1603711 (Refugee)

This matter concerned an application for a protection visa by an Iraqi national. The applicant claimed to have joined the Iraqi military in 2004 and served in various capacities, including as an [occupation]. During his service in February 2015, he was stationed at a base where he had a confrontation with a senior militia member, [Mr A], who subsequently made threats against him. Following this incident, the applicant was disciplined and sent to the front line. He later fled from a battle and, upon returning to base, was questioned and suspected of supporting Daesh. The applicant believed these issues were instigated by [Mr A] in retaliation for their earlier dispute. He was advised by fellow officers to flee Iraq, which he did. Upon returning to his hometown, he discovered that a member of a rival tribe had been killed in the battle he fled, and his tribe was accused of aiding Daesh. This led to a demand for compensation from the rival tribe, which was paid to avert tribal conflict. The applicant then moved to another location due to concerns for his family's safety and was informed by former colleagues that [Mr A] continued to threaten his life, prompting his decision to leave the country.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth). This section requires the applicant to have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also considered the complementary protection criterion under section 36(2)(aa), which applies if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, the applicant faces a real risk of suffering significant harm. The Tribunal was required to assess the applicant's claims in light of relevant policy guidelines and country information, as mandated by Ministerial Direction No. 56.

The Tribunal reasoned that the applicant had established a well-founded fear of persecution. It found that the threats made by [Mr A], coupled with the subsequent accusations of supporting Daesh and the tribal dispute, created a real risk of serious harm to the applicant upon return to Iraq. The Tribunal considered that the applicant's military service and his actions, including the confrontation with [Mr A] and his subsequent flight from battle, placed him in a vulnerable position. The Tribunal concluded that the reasons for the potential persecution were essential and significant, and that the persecution would involve serious harm, including a threat to his life or liberty. The Tribunal also noted that the applicant could not reasonably relocate within Iraq to avoid this risk, nor could he obtain effective protection from the authorities.

For the reasons outlined above, the Tribunal was satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act. The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a).