1514032 (Refugee)

[2016] AATA 3238

1514032 (Refugee) [2016] AATA 3238 (18 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514032

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Rodger Shanahan

DATE:18 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 January 2016 at 7:38am

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 on 7 October 2015 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] August 2015.

   CLAIMS AND EVIDENCE

   PV Application

3. The applicant claimed that he would be hurt or killed by religious gangs operating in Iraq that target Shi‘a Muslims, or be kidnapped by religious gangs and forced to fight Islamic State.  He has no family or friends in Iraq who could support him.  His family and parents had been outspoken supporters of Saddam Hussein. 

   RRT Hearing

4. The applicant claimed that his father changed to Sunni Islam from the Shi’a branch and when he visited Iraq in 2014 he received death threats.  If the applicant went to Iraq he would be killed because of this.  Shi’a religious gangs in Basra would do this; they were also part of the government.  He was asked to be more specific about the groups he feared – he claimed he didn’t know about the specific groups but his father received a death threat but he didn’t know who it was from. 

5. The applicant had good relations with his father.  The applicant had left Basra when he was 12 and would be considered as a spy from Australia and be killed because he had no family support there.  The religious gangs would also do this.

6. The applicant’s father changed to Sunni Islam around 2007 or 2008, possibly because of the people he hung around with.  He told the family a year after he did this but they were all good with it.  He thought his father went to [a]mosque, but the son had never been to mosque as he didn’t practice his faith.

7. In Iraq in 2014 people had found out about his father’s conversion, probably by word of mouth from his friends.  He was sent a letter first telling him they would kill him and then he left straight away to return.  He was asked whether his father had gone to Iraq previously and he claimed he had gone in 2011.  Asked why nothing had happened to him given he had converted by that stage, he claimed that things were alright in Basra then and perhaps nobody yet knew his father had converted.

8. He was asked why his father had gone back in 2014 if things were not so good and he repeated that he received a letter in 2014 when his father was staying at a friend’s house. His father has no family in Basra, and they had no family in Iraq at all.  He had two paternal uncles in the [Counrty 1] and paternal aunties in [Country 2] and the other in [Country 1]or[Country 3].  They were all foreign citizens.  He had four maternal uncles, all in [Country 1] and citizens.

9. He didn’t know any of his cousins but then said he had some on Facebook.  A maternal uncle [Uncle A] had five kids, and also[Uncle B] , [Uncle C] and  [Uncle D]– they had three or four children each.  His paternal aunties were [Aunty E] and [Aunty F] and they had three or four children each and were with their parents.  [Uncle G] and [Uncle H]  were his paternal uncles and they had three or four children.  He kept in contact with[Uncle A]’s children.  None of these had come to Australia and all were practising Shi’a – they didn’t talk much because his father had converted.  He only had a grandmother in Iraq who was [age] and in a [facility].

10. The applicant would be killed because Iraqis sought revenge on families.  Asked why he would be targeted even though he was Shi’a, the groups wouldn’t believe he was still Shi’a and wanted revenge on his father.  It was put to him that he had claimed in his PV application that he was afraid of harm because of his own religion.  He claimed it was because he had a tattoo on his [body part]and also because he was Australian he may be kidnapped and forced to join the gangs like Jaysh al-Mahdi.

11. He was asked why there was no mention in his submission about fear relating to his father’s conversion.  He claimed that he had mentioned it to DIBP and that it was in the statement.  He was advised that it wasn’t and he had said that it was due to his own religion.  He claimed he would be kidnapped and ransomed because he was Australian and considered rich and because he had no family connections in Iraq to protect him.

12. The Tribunal advised that it was unaware of any country information that indicated Shi’a militias kidnapped people to join their groups.  He claimed that they did and he was asked to provide some independent country information that would support this claim.  They provided wages so it was voluntary.  He claimed that people he talked to in the street who had arrived from Iraq on boats had told him.  He had no country information to provide to support this claim.

13. Regarding the spy claim, he claimed people from Australia visiting Iraq were asked who their family in Iraq were.  If he were questioned it would be apparent that he wasn’t from there, and Australians who go to Iraq go there to join ISIS.  Country information was put to him that failed asylum seekers return to Iraq without difficulty and he claimed that this was only because they had family.

14. He was asked why he would be considered as a spy given he had no connections in Iraq to exploit; he had no profile that would make him a spy.  He claimed ordinary Iraqis like the gangs didn’t think like this, and no one could stick up for him given he had no family there. 

15. In his PV application he also claimed that his family and parents were outspoken supporters of Saddam Hussein.  He claimed his extended family was but his parents weren’t.  It was read to him that he claimed his parents were also supporters of Saddam Hussein and signed the claim.  He claimed that it may have been a mistake.  He then said that his father was known as an outspoken Shi’a but only within the Shi’a community which was why his father came to Australia in 1999.

16. Country information was put to him that the Iraqi government was encouraging failed asylum seekers to return to Iraq, including to Iraq yet this was different to what he claimed.  He then claimed that this was different to the situation on the ground and the government didn’t care about this.  He would be targeted because he was Australian and because of his father.  He claimed that he spoke Arabic but didn’t read or write Arabic.

17. He was asked when he left and said that he left school at 12 and it was put to him that he could be brought up to date because he had learnt some.  He then said he could read but it was very hard and took him half an hour to read a sentence.  He read the Qur’an but said this was different.  It was put to him how he could claim that it would take him half an hour to read a sentence yet he could read the Qur’an.

18. It was put to him that his father had said he would have to join the army if the applicant returned to Iraq.  He claimed he would be press-ganged into the army because he had no support.  He was asked how he would be forced given there was no conscription.  He claimed between certain ages people had to join the army.  He was asked to provide country information to support his claim that there was conscription, and he then claimed there was no conscription.  He was asked why he had said there was conscription, and said that he had heard this from people who lived there.

19. The applicant’s brother appeared as a witness and claimed that his brother had no one in Iraq.  He was asked what family members his father had.  His father had two brothers who were dead but had no idea if he had any other siblings and his mother had two brothers, one in [Country 2] and one in the [Country 1] but no sisters. [Uncle A] had five children and [Uncel B] had two.  He had not spoken to any of them, and knew this from what his mother told him.

20. His father didn’t talk about his family and he didn’t know what his own brothers and sisters knew about his father’s family.  He was asked why he was so vague about his aunts and uncles given the closeness of Arab families and it would be reasonable to believe how many uncles and aunts he had.  He had heard stories about people being kidnapped if they had relatives overseas because they believed they would be rich.

21. His father was the only one who knew about Iraq and his brother knew no one in Iraq.  His father was a Sunni Muslim by the time he came to Australia.  His father prayed at [a] mosque weekly – he converted because he had Sunni friends.

22. The applicant was then advised about s 424AA and it was put to him that he had had told the Tribunal that his mother had four brothers all of whom were in the[Country 1] , but his brother said his mother only had two brothers, one in [Country 1] and one in[Country 2] .  He also said he didn’t know of any brothers or sisters his father had.  The inconsistency between recollections may be because they had fabricated the family composition, and they may indeed have a family support network in Iraq that he was not being honest about.

23. He claimed his brother didn’t know about their family and just said things he thought he knew.  The applicant was more mature than his brother and knew the family composition better and kept in contact with some of his cousins.  He was asked why his brother didn’t know, nor whether the applicant advised him of the family composition, particularly given the importance of family in Arab culture.  He claimed their families were spread around from an early time.  He only began speaking to his cousin after Facebook began in Australia.

24. Under s 424AA it was also put to him that his brother had claimed his father was Sunni before they arrived in Australia, yet he had said this occurred after they arrived in Australia but the family was okay with it.  He claimed when they were kids they didn’t know what the difference between Sunni and Shi’a was when they came to Australia.  When he was old enough to understand he knew his father had converted.

25. The applicant’s adviser claimed that the applicant has some language skills from the Qur’an but this didn’t mean he could read a contract for example and this may impact on his employability.  He also submitted that his grandmother was not in a position to support the applicant if he were to return.  The applicant wasn’t suggesting that there is official conscription but that the Shi’a militias influenced people to join the Iraqi army.  He was asked to provide country information to support this, given the militias were in competition with the army, and the militias paid so it was voluntary.

26. The adviser reiterated that the applicant’s brother knew the family makeup less well and asked for time to prove the family makeup.  He was asked to provide citizenship documents and some evidence that people were resident in their5 countries of citizenship and weren’t overseas citizens but now living back in Iraq.  He claimed his parents didn’t have good relations with all their siblings.

27. He claimed that the family’s finances were not in a position to support the applicant if he were to return to Iraq.  He also indicated that he would provide information regarding his father’s conversion, and he was asked to provide some detail regarding the applicant’s father’s conversion.

28. The applicant was asked what job he did in Australia, he claimed he had a[occupation] .  He was asked why he couldn’t do that job in Iraq and he claimed that they didn’t do these things in Iraq.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    29.     The applicant arrived in Australia as a [age]  year old with the rest of his family to join his father in November 2006.  He has been convicted of a number of criminal offences and after his last conviction he was sentenced to six months’ imprisonment in April 2014.  He applied for a protection visa [in] August 2015.

    30.     The applicant is a [age]  year old single Iraqi. I have seen his expired Iraqi passport and note that he has not been granted Australian citizenship.  I am therefore satisfied that Iraq is his country of reference and his application will be assessed as such.  He claimed that he would be killed by Shi’a religious gangs if he returned to Iraq because his father had converted from Shi’a Islam to Sunni Islam, because the applicant would be considered as a spy from Australia because he had no family there.

    31.     In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

    32.     I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.

    Family Support in Iraq

    33.     The applicant claimed that he would be vulnerable if he were to return to Iraq because the only family member he had there was his elderly grandmother who had [a medical condition]  and was being looked after by a carer.  I do not accept this to be the case, and am satisfied that he has some family support beyond his grandmother available to him in the country.

    34.     The applicant claimed that he had two paternal uncles in the [Country 1]  and paternal aunties in [Country 2] and the [Country 1\Country3], and four maternal uncles all in [Country 1].  When the applicant’s brother was asked, he claimed that he had two maternal uncles, one in [Country 2] and one in [Country 1] , while his two paternal uncles had been killed in Iraq.  He was unaware of any other siblings that his father had because he didn’t like to talk about it.

    35.     I do not accept that the inconsistencies between the two were because the applicant was older than his brother, was more knowledgeable regarding the family and was in contact with some of his cousins.  I note that the adviser’s submission specifically invited the Tribunal to question the brother  because he ‘..has detailed knowledge of the relevant family background in Iraq’ (folio 33).  Given the centrality of families in Arab culture[1], I am also not satisfied that one of the brothers would know so little about his close relatives compared to his sibling.

    [1] applicant was asked to provide evidence of these relatives that attested to their citizenship, as well as documents such as would indicate that they were residents of the countries of which they were citizens.  The Tribunal was concerned that relatives could have the citizenship of another country and yet be resident in Iraq and be able to provide support to the applicant if he were to return.  Country information indicates this to be common in Iraq.[2]

    [2] DFAT Country Report – Iraq, 13 February 2015, p 28.

    37.     The applicant provided post-hearing copies of a [Country 1] passport in the name of [the applicants Uncle A and his family] and a [Country 2] passport in the name [of Uncle B].  A note stated that [Relative I]is the sister of the applicant and she had included passports of her husband and two[children].  There is no record of the applicant having a sister as per his PV application (folio 23).

    38.     I also note that the applicant has failed to provide evidence of the other uncles and aunties who he claims are resident overseas.  He has provided a copy of a [Country 2] passport in the name of [name] without any explanation as to who this person is.  The applicant claimed to have a maternal uncle in []by the name of [name]  while the applicant’s brother claimed to have a [Country 2] uncle by the name of [name].  The copy of the document offered fits neither description.

