1603095 (Refugee)

[2018] AATA 1256

1603095 (Refugee) [2018] AATA 1256 (29 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603095

COUNTRY OF REFERENCE:                  Iraq

MEMBER:K. Chapman

DATE:29 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 29 March 2018 at 12:36pm

CATCHWORDS
Refugee – Protection visa – Iraq – Religion – Shia – Imputed political opinion – Family of Ba’ath Party members – Opposition to religious fundamentalism – Western education – Fear of Sunni militant groups – Mahdi Army – Previous return to Iraq – No family links – Employment

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 424AA, 438
Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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] February 2016 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] January 2015. His initial written claims for protection concern him fearing harm on the basis of his Shia Muslim religion and political opinion (actual and imputed) arising from his father’s work as [a teacher]. The delegate did not accept that there was a real chance he would suffer serious harm, or a real risk he would suffer significant harm, if he returned to Iraq.

3. On 9 March 2016, the applicant applied for review of the visa refusal decision, providing a copy of that decision with his application for review. Prior to the first review hearing, the applicant submitted documents including a Statutory Declaration dated 6 September 2017, a translated ‘Summary of Service’ document regarding his father, and translated Iraqi police reports dated [in] September 2008, [November] 2009 and [June] 2010. The aforementioned documents have been duly considered by the Tribunal.   

4. The applicant appeared before the Tribunal on 17 November 2017 and 21 December 2017 to give evidence and present arguments. He was represented by his registered migration agent, who appeared by telephone. The Tribunal hearings were conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal notes that the applicant confirmed he understood the interpreter, and that he also spoke at times using the English language to a high standard. The applicant also confirmed that he was feeling well enough to give his evidence at both hearings.  

5. At the first review hearing the Tribunal received a copy of documents including media articles, [Counsellor] notes, [his Australian] University results, [results from his university in Country 1], translated Ministerial Order dated [in] 2010, translated Iraqi Identity Card, copy of current Iraqi passport, translated Residence information from Nineveh Governorate dated [in] 1994, identity documents regarding the applicant’s father, and correspondence pertaining to an appeal of a [WorkCover] decision dated [in] October 2017. Following the second review hearing, the Tribunal received a written submission dated 29 January 2018 enclosing various media articles regarding Iraq. The Tribunal has duly considered the aforementioned material. 

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.  

11. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

13. According to the protection visa application, the applicant claims to be a citizen of Iraq. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed an Iraqi national. Iraq is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

14. The Tribunal notes that the applicant has previously spent a considerable time living in [Country 1] with his family, however his evidence is that because he is now too old he is no longer able to live there as a dependent on his father’s visa. Following careful consideration, the Tribunal accepts that evidence (as did the Departmental delegate). The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Issues

15. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Iraq, there is a real risk he will suffer significant harm.

    Documentary evidence before the Tribunal

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

    a.the applicant’s protection visa application forms lodged [in] January 2015 (including a typed Statutory Declaration dated [in] January 2015, extracts from the applicant’s Iraqi passport issued [in] 2008, and a translated copy of an Iraqi Identity Card of the applicant);

    b.translated documents concerning the applicant’s father including references, academic records, employment documents (including a Ministerial Order), identity records, Curriculum Vitae, and financial records;

    c.email correspondence [in] July 2015 from the applicant’s representative to the Department, email correspondence [in] August 2015 from the applicant to the Department enclosing extracts from his Iraqi passport issued [in] 2003 (including a copy of a [Country 2] visa), and colour extracts from the applicant’s Iraqi passport issued [in] 2008;

    d.a recording of the Departmental delegate’s interview with the applicant;

    e.the Departmental delegate’s visa refusal decision dated [in] February 2016 (a copy of which was provided to the Tribunal by the applicant);

    f.a certificate pursuant to s.438 of the Act dated [in] March 2016;

    g.a copy of the applicant’s Student visa application and associated material;

    h.a certificate pursuant to s.438 of the Act dated [in] September 2017;

    i.the application for review submitted on 9 March 2016;

    j.Departmental administrative and Movement records; and

    k.the material received by the Tribunal prior to, during and following the review hearings as described above. 

    Claims for protection

17. The applicant’s written claims for protection may be summarised as follows (noting that information additional to the initial written claims was added by the submission of subsequent documents and oral evidence, matters described in further detail later in this decision record):

    a.he is a Shia Muslim who will be targeted by Sunni Muslim militant/Jihadist groups, such as those linked to Al Qaeda and ISIS, on account of his religion (citing ISIS as the most serious recent threat from the Sunni extremists);

    b.his father, [named], was threatened by radical elements within both the Sunni and Shiite communities due to his ‘well-known opposition to all forms of religious fundamentalism’. This forced him to flee to [Country 1] again in 2010 to resume residence with his family there (noting they initially fled Iraq whilst Saddam Hussein was in power and that the applicant assisted his father to return back to [Country 1] in 2010);

    c.the profile of the applicant’s father would lead the applicant to be targeted by both Sunni and Shiite radical groups;

    d.he has a Western education and is imputed to have adopted or embraced Western political, social or religious ideologies. His political way of thinking is ‘Westernized’ and he will also be perceived to be from a wealthy family having obtained a Western education, which makes him a target of both Sunni and Shia radical groups; and

    e.he cannot relocate to a Sunni area ‘for painfully obvious reasons’, cannot live in Shiite dominated areas where they exercise ‘self-security’, and cannot rely upon the effective protection of the Iraqi Government which does not exercise control in ISIS or Shiite militia held areas.   

    Section 438 Certificates

18. During the first review hearing, the Tribunal raised with the applicant that two certificates pursuant to s.438 of the Act were contained in the Departmental files. The Tribunal notes that a certificate pursuant to s.438 of the Act dated ]in] March 2016 is contained in Departmental file [number] with respect to folios 52 to 54, 59 and 96 of that file. The certificate is signed by a delegate of the Minister. The certificate indicates that release of the aforementioned material would be contrary to the public interest as it contains ‘information relating to an internal working document and business affairs’. The Tribunal provided a copy of the s.438 certificate to the applicant and he was invited to make a submission upon its validity. For the reasons which follow, the applicant’s representative did not wish to make a submission concerning the certificate or material as the Tribunal has placed no weight upon the latter.

19. The Tribunal noted that the material at folios 52 to 54 concerns Departmental identification and processing checklists and that at folio 59 concerns the personal particulars of an interpreter that was arranged for a Departmental interview with the applicant. The Tribunal advised its preliminary view was that the s.438 Certificate is valid with respect to the information at folios 52 to 54 and 59 in accordance with the public interest ground cited. However, given the administrative nature of the material, the Tribunal proposed to place no weight upon it and accordingly the representative did not wish to make a submission. The Tribunal also noted that the material at folio 96 is an email from the applicant to a Departmental Officer explaining why he travelled to [Country 2] using his old Iraqi passport and the circumstances by which his most recent Iraqi passport was issued. The Tribunal advised its preliminary view was that the s.438 Certificate is not valid with respect to the information at folio 96 as it was provided by the applicant himself and does not fit the public interest ground cited. However, given the administrative nature of the material, the Tribunal proposed to place no weight upon it and accordingly the representative did not wish to make a submission. Following careful consideration, the Tribunal finds that the s.438 certificate dated [in] March 2016 is invalid with respect to all of the material (that is folios 52 to 54, 59 and 96) as no public interest ground is properly cited, rather a mere description of the material is provided in the certificate. For the sake of completeness, the Tribunal confirms that it has placed no weight upon the material said to be covered by the certificate and records that the representative expressed his agreement to make no representations on the material on the basis that no weight was afforded to it.

20. The Tribunal also notes that a certificate pursuant to s.438 of the Act dated [in] September 2017 is contained in Departmental file [number] with respect to folios 63 to 65 of that file. The certificate is signed by a delegate of the Minister. The certificate indicates that release of the aforementioned material would be contrary to the public interest as it contains ‘documents or information that are internal departmental working documents.’ The Tribunal provided a copy of the s.438 certificate to the applicant and he was invited to make a submission upon its validity. For the reasons which follow, the applicant’s representative did not wish to make a submission concerning the certificate or material as the Tribunal has placed no weight upon the latter.

21. The Tribunal noted that the material at folios 63 to 65 concerns Departmental identification information pertaining to the applicant. The Tribunal advised its preliminary view was that the s.438 Certificate is valid with respect to the information at folios 63 to 65 in accordance with the public interest ground cited. However, given the administrative nature of the material, the Tribunal proposed to place no weight upon it and accordingly the representative did not wish to make a submission. Following careful consideration, the Tribunal finds that the s.438 certificate dated [in] September 2017 is invalid with respect to all of the material (that is folios 63 to 65) as no public interest ground is properly cited, rather a mere description of the material is provided in the certificate. For the sake of completeness, the Tribunal confirms that it has placed no weight upon the material said to be covered by the certificate and records that the representative expressed his agreement to make no representations on the material on the basis that no weight was afforded to it.

