1603635 (Refugee)

1603635 (Refugee) [2018] AATA 3141 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1603635
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Susan Hoffman
DATE:2 July 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 2 July 2018 at 12:58pm

CATCHWORDS
Refugee – Protection visa – Iraq – Imputed political opinion – Advocating against corruption – Religion – Shia – Secularised Shiite Muslim – Death threats – Militant religious groups – Attempted kidnapping – Bomb attacks – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Zheng v MIMA [2000] FCA 670

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 March 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Iraq, applied for the visas on 8 April 2015. The main applicant [was] interviewed by the delegate on 10 December 2015. The delegate refused to grant the visas on the basis that she was not satisfied that there was a real chance of persecution or a real risk of significant harm.
The main applicant (from herein, ‘the applicant’) first arrived in Australia on 16 December 2007 on a [student] visa. He was granted a bridging visa on 2 April 2012 and on 24 May 2012, he was granted a [student] visa for [the purpose of] study. For almost two years, between [dates in] February 2013 and [January] 2015, he was in Iraq apart from two months during which he was in Iran. On 22 October 2014 he was granted a [different] visa for temporary [work], and he arrived in [Australia in] January 2015. He lodged his application for a protection visa on 8 April 2015.
The applicant appeared before the Tribunal on 18 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses, [Witness A] and [Witness B].
The applicant was represented in relation to the review by his registered migration agent. A submission in support of the applicant’s claims dated 14 May 2018 was received by the Tribunal prior to the hearing. That submission referred to two documents submitted by the applicant dated 29 March 2016 and 23 April 2018, which were part of the evidence before the Tribunal.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criteria in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

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

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether or not the applicant meets the criteria for a Protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Background, protection claims and the delegate’s decision

The delegate recorded the applicant’s written claims as follows:

After completing his [studies] at [Institute 1] [in] December 2012, the applicant returned to Karbala, Iraq [in] February 2013.
The applicant was one of the founders of [an association] (the Association) in [year] at the end of the Saddam Hussein regime. He contacted the Association upon his return to Iraq.
The aim of the Association is [stated aims]. It calls for respect and observance of human rights, and combating administrative and financial corruption.
Members of the Association include a number of [specified professionals from named agencies and occupations].
The applicant was chosen to be [an office bearer] of the Association [in] March 2013. His responsibilities centred on the implementation of the aims of the Association, including raising public awareness, acculturating the community on how to combat administrative corruption, and ensuring that better and more efficient individuals are appointed to run the country. He personally contacted the official departments in Karbala about the problem of administrative corruption and referring such issues to competent official authorities. He focused on exposing political corruption, for example that of [Official 1] and prominent figures in the Al Dawa party. He called upon voters not to vote for them in elections.
The applicant detailed three incidents of harm he experienced in Iraq after returning there [in] February 2013.
[In] May 2013, the applicant claimed that there was an attempt to kidnap his son from [school] which was thwarted. He claimed that the perpetrators were arrested but were released without charge, and also claimed corruption on the part of the police. He said that [Police officer A] threatened him when he went to the police station and the same day he received a death threat from [an official] who oversaw large projects in the province.
The applicant claimed that [in] August 2013 he was asleep in his house after midnight when shots were fired at the front door and windows. He claimed he and his family escaped by the back door to a neighbour’s house. He called his brother, [named], who took them to the [location] where his in-laws reside. The applicant then contacted the police. He claimed that he also contacted [another official] of the Association, to ask him to run the affairs of the Association. He also advised the [manager] at [his employer] that he could not work at that time. He then spent two months in Iran with his mother [between] August 2013 [and] October 2013.
The applicant claimed that on [a date in] June 2014 he attended a meeting of the Association as requested by the acting [chair]. During the meeting there was a sonic explosion in front of the building. Everyone but the applicant escaped. The applicant claimed that he remained inside because he saw armed people outside. He had breathed in gases that had entered the building. A number of police arrived and the applicant left the building with the help of one of the officials. He then returned to Babylon province.
The applicant claimed that [in] May 2014 he had begun correspondence with [a company] in [Australia] and he received an invitation to work there as [an occupation] for one year.
After obtaining his visa for Australia on 22 October 2014, the applicant did not travel to Australia until 19 January 2015. He had been advised to rest for at least 10 weeks due to [a medical condition]. In that period he also renewed his passport, although he was delayed at the passport office under suspicious circumstances.

The delegate recorded that the applicant’s migration agent forwarded written submissions. The additional evidence and/or clarification that these provided are as follows:

The persecutory encounters began in 2013 after the applicant took up the [Office bearer 1 role] of the Association.
In relation to the August 2013 incident, the applicant’s house was subjected to automatic gunfire. The applicant’s wife and children went into hiding in Karbala’s military district and the applicant went to Iran for two months. On his return the applicant lived with a brother in Babil, also known as Babylon province.
The building which was bombed housed the offices of the Association.
The applicant is an anticorruption activist and a secularised Shiite Muslim. Because of his activities in the Association, he has become a target for Shia political groups who do not want their unethical behaviour to come under scrutiny.
As a Shia [professional], who was a key member of the Association that campaigned against corruption at the highest levels, the applicant is at risk from the Al Dawa Islamist militias.
Persecutory treatment could come at the hands of Shia dominated security agencies, Shia radical armed groups, and Sunni collaborators of Daesh.
Sunni Islamists have infiltrated Shia provinces like Karbala when they plan and carry out terrorist attacks.
The applicant and his family have suffered physical and psychological harm from encounters with Islamist terrorists.

The applicant’s representative made claims based on the applicant being a Sunni Muslim. However the applicant has identified as being Shia Muslim. The specific claims made on the basis of the applicant being a Sunni Muslim are as follows:

As a secularised Sunni [professional], the applicant is imputed to be hostile to the radical Islamist goal of establishing Iraq as an Islamic state under an Islamic regime based only on Sharia law.
Shia militias assisting the Iraqi army in fighting Daesh have lists of Sunni Muslims including [professionals] whom they pursue and liquidate.

