1517489 (Refugee)

1517489 (Refugee) [2018] AATA 2117 (16 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517489
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Rodger Shanahan
DATE:16 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 May 2018 at 2:27pm

CATCHWORDS
Refugee – Protection visa – Iraq – Religion – Shia – Imputed political opinion – Family members in Saddam Hussein’s security services – English teacher – Fear of extremist militias – Employment dismissal – Intelligence agencies – Previous return to Iraq

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 24 July 2015.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that she was subject to serious and significant harm in Iraq because she was married to a member of Saddam’s intelligence, as well as her own real and imputed political opinion. Her husband [named] and brother [named] were working for Saddam Hussein’s security organisation. [Her husband] lived in Kut and she moved there when they married. They were advantaged and had a good life.
Most of the people there knew of her husband’s work as he wore an olive-coloured uniform (famous for being worn by people working within Saddam Hussein’s circle) and carried a gun. He travelled daily to Baghdad to work and then came back to their house in Kut.
During the 1991 uprising her husband was unable to go to work and was targeted by the rebels and had to stay in hiding. During this time the applicant moved to Basra. After the uprising her husband went back to his work in Baghdad, however he was fired for being Shi’a. He was interrogated and discharged without punishment.
They returned to al-Kut but people denigrated them as her husband was now powerless. They were mistreated by the government and her husband was under surveillance. Because of this they then moved to Basra in 1995. They were supported by [relatives] and her husband worked as [an occupation] from home as he was scared to go into the public.
After the 2003 invasion they became targeted by the new extremist militias; in 2003 her brother was kidnapped and they still don’t know whether he was alive or dead. Her husband maintained a low profile and she was working as an English teacher. She received harassment from her colleagues for teaching a kaffir language.
In late 2014 her husband and others went to Baghdad to apply for their retirement rights. After a long interview he was asked to leave with the others. After a few days one of his friends told him that two other friends had been killed the day after the interview. Her husband was terrified that these people would come to kill him and if not him, then the applicant.
In March 2015 her neighbour came and told her that elements of Asa’ib al Haq (AAH) had asked for her husband. This made her very scared that she or her husband would be harmed. Her husband left and went to live with [a relative] in another suburb where he remained in hiding. A few weeks later there was a knock at the door and she opened the door to find three men. They asked where her husband was and she told them he was not at home. They told her they were his colleagues from the intelligence department and wanted to meet him. She pretended that he never worked for the intelligence but they laughed and one said to the other that they would get him ‘even if he flies in the sky’.
At this stage she had a [temporary] visa for Australia but she couldn’t leave the country as she feared for her husband’s wellbeing. They escaped Basra and moved to Baghdad to stay with his relatives but they didn’t welcome the applicant and her husband. They moved from house to house until they found a rented property to keep her husband and children safe – she then travelled to Australia.
She fears returning to Iraq because she would be seriously harmed for the reasons stated previously. The Iraqi authorities are unable to protect her.
Tribunal Hearing
The applicant was asked questions about documents received just prior to the hearing. She claimed she had no income in Iraq, no government pension or anything. Asked about the purpose of a letter that she had submitted (it was headed ‘employment confirmation’), she claimed that her husband sent her the letter as they had the letter from before. Asked what its purpose was, she claimed it was to confirm that he worked for the intelligence service. Asked why someone would write this, as well as the fact that it was written in 1987 which raised questions as to why someone would retain it for 30 years.
She claimed that he kept this letter for 30 years because he intended to go back to his work. Asked why the letter had to be written confirming her husband was in Iraqi intelligence, she claimed that he had no income for some time and then he thought to obtain a retirement pension. She said they may also be able to present this letter to get redundancy payments.
She claimed that if she returned to Iraq, because she was the wife of someone who worked in the intelligence service and their whole family are threatened. She would be killed by Shi’a groups like Hizb ad-Da’wa and Asaib al-Haqq but Da’wa was the main problem. If she returned her liberty would be restricted and they didn’t have freedom of opinion. Circumstances all over Iraq had deteriorated. She was advised to be very specific about concerns relating to her specifically, rather than issues in general.
Because she was a teacher she had received degrading and humiliating treatment. Asked if she had a claim in this regard, she said she did. Asked what her claim was, she stated that she was dismissed from work. She was asked what would happen to her if she were to return to Iraq, and she claimed that she had been threatened and humiliated when she worked because they knew her husband worked for Iraqi intelligence. If she returned her teaching colleagues would humiliate or kill her because of her husband. Asked if she had a claim that related solely to her being a teacher, she claimed that she would be threatened or humiliated by the students’ parents if she corrected the students for their work or attitude.
Her husband belonged to a unit called [Unit 1] that belonged to the headquarters of the Intelligence Service. As far as she knew, he was doing [specified tasks], particularly during the Iran-Iraq war where he would [conduct specified tasks] and present reports based on this. He was a [specified rank] and wore a uniform. Asked if she had any photos of him in uniform, she claimed that they had burnt all the photos after the wave of persecutions and killing. They had to destroy everything, all evidence. She was asked why they still had the incriminating letter, and she stated that her husband kept it. It was put to her that it was strange that he would burn all his photos but keep the letter – she then said he gave it to his friends and then took it back.
They were in al-Kut in 1991 when the war with the United States began. The road was blocked and he couldn’t get to his work in Baghdad. Because of this he was considered not to be doing his work – this meant the Saddam regime could kill or imprison him. He didn’t know what to do, so they went to their relatives’ [house] for quite some time living in fear. Conditions were austere and they were miserable. Her husband stayed in [this] house for a few months until the war was finished.
They returned to al-Kut when the war was over (two to three months) but remained fearful and miserable. Her husband couldn’t really go outside because anything could happen to them. They moved from house to house. About 1995 she told him that she wanted to stop there and they had to find another solution. They decided to live with her [relatives] (in Basra) where they felt it was safer. Nobody knew they were leaving. Between1991-95 nothing happened to her husband because he was hidden in the house. Nobody knew where he was. They survived financially because she was teaching but it was small and just covered expenses.
In 1995 they moved to Basra and stayed with her [relatives]. Her husband helped [them] as [an occupation] – their [business] was at the house so her husband didn’t move very far away. She only went to her work and her husband stayed at the house. They did this until 2003 when Saddam was toppled. There was lots of killing in the street and there were many parties gathering. People’s names went on lists to be killed. Her supervisor was killed.
After 2003 as things deteriorated, her husband was fearful. If people on the list couldn’t be found then people’s families could be targeted instead. She was asked how long they stayed with her [relatives] and she said they stayed there from 1995-2015. The house was divided internally to accommodate the two families. It was put to her that she had given two different addresses in her application – one from 1995 to 2006 and the other from 2006 onwards. The addresses were completely different. She said they lived there but couldn’t afford it and had to go back to her [relatives]. Her [relatives] paid their rent.
The Tribunal said it was confused as her stories about their accommodation arrangements from 1995 had completely changed. She then said that they originally stayed with her [relatives] but had to move for her job and her [relatives] paid the rent for this house. Her husband was restricted in his movements but then they moved back with her [relatives].
Asked about her husband from 1995, she claimed that her husband stayed at the house even though it was hard. She was asked what occurred that made her leave Iraq and she claimed that towards the end of 2014 things had calmed down – a group of friends contacted her husband and told him that they might go to Baghdad to ask the government about retirement benefits. Friends called her husband and said they were going to get their files from Baghdad. They wanted to know whether the department was going to eliminate them, as they used to work for the department.
Asked to explain this more clearly, she claimed her husband and her friends found that after investigating there were plans to eliminate those who had worked for them. Asked who they went to, she said it was whatever intelligence department they worked for. Asked how they found out about this secret plan to kill them, she claimed that after attending for two days meetings, two of their colleagues were killed. The reason they originally went to Baghdad was because they received an invitation about discussing whether they should be retired or to work in a different area. Her husband heard about this from his friends.