    39.     Although he was asked for some documentary evidence that would support his claim that these relatives were resident overseas, he provided none.  I do not accept that there are family issues that preclude him from obtaining evidence.  While family disputes are common, I am not satisfied that he was unable to provide information for any of his eight aunts and uncles whom he claims all live overseas.   

    Father’s religious conversion

    40.     I do not accept that the applicant’s father has genuinely converted from Shi’a Islam to Sunni Islam, that this is known in Iraq and that he has received death threats as a result.  The father never appeared before the Tribunal so I am forced to rely on his written statement and the evidence of his two sons.  In the applicant’s initial protection visa application he made no mention of his father’s conversion and the subsequent death threats, which is inconsistent with the degree of fear he expressed resulting from them subsequently.

    41.     I also note that the applicant has claimed to be Shi’a.  The degree of his faith is inconsistently portrayed.  The adviser’s pre-hearing submission (folio 71) refers to the applicant’s ‘deep religious faith..based on an outspoken nature’ and points to the religious tattoo on his back that indicates his support for the Shi’a faith.  Yet the applicant himself claimed during the hearing that he didn’t practice his faith. I am willing to accept that he is and would be considered to be Shi’a on return to Iraq, placing him in the majority in Basra.  I am therefore not satisfied that Shi’a gangs would seek to kill a fellow Shi’a simply because they believed that his father had become Sunni.

    42.     There are also inconsistencies between the applicant’s brother’s and the applicant’s recollection of his father’s conversion.  The applicant claimed that his father had converted to the Sunni branch of Islam after they arrived in Australia while his brother claimed that it occurred before they arrived in Australia.  I am not satisfied that this was because of the age discrepancies, given that the brother evinced no doubts when he offered the information regarding the timing of his father’s conversion during the hearing.

    43.     The applicant also claimed that his father converted to the Sunni faith around 2007/08 and that he attended  [a] mosque weekly.  He also claimed that people in Iraq found out about his father’s conversion likely through word of mouth, and that his father had begun receiving death threats when he went to Iraq in 2014.  Yet his father had also travelled to Iraq in 2011 without incident.

    44.     I do not accept that this was because the situation was better in Iraq at that time and that people had not yet found out that his father had converted.  Given that he claimed his father went to a Sunni mosque weekly and had allegedly converted three to four years before he went to Iraq in 2011, it is reasonable to believe that word of mouth would have spread to Iraq regarding his alleged conversion by this stage.  It also lacks credibility that, if the situation for converts had deteriorated to the extent that the applicant claimed between 2011 and 2014, his father would have sought to return to Iraq on holiday (folio 53) given the risk.

    45.     I have taken into account the letter provided by the Lebanese Muslim Association (folio 47) saying that the applicant’s father is a Sunni Muslim who attends prayers at [a particular]  mosque however I lend it little weight.  It says nothing regarding when the applicant’s father began attending nor anything about his process of conversion, details that the applicant was asked to provide.  I place greater weight on the numerous inconsistencies throughout the evidence presented, as well as the lack of credibility exhibited by the applicant.    

    Made to serve in Shi’a gangs, conscripted into Army, kidnapped, spy fears, father’s support for Saddam Hussein and tattoos.

    46.     I do not accept that if he were to return to Iraq he would be forced to serve in a Shi’a religious gang and fight ISIS, recruited or forced into the Iraqi Army or be considered a spy because he had returned from Australia.  Although both the applicant’s father (folio 65) and the applicant himself claimed that the applicant would be forced to join the army because of his age.  Country information indicates that there is no conscription in Iraq[3], and the applicant acknowledged this to be true.

    [3] also do not accept that any of the Shi’a militia groups (referred to as gangs by the applicant) kidnap people or force them into their organisation to fight against ISIS or others. There is no independent country information available to the Tribunal, nor was any provided by the applicant despite being asked, that would support such a claim.  I do not accept that this was true because he had spoken to people from Iraq about it, given he had also claimed that people from Iraq he spoke to told him there was conscription which was not correct.  

    48.     Further, I do not accept that he would be kidnapped and ransomed because he was from Australia and considered rich or that he would be considered to be a spy just because he returned from Australia.  Country information[4] indicates that failed asylum seekers returning from overseas (including Australia) to southern Iraq (of which Basra is part) do not face significant problems.  There is nothing that would support the claim (nor was any independent country information provided) that would indicate that an individual returning from Australia would be either kidnapped and ransomed because they were considered rich, or that they would be imputed with being a spy.

    49.     I also do not accept that he would be harmed because his family and parents had been outspoken supporters of Saddam Hussein or because he had a tattoo on his back.  The applicant provided no further details as to why he would be harmed because his parents and family had allegedly been outspoken supporters of Saddam Hussein.  It lacks credibility that the applicant would be harmed because his father had allegedly been an outspoken supporter of Saddam Hussein and yet his father willingly returned to southern Iraq in 2011 and 2014.  I am also not satisfied that the applicant would be targeted by Shi’a groups because of his tattoo (folio 53).  I note that the tattoo is self-described as a distinctly Shi’a tattoo (folio 71) so it lacks credibility that Shi’a gangs would target someone for having a Shi’a tattoo.  Because of these points the Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of actual or imputed support for Saddam Hussein, or the tattoo on his back.

    50.     I do not accept that the applicant would be unable to find work because he lacked language skills or contacts.  I have not accepted that he has no family network in Iraq, and he speaks and reads Arabic.  I do not consider that his level of Arabic comprehension is such that it takes half an hour to read a sentence.  He reads the Qur’an and given he didn’t say he learnt it by rote it is reasonable to believe that his level of Arabic comprehension is far greater than he has admitted to.  It is also reasonable to believe that he would be able to gain employment in line with his educational qualifications that he has gained in Australia; that is, largely unskilled work. 

    51.     Whilst I accept that the security situation in Iraq as a whole has worsened since the fall of Mosul in the middle of 2014, the south of the country in the Shi’a-dominated areas are qualitatively different.  Country information indicates that the province of Basra (amongst others) has remained significantly more secure than central Iraq.[5]  

    52.     While I also accept that there are security-related incidents from time to time, Basra has a population of over a million people[6]  and I do not accept that the applicant will be targeted or that the likelihood of him being caught up in such an incident is anything other than a remote possibility.  I therefore do not accept that there is a real chance that he will be caught up in violence either now or in the reasonably foreseeable future when he returns to Iraq.

    53.     As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

    54.     Because I do not accept that the that the applicant’s father converted to Sunni Islam and was subsequently the focus of death threats in Iraq and that the applicant would also be harmed as a result, that the applicant has no family support in Iraq, that he would be conscripted into the Iraqi Army or forced to join a Shi’a militia, kidnapped and ransomed or considered a spy, that he would be targeted because of a tattoo on his back or imputed with being a supporter of Saddam Hussein, or that he would be unable to assimilate back into Iraqi society, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

    55.     While I accept that the security situation is unstable in parts of Iraq, country information[7] indicates that southern Iraq (including Basra) has remained significantly more secure than central Iraq in recent years, more than 100 failed asylum seekers from Australia had returned to southern Iraq without any reports of any significant problems, and that with financial support from foreign governments and Iraqi incentives the prospects for failed asylum seekers returning were generally higher than for others living in southern Iraq.  

    56.     As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    [4] DFAT report, loc cit.

    [5] Ibid

    [6] DFAT report, loc cit

    CONCLUDING PARAGRAPHS

1. 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 s.36(2)(a).

2. 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).

3. 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

4. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Rodger Shanahan
   Member

   
   

   ATTACHMENT A – RELEVANT LAW

   1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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.

   2.        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).

   3.        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’).

   4.        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 the DFAT Iraq Country Report of 13 February 2015 – to the extent that they are relevant to the decision under consideration.

   …