The delegate recorded additional statements that the applicant made, relevant to his protection claims, as follows.
In his role as [an office bearer] of the Association, the applicant would receive information and complaints from the public regarding corruption, and he would talk to people in various ministries to address that information.
The applicant claimed that he never addressed the media, and he never tried to publish articles or blogs. He claimed that he sent some letters to [an agency] that belonged to the Al Dawa party.
The applicant submitted to the delegate a copy of his Society ID card but he does not have the original, and the copy was not certified as being a copy.
The applicant claimed that the Association did not have a website because that would mean that they will be known. The applicant claimed that after he left Iraq, the Association was shut down and no longer exists. He claimed that he has only its Constitution and the names of the co-founders.
The applicant said that he thought the Association was registered with an agency to do with NGO organisations which is based in Baghdad. He agreed that they would know about him and the Association.
The applicant claimed that events were not advertised to the public. Instead members of the Association called relatives and friends so the people that they reached out to were already connected to members. They did not reach out to the public at large.
The Association held small meetings and only in Karbala, and did not have a presence outside Karbala.
The applicant has never been a member of any political party and does not support the ideology of any particular party. In the past he supported the Integrity party. However he now considers they do not live up to the name. In past elections, he voted for that party.
The applicant claimed that with regard to tackling corruption in Iraq, the public needs to understand it and suitably qualified people should be appointed to particular jobs. He contended that young people have an important role in addressing corruption as the older people are sitting there, not doing anything. Government ministers should be replaced by younger, professional people who can effect change, and ministers should not be members of political parties.
The applicant claimed that he encouraged people to attend demonstrations, and those protesters were targeted. He claimed he himself did not organise or attend anticorruption protests.
The applicant claimed that Prime Minister al-Abadi is not doing anything to reduce corruption and has not put forward any ideas for reform or towards reducing sectarianism.
About why he was only targeted in 2013 and not when he previously lived in Iraq (before he first came to Australia), the applicant claimed corruption in Iraq was not as bad then as it is now. He claimed that during Prime Minister al-Maliki’s eight years of leadership, corruption has increased. The applicant also claimed that when he first joined the Association in 2003, he was just a member but from 2013 he was [an office bearer]. He also said he was the only person speaking up about corruption.
He claimed the society dissolved in 2014 about a month after the explosion. The applicant claimed that he would resume the Association because he feels he would have to finish the problems with corruption. He said that he has not engaged in any activism or anticorruption activities since arriving in Australia because he has been sick.
With regard to the applicant’s claims about an explosion, he said a meeting took place within an area of [Karbala].
The applicant claimed that five minutes into the meeting, the bomb went off. He claimed he did not know where it was, he just heard it. He claimed the only damage was glass that was smashed. He claimed he saw three people outside with Kalashnikovs wearing civilian clothes and with their faces covered.
The applicant claimed there were about ten people at the meeting but no one was injured. There was a gas that smelled like carbon; it was not smoke. The police came quickly because the area was a very secure area. He thinks the Association was the target of the bomb because they were exposing corrupt politicians. The applicant claimed it is a no car zone, and he rode on the back of someone’s motorbike to get out of the area, and then got a taxi to Babylon.
With regard to the applicant’s claim of the abduction attempt of his son, he claimed that two or three people tried to get his son and put him in the car, that his son was screaming and the other children were screaming too, and a security guard intervened.
The applicant claimed that the school tried to call him but he was in a [work meeting] so they called his brother who went to the police station and asked about the man who tried to abduct the applicant’s son. The applicant claimed that the police told his brother that the men had been released because they did not do anything.
The applicant said that his brother and his son came to his [workplace] and told him what had happened and he asked his brother to stay with his son. The applicant claimed he took a taxi and went to the police station and talked to [Police officer A]. He asked why the perpetrators were released and the officer said they did nothing. The applicant said that he responded by saying ‘but they tried to kidnap my son’ and the officer said ‘no, they did not do anything’. The applicant said he became angry and said that the police must help him because the men might try again. The applicant said the officer told him “Don’t forget you are [an Occupation 1]. Your house is made of glass and anyone can break your glass. And don’t forget you are a [previous Occupation 2].”
The applicant claimed he does not know how the officer would know that he used to be [his previous Occupation 2] and he later heard that [a foreigner in that occupation] was assassinated in Iraq.
The applicant claimed that the police are politicised and he does not know who the perpetrators were but thinks that they belong to Al Dawa party. He claimed that the purpose would be to stop him, the applicant, from influencing people against corruption, and to stop his work in the Association. The applicant claimed that after this incident he kept his son at home and did not send him to school.
The applicant claimed that he did not think this was an attempt to kidnap for ransom money. He said that no one else in the Association had this problem, just him.
The applicant claimed that he went to a government office in Karbala, met [an official], and told him about the police inaction in relation to this incident, and the [official] told him he would support him. The applicant said he told some people at a meeting about it as well.
The applicant claimed that after the shooting incident that happened in August 2013, he stayed [several] days in [a location] before leaving for Babylon in a taxi. He claimed that he believed that he had no choice but to leave Karbala at that time.
About going to Iran for two months, the applicant said it was because his mother wanted to visit the [a particular location]. He claimed that they returned to Iraq because his mother developed a [medical condition] and also their visa was not extended further.
The applicant claimed that he was banned from working as [his previous Occupation 2] under the Saddam regime. That is why he changed to [a different occupation].
The applicant claimed that he feared returning to Iraq because of the Al Dawa politicians who will have him killed because he has exposed them. He claims that even if he does not engage in any anti-corruption activities on return to Iraq, he will be killed.
The applicant claimed he cannot live anywhere in the south of Iraq because Al Dawa are everywhere and they will kill him. He also claimed that if he had to return, he could not get a job at [his former employer] because he left his position without permission from [an authority] and did not officially resign. The permission was not forthcoming, because no one else was available to [work] in his place; that is, they needed him to stay.