He went because he expected that he may improve his situation; get a redundancy or a place to work. Really, to get a pension. He had worked there a long time and she thought it was 10 years. Asked how long people worked before getting a pension in the Iraqi system, she claimed it was at the age of 60, however those out of work like her husband may have thought they could get exceptional payments. This was the end of 2014. It was put to her that Mosul fell in June 2014 and Islamic State were exerting pressure on the Iraqi government – it seemed strange that the Iraqi government would have sent out a letter to former intelligence officers to talk about pensions during this period of crisis. She thought people had been given such pensions. She was asked to provide country information that would support her claim that such a scheme was introduced at this time.
Her husband went to his [relative’s] (an hour away) house to hide because after they went to the department, their details were given to the department and so these people were targeted more severely. This was still the end of 2014. Nothing happened to him as he was hiding but some people from the violent political parties came to their house asking for her husband. They were principally ad-Da’wa but also from AAH.
It was put to her that it was strange that these groups who were fighting Islamic State were interested in someone who may have been a low-ranking official in Iraqi Intelligence 23 years ago. She claimed this was their purpose as they were looking for them originally and had them under surveillance. Asked when she had a fear that she would be harmed, she claimed that she would be the first target after him. They would then target the family. She never said when she first had a fear she would be targeted but stated that she would be targeted as an English teacher. The question was then asked again and she said she feared harm from 1991 when the situation became bad for them.
She had travelled to [Country 1] maybe nine years previously. She went herself [and] also to [Country 2]. Her husband didn’t travel. She returned back to Iraq both times. She was asked why she would return from [Country 2] if she was scared, and she said her children were in Iraq and she couldn’t go anywhere else. She said that no one knew she had left the country.
She got a visa for Australia in 2015 but didn’t leave until two months later. It was put to her that it was about three and a half months after she received the visa, and was asked why she delayed for so long if she felt she were fearing serious harm. Her husband was hiding somewhere so she had to look after the children. She also had to wait until he found a safe place. She was asked why they couldn’t stay with her other family members and she said that everyone was focused on securing their safety.
It was put to her that she waited for nearly two months after being in Australia before applying for asylum and this didn’t indicate an urgency to claim protection. She said she asked her daughters and they told her to wait until they researched with migration agents.
The witness (her daughter) was called in. She was asked if she had anything she wished to say as the tribunal had no questions of her, and she had been called by the applicant. She claimed her father had been absent the whole time due to the claimed circumstances and her uncle had been kidnapped in 2003. She had seen their hardship and poverty in Basra first hand.
The applicant was then asked about an ID card for her husband’s employment. It was put to her that it was an ID for [Agency 1], which was a different agency to the mukhabarat and had [very different specified operations] employing many people. The concern was that her husband never worked for the mukahabarat but worked for the Ministry, perhaps in a factory or the like.
It was also put to her that they had lived in two locations in 20 years which was not indicative of people hiding from harm. Also, her husband had been in hiding for years and yet on getting a phone call from a friend he would travel to Baghdad to go to the Intelligence Ministry for a meeting. If he were a former intelligence operative then it would make more sense for him to stay hidden and find out second hand from the people who had been contacted directly to find out what the meeting was about.
His actions didn’t appear to be in line with someone who she claimed was an officer from the mukhabarat given it showed poor security procedures, along with the fact that his ID card was not from the mukhabarat. The Tribunal had serious concerns that her husband was never in the mukhabarat, was not wanted by anyone in Iraq (nor was she). Her delay in leaving in Iraq and then in applying for protection in Australia added to the Tribunal’s concerns.
She claimed the mukhabarat didn’t issue their normal identities to their members but gave them different types of identities. They had given him an original one but had then seized it from him. The organisation on his ID did belong to Iraqi intelligence. She was asked why someone from the intelligence fearing being found would stay in the same locations for 11 and nine years, one of which belonged to his [close relatives]. It made little sense. She claimed that it was true and he had no other person to hide with; it was the only solution. She knew many other people in the same situation.

It was put to her that he had been in the mukhabarat for 10 years so knew security procedures, was laying low out of fear of being found. On the basis of a phone call from a friend, he was willing to go to Intelligence HQ in Baghdad (presumably under the control of a Shi-a-dominated government). It made no sense for an experienced intelligence agent to expose himself in this way.
She felt things had calmed down and people had reconciled with the government. It was put to her that Islamic State had taken Mosul so the situation was chaotic. She claimed there was no real problem that stopped them from continuing their lives. The government was focused on Islamic State.
She claimed that her main aim was to find security. She had integrity and wanted to apply for protection to experience the freedom in this country. She had no place to return to as there was no house there. Her children were with her brothers, one of whom had disappeared.
It was put to her that the Tribunal was unaware of English teachers being targeted for harm in Iraq, and she was asked if she had any country information to support this claim. She claimed she received verbal threats but had no other evidence.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age] year-old married woman. I accept that the applicant is an Iraqi citizen, and her claim will be assessed accordingly. The applicant was originally denied a [temporary] visa in 2009; but then granted one in February 2015. She travelled to Australia in May 2015 and lodged a protection visa in July 2015.
The applicant claimed that if she returned to Iraq she would be killed by Shi‘a Islamic groups because her husband had worked in the Iraqi intelligence services. She also claimed that her teaching colleagues would humiliate or kill her because her husband worked for the intelligence service and that she would be threatened or humiliated by students’ parents if she corrected the students’ work or attitude.
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, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. 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.
I found the applicant’s evidence regarding her claim to be inconsistent and lack credibility. For reasons set out below I did not find her to be a reliable, credible or truthful witness, and that she fabricated much of her claim in order to be granted a protection visa.
Husband’s Occupation
I do not accept that the applicant’s husband was ever in the Iraqi intelligence service (mukhabarat), nor would he be perceived to have ever been a member. Her evidence regarding his employment in Iraq was at times vague and on another occasion quite specific. In her protection visa application (folio 48), she claimed that her husband and her brother worked for ‘the security organisation of Saddam Hussein’s regime’, and that her husband would wear an olive color (sic) uniform and carry a gun, while traveling to Baghdad daily from Kut.
During her hearing she claimed that her husband belonged to a unit called [Unit 1] that belonged to the headquarters of the Intelligence Service, and believed that he was doing [specified task]. This is quite a specific reference to his job and unit in what should be a highly sensitive and classified role, so it appears strange that she would know this level of detail in the first place and offer it in her evidence, while at other times referring to a much vaguer affiliation. In her pre-hearing submission (folio 47) she simply stated that her husband worked for the Special Security Organisation and her brother for the General Directorate of Intelligence, even though she was asked what his exact role her husband and her brother had.
I do not accept that the letter she provided (folio 58) from 1987 with a security classification of ‘CONFIDENTIAL’ that she claimed was from the [specified] Office of the [named section] of the Special Security Department to the [named] Council confirming that her husband was an employee of the Special security Department, is a genuine document and find that it is fraudulent.
To begin with it, only a photocopy of the original was provided and it looks as though it could have been produced on any home computer. In addition, it also makes no sense why, having claimed to have no photos of the applicant’s husband in uniform as they had to destroy all incriminating evidence they would have kept a confidential letter that indicated he was from the Special Security Department.
She was also inconsistent when responding to the Tribunal’s concern over this issue, stating at various times that he kept the letter for 30 years because he intended to go back to work, that he gave it to his friends and then got it back, and finally in a post-hearing submission (folio 60) that her husband had given it to the council for a purchase of land while he was working and that he was able to get a copy from the council’s file.
She also provided an ID card she claimed belonged to her husband (folio 57). This describes him as a general employee in [Agency 1]. Country information[1] describes MIMI as an organisation that mixed military-related production facilities along with civilian enterprises – MIMI controlled around 40 civilian agencies including construction firms, truck assembly factories and fertiliser and petrochemical plants. I have noted that the applicant claimed that MIMI belonged to Iraqi intelligence and that the mukhabarat didn’t issue normal identity cards. While there was some crossover with what could be described as Iraqi intelligence activities given MIMI’s role in bypassing sanctions to procure and develop weapons country information from UNMOVIC indicates only 35 of more than 100 facilities served this purpose.[2]
[1] accessed 9 May 2018
[2] p 36. Accessed 16 May 2018
This means that more than two-thirds of MIMI’s facilities were legitimate industrial/research facilities. Given her inconsistency regarding documentation (and lack thereof) regarding his alleged intelligence position of her husband, and the ID card from the MIMI, I am willing to accept that he was an employee of MIMI in 1990, but that he was a civilian employee in one of the legitimate arms of the Ministry.
I base this not only on her apparent desire to provide false evidence of his association with Iraqi intelligence, but also with the complete lack of interest in the applicant and her husband on the part of Iraqi militia groups as is discussed below. She claimed that they were targeted by the rebels and had to stay in hiding during the 1991 uprising and then targeted by new extremist militias following the 2003 invasion such that if she returned to Iraq she would be killed by the Shi’a militias that threatened their whole family.
Despite the attention she claimed that they were under from various groups who wished to target her because of her husband’s alleged role in Saddam’s intelligence service, her account of their living arrangements is not indicative of someone who fears being targeted. She was also inconsistent in describing it. In her protection visa application she claimed that she lived in [one named part of] in Basra from February 1995 until September 2006, and then in [a different named part of] Basra from September 2006 until May 2015.
During her hearing she said that she lived with her [relatives] from 1995-2015, that they lived at one place where her [relatives] paid the rent but they moved back with her [relatives] when they could no longer afford it, and then that they originally stayed with her [relatives], moved into a house for her job where her [relatives] paid the rent, but then they moved back with her [relatives].
The very fact that the applicant could live at two addresses for 20 years (from 1995-2015) without coming to the attention of rebel or militia groups who were allegedly after her husband is not indicative of someone wanted by such groups. In addition, the applicant herself, feared being targeted by militia groups because, as she claimed during the hearing ‘If people on the list couldn’t be found then people’s families could be targeted instead’.
Yet despite her husband allegedly fearing being on a list after the toppling of Saddam Hussein in 2003 the applicant herself was able to work as a [school] teacher at the one school from February 1995 until April 2015 without coming to the attention of any militia groups. The extended periods of time spent at the same residential addresses and the two decades long teaching job at the one school are not indicative of the actions someone who fears being targeted by militia groups would reasonably be expected to take.
The account of renewed interest being shown in her husband in 2014 is also implausible. The Tribunal is unaware of any late 2014 Iraqi government proposal to extend pensions to former Saddam-era intelligence personnel. The applicant was requested to provide country information to support such a claim post-hearing yet failed to do so.
It also appears implausible that the Shi’a-majority Iraqi government, heavily involved in fighting against Islamic State would choose this time to pursue such a policy. And, given her husband had not been contacted directly (presumably because his location was not known) it appears implausible that an allegedly experienced intelligence officer who had been hiding from militia groups since at least 2003, would then expose himself by going to an intelligence HQ in Baghdad. He could have tested whether it was a ruse or not by simply allowing his friends who had been contacted to attend and then gathering the relevant information from them after the event.
I lend little weight to the applicant’s post-hearing submission (folio 60) claiming that it was well-documented that many security officers were invited to meet with the government. The paper from Brookings that he quotes was written in 2006 and refers to a meeting between ‘representatives’ of the insurgency and the governor. His selective reference failed to include the fact that the meeting involved Coalition officials as well, and took place at Ramadi (western Iraq) in 2003. This bears no resemblance to the 2014 Baghdad meeting between the Shi’a-led Iraqi government and former security officials allegedly seeking pension/employment benefits that the applicant claims her husband attended.
Because I do not accept that the applicant’s husband was ever a member of Saddam’s intelligence services or that he was wanted by, or hid for well over a decade from Shi’a militia groups it follows that he was never fired from them for being Shi’a, that no members of a militia group ever came to the applicant’s house looking for the applicant’s husband, and that none of her husband’s friends were killed after attending the meeting in Baghdad.
It also follows that the applicant is not of interest to any militia groups. This is supported by her actions in leaving Iraq and then applying for protection in Australia. Despite claiming to fear serious harm since 1991 she had travelled to both [Country 1] (in 2010) and [Country 2] (in 2014) and returned voluntarily to Iraq each time. She also delayed leaving Iraq for three and a half months after receiving her Australian visa. I do not accept that this was because she had to wait for her husband to find a safe place, given I have found that her husband was not wanted by anyone.
Other Issues
I do not accept that the applicant’s teaching colleagues would humiliate or kill her if she returned to Iraq. She claimed that they would do this because of her husband’s former position as a Saddam-era intelligence officer, a claim that I have found to be fabricated. I also do not accept that she would be threatened or humiliated by students’ parents if she corrected the students’ work, that she had been dismissed from her work or that she had been harassed because she taught English, the language of unbelievers (kaffir/kuffar (pl)).
The claims rely entirely on her oral testimony, which I have found lacks credibility. The Tribunal is also not aware of country information that indicates English language teachers are targeted in Iraq, nor was any provided by the applicant. She provided no evidence to indicate that she had been dismissed such as a notice of dismissal, nor did she provide a copy of Iraqi bank statements for the last five years as requested (folio 46) that could have shown evidence of deposits (in cash or electronic transfer) ceasing at the time she was allegedly dismissed. She only provided a page of a bank book (folio 56) that shows a single transfer and withdraw on a single day (1 March 2015) – I cannot lend this any weight in determining whether she was employed as a teacher at this time.
Because no one was targeting them, it also follows that her husband is not in hiding in Iraq and that she has a house to return to in that country. I also do not accept, on the basis of the information provided about the restrictions on the applicant’s liberty or her freedom of opinion, that any such restrictions would amount to serious harm. She never expanded on how these claims may have applied to her, and given their vagueness and her lack of credibility I do not accept that this would be the case.
Lastly, I do not accept that her brother also worked for the mukhabarat and that he was kidnapped in 2003 and has never been seen since. This relies entirely on the applicant’s oral testimony which I have found lacks credibility.
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
Because I do not accept that the that the applicant’s husband or brother were ever members of the Saddam-era intelligence services, or that he or the applicant was ever wanted by any group because of this, that the applicant was ever sacked, was or would be harassed because she taught English, threatened and humiliated by students’ parents for correcting their work, would be humiliated or killed by other teachers because of her husband’s former job, lacked freedom of opinion or suffered restricted liberty or that her brother was kidnapped in 2003 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.
While I accept that the security situation has been unstable in parts of Iraq, I am not satisfied that this alone constitutes a real risk of significant harm. Islamic State has been essentially defeated and Iraqi government control reasserted over those areas it held.[3] The applicant resided in two locations for 20 years and she taught at the one school for 20 years, and left and returned to Iraq on two occasions which would indicate that she feels safe to work and live in the area she lived in in Iraq. I am satisfied that, given the effective defeat of Islamic State and the fact that the applicants family lives without incident in Basra that the applicant would be able to return and live safely in Iraq.
[3] accessed 11 May 2018
As a consequence I also do not accept that 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 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
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[2018] AATA 2117

16 May 2018

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction