1515237 (Refugee)

[2018] AATA 1217

1515237 (Refugee) [2018] AATA 1217 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515237

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Rodger Shanahan

DATE:15 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.

.

Statement made on 15 March 2018 at 3:29pm

CATCHWORDS

Refugee – Protection Visa – Iraq – Ethnicity – Kurd – Yazidi – Complementary protection – Returnee from Australia – Particular social group – Postgraduate scholarship holder – Fabricated protection claims – Witness credibility – Inconsistent evidence

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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] October 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] May 2015..

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

9. CLAIMS AND EVIDENCE

   AAT Hearing

10. The applicant claimed that if he returned to Iraq he would be killed by Shi’a militias (subsequently stated as Sunni groups such as Islamic State or al-Qa’ida) because he was a Yazidi.  He also claimed that because he was Kurdish, Iraqi Arabs and Turkmen may kill him.  He had no other claims.

11. Because he had a [postgraduate degree] he would now be considered a highly-educated infidel, and that his family will be harmed.  Yazidis are killed in the street and they had been subjected to sex slavery.  Asked if he had family in Dohuk, he said his mother and [some of his siblings] but in summer they would go [overseas].  None of these siblings are married.  He had siblings who had been accepted as refugees in [Country 1] – he was asked to provide evidence of this.

12. He had [relatives] in Dohuk.  Most of the children are in [Country 1].  He was asked to focus on Dohuk.  The second-named applicant had her parents and [siblings] in Dohuk.   Asked what had happened to the family in Dohuk, he said they just remained in their village and were really scared.

13. Their village was not taken over by Islamic State as they were on the other side of the river.  Turkey has now dried up Mosul Dam – he was asked to provide country information to support this.

14. It was put to them that they had quite a lot of family in Dohuk and asked if they were still at threat from Islamic State.  He claimed that IS was only one hours’ drive away, in [Town 1].  It was put to him that [Town 1] was taken in [2015], and he claimed they were still inside the city centre.  He was asked to provide country information to support this.  He was asked why, if they were in the middle of [Town 1], they could get out of there to target the applicant.  He claimed that there were hidden Arabs and Kurds who were IS.

15. It was put to him that President Abadi had announced the defeat of IS and a national holiday.  He was asked if IS had killed Yazidis the last two years, and he claimed that a lot were being killed.  He said that a lot of IS were just hiding.  It was put to him that the remaining elements of IS were in Anbar and near the Syrian border, so he was asked why they were going to try to get to target Yazidis.

16. He claimed that the Turks would send radical Islamist groups to Kurdistan to target Yazidis.  He was asked if he could provide any evidence that the Turkish government was targeting Yazidis either directly or indirectly.  He was reminded that as a [postgraduate degree] holder he would understand the difference between objective and subjective sources of country information.

17. It was put to him that he had many family members in Iraq who had not been touched by IS and had not moved from this area, and was asked why he would be targeted if he returned.  He claimed Yazidis had been the victim of 73 genocides, not all announced.  In the future some other group would come and do it.  He would be targeted as a [postgraduate degree] holder in perhaps five or 10 years.

18. The Iraqi army would collapse as it had done before.  It was put to him that the Iraqi army currently is different to that of 2014 and had re-taken Mosul, Ramadi and other cities.  He claimed the Kurdish forces had withdrawn from many Kurdish cities and another group could come in and fill the vacuum. There was now conflict between Kurdish and Iraqi forces and if the Kurds were weakened, other groups could come in and fill the vacuum.

19. It was put to him that country information indicated that Yazidis faced low levels of official discrimination and violence in Iraq generally (outside of IS-controlled areas) and his family had remained in their village.  He claimed they did discriminate.  Asked how he gained a [postgraduate] scholarship, he claimed that it was just luck and the family spent money on his education.

20. He claimed that their land across the river had been taken from them during the Saddam Hussein era and money so if they spent some money on him now then so be it.  It was put to him that him being in Australia on a [postgraduate] scholarship may indicate that he was not being discriminated against.  He said he was just lucky.  He didn’t know of any Yazidis on scholarships.  He had paid a bond of a house and piece of land in his [relative]’s name.  It was put to him that the Tribunal needed to look at his case in December 2017 and that meant that people who had been accepted as refugees may have been accepted during the height of Islamic State.  He claimed most Yazidis had or wanted to leave.  In 2007 al-Qa’ida had killed nearly 1500 people in truck bombs in Sinjar.

21. Regarding his Kurdish identity, he claimed Iraqi Arabs may target him directly and Iran and Turkey may also target them indirectly.  They had already done this after the referendum – there were restrictions on movement into Kurdistan.  International flights could not fly there direct.  There were also militia groups who controlled checkpoints and their ID cards would show them as Yazidis.

22. It was put to him that he could fly to Baghdad and then domestically to the Kurdish area so he didn’t need to travel by land.  The Kurdish referendum had also been deemed illegal by the Constitutional court and every country disagreed with Barzani’s move to have a referendum.  The move by the Iraqi government was legal in response to an illegal referendum, there was little fighting and the situation appeared calm now.

23. He claimed that if it was legal there was also fighting over s 140 of the Constitution and territory that was still disputed. He claimed the area was not yet okay and there was killing every day according to his family when he spoke with them. It was put to him that his fear had to be well-founded, so he needed to provide some objective information, rather than hearsay from people he spoke to. He should know this from his [postgraduate] studies. Again, he was also on a [postgraduate] scholarship from the Iraqi government even though he was Kurdish, which may not indicate that he was being discriminated against because of his ethnicity.

24. He was asked whether he could support his claim that he would be targeted or killed by Arabs or Turkmen simply for being Kurdish.  He claimed that there had been so much conflict in Iraq since he was born.  It was put to him that Kurdistan had not been so badly affected during some conflicts such as the 2003 invasion.  He claimed worse things happened during 2014.  It was put to him that the Tribunal needed to understand why he would be targeted if his family were still living in their village and he had been granted a [postgraduate degree].

25. The second-named applicant was then given an opportunity to present evidence.  She stated that she wanted to stay here in Australia with her family.  Asked if she could present evidence to support their claim, she did not.  They were then given a break with their adviser.

26. The adviser then stated that her clients felt that being Yazidi was enough to be considered to be persecuted.  The people in Iraq felt they couldn’t practice their religion.  Walking down the street they never knew who would be walking the other way to kill them or take their children away.  History had shown that these people would be persecuted in the future.  There were 300 Yazidis being relocated to Armidale as refugees so the government recognised Yazidis were persecuted.

27. The first-named applicant said that there was a hadith in al-Bukhari in Islamic law that allowed Yazidis to be killed.  It was put to him that Bukhari’s ahadith were there to be interpreted.  Simply being there as a hadith was not sufficient to make it compulsory.  He was also asked if Ja’afari law (Shi’a) allowed the killing of Yazidis, he claimed they did.  He was asked to provide evidence to back this claim.  It was also put to him that it was unlikely many, if any Sunni imams would interpret the hadith as allowing the death of Yazidis.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. The applicants arrived on an Iraqi government scholarship for the first-named applicant to study for a [postgraduate degree] in Australia.  The applicant is [an age] year old Iraqi. He claimed that if he returned to Iraq he would be expelled by Iraqi government security force or by threats.   

29. 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.

30. Although he asked that the impact of his detention on his memory and mental health should be taken into consideration, he offered no documented medical evidence to support this claim.  As shown below I find that the inconsistencies evident in the applicant’s evidence were not caused by any medical conditions or poor memory, but rather were the result of a fabricated protection claim. 

31. 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.

    Targeted as a Yazidi

32. I do not accept that the applicant will be targeted by Islamic State or al-Qa’ida simply because he is a Yazidi. The abuse of Yazidis by Islamic State during their short but violent reign is well documented.  That period has passed however, as evidenced by Prime Minister Abadi’s declaration of victory over Islamic State in December 2017.[1]

    [1] accessed 8 March 2018.

33. Dohuk itself was never captured by Islamic State and both applicants have significant numbers of family members in that city.  While I accept some family members have sought asylum in [Country 1], I am unaware of their circumstances or whether they have been successful.  A number of copies of what appears to be [Country 1] travel documents were provided post-hearing however they are untranslated and without context so I am unable to lend them much weight.

34. I do not accept that Islamic State were still an hour away in the centre of [Town 1].  Country information indicates that they were expelled from [Town 1] in [2015][2] - the applicant was requested to provide country information to support his claim yet failed to do so.  I also do not accept that there were hidden Arabs and Kurds who were Islamic State as he again failed to provide country information to support this claim.

    [2] [Source information deleted] accessed 8 March 2018

35. Further, I also do not accept that the Turks had dried up Mosul Dam.  He again failed to provide country information to support such a claim and the evidence available[3] to the Tribunal indicates that the dam’s water levels after repairs are at the highest level since 2005.  I also do not accept that the Turks would send radical Islamist groups to Kurdistan to target Yazidis.  There is no country information available to the Tribunal, nor was any provided by the applicant when asked, that would support such a claim.

    [3] accessed 8 March 2018

36. I have also addressed the issue of whether the applicant is likely to face persecution from broader Iraqi society.  I note that the applicant has been in Australia on an Iraqi government-funded [postgraduate] scholarship that would indicate both that the Iraqi government allows Yazidis to undertake state-sponsored overseas postgraduate study, and that they expect them to utilise those skills within Iraq on return.  I do not accept his claim that he was ‘just lucky’ to get it, or that he didn’t know of any other Yazidis who got one.  Country information indicates that the program allowed for 1,000 scholarship annually with regional quotas set and the students studying in the US, UK and Australia.  It is reasonable to expect that he would not be aware of everyone who was granted scholarships.

37. Whilst I appreciate the claim from her adviser that simply being Yazidi should be enough to be persecuted, I am not satisfied that this is the case.  In a post-hearing submission the applicant claimed that certain interpretations of Islamic jurisprudence allows for Yazidis to be persecuted.  I have accepted this to be the case and that extremist forms of Salafism such as that exhibited by Islamic State fall into this category.  Yet there is no evidence presented that mainstream Islam in Iraq shares that view; nor were any religious opinions (fatawa) offered by the applicant in support of his claim for instance.    

    Targeted as a Kurd

38. I do not accept that the applicant will be killed by Iraqi Arabs or that Turkmen would kill him because he was Kurdish.  There is no country information to support this claim and neither was any provided by the applicant.  He also vaguely claimed that the Iraqi actions against the Kurds post-referendum and the fact that international flights could not fly to KRG-controlled areas direct so that he would have to come into contact with militia-controlled checkpoints were somehow supportive of his claim.

39. The Iraqi constitutional court found the referendum to be illegal, it had no international support and the re-establishment of Iraqi government control was relatively bloodless and legal.  Domestic flights into KRG-controlled areas have also been allowed, and in March 2018 international flights were resumed.[4]

    [4] accessed 15 March 2018

40. 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

41. While I do not accept much of the applicant’s testimony and find that he has fabricated many of his claims, I have also had regard to the available country information regarding the treatment of Yazidis in Iraq.  As a result I find that, while they are not certain, or even likely to face societal discrimination and violence if they were to return to Iraq, there is a possibility that is not remote of this happening and that this would be likely to reach the threshold of significant harm.. 

42. As a consequence I also 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).

    CONCLUDING PARAGRAPHS

43. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(aa).

    DECISION

44. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.

    Rodger Shanahan
    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.

    …