The applicant claimed that he delayed leaving Iraq after his visa was granted, rather than leaving immediately, because [a medical condition prevented] him to fly. He claimed he was advised to take a rest for ten weeks and was prescribed [medication]. He claimed he left when his health had improved. He claimed he was living in his brother’s house in Babylon at the time he left. He went to Karbala to collect his wife and some packages from his house.
The delegate requested the applicant to provide documents which he did after the hearing. The delegate recorded that the applicant provided a number of documents in support of his claims, but the delegate doubted their authenticity.
The delegate also had concerns about the applicant’s claims concerning how he intended to address corruption in Iraq, and his apparent lack of awareness of other initiatives to address corruption in Iraq.
The delegate also stated that he doubted the veracity of other claims made by the applicant, including in relation to his account of the explosion in June 2014, the shooting incident of August 2013, and why the applicant delayed leaving Iraq after being granted a visa, if he was in as much danger as he claimed.

Findings and reasons

The Tribunal has considered the evidence before it, including the sworn evidence of the applicant and his two witnesses as given at hearing. The Tribunal acknowledges the difficulties faced by an applicant in a formal hearing, and recalling events from years past. Broadly if an applicant’s account is credible, the Tribunal will extend the benefit of the doubt with regard to specific claims the applicant cannot substantiate. At the same time, the Tribunal is also required to test the evidence and critically evaluate it.
The Tribunal was satisfied that the applicant was honest in giving his evidence which has been largely consistent when comparing his initial application, the delegate’s interview, the various written submissions and evidence given at the Tribunal’s hearing. Any apparent inconsistencies were minor and satisfactorily explained by reference to translation or when the applicant gave more detail regarding a particular event, or part of his account.
The Tribunal notes that the applicant submitted various documents, some after the delegate’s interview but before her decision was made, to which the delegate gave no or minimal weight as she was not satisfied as to their authenticity.
The DFAT report at 5.27 to 5.37 discusses documentation, particularly identity documents, and civil documents such as birth, marriage and custody documents.[1] It refers to many such documents having weak security features and being susceptible to forgery. It states (at 5.37) that counterfeit documents of fraudulently altered or obtained documents are commonly and cheaply available in Iraq.
[1] DFAT Country Information Report Iraq 26 June 2017.
As the Tribunal found the applicant’s account to be consistent and credible, and noting the inherent difficulty he faces in substantiating certain claims given the passage of time and obtaining documents including from an organisation that, according to the applicant, ceased operating in 2014, the Tribunal considers it appropriate to give greater weight to the documents he submitted, than given by the delegate. The Tribunal considers it is unreasonable to have requested certain documents from the applicant that would be difficult for him to obtain, then assess those he did provide as being of little or no weight because they can be easily forged.
While acknowledging the prevalence of forged Iraqi documents, the Tribunal considers it appropriate to extend the benefit of the doubt if there are other factors that support the possibility of them being authentic.
The documents provided by the applicant that he claimed were from official sources were on letterhead and carried various stamps. One such document stated it was from [an official in] Karbala. It was dated [in] August 2013 and addressed to Karbala police. It was a request for protection to be provided to all [Occupation 1s], particularly the applicant, following threats made to him by unknown armed persons who fired at his house [in] August 2013. The delegate recorded that such documents are easy to forge and she gave it minimal weight. The applicant also provided a letter dated [in] February 2014 from [Agency 1] to [his employer]. It is described as an administrative order and refers to a request from the [workplace] for licences to be granted to [Occupation 1s] to carry weapons. The delegate gave it minimal weight as she found it implausible that the applicant would be able to obtain this letter and that such documents can be easily forged.
The Tribunal notes that a media report from some years previously [refers] to [a decision] to provide bodyguards for [the applicant’s employer’s] [Occupation 1s] and allowing them and [others there] to carry weapons if they wished, as well as other security measures being adopted.[2] Given this, the Tribunal considers it plausible that the [employer] might at a later date approach the local authorities for permission for [Occupation 1s] to carry weapons if there appeared to be a need for it, in which case it is not unreasonable for the [employer] to provide its [professional] [staff] with a copy of the relevant paperwork.
[2] [Source deleted.]
The applicant’s representative referred to the applicant’s submission of 23 April 2018 as refining points he made in his submission of 29 March 2016. For this reason the Tribunal will refer to the more recent submission from the applicant which (like his earlier submission) addressed points made by the delegate.
In this submission the applicant made the following claims:

He is still a target of corrupt people and has been told by friends and his brother that they are still looking for him.
About the documents requested by the delegate that he was unable to provide, when he found that people were looking for him and watching his house after the explosion, he stayed with his brother in Babylon. He was focused at that time on staying alive, and the documents were not important to him. The documents he provided with his application were sent to him from friends in Iraq. Other documents were confidential and it was not easy for him to get them without official permission from [another official] of the Association, who was afraid of threats.
The delegate was unable to find a record of the Association and it was not on a publicly available list of NGOs. The applicant stated that the Association was established according to prevailing NGO rules. These rules were the basis of Law 12 of 2010, and the Association’s constitution which he provided to the delegate was in accordance with that law. The applicant submitted that the delegate was using how thing work in Australia as a basis to assess what he had submitted from Iraq but in Iraq much of the NGO record keeping is manual rather than electronic. The applicant stated that he did a search of other Karbala associations and found that only 139 were listed on the NGO website; 110 other associations including his Association were not listed.
The delegate stated that none of the documents provided by the applicant had been authenticated and the NGO certificate contains information that does not match the records of the NGO assistance office. In relation to this point the applicant referred to his previous explanation, that record-keeping in Iraq was generally made up of manual systems. He also stated that the NGO list mainly covered organisations that registered between 2011 and 2016 whereas his Association was registered in [an earlier year] in Karbala.
The delegate noted that the previous [Office bearer 1] of the Association has not been targeted. The applicant submitted that whereas the previous [Office bearer 1] collected much information on corruption, he had never made that public whereas the applicant has exposed corruption and his voice was heard by corrupt politicians. He claimed that politicians [named] and [their associates] are all from Karbala.
The delegate referred to an inconsistency between the minutes of a meeting with the constitution of the Association; inconsistency between when meetings were held and what the constitution requires; that the meeting minutes show the society was created in [a later year] and the applicant claimed it was created [several years earlier]; and that the constitution indicated that the [Office bearer 1] was elected by the expanded committee and the minutes indicate the [Office bearer 1] was assigned by the general committee. The applicant submitted that there was a mistake in translation between ‘expanded committee’ and ‘general committee’; there was no mention in the minutes of the society being created in [the later year], and he had given evidence that the Association was created in [an earlier year] and officially registered in [year], not [year]. He submitted that the reference to [the year] in the minutes was in relation to him travelling to Australia to complete his [studies].
Regarding the authenticity of documents, the applicant submitted that all the documents he supplied were copies of original ones and he could not get the original ones which are archived. He submitted that the copies were sent to him by a friend who was with him in the Association.
The delegate recorded that the applicant gave a simplistic explanation of his views on tackling corruption in Iraq and displayed ignorance of 2015 initiatives taken by the prime minister to tackle corruption. The applicant submitted that he did not go into detail on this at the interview and just gave the main points. He was dismissive of steps taken by the prime minister to address corruption.
The delegate recorded that the applicant had not engaged in anti-corruption activism while in Australia. The applicant’s response to this was he had [medical] problems when he came to Australia. The delegate stated that the applicant appeared to be apolitical at the interview as he was unable to explain any political leaning or allegiances. The applicant responded to this by stating that when he was asked about the ideology of the Al Dawa party, he disputed whether it had one as it is driven by getting money.
The delegate recorded that the applicant explained that the Association did not advertise any public events, he never organised anti-corruption protests or addressed the media. The applicant submitted that almost all media in Iraq are controlled by politicians, and many conferences had been held but achieved nothing because corruption was so widespread and involved politicians.
The delegate recorded that the applicant was unable to demonstrate how he was in a position to access certain information that he could use to expose corruption, what corruption he publicly exposed or how he did so. The applicant submitted that he told the delegate that he and other Association members got information from some officials who wanted to expose corruption. He also submitted that the interview by the delegate went for more than three hours and there was not time to mention everything. He submitted that [Official 1] had spent around [amount] just in Karbala on his election campaign in [year], by giving money to relatives and others to purchase votes; and the Association exposed this.
The delegate acknowledged a video provided by the applicant of him [performing a work duty], but it was in Arabic with no translation and the delegate therefore gave it no weight. The applicant submitted a translation of [details of this work duty].
The delegate recorded that the applicant’s account of the explosion during the Association meeting on [a date in] June 2014 contained a number of inconsistencies that caused her to doubt the veracity of these claims. The main point made by the delegate was that if the Association was being targeted it is unclear why the armed men did not target the members as they escaped the building or how they were able to penetrate the security perimeter in the first place. The applicant submitted that since the society was started in [year], it had operated without any threat until he announced some information about corruption. He submitted that up until that time members had been afraid to expose the corruption of politicians to the public. He was essentially submitting that because he was the person who was responsible for exposing the corruption it made sense for him to be the target rather than other members.
The delegate referred to a sonic or sound bomb that caused an explosion and that there were no reports of any explosions or attacks in that area in 2014. The applicant submitted that it was a sound bomb which could produce smoke, black carbon particles and some gases. He submitted that it was a matter of fact that the media in its various forms does not make all news public; there have been several incidents that have happened which were not announced in the media; and mass media in Iraq are working under the influence of politicians.
The delegate referred to the shooting at the applicant’s house [in] August 2013 noting that she doubted that this occurred based on the fact that the applicant left the relative safety of being in a [location] after a few days, and travelled to Iran which would have exposed him to the dangers that he claims to have faced. The delegate also stated that the applicant returned to Iraq after two months where he supposedly faced an even greater chance of harm than in Iran. The delegate recorded doubts that the applicant was a victim of the attack as he described, based on his conduct following the attack and his failure to take meaningful measures to avoid harm.
The applicant submitted that after his house was attacked, he went to the house of his wife’s family, and stayed there for a few days. He submitted he was very worried and afraid and when his mother asked him to travel to Iran with her, he agreed as he thought that might be safe for him. He submitted that he travelled from [an] airport which is about [distance] from Karbala and there are [several] police checkpoints on the road between Karbala and [there] which was a risk for him. He claimed that although it was dangerous to travel, he did not have another choice. The applicant submitted that he intended to stay in Iran but only got a visa for one month. He tried to get an extension of his visa and he got just one month extra. He submitted that if he stayed in Iran beyond that time without a visa he would be there illegally and the police might hold him and capture him and hand him over to the Iraqi authorities. Therefore he went back to Iraq but to his brother’s house in Babylon and lived there, essentially in hiding, as he had no other choice.
The delegate stated that she had reason to doubt that the applicant was personally targeted based on the fact that he did not leave Iraq for three months after his visa to enter Australia was granted. She referred to his claim that he did not leave as soon as possible because of his health and acknowledged that although he had a medical certificate from a doctor in Iraq attesting to his condition, she is not satisfied that this condition would prevent the applicant from leaving Iraq, particularly in light of the grave threat that he claimed to be facing. The applicant submitted that he followed the advice of the doctor which was to avoid travelling especially for a long trip. He submitted that [his symptoms] might lead to [a serious condition]. He wrote that he had already supplied the delegate with the results of an Australian medical test.
The delegate referred to a letter provided by the applicant written by [Mr A] and dated 30 June 2014 which referred to protection measures being needed for the applicant because of threats. The delegate noted that both the applicant and [Mr A] were named as the head of the Association, and further noted that documents such as this can be easily forged. The delegate recorded that she was unable to rely on the letter as evidence of any threats and accorded it minimal weight. The applicant responded that [Mr A] was the acting [Office bearer 1] of the Society and there was also a mistake in the translation from Arabic which led the delegate to think that [Mr A] was the [Office bearer 1].
The delegate referred to another letter provided by the applicant written by [an official in] Karbala, dated [in] August 2013 which described random firing of shots at the applicant’s house and requested the police provide protection to the applicant and all [Occupation 1s]. The delegate recorded that such documents are easily forged and she was unable to rely on it as evidence of the specific targeting of the applicant and accorded it minimal weight. The applicant submitted that this was a true copy of the original document.
The delegate noted an administrative order dated [in] February 2014 issued by [Agency 1] addressed to the [applicant’s employer] regarding a request for [Occupation 1s] to be granted firearms licences. Again the delegate recorded that such documents are easily forged and she was unable to rely on it as evidence of harm or threat to the applicant and accorded it minimal weight. The applicant submitted that the letter was a true copy of the original.

With regard to these submissions, the Tribunal notes that the applicant essentially argued that it was not appropriate to apply Australian record-keeping methods or standards to those in Iraq as the latter were generally manual systems. At 5.28, the DFAT report refers to records being kept manually. This was in relation to documentation such as identity documents but does support the applicant’s point that generally in Iraq, records are kept manually.
The DFAT reports comments on civil society organisations, a category that may well include the Association relevant to this review. It notes that there are bureaucratic impediments to registering such organisations, and that persons involved with certain organisations, such as those working on human rights, face a higher risk than others. Although the focus of the Association, according to the applicant, is corruption rather than human rights, it is credible that he would be at risk because of his work in that area.
Civil Society
3.60 The 2005 Constitution provides for freedom of association, with the exception of entities that incite or promote terrorism (including the Ba’ath Party). Bureaucratic impediments continue to delay the registration process for civil society organisations and civil society organisations currently face access constraints to particular areas due to the security environment. The NGO Directorate in the Council of Ministers Secretariat issued registration certificates to 244 NGOs from January to August 2016, and reported 2,844 registered NGOs. DFAT understands that some civil society organisations continue to face direct and indirect harassment and violence. In-country contacts state that they are careful about whether they display their logos and that locally engaged staff of civil society organisations (particularly those with international connections, such as the UN) often do not identify where they work within their local communities. In-country contacts report that individuals employed by organisations working on issues such as human rights and providing assistance to IDPs face a higher risk than others.
Given that there is a reliance on manual record keeping and barriers to registering organisations, the Tribunal accepts the applicant’s submissions regarding the existence of the Association and why the delegate was unable to locate the Association on a central register.
At the Tribunal’s hearing the applicant claimed that he came to Australia because he felt his life was at risk. He claimed that he thinks the situation is worse for him now than what it was when he left Iraq and arrived in Australia in early 2015. The applicant submitted that after the defeat of Daesh the armed military personnel who were involved in the fighting are now back in Karbala and other cities.

The applicant claimed that when he returned to Iraq in 2013 he thought he could make a difference there. The Association told him about the extent of the corruption and problems, asked him to be head of the Association, and elected him accordingly. He found that the political class was corrupt and helped themselves, and not the people.
Asked to describe what form the corruption took, the applicant said there were three types. He claimed the first type was a low-level form of corruption that happened every day, in that officers working as part of the government administration would demand bribes from people just to do the jobs they were supposed to do. The second level of corruption was to do with administration and finances whereby government officers would do something illegal to try and get money for themselves, such as take someone’s land or fake a document in order to get money. The applicant claimed that the third form of political corruption was very serious and gave as an example something that a former Minister of Transportation, Hadi Al Amiri, was involved in that was to do with the purchase of aviation fuel. Through a company owned by a friend, the Minister arranged for the fuel to be supplied from the al-Dora refinery while claiming that the fuel had been imported. Imported fuel cost more and the difference in cost between local and imported fuel benefitted the Minister.[3]
[3] The extensive corruption in Iraq that permeates society is described here: Kuyoti, Y. (2018) Anti-corruption efforts in Iraq, Middle East Research Institute accessed 21 June 2018 at >
The applicant claimed that when [Official 1] was [in office], the applicant obtained a document from his office which showed that for each project, [the official] got a [percentage] cut, and he (the applicant) told people about this.
The applicant claimed that he had seen a letter from a contractor to the office of [Official 1] pertaining to a contract to build [specified public works]. This was a major building project with a single contract to construct [other works] throughout Iraq. The applicant claimed that as [Official 1] came from Karbala, there were many people – perhaps 15% – from Karbala who worked in his office, and some of those people were his (the applicant’s) friends and relatives who could not accept the corruption as it was unethical. The applicant claimed that he asked people who worked for [Official 1] to get evidence of corruption as he believed he had a responsibility to the people to uncover corruption.
The DFAT report states as follows regarding the extent of corruption in Iraq:
2.13 Iraq ranks 166th out of 176 countries on Transparency International’s 2016 Corruption Perceptions Index. Following escalating protests about high levels of corruption and a fatwa (an Islamic legal pronouncement) issued by Grand Ayatollah Sistani in August 2015, Prime Minister Abadi announced an ambitious plan to reform the Government, including through curbing corruption. However, progress has been limited. Corruption, patronage and nepotism affect most aspects of day-to-day life in Iraq and the Kurdish region.
The applicant claimed that when the Association was established, it was done to fight corruption and to get to a situation where appropriately qualified people were placed in particular positions. As another example of corruption, the applicant claimed that the [relative of a public official] wanted to be a politician and took a loan of a [large amount] from [a] bank, and used this money to get people to vote for him as part of his campaign. The Tribunal notes that [Official 1] has [specified associates who were] members of parliament.[4]
[4] [Source deleted.]
The applicant claimed that he chose a few select people with whom to share information about corruption for safety reasons. The applicant claimed that the reason he was gathering this information was that he hoped in the future there would be a better government, and he was gathering evidence so that politicians who are corrupt will be held to account in the future.
The applicant claimed that he passed that information about corruption to [Agency 2] in Karbala which was supposed to be independent but was controlled by the Al Dawa party.
The [Agency 2] website records that its [details deleted], subjected to the Iraqi Parliament and the law of Iraq. Its purpose is to fight corruption.[5] [Agency 2’s] report for the first quarter of 2018 recorded that it worked on [number] cases during that period including whistleblowing, information received and criminal cases. It issued arrest warrants and stated that in the first quarter of 2018 there were [number] convictions and the total amount of public monies recovered or not wasted because of the activities of [Agency 2] was [amount].[6] The website includes information on how to report financial and administrative corruption.
[5] [Source deleted.]
[6] [Source deleted.]
The Tribunal accepts the applicant’s claim that he passed on information about corruption to [Agency 2] as it has found the applicant to be credible and consistent with regard to the information he provided to the Department and his evidence to the Tribunal, and it is not at odds with country information.
The applicant said that before he returned to Iraq in 2013, people told him not to come back but he thought he could improve his city and his country. When he went back to Iraq in early 2013, it was with the expectation he would stay there.
The Tribunal asked the applicant about any activities he engaged in while in Australia. The applicant said that since 2015 when he returned to Australia he has had no contact with his [specified family members]. He said his parents had passed away. He said that when he rings his family, the mobile phone rings but there is no answer and he does not know why that is. The applicant said that he thinks his siblings are still alive but maybe they are not in Iraq; or that maybe for their own safety, they do not answer his call. He said that he really does not know what has happened to his siblings and he has no other relatives in Karbala.
The applicant said a friend told him if he returned to Iraq, he would be killed as people were still looking for him. The applicant said that he speaks to that friend perhaps once a month on average and the friend told him armed men had approached him and asked him about the applicant which was what caused his friend to warn him.
The Tribunal then asked the applicant about the Association. He said that according to the constitution of the Association, the focus was on younger people between the age of [ages] years old as this age range was considered to be when people can accept new ideas and make change. He said that there has been 40 years of corruption in Iraq since Saddam Hussein took charge which was the equivalent to two generations being lost, and there was a need to think about the new generations in order to make change. If the younger people are in government and respect the rule of law, then it is possible to get an ideal government.
Asked about not being able to locate the Association’s name on the list of NGOs, the applicant said that because of the general dysfunction of the government, the organisational aspects are also bad and data is not held electronically. He said that he looked for it on the register of NGOs that he mentioned to the delegate but could not find his Association listed there although he found it listed elsewhere. The applicant claimed that his association was officially closed about [2014] which was a month after the explosion.
Asked about the anti-corruption measures taken in 2015, the applicant said Prime Minister al-Abadi was also from the Al Dawa party and the source of corruption is the Islamic parties. [Details deleted]. He said that he was sure al-Abadi would neither fight nor fix the corruption.
A media report from December 2014 refers to [corruption being ignored and details hidden].[7]
[7] [Source deleted.]
The applicant put forward arguments about how the Iraqi government could be formed to address corruption and avoid what has previously occurred whereby particular ministries were allocated to particular parties and the responsible ministers worked for their parties rather than for overall government. The applicant said that his aim since being a teenager was to be a politician and serve the people.
The Tribunal put questions to the witness [Witness A]. He claimed that he knew the applicant from studying at [Institute 1] when they were both students there in 2011. As they both came from Iraq, they got to know each other. He said he also came from Karbala but had not known the applicant prior to 2011.
The witness claimed that he was in Iraq between 2012 and 2014 as he wanted his children to learn Arabic there. He said he and the applicant met up in Karbala in February or March 2013. The applicant asked him to attend a meeting of the Association but he, the witness, was reluctant to do that as he was a little bit scared and he refused the invitation. He said he was invited again in June 2013 to attend a meeting and this time he accepted the invitation. There were 40 to 50 people present. He said they did not meet in the rooms of the Association which were too small but they met in a place close by. The witness said that the applicant was [part] of the group at that time. He had the documents and he managed the meeting. The witness said that during the meeting they talked about corruption by the politicians, including [named] politicians. He said that he attended the meeting because he wanted to know what was happening in his town. The witness claimed that he went to another meeting in July 2013 where there were about 20 people, held at the same place. The topic was again corruption and also about the economic situation. An example of corruption given during the meeting was using fake projects to obtain money which was spent on political campaigning rather than the project. He said that the applicant gave other examples of corruption including vote-buying and nepotism.
The witness said that when the meeting was over, he went on holiday. He tried to call the applicant later but could not contact him. He said in 2014 when he was still in Iraq, he met a friend of the applicant and the friend said the applicant had disappeared as he had been threatened and that friend did not know where the applicant was. The witness said he came back to Australia with his family in June 2014 because Daesh had come to Iraq and it was then that he met up with the applicant again.
The witness said he went back to Karbala in November 2017 and a mutual friend asked about the applicant. The witness said he did not give this mutual friend any information about the applicant, but despite this, the mutual friend said “If you hear from him, tell him this is not the right time for him to come back” and also said that people from the Association have left Iraq. The witness said it was as if this mutual friend was giving him a message for the applicant to not return to Iraq.
The second witness [Witness B] said that he also knew the applicant having met him at [Institute 1]. [Witness B] said that he went to Iraq during 2012/13 and met the applicant in Iraq then. The witness said that he went to Karbala to visit the shrine which was when he saw the applicant. This witness said that the applicant had described to him the purpose of the Association, that it was for educated people and that the applicant was the leader of it.
The witness said that he and the applicant sat together for about half an hour and talked about Iranian influence in Karbala, the authorities, political parties and that they were all corrupted. He said there was a meeting taking place which he did not attend but he knew the main topic was corruption. He said after that, he left Karbala as he lived in a different province in Iraq.
The witness said that he went back to the same area in Karbala the following year in July 2014. He said that he went to the same place where the meeting was held and it had closed, and the windows were broken. He said that he asked neighbours what had happened to it and they said the Association had closed because there was an explosion. He said he asked where the people had gone and they said they didn’t know.
The witness said that while he was in Iraq, he would call the applicant but got no answer from his phone. When he returned to Australia in 2015, he saw that the applicant was here in Australia. The witness said that it was then that the applicant explained to him what had happened to him and his family. The Tribunal asked the witness what he had been told by the applicant at that time. The witness said he was told by the applicant that he (the applicant) was threatened and there was an attempt to kidnap his child and the applicant told him that he took his family to a safe place.
The Tribunal notes that the witnesses corroborated different aspects of the applicant’s account of what occurred in Karbala regarding his role in the Association, that there were meetings, what was discussed at the meetings, that there was an explosion at the premises, and that there were fears for the applicant’s safety.
The Tribunal has no cause to disbelieve the evidence given by the witnesses. There was no sense from either of them that they were embellishing or exaggerating when giving evidence. The Tribunal notes the difficulty in substantiating their evidence, and specifically that the first witness spoke of being given a warning on behalf of the applicant as recently as November 2017. However as the Tribunal has found the applicant to be honest in giving his evidence, it will extend the benefit of the doubt with regard to his witness’s testimony and accepts that he was given a warning on behalf of the applicant in November 2017.
After the witnesses finished giving their evidence and left the room, the applicant’s representative made a number of submissions. He said that the applicant went back to Iraq to contribute which was a credit to him but he returned to Australia as he found the situation in Iraq to be hopeless and he was mistreated there.
The representative referred to the applicant’s claim made at the hearing that now that the worst of the fighting seemed to be over, members of the various militia were going back to [their everyday lives]. It was submitted that sometimes they fought during the day and [studied or worked] when they had the time, and expected that they should be given special treatment because they have been fighting. It was submitted that posed problems for [colleagues] who would get threatened if they refused to [assist].
The Tribunal is satisfied that the applicant was truthful in giving his evidence which has been consistent when comparing his initial application for protection, his evidence as given at the delegate’s interview and the Tribunal’s hearing, and the various written submissions. As noted the witnesses corroborated different aspects of the applicant’s evidence. The Tribunal considers that the applicant has satisfactorily addressed many of the concerns raised by the delegate.
The Tribunal also considers that the applicant has provided a coherent and plausible account regarding his approach to tackling corruption and what he sees to be a pathway towards a better style of government in Iraq. His claims that corruption increased during the eight years (2006 to 2014) under former Prime Minister’s al-Maliki’s leadership appear to be shared by various commentators. For example, a 2018 article refers to corruption becoming entrenched since 2003, and that it permeates the highest levels of government. It also refers to something the applicant alluded to, which was how the various ministries were allocated and that this was done according to religious, ethnic, and tribal loyalties with the office holders having a sense of entitlement and an expectation that they would be exempt from accountability and operating according to the rule of law.[8] This analysis gives context to the applicant’s submission that people should be appointed to senior government positions, including heading up ministries, according to their qualifications and experience - their suitability for the role – rather than their political affiliation.[9]
[8] Kuyoti, Y. (2018) Anti-corruption efforts in Iraq, Middle East Research Institute accessed 21 June 2018 at
[9] Also relevant is a 2014 article entitled How Maliki Ruined Iraq. Al-Ali, Z. (2014) How Maliki Ruined Iraq, Foreign Policy accessed 21 June 2018 at
The applicant claimed that Iraqi politicians [named] came from Karbala which the Tribunal has [verified].
Having satisfied itself that the applicant’s evidence can be relied upon, the Tribunal considered whether he has a well-founded fear of persecution and if so, for what reason.
The Tribunal is satisfied that the applicant’s stance against corruption was effectively the expression of a political opinion. Although the applicant did not publicly campaign against corruption, he spoke about it to other people including at Association meetings and raised the issue of corruption with [Agency 2].
The Tribunal notes that Iraq ranks 166 out of 176 countries on the 2016 Corruption Perceptions Index, as referred to in the DFAT report at 2.13, and that corruption is endemic throughout Iraq. The Tribunal is satisfied that by pursuing an anti-corruption agenda via the Association against the systemic corruption that permeates Iraq and its government, the applicant’s actions could reasonably be imputed ‘to be an 'act of opposition to the machinery, authority or governance of the state’.[10] The applicant has specifically named [Official 1] as being a significant figure in the corruption that is entrenched in Iraq.
[10] Zheng v MIMA [2000] FCA 670 (Merkel J at [32]).
The Tribunal accepts the applicant’s claims that there was an attempt to kidnap his son, shots were fired into his house and there was an explosion at the place where the Association was meeting. It accepts that the applicant essentially hid at his brother’s home until he was well enough to leave the country. It further accepts that within the last seven months, he has been warned via the first witness not to return to Iraq. In the light of the foregoing, the Tribunal is satisfied that his fear of persecution is well founded, in part because of the general lawlessness and insecurity in Iraq. From the DFAT report:
SECURITY SITUATION
2.29 A number of factors influence the current security situation in Iraq including ISIL, armed groups (many of which are part of the Popular Mobilisation Forces (PMF), over which the Government claims control) and historical intra-Shia and intra-Sunni tensions. In the Kurdish region, the security situation is influenced by historical tensions between the Iraqi Government and KRG, and tensions between different Kurdish political blocs, as well as by Turkey and Iran.
2.30 The presence of ISIL remains the most acute issue influencing the current security situation throughout Iraq and the Kurdish region. Prior to ISIL, numerous other Sunni armed groups operated in Iraq. These included the Naqshbandi Order (Jaysh Rijal at-Tariq an Naqshabandiya, or JRTN), the 1920s Revolutionary Brigade (Kitab Thawra al-Ashrayi), loyalists of the Ba’ath Party regime, ‘Helpers of Islam’ (Ansar al-Islam), and the ‘Islamic Army in Iraq’ (Al Jaysh al Islami fil-Iraq).
2.31 Key Shia armed groups in Iraq include Saraya Al-Salam (SAS, also known as the ‘Peace Brigades’, and partly made up of former Mahdi Army fighters), Asaib Ahl al-Haq (AAH), Kataib Hizbullah (KH), and the Badr Corps. SAS and the Badr Corps are the military arms of the Sadrist and Badr political movements respectively. Some groups within the PMF have fought against ISIL. Some of these groups have been criticised for allegedly committing abuses against civilians (see ‘Popular Mobilisation Forces’), as well as engaging in criminal activities. Violence between different Shia armed groups is also a serious concern.
2.32 The Kurdish region has experienced lower levels of insecurity compared to other areas of Iraq. This may be due to the greater capacity of the Kurdish authorities or the lower levels of ethnic and religious diversity in the Kurdish region. However, there are examples of violent attacks occurring in the Kurdish region and the increasing number of IDPs entering the Kurdish region has strained the Kurdish authorities’ ability to guarantee safety. Turkey has shelled suspected militants in villages along the border between Turkey and the Kurdish region, and Turkish forces have crossed the border in pursuit of militants. Turkey also maintains a military training and artillery base at Bashiqa, near Mosul, without the approval of the Iraqi Government. The KRG retains control of some disputed areas that it has successfully liberated from ISIL. Some violent incidents have occurred between KRG-affiliated forces and Shia militia groups.
2.33 Overall, the security situation in Iraq, including and the Kurdish region, is fragile and susceptible to rapid and serious deterioration with large-scale conflict in some areas. A number of areas remain under ISIL control in the west, north and central areas. According to the UN Assistance Mission for Iraq (UNAMI), there were 18,491 civilian casualties (including 6,773 deaths and 11,718 injuries) in the year to February 2017. UNAMI’s ability to collect data in conflict-affected areas has been hindered by the volatile security situation and DFAT assesses that the number of casualties is likely higher than reported by UNAMI.
STATE PROTECTION
5.1 As a result of the broader security situation, several areas in Iraq are not under the effective control of the Iraqi Government or the KRG. The ability of the Iraqi Government and the KRG to provide effective state protection has been severely tested by ongoing efforts to defeat ISIL. This ability has been further strained by the broader political and sectarian allegiances of different elements of the Iraqi Government and KRG and associated security forces.

The Tribunal notes that the DFAT report, now a year old, stated at 2.33 that overall, the security situation in Iraq was “fragile and susceptible to rapid and serious deterioration with large-scale conflict in some areas”.[11] A major factor in that was ISIS which has largely been controlled in recent months. However ISIS continues to pose a threat to security with sporadic attacks still occurring across Iraq as reported in June 2018.[12] According to one media report, there is public anger in Iraq over fears that Isis is re-emerging as a threat.[13]
[11] DFAT Country Information report Iraq dated 26 June 2017.
[12] Ebraheem, M.(2018) Islamic State kidnaps farmer after storming village in Iraq, Iraqi News accessed 21 June 2018 at Cockburn, P. (2018) Iraq executes 13 and orders hanging of hundreds more amid fears of Isis resurgence, The Independent 29 June, accessed 2 July 2018 at >
At time of writing, with the election held relatively recently in May 2018 and a manual recount of votes soon to be undertaken, it is uncertain who will be the next Prime Minister and which group or groups will hold the power in Iraq in which areas.[14] A media report in late June 2018 points to continuing uncertainty as to who will hold the power in Iraq but notes indications of “a return to a sectarian-based government where Shiite parties come together to form a grand coalition which doubles as a patronage network that dispenses jobs to supporters.”[15] If this was the case, it suggests that the widespread corruption will likely continue despite election campaigning by some politicians and high profile figures, such as Muqtada al-Sadr, on anti-corruption platforms.
[14] Jalabi, R. (2018) Iraq to begin manual recount of national election votes on Tuesday, Reuters 30 June accessed 2 July 2018 at Abdul-Zahra, G. & Salaheddin, S. (2018) In about-face, Iraq's maverick al-Sadr moves closer to Iran, Associated Press accessed 25 June 2018 at >
With regard to the dependent applicants, the delegate recorded that the applicant’s wife’s details as provided by the applicant matched those on her passport, specifically her name, date of birth and place of birth. This was also the case with the two [children] aged [age] years old and [age] years old. The third child (fourth dependent) [was born] [on date] in [Australia]. The delegate stated that [the third child’s] name, date of birth and place of birth are recorded on [the] Iraqi passport, [an Australian] birth certificate and departmental records. Without evidence to the contrary, and for the purposes of her decision, the delegate accepted that the identities of the applicant and his family are as he stated.
The applicant referred to his wife a number of times when making his claim for protection; that she and the children went into hiding; that he collected his wife when he went back to the home in Karbala; and that he stayed at the home of his wife’s family. At hearing the applicant mentioned his wife in relation to living in [Australia]. The Tribunal was satisfied, based on the evidence before it, that the applicant and the dependent applicants are all members of the same family unit.

CONCLUDING PARAGRAPHS

The Tribunal finds that the harm feared by the applicant is for the reason of his imputed political opinion as a person who demonstrated his opposition to the machinery of the state. It is satisfied that the applicant fears persecution by reason of his imputed political opinion and that reason is the essential and significant reason for the persecution. It also finds that the persecution feared is systematic, in the sense of not being random, and discriminatory in that it is directed at the applicant because of his imputed political opinion. The Tribunal is satisfied that the persecution feared by the applicant involves serious harm as it would be a threat to his life, liberty or significant physical harassment or ill treatment.
The Tribunal is satisfied that because the applicant has been critical of government and [Official 1], along with the general instability and insecurity in Iraq, he cannot rely on protection of the state. The Tribunal is satisfied that a real chance of persecution applies throughout Iraq.
The Tribunal notes that the overall security situation and general dysfunction in Iraq makes it difficult for Iraqi authorities to provide effective protection to its citizens. In this case, the applicant sought help from the police after the failed abduction attempt of his son, and rather than getting help, he was threatened. Also, the harm feared by the applicant is at the hand of those with significant political power, and who command the loyalty of groups including militia that support them. The Tribunal cannot be satisfied that Iraqi authorities are willing or able to offer and provide protection to this applicant. The Tribunal is satisfied that there are no reasonable steps the applicant could take to modify his behaviour to avoid a real chance of persecution as the risk he fears has arisen because of actions he has taken in the past.
For the reasons given above the Tribunal is satisfied that the first named applicant has a well-founded fear of persecution and is a person in respect of whom Australia has protection obligations; he satisfies the criterion set out in s.36(2)(a).
The Tribunal is satisfied that the other applicants, being the main applicant’s wife and children, are members of the same family unit as the first-named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first-named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Susan Hoffman
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

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.
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.
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.
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.
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.
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

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.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 3141

2 July 2018

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