    Evidence at the first review hearing

22. The applicant’s oral evidence may be summarised as follows. He informed the Tribunal that he did not have the right to enter and reside in [Country 1] where the majority of his family lives. The applicant’s father holds [a specified] visa and as the applicant is a male aged over [age] years he is no longer eligible to be a dependant on that visa. The applicant indicated that all of his claims for protection are contained in his protection visa application which includes a typed Statutory Declaration dated [in] January 2015, and in a subsequent Statutory Declaration dated 6 September 2017 that he submitted to the Tribunal. He confirmed that he understood his written claims for protection, that they were accurate and truthful, and that he signed his application for protection and his Statutory Declarations.

23. The applicant confirmed that, as reflected in the Departmental delegate’s decision, he applied for his initial Student visa in [Country 1] [in] January 2013 and that it was granted to him [in] February 2013. He confirmed that he departed [Country 1] legally using his own Iraqi passport when travelling to Australia and arrived here [in] February 2013 as the holder of a Student visa. The applicant outlined that he lived in [a city in Country 1] from 1999, when he was aged [age] years, until he departed for Australia [number] years later. During that time he lived in [Country 1] with his parents and [siblings] (with one [subsequently] moving to [another country]), and he completed secondary school and [further studies]. The applicant’s last place of residence in Iraq was in Mosul province, where he resided from birth until he left for [Country 1] aged [age] years. He explained that he also resided in Baghdad for periods when visiting Iraq with his father between 2010 and 2012. The applicant noted that his father resided in Baghdad between 2008 and 2010 when he returned there from [Country 1] to [work] as [a teacher].

24. When asked by the Tribunal what he considered to be his home region in Iraq, the applicant responded Baghdad or Mosul. He indicated that he never worked in Iraq, but did so in [Country 1] in [specified occupations]. The applicant advised that his parents and one [sibling] remain residing in [Country 1], with [another] departing [Country 1] for [another country] ([for a stated purpose]) on the same day he departed for Australia. He advised that he has [Relative A] living in Al-Rifai, near the town of Nasiriyah in Dhi Qar province (which is in the South of Iraq). That [Relative A] is married and has an adult child who is also married ([details deleted]). The [Relative A] is a retired [Occupation 1] and the [child] is [an Occupation 1]. The applicant also has [Relative B] who lives in [Town 1], which is also near the town of Nasiriyah in Dhi Qar province. She is married and has [specified family members]. The applicant is unsure what these [relatives] do for work. In Baghdad, the applicant has [Relative B] who is widowed with adult children who work in [a business]. The applicant also has [Relative A] in Baghdad who has an adult son working in a [different business]. The applicant is from [named] tribe which is represented in Dhi Qar province. He is a Shia Muslim. The applicant indicated he does not practise his religion but still considers himself to be a Shia Muslim.

1. The applicant has worked in Australia as [an Occupation 2] and as an [Occupation 3]. He currently holds two [jobs]. The applicant advised he works 18 hours per week [as an Occupation 2 jobs] and for between 15 and 20 hours per week as an [Occupation 3]. He lives in a share [house]. The applicant advised the Tribunal that he [suffered an injury] whilst working and this prevents him from performing physical work, but does not inhibit his current employment. He awaits surgery on his [injury] which is to be performed under Work Cover arrangements. The applicant also advised he has [a further medical condition]. This is being explored by medical staff, however he is not receiving any treatment. The applicant also indicated he was previously diagnosed with depression by a General Practitioner, took one course of prescription medicine and then ceased the medication, and he has not been seen by a psychiatrist. With respect to his health, the applicant advised the Tribunal that he is not precluded from performing his current employment.

2. When asked by the Tribunal why he travelled to Australia in February 2013, the applicant replied that he did so to study [Subject 1] for 1 year. That study was subsequently extended and took approximately 1.5 years, due to the applicant facing difficulties adjusting to the Australian culture, way of study and him obtaining part time work. He advised that he had not sought a professional position in Australia due to his visa status and that he has no right to travel to another country and therefore has not applied for any offshore professional positions. The applicant confirmed that he applied for a second Student visa in Australia [in] March 2014, which was granted [in] May 2014, because he needed to extend his study period due to suffering from stress arising from the different study system in Australia and his need to gain part time employment as his family funded only part of his studies. He confirmed to the Tribunal that his stress arose from the different lifestyle he had in Australia compared to [Country 1] and the different systems of study between the two countries. The applicant successfully completed his [study] in Australia (and he also holds a [qualification] from [Country 1]), which he undertook with a view to obtaining a teaching position in an Arabic speaking country.

3. When asked by the Tribunal what he feared if he had to return to Iraq, the applicant indicated that he feared being killed, tortured or kidnapped. He indicated that he had not been to Iraq for a long time, did not have strong relations with his relatives, didn’t know people in Iraq and it would be very hard for him to go there. The applicant advised that he fears the South of Iraq because his father was a [professional] in Mosul, he is not known by himself and he must say he is the son of his father. The applicant advised that his life was in danger because he had no good relations with his relatives as he hadn’t lived there to establish such relations. He advised his father was a member of the Ba’ath Party and if he goes to a Shia area of Iraq he will be harmed. The applicant stated that as his Iraqi Identity Card reflects his place of birth as in Mosul province that causes a problem for him in Southern Iraq because he might be thought of as being a member of a group such as Al-Qaeda. He added that a person from Mosul province requires a sponsor in Southern Iraq for them to live there. The applicant outlined that Baghdad is a mixed area, he visited his father there for 15-20 days, and that he left Iraq as a child. He stated it was impossible for him to return to live in Mosul province as he is a Shia Muslim.

4. The applicant informed the Tribunal that his father was [a teacher] at [College 1] for 22 years, and had studied in [another country]. His father studied in the field of [deleted] and subsequently taught in that topic. The applicant’s father had good relations with the Ba’ath Party and rose to a position as [Position 1] at [College 1], which was difficult to do as a Shia Muslim in a Sunni dominated area. His father taught in [Country 3] between [year range] which caused jealously among the Sunni dominated staff of [College 1] who were not selected for the exchange (as extra pay and allowances were provided). By 1998 his father felt under pressure from other [teachers] and they moved to Baghdad so he could obtain a medical retirement. This was necessary in order for the applicant’s father to subsequently depart Iraq, as [details deleted] (as noted earlier the applicant moved with his family to [Country 1] in 1999 when he was aged [age] years).

5. When asked by the Tribunal when he first developed his fears of harm in Iraq, the applicant outlined that in 2008 when his father returned to Iraq as [a teacher] [an item] was thrown into his residence by a terrorist group. The applicant confirmed that he had no fear of harm in Iraq prior to 2008. The Tribunal raised with the applicant that in his initial written claims he indicated he was claiming persecution on the grounds of religion and political opinion (actual and implied), referred to being at risk from Sunni militant/Jihadist groups (specifically citing the an-Naqshabandiya Army) who would attack him as a Shiite and because his father was a well- known [person] who fled Iraq due to threats from radical Sunni groups, and asked him if he could provide further details. The applicant advised that the militants threatened his father but not himself personally. When his father returned to Iraq in 2008 he went to a Sunni majority area. After a while his father found [an item] in his residence from the an-Naqshabandiya Army regarding persons who had cooperated with the Government being tortured. The applicant’s father rung his family in [Country 1] to advise of this situation and he subsequently moved his residence to another part of Baghdad.

6. The applicant’s father moved to [an] area of Baghdad, which is a religiously mixed area. The [supervisor] at his father’s work was a supporter of the Al Sadr movement (a Shia movement lead by Muqtada Al Sadr), and possibly a member or supporter of the Jaysh Al-Mahdi (a Shia militant group linked to Muqtada Al Sadr, also known as the Mahdi Army in English). The applicant’s father rejected overt displays of religious devotion when Shia religious festivals were held and he would not display religious photographs as was the expectation. The applicant advised there was a mutual level of fear and distrust between his father and the [supervisor], with the latter worried the former would take his position due to being better qualified. The [supervisor] apparently started to examine the past of the applicant’s father and how he came to obtain a position at [College 1] in Baghdad. When asked by the Tribunal how his father could obtain [a teaching] position back in Iraq in 2008 in a Shia led country if he were previously a senior Ba’athist, the applicant indicated that [a senior official] visited [Country 1] and invited Iraqi professionals to return to Iraq regardless of age, reason for departing Iraq or their circumstances.

7. The Tribunal raised with the applicant that in his initial written claims he indicated he was claiming persecution on the grounds of religion and political opinion (actual and implied), referred to being at risk from Shiite groups/militias (specifically citing the Mahdi Army) who would attack him on the basis of his father’s well-known opposition to all forms of religious fundamentalism as a Shiite and because his father was a well-known [teacher] who fled Iraq due to threats from radical Shiite groups, and asked him if he could provide further details. The applicant advised that due to the conflict between his father and the [supervisor], a car began to follow the former as he departed [his workplace] for home. The applicant indicated a sectarian war took place in 2008, with the Mahdi Army controlling portions of Baghdad and being the only real opposition to the Sunni militants there. According to the Shiite radicals they saw no ‘middle ground’ in people, they were either with them or against them. As the applicant’s father [worked] in Mosul and was a member of the Ba’ath Party, the Shiite radicals did not trust him anymore. The [supervisor], fearing the applicant’s father, influenced the Mahdi Army to prevent him from doing his [work]. The applicant submitted a translated copy of a Ministerial Order dated [in] 2010 which indicates that his father’s employment at [College 1] in Baghdad was terminated as he had reached the retirement age, yet he was hired when already being over such age. He advised the Tribunal that he submitted the original document to the Department (which the Tribunal accepts). The applicant indicated that his father had moved residence in Baghdad after the matter of the car following him, he then questioned why he would remain in Iraq and started thinking of a return to [Country 1].

8. The applicant outlined that in February 2010 he went to Iraq to assist his father’s departure and to attend the funeral of his father’s [relative] (who died of natural causes). The applicant advised that he flew into Baghdad and spent around [number] days there, then he drove with his father around 4.5 hours to attend the funeral in Al Rifai in Dhi Qar province, where he spent around [number range] days. Whilst in Al Rifai, the applicant visited a Government Department to renew his personal documentation, including a Birth Certificate. The applicant and his father subsequently drove back to Baghdad and spent around [number range] days there together. They packed up some possessions and then travelled [together] to [Country 1], a journey of around [time].

9. The applicant advised that in May 2010 he travelled from [Country 1] to Baghdad by [himself]. He spent around [number] days in Baghdad, assisting his father to pack up the remaining possessions in his residence. The residence is still owned by the applicant’s father and is rented. During this visit to Iraq the applicant went to the shops and on his way back to the residence he was stopped at gunpoint by three men who questioned why he was in the area as he was an unfamiliar person. They were agitated as there had been a recent kidnapping in the neighbourhood. During the ensuing argument a neighbour intervened and vouched for the applicant, thereafter the men left him alone. Five days after that incident, the applicant departed Baghdad [to Country 1]. When the Tribunal raised with the applicant that the aforementioned incident appeared to be an incident related to the kidnapping, rather than a militant incident directed towards him, he agreed but indicated it demonstrates that these incidents can happen anywhere in Iraq.

10. When asked by the Tribunal if he had any more evidence concerning Shia groups, the applicant indicated that such groups take funding from neighbouring countries and religious groups. A part of their operations includes kidnapping, torturing and ransoming people. They are linked with Government troops, take weapons from one area to another, and they do things for their own benefit. He contended that this places him in trouble because he was born in Mosul province, and as he hasn’t lived in Iraq for a long time he is at threat from kidnapping and ransom. The applicant added that his Iraqi Identity Card indicates he was born in Mosul province as well as noting he is a Muslim (but does not identify the branch of Islam). He indicated that different Shia militant groups are regularly created, have different financing arrangements and come into conflict with each other. Such conflict harms the normal citizen. The applicant confirmed he had no more evidence to provide regarding Shia militant groups. He added that Sunni militant groups would kill him straight away in revenge and confirmed he had no further evidence to provide about such groups.

11. When asked about his claims regarding his time spent living in the West, the applicant indicated that as he had lived overseas for a long time he is not willing to return to Iraq and ‘go back to living their way’ as his ‘mentality has changed’. He outlined that many people are thieves and corrupt. During the last 13 years the Southern region has received money from the central Government but even basic infrastructure needs are not met. Funds supposed to be used for reconstruction in the South are not used for that purpose and the militant gangs influence the use of them. He stated that each group attempts to put its people in highly regarded positions, and work in cooperation with the police to control an area. As he has lived overseas he cannot go back to a place he doesn’t know where there are no services such as technology and security. The applicant indicated Iraq was not like Australia and there people need someone to support them. There is no fairness and security, complaints to the police aren’t effective, the police can hurt people as they work with the gangs and they can examine a person’s Identity Card. The applicant advised he would be a ‘target from all’ because he doesn’t know anyone, the central Government cannot protect him, and it is a tribal society. He added that women are swapped to solve problems and he cannot survive there after living in a civilised country. He indicated the economy and security were worse there, he has no tribe and nobody to assist him. The applicant advised that his [relatives] cannot assist him as they are elderly and he cannot return to Baghdad as it is too dangerous. He fears returning to Iraq.

12. The applicant confirmed that his Iraqi Identity Card notes he is a Muslim and that his place of registration is Al-Rifai. His father enabled him to be registered in that town as he himself was born there. The applicant confirmed that his registration follows his father’s place of birth (Al-Rifai), but his own place of birth (Mosul province) is also noted on the Identity Card. The applicant explained that his father departed Al-Rifai in [year]. The applicant gave inconsistent evidence regarding whether his father was currently well known or not in the vicinity of Al-Rifai. On one hand the applicant contended that his father was well known because of his tribe, yet not all people in Al-Rifai know him, and that people in his [Relative A’s] village know that his family has a [teacher] from Mosul, yet they don’t know him personally. In response to questions from the Tribunal seeking to clarify the profile of his father in the region, the applicant indicated that ‘normal people’ in Al-Rifai and Dhi Qar province might not know him, but persons in the Government Executive Office of the town would know of him as the head of the office is from a major party. When asked again by the Tribunal if his father was well known in Al-Rifai, the applicant indicated that he was well known because not many people have such high level qualifications. When asked by the Tribunal why he would be seen as an outsider and at risk of being denied services if his father was well known in the region, the applicant responded that his father was a Ba’athist and didn’t struggle against the Saddam regime.

13. The applicant outlined that under the previous regime, persons born after 1957 had no right to buy property in Baghdad in order to prevent migration from the agricultural areas. Therefore, children were registered in their father’s place of birth. When asked by the Tribunal to clarify whether his father is well known in the local area, the applicant advised that it depends upon which area one is going to. In the local area ‘nobody’ would know his father and the applicant contended he would be seen as a guest. The applicant stated that ‘it is easy for him to settle in that area’ and he can present his CV and qualifications there. However, people close to the applicant’s [Relative A] would know who his father is. The applicant then contended that at the Dhi Qar Government Executive Office, once they saw his birthplace of Mosul province on his Identity Card he would be denied employment, but this would be different for his father who was born in Dhi Qar province. The applicant confirmed that his Iraqi Identity Card was issued in Al-Rifai when he was there and the Tribunal raised with him that this might tend to suggest he was not denied a Government service there. He replied, ‘yes, of course’ as his father was from the South it was issued there. The Tribunal observed the applicant’s demeanour to be evasive, and his evidence inconsistent, regarding whether his father is, or is not, well known in the vicinity of Al-Rifai in Dhi Qar province.   

14. The Tribunal raised with the applicant that it might have difficulty accepting that his father is a high profile Ba’athist given that this was not initially raised in his initial written application for protection and further because he was able to resume work in [his occupation] in Iraq from 2008 to 2010, inviting his comment. The applicant advised that he had submitted documentation indicating his father was a member of the Ba’ath Party. He added that his father had donated gold and money to the Party in the past. The applicant indicated that for his Shia Muslim father to be [Position 1] at [College 1] demonstrates strong Ba’athist links, as does his stint on exchange in [Country 3]. The applicant explained that in 2008 [a senior official] came to [Country 1] and invited people to return to Iraq where they would obtain their previous benefits, even if they were older. His father’s qualifications got him back to live in a mixed area. The applicant indicated that once his father had returned to teaching in Baghdad, some people started to become jealous of him and explored his background including his teaching at Mosul and how he came to receive his [teaching] position back in Iraq. The applicant advised that his father went back to work in Iraq from [Country 1] and would return to visit his family there [regularly] on leave. The applicant’s father received the [item] from the extremist group around 5-6 months after returning to Iraq in 2008 and feared for his safety after this time.

15. When asked by the Tribunal to outline his own political way of thinking, the applicant indicated he had not been involved in political activity. Rather, he was referring to having ‘the lifestyle of the West’ with respect to this portion of his written claims. He added that he was referring to the safety, security, freedom, equality, freedom of employment and fairness. The applicant confirmed to the Tribunal that he had never been involved in any political activity at all concerning Iraq and had never protested publicly against the Iraqi Government. When asked by the Tribunal if he ever faced harm himself in Iraq, the applicant stated ‘no’ and then referred to the kidnapping incident previously outlined.

16. The Tribunal asked the applicant if he had any other reasons for seeking protection in Australia. He responded that at his age he has been integrated and found stability here. He stated that he came to Australia with no support, was dependent upon himself and found a way to integrate. He lived in some harsh times, paid his tax and lived in an equal way. He indicated he built himself up here due to the fairness and equality. He is [age] years old, wants to feel secure, establish himself and doesn’t want to start from scratch. When asked by the Tribunal if his religion was a reason he could not return to Iraq, the applicant replied that he is not practising religion. He added that they know from his tribal name that he is from the South of Iraq. The applicant advised that he considers himself a Shia Muslim but he is ‘not that religious’. He then outlined a television segment he saw on Channel 7 reporting upon a Shia Muslim cleric being verbally abused in Lakemba, Sydney as an example of religious intolerance.

17. The Tribunal raised with the applicant that the Iraqi passport he submitted to the Department was issued [in] 2008 and asked how he obtained it. The applicant explained that his latest passport was issued in [Australia], he applied for it in [2016], and he has not travelled on that passport. He advised that the 2008 passport was obtained from the Embassy in [Country 1], it was a [specified] series version but he travelled to [Country 2] on an earlier [different] series version which lacked appropriate fraud control features. The applicant confirmed that he went to [Country 2] for [a period] in 2008 to work, travel and gain experience. The applicant thinks his father was working in Iraq at the time he obtained his own passport in 2008. When asked by the Tribunal how many times he had returned to Iraq since taking up residence in [Country 1] in 1999, the applicant advised he attended a funeral in February 2010, and went again in May 2010. He also indicated he went again in October or November 2011 with his father who checked on the house he owned in Baghdad and ‘went to do papers’. On that trip they [travelled] from [Country 1] and stayed in a small unit attached to his father’s house in Baghdad (subsequently described as a ‘granny flat’). They were both in Iraq around one week, experienced no problems, and travelled back to [Country 1] [together]. The applicant advised that he also returned to Iraq from [Country 1] in October 2012 when he ‘went to authenticate papers’ (including his [qualification]) in connection with his upcoming study in Australia. He went with his father on that trip, they stayed in the same unit attached to their house in the [named] District of Baghdad, and they experienced no trouble. The applicant and his father just stayed in Baghdad and returned together to [Country 1].

1. The Tribunal asked the applicant if, when returning to Iraq with his father after 2008 following his return to work in that country, he was fearful of being harmed as a result of his father’s views or conduct or for being a part of his family group. The applicant replied that he was fearful and he stayed with his father because he himself didn’t know where to go. When asked by the Tribunal if he was so fearful why he returned to Iraq, the applicant responded that they just went for ‘short trips’. He added that Australian citizens even travel to Iraq for short times and that this was ‘normal’ conduct. When asked by the Tribunal if he was fearful returning to Iraq in his father’s company, the applicant replied that he was fearful. When the Tribunal asked why then he would return with his father, the applicant stated that he couldn’t leave his father by himself as he is the only son. The applicant subsequently confirmed to the Tribunal that he travelled to Iraq from [Country 1] on the following dates as reflected in his previous passport; [between] February [and] March 2010, [between] May 2010 [and] June 2010, [in] November 2011, and [in] October 2012.

2. The Tribunal drew to the applicant’s attention that a previous passport indicates he obtained a visa to [Country 2] [in] May 2008, arrived there [in] June 2008 and departed that country [in] September 2008. The applicant confirmed this to be correct. When asked by the Tribunal of the circumstances of that visit, the applicant explained that he went on a work and travel visa as he was studying [a subject] in his [qualification] and required practical training. He lived in [Country 2] and his father was working back in Iraq by then. The applicant recalled calling his father in Iraq on the telephone from [Country 2]. The Tribunal asked the applicant why he did not seek protection in [Country 2] on that visit. He responded that he had no knowledge of the problems faced by his father in Iraq at that point. The applicant maintained that the threats to his father happened after his own trip to [Country 2] and his father had not mentioned them to him at that point. The applicant advised he could get a visa normally as he was resident in [Country 1] then and it was not on his mind to apply for refugee status because he hadn’t decided to go back to Iraq at that time.

3. The Tribunal raised with the applicant that it might have some difficulty accepting the genuineness of his claims for protection given that he travelled back to Iraq with his father on the previously mentioned dates between 2010 and 2012, including after his father moved back to [Country 1] in 2010 purportedly fearing for his life as a high profile former Ba’athist who had come to the adverse attention of both Sunni and Shia militant groups due to his political and religious views, inviting his comment. The applicant responded that his two visits in 2010 were short visits where he went to help his father move back to [Country 1]. He cited that he returned initially when his father’s [relative] passed away and his longest visit on the next occasion in 2010 was about [number] days. The applicant advised in 2011 he only stayed for [number] days. He indicated that ‘nobody knows you’, there was ‘not much danger’, it is different living there and that he had not much direct contact with society. He added that he had to help his father feel safe. The applicant advised that his visit in 2012 was to authenticate documents in relation to his upcoming study in Australia. He advised he had to do this himself as he had no other relatives who could do this.

4. The Tribunal asked the applicant why he would return to stay in the ‘granny flat’ of his father’s residence if he was scared for his safety. He replied that they kept it for him to stay in, that the neighbours didn’t notice who was in the granny flat because the main house is rented and the flat is not noticeable from the street. When asked by the Tribunal if many Australian citizens return to Iraq, the applicant indicated he hears this often happens. However, he denied that he would return himself and noted he only wanted to visit his family in [Country 1].

5. The Tribunal raised with the applicant that it might have some difficulty accepting the genuineness of his claims for protection given that following his time living in [Country 2], which is a Western country where he was exposed to Western culture and political ideas, he travelled back to Iraq between 2010 and 2012 on the dates mentioned, inviting his comment. The applicant responded that his Western society education derives from Australia and not from [Country 2], which was a short term visit. He advised the Western education portion of his claims for protection applies to Australia. The applicant indicated Iraq is a conservative society and he now considers himself open minded in his way of thinking. He has lived in an affluent society and his way of acting and thinking is now different. He added that even talking to females again in Iraq would be difficult. The applicant stated that he has nobody to support him in Iraq and he has a different mentality.

6. The Tribunal raised with the applicant that with his Statutory Declaration dated 6 September 2017, he submitted English language translations and not originals of the following documents; a particulars of service document for his father noting his [teaching] credentials and that he was an ‘active Baathite’, a police report dated [in] September 2008 in respect of his father indicating he received threats from the al-Naqshabandiya Order, a police report dated [in] November 2009 in respect of his father indicating he has been followed many times by a car in Baghdad, and a police report dated [in] June 2010 in respect of the applicant indicating he was attacked for abduction in relation to another abduction in the local area, inviting him to provide further details. The applicant indicated the documents show his father was a member of the Ba’ath Party and one was prepared in 1990 on an old type writer before he went to teach in [Country 3]. The applicant advised he always had the police reports but nobody asked for them. He sent in the English translations to the Tribunal and still has the Arabic documents. He advised the police reports were made to inform the police at the time but they did nothing. He also indicated it was hard to get documents showing his father was a member of the Ba’ath Party so he provided the old documents. The applicant also advised he did not know of the incident with his father in 2008 until he returned to [Country 1] from [Country 2], even though that incident occurred towards the end of his trip to [Country 2]. He stated that in 2010 he went to the police with his father to obtain the police report straight away following the attempted kidnapping incident.

7. The Tribunal raised with the applicant that it might have some difficulty accepting the genuineness of the above mentioned documents given that they were recently provided to it, well after the Departmental visa refusal decision and as the specific contents of the documents were not included in the initial written claims for protection, inviting his comment. The applicant denied fabricating his story, noting if he wanted to he would have said he was actually kidnapped. He stated that it was ‘accidental’ what happened to him in Baghdad in June 2010, and he attributes the incident to unknown persons. When asked by the Tribunal why he submitted the documents pertaining to his father only recently, the applicant responded that the Department didn’t ask for them and now he is providing them in support of his claims. He indicated the car following his father in Baghdad ‘maybe’ involved the [supervisor] at [College 1] in Baghdad or the Mahdi Army. The Tribunal raised with the applicant that it might have difficulty accepting the incidents and interactions with the police noted in the documents occurred as they were not given to the Department and were only recently provided to the Tribunal, inviting his comment. The applicant responded that all documents were provided to his migration agent and the agent sent information about his qualifications when requested by the Department to do so. The applicant maintained that his father’s involvement with the Ba’ath Party was noted in his CV which he submitted to the Department and noted that no Shiite could become [Position 1] at [College 1] without such involvement.

8. The Tribunal asked the applicant again why all incidents of harm were not specifically mentioned in his written claims for protection and he replied that he has all of the documents with him. The Tribunal raised with the applicant that it might have difficulty accepting the genuineness of these incidents given they were not specifically mentioned in his initial written claims, inviting his comment. He replied that he mentioned the incidents at the Departmental interview. He added that he subsequently provided documents showing his father was a member of the Ba’ath Party, his father’s CV was submitted to the Department and it indicated his father was a member of the Ba’ath Party, and generally he didn’t mention this in detail as it was well known that a person living in a Sunni area holding a high position must be a member of the Ba’ath Party. The applicant advised that Shiites were persecuted under Saddam, they could not move freely within Iraq and the documents he provided concerning his father from the 1990’s indicate he was an active Ba’ath Party member and in good cooperation with the Government.

9. The Tribunal raised the following country information from the Department of Foreign Affairs and Trade (DFAT), concerning Iraqi documents, with the applicant. ‘Counterfeit documents or fraudulently altered / obtained documents are commonly and cheaply available.’[1] The Tribunal indicated that this might tend to suggest the documents he provided were not genuine, inviting his comment. He indicated that he was in Australia, his father was in [Country 1], and he had nobody in Iraq to obtain false documents for him and it would not be worth the risk to go back to Iraq and authenticate his [qualification] as he himself did if he was going to provide false documentation. He maintained that the Department did not ask him to provide his documentation. The Tribunal asked the applicant why he would not provide all relevant documents when making his claims for protection. He replied that he provided the ‘essential’ documents for his claim and he is now providing all documents to the Tribunal.

   [1] DFAT Country Report Iraq, 26 June 2017 at paragraph 5.37.

10. The applicant was invited to submit any further documentation and he supplied a copy of documents including media articles, [his] Counsellor notes, [his Australian] University results, [from Country 1], a translated Ministerial Order dated [in] 2010, translated Iraqi Identity Card, copy of current Iraqi passport, translated Residence information from Nineveh Governorate dated [in] 1994, identity documents regarding the applicant’s father, and correspondence pertaining to an appeal of a [WorkCover] decision dated [in] October 2017. The [Counsellor] notes dated [in] January 2014 and [March] 2015 reflect that the applicant had received counselling for significant family and personal stressors and supported him to have a reduced study load and withdraw from his failure in first semester 2013 without penalty. 

11. The [state agency] ‘Reasons for decision’ correspondence dated [in] October 2017 pertains to an appeal of a [WorkCover] decision to reject a compensation claim of the applicant due to non-compliance with time limits. The decision indicates the applicant sustained a [injury detailed] [in] September 2016 whilst working as [an Occupation 2] and also notes medical evidence that the applicant had [specified treatment] in 2007 in [Country 1]. The decision overturns the prior assessment that the applicant was out of time to lodge the claim and refers the matter back to [WorkCover] for assessment.

12. The Tribunal asked the applicant if he had any more medical documents and he indicated he would provide more later (although ultimately he did not do so). The Tribunal raised with the applicant that it might have difficulty accepting the genuineness of his claims said to be corroborated by the Iraqi documents above, and also in accepting that he and his father experienced any threat of harm or harm given specific examples were not provided in his initial written claims for protection, inviting his comment. The applicant responded that he provided the ‘essential’ documents initially and subsequently provided the documents ‘secondary to the application.’

13. The Tribunal raised with the applicant that it might have some difficulty accepting the genuineness of his claims for protection given that he arrived in Australia [in] February 2013, applied for another Student visa [in] March 2014 and delayed applying for a protection visa until [January] 2015, inviting his comment. The applicant replied that when he came initially as a student he had difficulties, illustrated by the [agency] certificates provided (from the counsellor) and he received an extension of time to study. When asked by the Tribunal if he was in fear of serious or significant harm in Iraq then why wait about 2 years from arriving in Australia to applying for protection, the applicant replied that he thought if he had his [qualification] he could get a better job. He then cited the Arab Spring as a reason influencing his decision to seek protection. The Tribunal raised with the applicant that his delay of almost 2 years might undermine his claims and also that he had a genuine fear of serious or significant harm, inviting his comment. He replied that he needed his qualification so if he was sent back to Iraq he would have other options therefore he was determined to complete his studies. He added that he feared going back to Iraq and therefore applied for protection.  

14. Pursuant to the procedure in s.424AA of the Act, the Tribunal raised with the applicant the following information. The Departmental file [number], in relation to his first Student visa for Australia, contains a copy of the application for that visa. At question 38 he provided the following reasons for undertaking his intended course of study in Australia: “I would like to study [Subject 1] because I want to improve my academic background. and also studying [a further qualification]will help me to get my dream job as a [teacher] at one of the [Country 1] [colleges] or in the Arab Gulf to follow the steps of my father. And will also help me to improve my English.” The Tribunal indicated that this information is relevant as it tends to suggest that his purpose in coming to Australia in 2013 was to undertake a [Subject 1 course] then seek employment in [Country 1] or the Arab Gulf, not because he feared harm in Iraq and was seeking protection in Australia. Further, the information casts doubt upon his credibility and the genuineness of his claims for protection. The Tribunal advised that if it was to rely upon this information it would be the reason, or part of the reason, to affirm the decision under review as he would not be considered to meet the Refugee criteria or be a person entitled to Complementary Protection. The Tribunal offered the applicant the opportunity for an adjournment before responding, however he chose to respond immediately.

15. The applicant responded to the s.424AA information indicating he had advised the Tribunal that he came to study to get the option to go back to places including [Country 1] or the Gulf countries, however after completing his study he realised that he wouldn’t get a work contract in those places as he is an Iraqi and also due to the Arab Spring. The applicant also cited the sectarian conflict between Shia and Sunni and the media reinforcement of the sectarian argument as indicating to him that he could not return to Iraq, which is the only country that would accept him. He advised he was honest in his Student visa application and in that he required the qualification. He confirmed his Student visa application was about study, not protection. The applicant added that he obtained a study extension for his course and was unclear on why he would have to mention fear for ‘back home’ at that time.

16. The Tribunal raised with the applicant that he submitted several documents to the Department including his resume, items concerning his father’s residence in [Country 1], employment references regarding his father, and identity documents for both of them, inviting him to provide further information. The applicant advised initially that he had nothing further to add, then indicated the documents show his father’s history, and how he obtained his lawful residence in [Country 1] by [specified means]. The Tribunal raised with the applicant that whilst these documents might suggest his father worked as [a teacher] in both [Country 1] and Iraq, they do not tend to suggest he held any religious or political views that would bring him to any adverse attention including from Sunni or Shiite militant groups, inviting his comment. The applicant advised that his father worked in Mosul which is a Sunni majority area and most Sunni’s received benefits from Saddam. When his father left Iraq for [Country 1] he had nothing against Saddam. His father is [a teacher], not a political person. When his father criticised others who are ignorant that caused him problems. The [teachers] at Mosul were Sunni, when Saddam fell different militia controlled the [teaching] institutions and put their own people in. According to the applicant, this made his father upset because others were not qualified.

17. The Tribunal raised with the applicant that his educational qualifications, ability to travel abroad and establish himself in new countries (including his oral evidence that he set himself up in Australia by himself), and his family links to Dhi Qar province in Southern Iraq, tend to suggest that he could live in that region as a Shia Muslim if he returned to Iraq, inviting his comment. The applicant responded stating, ‘of course the qualification qualifies him to work in Iraq.’ However he indicated that a civilised country cannot be compared with a country coming from a brutal war which is full of corruption. He advised that he could not find employment unless part of a group or militia. He added that Iraq can’t be compared to Australia and there persons don’t accept persons from other areas. The Tribunal raised with the applicant that he has some medical issues but is still working in Australia. He agreed, indicating in spite of his health he must work. The applicant added that he is able to perform certain work that is not physically hard.

18. The Tribunal raised the following open source country information with the applicant. An article by Mr Joel Wing dated 6 November 2017 states,  

    “Iraq is currently witnessing some of the lowest levels of violence since the 2003 overthrow of Saddam Hussein. That was precipitated by the defeat of the Islamic State in Mosul in July 2017. There was no way the organization could hold its remaining territory in Iraq, so why put up a fight and lose more men when it could fight another day. Its cadres were collapsing while it was also falling back to regroup. Even before that however, security had been improving in Iraq as IS was not able to sustain its attacks across the country like it once had…Since 2014 there has been a steady decline in the number of incidents in Iraq.”[2]

    [2] Mr Joel Wing, 6 November 2017, How violence declined in Iraq 2014-2017, accessed 17 November 2017.

19. The Tribunal also raised the following open source country information with the applicant. An article by Mr David Zucchino dated 25 October 2017 states, 

    “The American commander of the international military campaign against the Islamic State in Iraq and Syria said Wednesday that the militants were “on the run” and facing defeat as the American-led coalition made plans to kill or capture several thousand remaining insurgents. The Islamic State, also known as ISIS, ISIL or Daesh, is clinging to roughly 5 percent of the territory it controlled in the two countries three years ago, the commander, Lt. Gen. Paul E. Funk II, said in an interview.”[3]

    [3] Mr David Zucchino, 25 October 2017, Islamic State is ‘On the Run’ US Commander Says, New York Times, accessed 17 November 2017.

1. The Tribunal raised with the applicant that the country information above might tend to undermine his claims for protection on the basis of being subject to harm from militant groups, particularly ISIS, inviting his comment. The applicant responded that this information comes from media reports and the incident which happened to him personally occurred in Baghdad. He added that many militant groups remain hidden and corruption exists in Iraq. He opined that if Daesh (ISIS) is finished in Mosul their weapons will go elsewhere, there are other armed groups involved in a struggle and with the amount of weapons there it is easy for people to be shot. The applicant confirmed the incident he raised earlier (the mistaken kidnapping incident) occurred in Baghdad. He indicated that the above mentioned authors cannot guarantee Iraq is safe, his own relatives in Southern Iraq cannot help him, he cannot remember their children’s names and he hasn’t lived with them.

2. The Tribunal raised the following country information from DFAT, concerning religion, with the applicant. ‘The 2005 Iraqi Constitution makes Islam the official religion of the State.’[4] ‘Shias have traditionally lived across Iraq. The sharp increase in sectarian violence since 2003 has seen most Shias leave Sunni areas, with the exception of Turkmen and Shabak Shia who have only recently been forced to relocate to other areas due to the rise of ISIL. As the majority community in Iraq with a dominant role in the Government, Shias face little to no official discrimination in government-controlled areas. In these areas, DFAT assesses that reported instances of societal discrimination are likely to be associated with patronage and nepotism, such as not having the right contacts to secure access to jobs or housing. In areas where Shias are not the dominant ethnic or religious group, societal discrimination is likely to be more pronounced, but still closely linked to patronage and nepotism. Relocation to Shia areas would reduce this risk substantially, although DFAT notes that relocation would be difficult for anyone without familial or other links in the area they are relocating to…’[5] ‘Shia communities are subject to both indiscriminate and targeted violence at the hands of ISIL. Violence targeted at Shias is particularly prominent in Baghdad…Attacks in and around Baghdad by ISIL have persisted, and even increased, since the beginning of the military operation in Mosul.’[6]

   [4] DFAT Country Report Iraq, 26 June 2017 at paragraph 3.21.

   [5] DFAT Country Report Iraq, 26 June 2017 at paragraph 3.31.

   [6] DFAT Country Report Iraq, 26 June 2017 at paragraph 3.32.

3. ‘Violence between opposing Shia militias (including those that fall under the umbrella of the PMF) does occur and is more pronounced in Shia areas (such as Baghdad and the south). This is sometimes linked to other criminal activities, including robberies and kidnappings. Credible in-country contacts suggest that the risk of being caught up in intra-Shia violence is predominantly borne by those who are actively involved in the militia or tribal group, rather than ordinary civilians who may be perceived to be part of a militia or tribal group’s constituency.’[7] ‘Overall, DFAT assesses that official and societal discrimination against Shias is low, particularly in Shia areas. Shias in Baghdad face a moderate risk of violence, whereas Shias in other Shia areas (such as the south) face a lower risk of violence. Any Shias remaining in ISIL-controlled areas face a high risk of discrimination and violence.’[8]

   [7] DFAT Country Report Iraq, 26 June 2017 at paragraph 3.33.

   [8] DFAT Country Report Iraq, 26 June 2017 at paragraph 3.34.

4. The Tribunal raised with the applicant that the DFAT country information regarding religion does not tend to support his claims that he will face or suffer any harm if he returns to the South of Iraq on account of his Shia religion or religious practise, inviting his comment. The applicant stated that he is not afraid to go back to a Shia Muslim area because he is a Shia Muslim. He indicated his fear is about his father who was a member of the Ba’ath Party. The applicant advised that he has nobody to support him there, no fairness or equality of employment exists there and he cannot get his rights because nobody backs him. He advised the Shia are linked to criminal activities and robbery, and they enter groups for their own benefit. The applicant noted that the report indicates if a person has no relatives then it can be dangerous. He stated it would be hard for him to adapt to the situation there. His fear is because of his father’s past and he fears a foreign country. He emphasised that his father was a member of the Ba’ath Party and the Shia are against this. The applicant confirmed to the Tribunal that there is no religious aspect to his fears in Southern Iraq (either for his branch of Islam, practise, non-practise or any other aspect), rather it is because of his father, himself having lived in a Western country and because he has no links in Southern Iraq. He added that he is a liberal person and doesn’t want to follow other groups.

5. The Tribunal asked the applicant to clarify his comment concerning him being a liberal person not wanting to follow other groups. He indicated that he won’t practise his religion and won’t follow the sheiks. He then advised he has a fear due to religion in Mosul and Baghdad. The Tribunal drew to the applicant’s attention that he raised written claims concerning his religion, then provided earlier oral evidence indicating religion was not part of his claims, and asked for further clarification. He confirmed he feared harm on the basis of his religion in Mosul and Baghdad. He stated there was no harm for him with regard to his Shia Muslim religion in Southern Iraq, rather it is because his father was a member of the Ba’ath Party. The Tribunal drew the applicant’s attention to paragraph 27 of his Statutory Declaration dated 6 September 2017, where he indicated fear on the basis of his ‘non-religious conformity’ and asked for clarification. The applicant advised that he was not a person who would do what he is told to do, he won’t join this group or that group. If he is asked by fatwah (an Islamic ruling) to fight ISIS he will refuse.

6. When asked by the Tribunal if he had any more evidence to provide concerning his religion, the applicant advised that he is not practising his Shia religion because he grew up in a Sunni area. He contended he did not know Shia customs, and he does not want to listen to them or follow them. He indicated on one hand he would be a Shiite Muslim living in a Shiite Muslim area but he is not willing to follow their practise or their way of acting. The applicant reiterated his main fear is because his father was a member if the Ba’ath Party and how this would affect him in Southern Iraq. The first review hearing was then adjourned.

   Evidence at the second review hearing     

7. The review hearing was resumed on 21 December 2017. The applicant’s oral evidence may be summarised as follows. When asked by the Tribunal of his father’s current circumstances, the applicant advised his father holds [a specified] visa permitting him to reside in [Country 1]. [Visa details deleted.] The applicant described his father’s financial positon as stable, he ‘is not rich and not poor’. The applicant added that ‘I think he have some money’. The applicant explained that his parents also have the equivalent of superannuation, they rent out the house owned by his father in Baghdad, and his father owns an apartment in [Country 1]. Upon further exploration by the Tribunal of his parent’s financial position, the applicant then indicated his parents are ‘not really good financially’ having only enough funds to cover their expenses. He added that he receives no financial assistance from them now. The Tribunal observed the applicant to provide an inconsistent account with regard to his parent’s financial position and to change tack with his evidence.

8. The Tribunal drew to the applicant’s attention that at the first review hearing he indicated he wanted to obtain qualifications from Australia before applying for protection so if he was returned to Iraq he would have other options with his qualifications and asked if he wished to provide further information. The applicant advised that he obtained the qualifications in order to obtain a proper job in the Gulf countries or in Iraq if the situation were stable. He added that he hasn’t lived in Iraq for a long time.

9. The Tribunal drew to the applicant’s attention that at the first review hearing he indicated that he is not practising the Shia religion because he grew up in a Sunni area and as this topic was not specifically raised in his written claims for protection the Tribunal might have difficulty accepting them. The applicant confirmed that he was raised in a Sunni area, but was not raised as a Sunni, and therefore he wasn’t so aware of ‘Shia things’.         

10. The Tribunal drew to the applicant’s attention that at the first review hearing he indicated that he is not afraid to go back to Shia Muslim areas of Iraq on account of being a Shia Muslim, that there were no religious aspects to his fears of returning to Southern Iraq, rather his fears related to his father’s past, having lived in a Western country and having no links in Southern Iraq. The Tribunal asked the applicant if this was correct. The applicant responded that he doesn’t have a fear of returning to a Shia dominated area, his fear is because he doesn’t practise Shia religion and customs in these areas. He added that his fear is mainly concerned with the history of his father, him having lived in Western country and having no links in Southern Iraq. The Tribunal asked the applicant to clarify his claims with respect to his religion. He responded that he must dress like them and participate in religious events to show he is the same. He added that of more importance was those claims related to his father, his Western thinking and having no relatives to support him.

11. The Tribunal drew to the applicant’s attention that at the first review hearing he indicated that his tribal name indicates people in Iraq know he is from the South. He confirmed this was correct. The applicant also confirmed that he is a Shia Muslim but he is not practising. He then added that his tribal name would indicate he is from the South or from Baghdad. However, upon further questioning by the Tribunal the applicant confirmed that his tribal name reflects that he is from the South of Iraq. His demeanour was evasive during the provision of this evidence.

12. The Tribunal raised with the applicant that there is no country information before it to suggest that in 2017 atheists or non-practising Muslims in Iraq were targeted or exposed to harm, inviting his comment. The applicant responded that he is aware from Face Book and other sources that certain people have been targeted such as young persons’ imitating Western culture, gay people, women who married without the acceptance of their families, ‘emo’ people, and those who wear makeup have been killed. He added that it is not about his attributes being a Shia. It is because his father was a member of the Ba’ath Party, he doesn’t know Iraq and he doesn’t have strong relatives, that is why he is fearful of returning.

13. The Tribunal raised the following country information from DFAT, concerning association with Government and links to the Ba’ath Party, with the applicant. ‘DFAT has no evidence to suggest that the families of any individuals associated with the Government are targeted by armed groups as a matter of course. However, there are credible reports of families associated with the Government (such as by having a family member who is a member of the Iraqi Security Forces) being injured or killed during attacks on the individual’s car or home.’[9] ‘Under the former Ba’ath Party regime, membership of the Ba’ath Party was a precondition for employment with the Government, creating a hegemonic party with a presence in every Ministry. After the fall of the Ba’ath Party regime in 2003, a de-Ba’athification process was introduced to remove the Ba’ath Party’s extensive influence. This process led to the dismissal of thousands of individuals based on their rank within the Ba’ath Party hierarchy. The 2005 Constitution prohibits the party, but provides for equality before the law for former members of the Ba’ath Party.’[10]

    [9]  DFAT Country Report Iraq, 26 June 2017 at paragraph 3.50.

    [10] DFAT Country Report Iraq, 26 June 2017 at paragraph 3.51.

14. ‘At a societal level, it is broadly agreed that what applies to the Ba’ath Party should not apply to Ba’athists as individuals given the pressures that forced millions of Iraqis to join the Ba’ath Party and the supremacy of the Ba’ath Party in all aspects of Government during the Ba’ath Party regime. Despite this, in-country contacts report that the 2008 Accountability and Justice Act is still used as a threat against Sunnis. For example, Sunnis employed by the Government may be threatened by colleagues competing with them for employment and told that they will be accused of having links to the Ba’ath Party. DFAT assesses that societal discrimination against individuals with links to the Ba’ath Party is most pronounced in areas where Shias dominate (such as in the south).’[11] ‘Overall, DFAT assesses that individuals with high-level links to the Ba’ath Party face high levels of official and societal discrimination, particularly when trying to secure employment. Individuals with lower-level links to the Ba’ath Party face lower levels of official and societal discrimination.’[12]

    [11] DFAT Country Report Iraq, 26 June 2017 at paragraph 3.54.

    [12] DFAT Country Report Iraq, 26 June 2017 at paragraph 3.55.

15. The Tribunal raised with the applicant that the DFAT country information regarding ‘association with Government’ and ‘links to the Ba’ath Party’ does not tend to support his claims that he will face or suffer any harm if he returns to the South of Iraq as a Shia person who has not held a Government position or been a senior member of the Ba’ath Party, even if his claims are accepted that his father did previously work in the Government sector and was a member of the Ba’ath Party in order to hold his position as [a teacher], inviting his comment. The applicant replied that his father is an ex-Ba’ath Party member and if his father or himself went back to Iraq they will know his background. He indicated that ‘you don’t know if people will take revenge for anyone belonging to the Ba’ath Party’ and there is no guarantee of safety. He indicated that sometimes whole families are killed in revenge between Shia and Sunni. The applicant advised that his father received the [item] from the an-Naqshabandiya Army when working with the Government. The applicant indicated he is scared due to his father’s connections, his Identity Card shows his place of birth, and nobody knows of him or where he is from. There is no justice at police checkpoints and the Government is not in control of ‘what’s happening’.

16. The applicant explained that the militia have close relations with the Government and often militia members work in the Government. This closeness is based upon religion. He stated that he has seen videos where Muqtada Al Sadr is treated as a God. In the South of Iraq there are at least 20 militias and the applicant does not know who is who or who they will target. He explained that if he returns to Iraq he will not know who to deal with and the relations between the militia groups. He contended that to live in Iraq he must live in a confidential way and keep everything a secret. It would be difficult for him to settle and live there, he cannot apply for a job and he doesn’t know which groups would assist or deny support.

17. The Tribunal raised the following country information from DFAT, concerning students and [teachers], with the applicant. ‘[Details deleted.]’[13]

    [13] [Deleted.]

18. The Tribunal raised with the applicant that the DFAT country information regarding students and [teachers] does not tend to support his claims that he will face or suffer any harm if he returns to Iraq following a time studying and living abroad due to links with the West, or being the son of a former [teacher], inviting his comment. The applicant responded that the process for Iraqi students to obtain a scholarship for overseas study is corrupt and often result from bribes or affiliations with political or religious groups. He added that Government positions are often divided between influential people, who then have guaranteed jobs when they return. The applicant described that he came to Australia by himself at his own expense, he has nobody in Iraq to support him and no scholarship. He had no choice but to ask his parents for financial assistance to study. The applicant advised the DFAT report is correct regarding members of certain groups obtaining scholarships. He outlined that when he came to Australia he lived in difficult conditions but he enjoys the country and the sense of equality. He stated that he worked lots and initially struggled with the different education system. He indicated his [injury] is hurting, and he is depressed and stressed as he is missing his family. The applicant cannot afford to purchase a car and rents one to work [in Occupation 3]. He had no further comments upon the DFAT country information. 

19. The Tribunal invited the applicant to elaborate on his medical conditions. He explained that it was difficult to obtain the video footage when he [suffered his injury] at work and he got depression during his studies and when he lost his job. He confirmed that medicine has been prescribed for him but he has not taken any. The applicant also confirmed he remained working for [a company] and performing [Occupation 2] and that he works every day. The applicant also advised that he is consulting a doctor with respect to [his other medical condition] but he is not prescribed any medication for that condition. He had no further information to offer on his health. The Tribunal notes that no further medical evidence, beyond that submitted at the first review hearing concerning his appeal of a WorkCover [decision] in respect to his [injury] and him receiving counselling at [an agency] for significant family and personal stressors, was submitted following the second review hearing.  

20. The Tribunal raised with the applicant that the United Kingdom Home Office report on return and internal relocation in Iraq did not mention the birthplace of a Shia being a factor regarding the safety of return or relocation,[14] inviting his comment. The applicant disagreed with the aforementioned information. He stated that Identity Cards are examined at checkpoints and people from the North can pass them. The applicant advised that refugees from the North seeking to enter the South might be regarded as from ISIS or as terrorists. He indicated that those from the North require a sponsor from the South to vouch for them. The Tribunal raised with the applicant that it might have difficulty accepting that there is a problem for him returning to Dhi Qar province because in 2010 he had his documents issued in Al-Rifai (within Dhi Qar) based upon his father’s birth place, inviting his comment. The applicant recapped his earlier explanation from the first review hearing that persons born after 1957 could not move to Baghdad from other areas so must register based upon their father’s birth place. He added that he was born in Mosul province. The Tribunal asked the applicant why he would have a problem in the South now when he had no problems there in 2010? He replied, ‘I can go to the South’ and ‘I have no problem to enter the South’ but when his Identity Card is checked his birthplace of Mosul province might cause people to be suspicious of him.

    [14] United Kingdom Home Office, Country Policy and Information Note - Iraq: Return/Internal relocation, September 2017, v 5.0,  accessed 19 December 2017.

1. The applicant, in his early oral evidence before the Tribunal, advised that he has [Relative A] living in Al-Rifai, near the town of Nasiriyah in Dhi Qar province (which is in the South of Iraq). That [Relative A] is married and has an adult child who is also married ([details deleted]). The [Relative A] is a retired [Occupation 1] and the [child] is [an Occupation 1]. The applicant also has [Relative B] who lives in [Town 1], which is also near the town of Nasiriyah in Dhi Qar province. She is married and has [specified family members]. The applicant is unsure what these [relatives] do for work. The applicant gave oral evidence that in February 2010 he travelled by road with his father from Baghdad to the vicinity of Al-Rifai where he spent around [number range] days. Whilst in Al Rifai, the applicant visited a Government Department to renew his personal documentation, including a Birth Certificate. His Iraqi Identification Card was issued in Al-Rifai. The applicant also attended the funeral of his father’s [relative] and interacted with other family members. The applicant informed the Tribunal that he faced no problems during his time in Dhi Qar province or with his family members residing there.

2. In the applicant’s later oral evidence to the Tribunal, he sought to down play his connection with his family members residing in Dhi Qar province. He contended that he has no family support in that province and this represents an obstacle for him in relocating to Southern Iraq. The Tribunal observed the applicant to be evasive at times during the provision of his later evidence regarding knowledge of his family members in Dhi Qar province. Following careful assessment of the evidence, the Tribunal prefers the applicant’s spontaneous earlier oral evidence concerning his family and finds that the applicant has sufficient familial networks in Dhi Qar province to make relocation a reasonable and practical option for him as a Shia Muslim in the terms reflected by the relevant DFAT country information.[28] For completeness, the Tribunal finds that such familial networks ensure that the applicant would not suffer significant harm in Dhi Qar province due to a lack of family support or good relations or not knowing people, however described.    

   [28] DFAT Country Report Iraq, 26 June 2017 at paragraphs 5.17 to 5.20.

3. The applicant contends that his Iraqi Identity Card, which records his place of birth in Mosul province, places him at a real risk of significant harm if he returns to Southern Iraq. He further contends that he will be linked to his father when the details of his Identity Card are examined and this will bring him to the adverse attention of Shia militias. For reasons previously expressed, the Tribunal does not accept that the applicant’s father has a sufficiently high profile for the applicant to come to any harm on account of his former membership of the Ba’ath Party or his opposition to all forms of religious fundamentalism. Further, the Tribunal observed the applicant to provide inconsistent oral evidence, in an evasive fashion, regarding the profile of his father in the vicinity of Al-Rifai as previously outlined. That the applicant was able to obtain his Iraqi Identity Card from the Government authorities in that town demonstrates there is not a real risk of significant harm if he returns to Southern Iraq because of his birthplace (or any other characteristic his possesses) and his father’s background. It is worth pausing to reflect that the applicant contends the Government is closely aligned to Shia militants who would target him on the aforementioned bases, yet he was able to obtain his documentation in 2010 without any problem. Accordingly, the Tribunal does not accept that the applicant’s birthplace imputes him to have any connection with Sunni insurgent groups such as Al-Qaeda, or that he is at any risk of harm whatsoever on account of that birthplace (or any other characteristic he possesses). Additionally, as previously detailed, there is no country information suggesting that the birthplace of a Shia Muslim prevents relocation to Southern Iraq. Further, the applicant also gave oral evidence indicating that he can enter Southern Iraq. Following careful consideration of the evidence, the Tribunal finds that the applicant’s birthplace in Mosul province (and any other characteristic he possesses), and his father’s background, do not pose impediments to make relocation to Dhi Qar province (being a Shia dominated area) a reasonable and practical option for him as a Shia Muslim.

4. The Tribunal has carefully considered the evidence of the applicant concerning his health conditions. The Tribunal accepts that the applicant requires [surgery] in the future, has [a further medical condition], and was previously treated for stress and depression. However, the applicant’s oral evidence indicated that his current employment is not inhibited by such conditions, he is not taking any medication, and he advised in oral evidence that his ‘main issue is not the health issues’. As previously outlined, there is no country information before the Tribunal indicating the applicant would be denied a medical service within Dhi Qar province. The Tribunal notes that the DFAT country information suggests healthcare services in Iraq are often under-resourced,[29] and it accepts the standard of health care in Dhi Qar province is not equivalent to that in found in Australia. However, given the circumstances of the applicant’s health conditions outlined above, his background (including his ability to travel) and his oral evidence that he could obtain medical treatment in neighbouring countries if it were required, the Tribunal finds that his health status does not pose an impediment to make relocation to Dhi Qar province a reasonable and practical option for him as a Shia Muslim.

   [29] DFAT Country Report Iraq, 26 June 2017 at paragraphs 2.14 & 2.15.

5. The applicant contends that he could not secure employment in Southern Iraq because he does not have sufficient connections in the region to assist him in this regard. Whilst the Tribunal accepts that the DFAT country information suggests lack of employment in that region is a significant issue, it also suggests that relocation to the South may be a reasonable and practical option for a Shia Muslim who has existing familial networks in the region.[30] For reasons previously expressed, the Tribunal is satisfied that the applicant has sufficient familial networks in Dhi Qar province to provide assistance to him. The Tribunal finds that these familial networks, in conjunction with the applicant’s high level of education and adaptability (displayed by establishing himself in new countries and by being able to continue to work in Australia), make it reasonable and practicable for the applicant to find employment in, and relocate to, Dhi Qar province in Southern Iraq. For completeness, the Tribunal finds that due to the aforementioned reasons there is no threat to his capacity to subsist in Dhi Qar province and that none of the considerations in s.36(2A) of the Act are present in his circumstances in that location. Further, due to the familial networks of the applicant, the Tribunal does not accept his contentions that he cannot live in Dhi Qar province because he doesn’t know the system, it would be difficult for him, he lacks good relations, there are no basic services, there is corruption and bribery, the situation is declining, that ‘groups are in control of these areas and only if you are strong can you be the winner’, and that people lose their rights because of the weakness of the Government.

   [30] DFAT Country Report Iraq, 26 June 2017 at paragraph 5.19 & 5.20.

6. For completeness, the Tribunal notes that it has found the June 2010 incident in Baghdad (surrounding the applicant being mistakenly involved in a kidnapping situation) occurred, but was a random event unrelated to militant group activity given the applicant’s oral evidence concerning this matter. Given the circumstances of this incident (including its random nature and location far removed from Dhi Qar province), the Tribunal finds that there are not 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 he will suffer significant harm in relation to his claims surrounding that incident. At its highest, the chance of repetition of this incident is remote and the Tribunal so finds. The Tribunal also notes the claims of the applicant that there is a degree of danger in Iraq and many people there have weapons and are not afraid to use them. Whilst the Tribunal accepts there is a level of randomised violence in Iraq (including in Dhi Qar province), there is no persuasive evidence before it to indicate that the applicant personally faces a real risk of significant harm on account of such generalised violence in a manner distinct from the Iraqi population generally. Pursuant to s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if it is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. On balance, the Tribunal is not satisfied that the applicant is at any risk of harm in Southern Iraq beyond that faced by the population generally. Accordingly, the Tribunal finds that there are not 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 he will suffer significant harm for any reason. Further, the Tribunal finds that the risk of generalised violence is not an impediment to the applicant relocating to Southern Iraq, particularly to Dhi Qar province where he has existing familial networks.

7. Therefore, following careful consideration of the evidence, the Tribunal finds that the global circumstances of the applicant are such that it is reasonable and practical for him to relocate from either Mosul province or Baghdad to Dhi Qar province in Southern Iraq. Accordingly, the applicant can relocate to an area of Iraq where there would not be a real risk that he will suffer significant harm. Thus, the applicant cannot avail himself of the complementary protection provisions.

8. The Tribunal has paid due regard to the written submissions and documentary evidence submitted in support of the applicant’s claims against the Complementary Protection criterion referred to above. As previously noted, the Tribunal has accepted the veracity of the overseas documents pertaining specifically to the background of the applicant and his father, however for reasons previously expressed does not find them to be persuasive evidence concerning the Complementary Protection criterion. Further, the Tribunal has carefully considered the media articles submitted by the applicant and finds them to be general in nature and not referring to the applicant’s specific circumstances. Due to the aforementioned characteristics, and the Tribunal’s preference to rely upon the DFAT country information given its official source, low weight is afforded to these media articles. Additionally, the Tribunal has carefully considered the written statements made by the applicant, however it is not persuaded that they displace the reasons stated above for finding that there are not 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 he will suffer significant harm for any reason. This is particularly so when the statements are considered in conjunction with the DFAT country information. Following careful consideration of the applicant’s global circumstances, the Tribunal finds that the applicant is not a person who satisfies the Complementary Protection criterion.

   CONCLUSION

9. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Iraq, there is a real risk that he will suffer significant harm.

10. 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).

11. 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

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

    K. Chapman
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

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

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (a)   a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)   significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

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

    5K  Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L  Membership of a particular social group other than family

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

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

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

    (c)   any of the following apply:

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

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

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

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

    5LA  Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

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

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …