is married to the second named applicant who is a [student] in [Australia];

    g.the Departmental delegate’s visa refusal decision dated [July] 2015 (a copy of which was provided to the Tribunal by the applicants);

    h.the application for review submitted on 31 July 2015; and

    i.Departmental administrative and Movement records.

    Claims for protection

15. The first named applicant (hereafter ‘the applicant’) made claims for protection with the Department which may be summarised as follows (noting that information additional to the initial specified claims was raised at the review hearing, a matter described in further detail later in this decision record):

    a.her [Relative A] worked as an [Occupation 1] for [the Coalition forces] in [Province 1] and was killed by militia members on [date] April 2006. Her [Relative B] and [Relative C] also worked for [the Coalition forces]. They both received threats from militia forces and an attempt was made against her [Relative C]’s life [in] September 2007. Both men escaped to [Country 1] in 2007 and were accepted as refugees. Her [Relative D] [carried out work] for elements of [the Coalition forces] in Iraq and received threats as a result of that work. The applicant claims she and other members of her family were also threatened by militia forces due to their familial links with the [Coalition forces] (following the primary decision her [Relative E] escaped to [Country 2] and was subsequently afforded refugee status in [Country 1] in 2016). She submits she is a member of the particular social group ‘having family members that worked for the Coalition’;

    b.she was a female [Occupation 2] and a member of the particular social group ‘having worked for a Government department as [an Occupation 2]’, receiving threats due to this position;

    c.she is a Shia Muslim targeted by Sunni militants;

    d.she publicly rejects terrorists behaviour and asserts she faces harm for this ‘political opinion’; and

    e.she is a Shia Muslim who does not overtly display her religious conviction.

    Decision of the Departmental delegate

16. The Departmental delegate’s decision may be summarised as follows. He accepted that the applicant’s [relatives] worked with the Coalition forces in Iraq between 2004 and 2007, her [Relative A] was shot dead as a result of this work, she and her family members received threats due to their familial connection with the Coalition forces, she received threats arising from her status as a female [Occupation 2], she has publicly rejected militant groups and religious clerics (by working as [an Occupation 2]), she fears harm for not being an overtly religious Shia Muslim and she fears harm from Sunni militant groups. The delegate accepted that the applicant was a member of the following particular social groups, ‘a member of a family that has worked for Coalition forces’ and ‘a Government [employee]. However, the delegate determined that as the applicant’s home region is in Southern Iraq ([Province 1] and [Province 2]) there was not a real chance of serious or significant harm coming to her as a result of the religious aspects of her claims. Further, the delegate determined that as the applicant had worked as [an Occupation 2] for some time, and that it had been some years since her family members worked for the Coalition, there was not a real chance of serious or significant harm for her in respect of these matters. The Tribunal observes this to be a matter where the applicant submitted more comprehensive information to it than was available to the primary decision maker, and in addition one where certain significant factors are present at the time of this decision which were not so when the primary decision was made.

    Section 438 Certificate

17. The Tribunal notes that a Certificate pursuant to s.438 of the Act dated [August] 2015 was contained in Department file [number] with respect to folios 6 to 9 of that file. The Certificate indicates disclosure of the material would be contrary to the public interest because it contains ‘information relating to an internal working document and business affairs’. The Tribunal afforded the applicant the opportunity to make submissions upon the validity of the Certificate and ultimately advised the applicant that it would place no weight upon the material, as it concerned Departmental identification processes and was merely administrative in character. The applicant, through her representative, was agreeable to the Tribunal placing no weight upon the material. Accordingly, the Tribunal has placed no weight upon it.

    Evidence at the review hearing

18. The applicant provided her oral evidence in a detailed, consistent and generally direct fashion. She impressed the Tribunal as an honest witness. Her evidence may be summarised as follows. She confirmed that she understood her claims for protection, they were truthful, and that she departed Iraq legally using her own passport. The applicant explained that her husband, the second named applicant, obtained [an opportunity] to pursue [studies] in Australia, with him departing Iraq before [her]. She arrived in Australia on [date] April 2014, with her children, as secondary applicants to her husband’s [visa]. The second named applicant continues to pursue his [studies] in Australia.

19. The applicant advised that prior to travelling to Australia, she and her family moved from place to place within Iraq. She indicated they had lived variously in [other provinces], along with periods at Erbil city in Kurdistan. She was temporarily residing in Erbil when she departed Iraq to follow her husband to Australia in 2014. The applicant, holding a [Degree] obtained in 2005, commenced part time work in Nasiriyah within Dhi Qar Province as [an Occupation 2] during 2008. She took maternity leave for the birth of [a child] and was granted special arrangements by her supervisor so that she retained her position but did not have to attend [the workplace] as regularly in person. The applicant explained that she last physically worked [in May 2013]. She usually resided between temporary accommodation in a village outside Diwaniyah city and at Erbil in Kurdistan, spending no more than a few months at each location.

20. The applicant outlined that she lived with her family in [City 1] within [Province 1] from birth until [age] years. In 2005 she married the second named applicant in Nasiriyah, within Dhi Qar Province, and resided there with him briefly before returning to [City 1]. The applicant gave birth to her first child in [year] at [City 1], and from that time she maintained different residences due to threats from the Jaysh Al-Mahdi (‘the Mahdi Army’, a Shia militia group linked to the cleric Muqtada Al Sadr) which followed the death of her [Relative A], who was working as an [Occupation 1] for [the Coalition forces]. The applicant explained that she spent time residing with her remaining family members in Erbil during the period she maintained different residences.  

21. The applicant is a Shia Muslim who practises her religion. Her husband is a Sunni Muslim, with his mother being Shia and his father Sunni. Since arriving in Australia, the applicant has cared for her children and recently obtained [employment]. Her husband continues his [studies] and receives [a scholarship]. The applicant’s [Relative C], and [Relative B], both fled Iraq separately in 2007 and are now living in [Country 1], having been granted refugee status. Her [Relative E] fled to [Country 2] in 2015 and he also now lives in [Country 1] having been granted refugee status. The applicant has a sister, [who] lives in [Australia] as a result of marriage. Her parents and remaining siblings temporarily reside in Erbil.

22. When asked by the Tribunal what she feared if she had to return to Iraq, the applicant explained that she feared being killed, along with her family, by members of [certain tribes]. She outlined that in 2015 [men] from these tribes, who were also members of the Jaysh Al-Mahdi, were captured by Iraqi authorities in relation to matters unconnected with the applicant. However, during their custody they also confessed to the murder of her [Relative A], who had worked as an [Occupation 1] for [the Coalition forces]. The [men] received capital punishment in 2016 and the tribes, which are located in central and southern Iraq, seek revenge against the applicant and her family as a result. The applicant detailed that in 2015 following the arrest of the men, her [Relative E]was assaulted in Baghdad by Shia militia men who threatened him and demanded that their [Relative D] withdraw allegations in relation to the murder of [Relative A] in 2006. The arrest of the men was [known] in Baghdad and it was known that the [men] were members of the Jaysh Al-Mahdi. Shortly after this incident, in August 2015, [Relative D] fled to [Country 2] and subsequently went to [Country 1] where he obtained refugee status. The Tribunal notes that this incident in 2015 arose following the primary visa refusal decision.

23. The applicant’s  [Relative A] worked as an [Occupation 1], [for the Coalition forces] and the Iraqi Federal Police in [City 1], from 2004 until he was shot and killed [in] 2006. Her [Relative C] worked as an [Occupation 3] for [the Coalition forces] at the same location, obtaining the position in 2005 upon the recommendation of [Relative A]. [Relative C] and [Relative A] often travelled to work together. [Relative C] received many threats from militia men upon his commencement of that work but ignored them until the death of [Relative A]. He escaped Iraq in 2007. The applicant’s [Relative B] was a member of the Iraqi Federal Police working with [the Coalition forces] and following the death of [Relative A] went into hiding. He too escaped Iraq in 2007. The applicant’s [Relative D] was an [Occupation 4] and performed [certain] work on behalf of [the Coalition forces], also receiving threats from militia men. He lodged reports with the police concerning the death of [Relative A] and the threats faced by [Relative C] and [Relative B], however did not receive any immediate assistance.

24. The applicant detailed that she herself received threats of death from suspected militia men following the death of her [Relative A] in 2006. These threats were made by telephone or through [others] where she [worked] in [Province 2]. The applicant advised that around 2006 the Jaysh Al-Mahdi had infiltrated every Government department in southern Iraq. She indicated that she was threatened as [an Occupation 2] because they figured she obtained the position upon the recommendation of [the Coalition forces]. As a result of these threats, the applicant began moving around Iraq with her family. She was not allowed to reside permanently in Erbil because she was not Kurdish, but was permitted to visit and did so on several occasions. The applicant continued to receive threats, particularly when returning to southern Iraq. She explained that the threats resulted from both her family members having worked for Coalition forces and because she was working as [an Occupation 2].

25. The applicant explained that after she came to Australia, a blood feud developed as a result of the arrest of, and subsequent capital punishment enforced upon, the [men] who confessed to [Relative A]’s murder. This resulted in her [Relative E] fleeing Iraq in 2015 as previously described. The applicant’s [Relative D] could not obtain protection from his tribe, [because] they did not want to become involved, suggesting her [Relative D] withdraw the police report. The applicant’s [Relative D] did not withdraw the police [report]. After the [men] were executed in 2016, the applicant’s family home was [destroyed]. She was sent pictures by a neighbour, which have also been submitted to the Tribunal.

1. The Tribunal clarified with the applicant that her written claim for protection concerning political opinion was linked to her familial connection with the Coalition forces and her role as [an Occupation 2] in Iraq. She had no further information to provide when asked by the Tribunal to explain her written claim concerning working for a Government department as [an Occupation 2]. The Tribunal raised the following country information from the Department of Foreign Affairs and Trade (DFAT), concerning [students], with the applicant. ‘DFAT is not aware of any specific examples of [students] being targeted, nor of any students who have studied or lived abroad being targeted because of their links with the West. The Government expects students who have studied abroad on [scholarships] to return. Many high-ranking Government officials have studied abroad. DFAT assesses as credible advice from the [Iraqi government] that the [they] will seek to relocate returning scholarship students to safer areas should they have concerns regarding security. Overall, DFAT assesses the risk faced by [students] on the basis of their employment or education in either Iraq or abroad as low. The risk is significantly higher in ISIL-controlled areas.’[1] The Tribunal raised with the applicant that the aforementioned information does not tend to support her claims regarding being a professional [Occupation 2] employed by Government in Iraq, or by being someone located in a Western country for academic reasons, and invited her comment. The applicant responded that her claim was not made on the basis of just being a professional [Occupation 2], rather it related to perceived help she received from [foreign forces] to obtain the position. She confirmed that her claims flowed from her family members’ assistance to the Coalition forces in Iraq and her perceived link to this.

   [1] DFAT Country Report Iraq, 26 June 2017 at paragraph 3.63.

2. The Tribunal asked the applicant to clarify her written claim concerning not showing overtly religious conviction as a Muslim. She advised that she did not dress appropriately for the strict proponents of the religion and she had been threatened whilst working as [an Occupation 2] not to wear pants or skirts, with a dress being the only acceptable attire. The applicant confirmed to the Tribunal that this claim was connected to her perceived link to the Coalition forces and her open mindedness which set her apart from strict cultural requirements. The Tribunal notes, as was also noted by the Departmental delegate with respect to his interview, that the applicant presented to the review hearing wearing the hijab and being dressed modestly. The Tribunal raised the following country information from the Department of Foreign Affairs and Trade (DFAT), concerning religion, with the applicant. ‘While ongoing conflict has seen religiously mixed areas becoming more mono-religious, usually Shia or Sunni, in-country contacts claim that tolerance of religious minorities remains higher in southern Iraq than in central Iraq.’[2] The Tribunal raised with the applicant that the aforementioned information tended to suggest that she could live in southern Iraq to avoid harm regarding not showing overtly religious conviction as a Muslim and invited her comment. The applicant disagreed with the country information and submitted that the threat arises not from Sunni militia, but rather the Shia militia.

   [2] DFAT Country Report Iraq, 26 June 2017 at paragraph 5.18.

3. The Tribunal asked the applicant to clarify her written claim concerning being targeted by Sunni militants. She responded that it is the Shia militants that are targeting her and she also confirmed this ground was added to her claim following consultation with her migration agent. The Tribunal also asked the applicant to clarify her post primary decision written claim of being at risk as a female in Iraq. She indicated that this was linked to her working as [an Occupation 2] and also to her family who had worked with [foreign forces]. The applicant confirmed to the Tribunal that her claims for protection arise from her family links to [the Coalition forces] and her perception that she obtained her position as [an Occupation 2] due to the influence of those forces. She also confirmed she had no other reasons for seeking protection.

4. The second named applicant also gave oral evidence to the Tribunal which may be summarised as follows. He arrived in Australia during September 2013 to [study]. The second named applicant is continuing his studies, however if they proceed past [2018] then his [scholarship] will cease. Before his marriage to the applicant in 2005 he lived in Nasiriyah with his family. He confirmed that in 2006 following the death of [Relative A], his wife’s [Relatives B and C] escaped Iraq, and that they themselves started to move from area to area within the country as described by the applicant. The second named applicant indicated it was reasonably easy for them to move locations as his [work] facilitated this. He added that in 2013 they went to [Erbil]. The second named applicant advised that he departed Iraq from Baghdad and his wife from Erbil with their children.

5. The second named applicant told the Tribunal that he and his family feared being killed by members of the Jaysh Al-Mahdi, adding that his [child] might also be kidnapped by them if they return to Iraq. He advised that he had not been personally threatened, but his wife had been. The second named applicant confirmed he is a Sunni Muslim, with his mother being Shia and his father Sunni. He has mixed Arab and Kurdish heritage, arising from his great grandfather, however he cannot speak Kurdish. The second named applicant explained that he had some difficulty himself in southern Iraq because he had no tribal network in the vicinity of Nasiriyah due to his heritage. Further, his appearance was discernibly different to most residents of that area due to his mixed blood.

6. The second named applicant provided a description of the applicant’s family members who interacted with [the Coalition forces] in Iraq. He outlined the circumstances of [Relative A],  [Relative B], [Relative C], and [Relative D]. The second named applicant indicated the applicant was threatened following the death of [Relative A] and particularly once she obtained the position as [an Occupation 2]. His evidence was delivered in a direct fashion and was consistent with that of his wife. The Tribunal finds the second named applicant to be a truthful witness and accordingly accepts his evidence. For completeness, the Tribunal has determined that there is no utility in assessing whether the second named applicant has legitimate claims for protection in his own right given the reasons that follow in relation to his wife’s claims and his membership of her family unit.  

   Analysis  

7. The Tribunal does accept the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

8. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:

   First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

9. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. For the reasons that follow, the Tribunal is satisfied that the first named applicant has a well-founded fear of persecution in Iraq. She is a Shia Muslim whose [Relatives A, B, C, and D] worked with [the Coalition forces] in Iraq. Her [Relative A] was an [Occupation 1] for [the Coalition forces] and was killed, plausibly by members of the Jaysh Al-Mahdi. Her [Relative C] and [Relative B] received threats of death, plausibly from members of the Jaysh Al-Mahdi. The Tribunal has before it documentation including references and photographs which demonstrate [Relative A], [Relative C] and [Relative B] had a close working relationship with [the Coalition forces]. Police reports confirm the death of [Relative A] and an attack against [Relative C]. Documents from [Country 1] confirm that [Relative C] and [Relative B] escaped to that country and obtained refugee status. The applicant’s [Relative D] performed work for [the Coalition forces] in Iraq and received threats as a result. A letter before the Tribunal from [a unit of the Coalition forces] confirms [that Relative D] performed such work. The applicant’s [Relative E] was threatened in 2015, plausibly by members of the Jaysh Al-Mahdi. Documents before the Tribunal confirm he escaped to [Country 2] in 2015 and then went to [Country 1] where he acquired refugee status in 2016. The Tribunal accepts that the applicant received threats herself following the death of her [Relative A] in 2006 and particularly since she obtained a position as [an Occupation 2] in 2008. Further, the Tribunal accepts the family moved around Iraq in an attempt to avoid harm. Additionally, the Tribunal accepts the applicant’s family home was attacked in 2016 following capital punishment being carried out upon the men who confessed to killing [Relative A]. It is plausible that the threats faced by the applicant before and after she departed Iraq were made by members of the Jaysh Al-Mahdi.

10. [Country information], to which the Tribunal must have regard, notes that individuals who have worked with the international community, [have] faced recriminations with many at risk of being targeted having moved abroad.[3] The Tribunal has had regard to s.5L of the Act which provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society. Following careful consideration, the Tribunal finds that the applicant is a member of the particular social group ‘persons having an association with the international community’ given her family members links with [the Coalition forces] and her role as [an Occupation 2] for which she herself is imputed with a link to those military forces. In the view of the Tribunal, she fears persecution on this basis, and her membership of that particular social group places her at increased risk of harm from both Shia and Sunni militant groups should she return to Iraq. The Tribunal notes in making this finding that it has duly considered s.5K of the Act and that no barrier is posed by that provision in determining the applicant to be a member of the particular social group outlined.

    Real chance of persecution for reason of membership of a particular social group

    [3] [Source deleted].

11. With regard to assessing whether the applicant faces a well founded fear of persecution as a person having an association with the international community, the Tribunal has duly considered that the criterion in s.5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. For reasons previously expressed, the Tribunal accepts that the applicant satisfies the aforementioned subjective requirement. The Tribunal notes that a ‘real chance’ of persecution 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: Chan Yee Kin v MIEA (1989) 169 CLR 379. Following careful consideration, the Tribunal finds that if the applicant returns to Iraq now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that she would be physically injured or even killed by Shia militants due to her being a person associated with the international community. In making this finding, the Tribunal has accepted the evidence of the applicant that Shia militants have continued to pursue her since she left Iraq, for example by attacking her family home.

12. For completeness, the Tribunal has considered the other claims raised by the applicant. She confirmed that her claims regarding rejection of terrorism, militant behaviour and religious extremism; political opinion; and working for a Government department as a female [Occupation 2]; are linked with her family members involvement with [the Coalition forces]and the perception that she obtained her role as [an Occupation 2] through her own such association. In the view of the Tribunal, these claims are properly absorbed into her membership of the particular social group ‘persons having an association with the international community’ and characterised accordingly. The Tribunal so finds. Additionally, the Tribunal notes the applicant resiled from her written claim concerning fear of Sunni militants. However, the Tribunal finds that her being a person associated with the international community places her at risk from these groups in any event, a conclusion supported by the DFAT country information referred to above with respect to that topic.  

13. The Tribunal does not accept that there is a real chance the applicant would face serious harm on account of her not overtly displaying her religious conviction, or due to any other connection with her husband [studying abroad]. This is because the applicant retreated somewhat from these claims at the review hearing and also as the DFAT country information does not tend to support them.[4] In the view of the Tribunal, these claims were unnecessarily added in an attempt to bolster the applicant’s position following the time of her protection visa application.

    Does the real chance of persecution extend to all areas of Iraq?

    [4] DFAT Country Report Iraq, 26 June 2017 at paragraphs 3.63 & 5.18.

14. Having carefully considered the above pertinent evidence submitted by the applicant, and the relevant DFAT country information, the Tribunal finds that the real chance of the applicant being persecuted for reasons of her membership of the particular social group ‘persons associated with the international community’ extends to the whole of Iraq in conformity with s.5J(1)(c) of the Act.

    Are there effective protection measures?

15. The Tribunal has duly considered whether ‘effective protection measures’ as defined in s.5LA of the Act are available to the applicant. Having regard to the DFAT country information concerning the effectiveness of the Iraqi Security Forces, and in particular the links between elements of it and the Shia militia groups, the Tribunal is not satisfied that the applicant can access the protection of the Iraqi State in the regions it controls, nor that there is a reasonably effective police force to assist her, for the purposes of s.5LA(2)(a) and (c) of the Act, in respect of the persecution she faces as a ‘person associated with the international community’.[5] Accordingly, the Tribunal finds that effective protection measures are not available to the applicant for the purposes of s.5J(2) of the Act.

    Other factors concerning the persecution

    [5]DFAT Country Report Iraq, 26 June 2017 at paragraphs 5.1 to 5.8. 

16. Having regard to all of the evidence, the Tribunal finds that the persecution which the applicant fears in respect of her being a ‘person associated with the international community’, involves ‘serious harm’ in accordance with s.5J(4)(b) of the Act given it involves a threat to her life or significant physical harassment or ill-treatment. Further, the applicant’s membership of the particular social group are the essential and significant reasons for the persecution which she fears, thus satisfying the requirements in s.5J(4)(a) of the Act. Additionally, the Tribunal finds that the aforementioned persecution which the applicant fears involves systematic and discriminatory conduct, in accordance with s.5J(4)(c) of the Act. There are no relevant behavioural modification steps for the purposes of s.5J(3) of the Act and the Tribunal finds accordingly.

    Well founded fear of persecution

17. Having considered all of the above circumstances, both individually and cumulatively, the Tribunal finds that there is a real chance in the reasonably foreseeable future the applicant would be persecuted for reason of her membership of a particular social group. Her fear of persecution is well-founded as required by s.5J of the Act and therefore she is a refugee within the meaning of s.5H. The other applicants are members of her family unit. Having reached the aforementioned conclusions, the Tribunal finds it is unnecessary to consider whether 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 she will suffer significant harm.

    CONCLUSION

18. For the reasons outlined above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act. The Tribunal is also satisfied that the other applicants, being the husband and children of the first named applicant, are members of the same family unit as her for the purposes of s.36(2)(b)(i) of the Act. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) of the Act, and the remaining criteria for the visa, are met.

    DECISION

19. 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 applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    K. Chapman
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)   the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)   the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (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.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …