1605516 (Refugee)

1605516 (Refugee) [2019] AATA 3576 (21 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605516
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Justin Meyer
DATE:21 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – non-practicing Christian minority family – church membership and activity in Australia – ethnic minority – imputed political opinion – US Army-affiliated occupation – real chance of serious harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth),Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Iraq, applied for the visa on 10 March 2015. The delegate refused to grant the visa on the basis that the applicant is not an Assyrian Christian and the applicant was not employed as a [occupation]. The delegate was not satisfied that there was a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act in the receiving country. Therefore, the applicant is not a refugee as defined, nor did were there complementary protection obligations in his case.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 his being removed from Australia to his receiving country of Iraq, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.) Assessment of claims
The applicant claims to fear serious harm from activities as a [occupation], opposition or imputed opposition to militant groups, loyalty to the Ba’ath party, his status as a Christian or someone who has left Islam or Shia Islam.
Background
The applicant stated the following claims in his application to the department.
·The applicant came to Australia on a [temporary partner] visa.
·The relationship broke down and the sponsor withdrew her sponsorship.
·The applicant claims that his family was forcibly converted from Christianity and Assyrian ethnicity due to the fear of being killed in the past. He asserts that in order to be safe from harm, he and his family moved to southern Iraq in order to assimilate with Arabs. He claims that in the past, he and his family hid their original religious and ethnic background out of fear of harm.
·The applicant claims that his situation became worse after the invasion of Iraq and the prevalence of militias. He states that he was unable to revert to Christianity or converse in Assyrian. If he did, he would have been perceived to be an infidel and killed according to Sharia Law. He asserts that he has recently started to learn his original language and study his history. The applicant claims that his parents were forced to name him [Given name] in order to demonstrate allegiance with the Saddam Hussain regime. He contends that his father could not refuse to name the applicant [Given name] as his father would have been killed by the authorities. The applicant claims that due to his name, people disliked him and cursed him (with the intention of cursing Saddam Hussain). He claims that his name is perceived by Iraqi people and militias as loyalty towards the Baath Party. The applicant claims that despite being unhappy with his name, he cannot change it.
·The applicant claims that his name saved his family from being killed. He asserts that in 1991 during the uprising, Saddam's forces arrested families and buried them in a mass grave. When the authorities at that time read his name, they investigated whether they had participated in the uprising and once satisfied that they were not, they were left alone. However, he claims that his older [sibling] was executed.
·The applicant claims that he experienced humiliation due to his name as he was isolated when he was at university and could not find employment. As a consequence, he claims that he approached the US forces and explained his predicament to them, expressing that he wanted to join the Iraqi [organisation]. He asserts that he was appointed to the [relevant] Ministry in the [department]. He claims to have commenced this work [in] 2008.
·The applicant claims that he was promoted to supervise a group of [employees] in [City]. He contends that [in] 2011, an explosive device was attached to his car. It was timed that when he left his home to go to work, it would explode. However, the device was faulty and it did not detonate. He claims that subsequent to this, he received a phone call threatening his life.
·The applicant claims that a month later, he was sitting at the [location] with friends. When he went to fetch them some tea, he claims that one friend was shot and killed and another injured. Following this, the applicant did not come home and stayed at work all of the time. The applicant claims that his family informed him of threats that were sent to his home.
·The applicant claims that there is no effective protection available to him in Iraq and cannot return there.
The applicant’s migration history is as follows:

28/12/2011 Applied for a [permanent partner] visa

10/12/2013 [permanent partner] visa application refused

19/02/2015

Migration Review Tribunal affirmed the refusal of the [permanent partner] visa application

10/03/2015 Lodged Protection visa (PV) application

19/01/2016 Interviewed in regard to PV application

The applicant submitted in writing to the Tribunal (on 19 September 2019, through his representative) along these lines:
Response to credibility issues:
On page 6 of the decision record the delegate makes an adverse credibility finding against the applicant for the reason that ‘Muslim’ was entered as his religion in his protection visa application.
We submit that this was nothing more than an administrative error on the part of the previous migration agent. It would appear to be an obvious mistake given that in the detailed Statement of Claim which accompanied the application the applicant clearly states that he is a Christian.
On page 7 of the decision record the delegate notes that the applicant’s Iraqi identity card records his religion as Muslim, again using this information to question the applicant’s faith.
We submit that the applicant’s Iraqi identity card would require his faith to be listed as Muslim as this was his religion at birth. At no time has the applicant claimed to have converted to Christianity during his time in Iraq or that he attempted to have the Iraqi authorities recognise his Christian faith. The fact that his religion is listed as Muslim on his Iraqi identity card is to be expected, and should not be used to draw an adverse credibility assessment against the applicant.
On page 8 of the decision record the delegate does not accept as credible the proposition that the applicant could directly approach an American Army base without prior clearance and be admitted inside or that he could procure employment through them.
The applicant instructs that in 2008 when he approached the American base it was the case that the base was open for 2 days per week for people to come to the base for, among other things, seeking employment. During this 2 day per week period local people could also approach the base if they or their family members were sick or injured to seek treatment.
At this time in 2008 the US Army were running the Iraq [organisation] and they were seeking recruits. They were also looking for local people to act as translators and in a variety of roles.
The US Army was attempting to secure the will of the local population in order to try and contain the counterinsurgency.
The applicant attended the base to seek employment and explained his situation and the difficulties he was experiencing due to his name being [Given name]. He was offered training and duly accepted the offer. Following the successful completion of this training he was appointed to the position of [occupation] with the [Unit]. The applicant provided the delegate with a copy of his [occupation] ID card and [certificate] in regard to his training.
The delegate chose to provide no weight to these documents on the ground that fraudulent documents are readily available in Iraq. The applicant instructs that his [employee ] identity card is genuine and the original card, which the applicant has been able to obtain through his parents in Iraq post the interview with the delegate, will be provided at the upcoming hearing for the Member to inspect and, should it be considered necessary, to have the card assessed by the relevant authorities as to its authenticity.
We submit that it is entirely plausible that during this period where the US Army controlled the Iraqi [organisation] and they were actively attempting to engage with the local population to assist them in the fight against the counterinsurgency that they would offer training and employment to the applicant. Logic would suggest that the US Army must have offered some mechanism for local people to enquire with them as to employment opportunities, and such a mechanism would involve reporting to their secure base at a designated time.
On page 9 of the decision record the delegate draws an adverse credibility finding against the applicant on account of his contradictory employment history contained within his partner visa application. The applicant instructs that he was not aware of this issue until the time of his interview with the delegate. At the time of his partner visa application the applicant could not write in English and it was left up to his then wife to complete the partner visa application him. He simply signed whatever documents were presented to him for signing by his then wife. As he could not at that time read English he could not check what was written in the application forms. While he does not know the reason for the failure on his wife’s part to correctly record his employment, he is of the opinion that she may have decided to not record his occupation as a [occupation] in order not to delay the application for additional security checks that might have been required for an applicant in his occupation. Unfortunately the applicant no longer has any relationship with his former wife and cannot ask her directly her reasons for not accurately reporting his employment history on the partner visa application form.
On page 7 of the decision record the delegate does not accept that the applicant is a Christian as he claims noting that he was unable to provide answers about his faith even to a very basic level and noting that there was no evidence that he had been regularly attending church. The applicant instructs that he does not have a detailed knowledge of the Christian faith, however, he does practice the Christian and is an active member of his church, [Church] in [Suburb 1]. The applicant commenced practising at this church in February 2016 after a change of address. We note that it was upon joining this church that the applicant was advised as to the benefits of being baptised in the Christian faith. He was duly baptised on 28 February 2016.
Previously the applicant had attended an Assyrian Church in [Suburb 2]. In support of the applicant’s Christian faith, his contact at the Church, Mr. [A], will attend the hearing to provide further information in regard to the applicant’s commitment to the church and his Christian faith. In further support of the applicant’s Christian faith please also find attached to this submission the applicant’s baptism certificate, a support letter from Pastor [B], copies of text messages from the applicants phone sharing messages with his church community, and [social media] posts by the applicant from 2013 following his arrival in Australia which demonstrate his growing interest in discovering his Christian faith.
Genuine fear
Our client has provided his claims for protection in the Statement of Claims attached to Form 866C of the Protection visa application. In essence, our client fears that he is at risk of persecution by Sunni extremists and fundamentalist Shia militia groups. The reasons why our client believes he is at risk include a combination of his Christian faith, his profile as a Christian convert, his real and imputed
political opinion, his occupation as a [occupation] in Iraq, his work with the US Forces in Iraq and his connections to a western country.
Our client looks forward to the opportunity of discussing his claims in more detail at the hearing.
Reason(s) for fear of persecution
In accordance with s 5J(4)(a) of the Act, the essential and significant reason(s) why our client fears persecution include:
1. His religion as a Christian;
2. His real and implied political opinion as someone who is perceived to be supportive of the Iraqi
Government and US-led coalition and in opposition to armed Islamic militant groups and their
extremist political and religious agenda;
3. His membership of a particular social group, including:
a. Christian converts;
b. Individuals associated with the Iraqi authorities and the former foreign forces in Iraq;
c. Iraqis who have spent a significant period of time in a Western country (in this case, one of the coalition countries that was involved in the invasion and occupation of Iraq
in 2003 and is currently participating in the US-led campaign against Islamic State (IS)). It is clear that our client fears persecution as a result of his religion, his political opinion and his
membership of the particular social groups identified above, including religious beliefs and political opinions imputed to him as a result of his membership of such groups.
We submit that the above-mentioned particular social groups fall within the parameters of s 5L of the
Act because they each have:
a. A characteristic that is shared by each member of the group; and
b. Our client shares, or is perceived as sharing, the characteristic; and
c. At least one 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; and4
d. The characteristic is not a fear of persecution.
Well-founded fear
We take this opportunity to provide reputable country information in support of our client’s claims for protection.1 It is our submission that his history together with the independent country information
supports the conclusion that his fear of persecution cannot be dismissed as being remote, insubstantial or a far-fetched possibility and is therefore well-founded. It shows there is a real chance he will be seriously harmed in the reasonably foreseeable future should he return to Iraq.
In accordance with Ministerial Direction No 56, made under s 499 of the Act, the Delegate is required to take into account any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that it is relevant to this application. In this case, that requires consideration of DFAT Country Information Report – Iraq.

At this point the applicant in his submission quotes a variety of country information. The Tribunal will deal with relevant parts of this country information in its analysis.
The applicant in his written submission, as communicated by his representative goes on to state:
State protection
We submit that reputable country information demonstrates effective protection measures are not available to our client in Iraq.
Available information reveals a lack of effective protection through the Iraqi Government and
State institutions. The DFAT Report states:
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.
Iraqi Security Forces
Responsibility for security rests with the ISF (which includes the Iraqi Army, the Federal Police and Provincial Police forces) who report to the Ministry of Defence, the
Ministry of Interior, and ultimately the Prime Minister as Commander-in-Chief. The Counter-Terrorism Service reports directly to the Prime Minister, and the PMF is also
supposed to report to the Prime Minister. The ISF has faced formidable challenges in combatting ISIL, including badly maintained equipment, poor logistical support, corruption and fragmented command and control that are influenced by political and sectarian allegiances. The ISF is perceived by some to be pro-Shia. Over the past year, the ISF has made significant progress in liberating areas from ISIL control.
Following ISIL-led attacks from mid-2014 onwards, the ISF withdrew from most Sunni-majority areas of Iraq, including large parts of Anbar, Ninewa, Salah al-Din and Diyala provinces, as well as part of Kirkuk Province. This has led to increased reliance on partisan militias, including the PMF (see ‘Popular Mobilisation Forces’).
Credible sources report that the ISF has committed a number of human rights abuses or has failed to act on human rights abuses by other actors, such as the PMF. DFAT assesses that while the Iraqi Government is taking steps in an effort to curb human rights abuses by the ISF (which disproportionately affect Sunnis), its ability to assert centralised control over the actions of the ISF is at times limited. The 2016 US Department of State’s Human Rights Report notes that the Iraqi Government has rarely
made public any information about investigations into human rights abuses allegedly committed by the ISF.
17 United States Department of State, 2016 Report on International Religious Freedom - Iraq, 15 August 2017, available at: [accessed 21 February 2018]
Iraqi Police Force
The Iraqi Police Force reports to the Ministry of Interior and is divided into two primary administrative groupings: the Iraqi Police Service and the Federal Police. The Iraqi Police Service operates as municipal police and the Federal Police is a paramilitary
organisation that regularly conducts joint operations with the Iraqi Army and the PMF.
There are estimated to be over 300,000 members of the Iraqi Police Service and the Federal Police. The Iraqi Police Service and the Federal Police face capacity constraints and are
often unable to prevent attacks against civilians by ISIL and other armed groups. Members often lack training and basic equipment. Elements of the Federal Police and some of the Shia militia groups in the PMF reportedly have close links.18 Due to weak governance and instability in the county’s security situation, the government of
Iraq is unable to prevent atrocities from occurring against its citizens.
This being the advice from the Executive Arm of the Australian Government, it must be found that our client cannot avail himself of the protection of the Iraqi State.
Relocation
It is our submission that independent country information illustrates the real chance of encountering persecution exists in all areas of Iraq. On the issue of relocation, the DFAT Report provides:
5.13 Credible estimates from the UN Office for the Coordination of Humanitarian
Affairs indicate that over 1.6 million people have been able to return to their homes
since April 2017. However, over three million people remain internally displaced. Minority communities (including Sunnis, Turkmen, Yazidi, Shabak and Christians)
have been disproportionately affected by displacement. Ongoing conflict has seen religiously mixed areas becoming more mono-religious – usually Shia or Sunni, thereby limiting internal relocation options. DFAT assesses as credible claims that, in most cases, internal relocation for minorities is not a reasonable option. Even where an individual may be able to escape the reach of the aggressor (such as ISIL), broader insecurity, a lack of services and limited educational opportunities along with issues\ with documentation hamper opportunities for internal relocation. Further, relocation to an area with a predominantly different ethnic or religious demographic can contribute
to tensions, particularly for Sunnis relocating to Shia areas and vice versa.
The Kurdish Region
5.14 Since 2006, many people have found refuge in the Kurdish region. DFAT is not aware of any official or publicly accessible regulations concerning procedures and practices at checkpoints into the Kurdish region. Admission into the Kurdish region
remains at the discretion of the KRG, which has exercised increasing levels of restrictions, including requiring individuals wishing to enter to have a sponsor (although
the UK Home Office and in-country contacts note that the implementation of this 18 Department of Foreign Affairs and Trade, DFAT Country Information Report – Iraq, 26 June 2017, pp. 26-27. requirement is often inconsistent in practice). Individuals who were previously from the
Kurdish region or who are ethnically Kurdish should be able to enter the Kurdish region
with relative administrative ease. Some in-country contacts have told DFAT that Christians, Yazidis and Shabak have been able to enter the Kurdish region with relative
ease, although Arab Sunnis and other non-ethnic Kurds have faced difficulties. Large segments of the local society and elements within the KRG endorse conservative norms.
DFAT therefore assesses that certain individuals such as single women and children and LGBTI individuals fleeing persecution in Iraq could still experience persecution in the
Kurdish region.
Upon entry into the Kurdish region, returnees are required to register with the Mukhtar Office and the Asayish Office in the neighbourhood in which they would like to reside. Individuals are then issued with an Information Card (i.e. Residency Card)
which allows them to move around the Kurdish region freely and access services. Officially, non-ethnic Kurds are unable to purchase property. Single people, especially women, are unable for cultural reasons to rent properties on their own. A lack of Kurdish language skills is an additional barrier. Patronage and nepotism significantly influence
employment opportunities, making it difficult to internally relocate to the Kurdish region without existing networks.
Overall, DFAT assesses that internal relocation to the Kurdish region is difficult for most minority groups and particularly for Arab Iraqis due to official and societal discrimination.
Southern Iraq
Southern Iraq (including Basra, Karbala, Wasit, Qadisiyah, Maisan, Dhi War, Muthanna and Najaf provinces) has been and remains more secure than other parts of the country, although recent reports suggest a deterioration of law and order in Basra.
Generalised criminality occurs, but at a lower level than in Baghdad. Intra-Shia violence between different Shia armed groups occurs in southern Iraq and is influenced by
political and / or criminal factors. 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 a militia or tribal group.
A wide range of ethnic and religious minority groups reside in southern Iraq. The overwhelming majority is Shia, although there are approximately 400,000 Sunnis (incountry
contacts suggest that the number of Sunnis may have since declined), as well as Iraqis of African descent, Christians and Sabaean-Mandeans. While ongoing conflict has seen religiously mixed areas becoming more mono-religious, usually Shia or Sunni, in-country contacts claim that tolerance of religious minorities remains higher in southern Iraq than in central Iraq. However, credible in-country contacts emphasise that internal relocation to the south for any minority group is difficult and that Shias internally relocating or voluntarily returning to southern Iraq without familial, tribal or
political networks would face difficulty assimilating into the community. Despite this, Iraqis who have sought asylum overseas have returned to southern Iraq without significant difficulty
Lack of employment remains a significant issue in southern Iraq, despite the large scale oil industry and associated economic activity. In-country contacts suggest that
there are limited employment opportunities and that people from southern Iraq are internally relocating to other areas of Iraq, such as Baghdad, in search of jobs. Lack of
services (such as electricity and water) has been an increasing issue in the south. The capacity (and at times willingness) of local authorities to provide protection for minority
groups in southern Iraq is limited.
Overall, DFAT assesses that internal relocation to southern Iraq may be a reasonable and practical option for a Shia, particularly if they have existing familial networks within the south. In practice, it would be difficult for Sunnis or other minority
communities to relocate to southern Iraq, particularly if they di not originate from southern Iraq.
As demonstrated in this submission, sectarian violence is widespread throughout Iraq. Whilst the DFAT Report suggests that as a Christian, the applicant may be able to relocate to Kurdistan, as the Applicant was not born a Christian he will be viewed as an apostate and he is an Arab, he will not be accepted into Kurdistan. On the same issue, the UNHCR has specifically reported: UNHCR considers that internal flight options are often not available in Iraq due to
serious risks faced by Iraqis throughout the country, including threats to safety and security, accessibility problems and lack of livelihood opportunities. Generally, protection by national authorities will not be available given that the national
authorities have as yet limited capacity to enforce law and order. Members of the ISF and the judiciary are themselves a major target of attacks and are reportedly prone to
corruption and infiltration.
[…]
For categories of individuals who fear harm as a result of traditional practices and religious norms of a persecutory nature – such as women and children with specific profiles, victims of trafficking, and LGBTI individuals – and for whom internal
relocation to another part of central and southern Iraq may be relevant, the endorsement of such norms by large segments of society and powerful conservative elements in the Iraqi public administration as well as the continued presence of armed groups with extremist or highly conservative leanings militate against the availability of an IFA/IRA in southern and central Iraq
Given the surge in violence and insecurity that the country is currently experiencing, together with the ongoing failure of State institutions to protect its citizens, returnees to Iraq will not receive adequate State protection in any area of Iraq.
Department of Foreign Affairs and Trade, DFAT Country Information Report – Iraq, 26 June 2017, pp. 28-29.
United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Iraq, 31 May 2012, pp. 7, 53
< shows that our client continues to face a real chance of serious harm in all areas of the country with
relocation to southern Iraq not being a viable option for safety. In light of this information, it must be concluded that relocation to another part of Iraq to escape the threat of serious harm is not an option for our client.
CONCLUSION
Our client is a national of Iraq, is outside his country of nationality and has no prior or effective protection in a third country. He has expressed a fear of encountering harm that is a consequence of a pattern of systematic and discriminatory conduct and is sufficiently serious to amount to persecution for
the purposes of s 5J of the Act.
Reputable country information shows that there continues to be a high level of systematic, refugee-related violence being specifically directed at a range of groups and individuals in Iraq. In light of his own history and the available information pertaining to the treatment of other people with the same
profile in similar circumstances, there is no reason to conclude that our client’s fears are not genuine.
We submit that the harm he fears is for reason of his religion, his conversion from Islam to Christianity his political opinion and membership of the particular social groups discussed above. We further submit that the independent country information founds a conclusion that his fears are well-founded because if
he returns to Iraq now or in the reasonably foreseeable future there is a real chance he will be persecuted.
It also supports the conclusion that he cannot anticipate adequate State protection nor is he able to relocate to another part of Iraq to avoid serious or significant harm due to a real chance of being subjected to further persecution.
In all of the circumstances, we submit that our client is a refugee as defined in s 5H of the Act. In the
event that he is not found to be a refugee, in the alternative we contend that he is owed complementary protection. Accordingly, we further submit that he should therefore be found to engage Australia’s protection obligations for the purposes of s 36(2) of the Act.
Analysis following consideration of the applicant’s evidence in the hearing:
The applicant arrived in Australia in 2013 from Iraq. He is designated as a Shia Muslim. The applicant said his background is Christian via his parents although his mother also has Jewish ancestry. Despite all of this he is designated a Shia.
The applicant’s father used to be in the Iraqi army and was pensioned off when he was injured. His mother was a housewife. The applicant’s father served in military actions against the Kurds under the Saddam Hussein regime. He was not an officer. His parents are still alive and live in Iraq. He contacts them but not frequently. He said that they are old people. There are not able to use a mobile phone.
The applicant said his physical health was plagued by short breathing because of over-thinking and fear. He had needed to go to hospital although there had been no follow up as to the problem. He said it was a psychological or mental health problem. His heart had been checked. He said he was afraid of going to the doctor. The applicant had three [siblings] but one of them died - killed under the regime of Saddam Hussein. The applicant said there was a movement against Saddam Hussein in certain areas of Iraq and his [sibling] rose up against him. He appears to have been an innocent random victim.
The applicant said that during the second Iraq war he was studying. This was in 2003. He was in the first year of university and he was studying [subject].
The applicant applied for a job after that but was unsuccessful. After the American invasion and war it was a dangerous period. People were resisting the Americans with weapons. The applicant and inquired about a role with the [organisation]. The applicant was asked why he approached the [organisation] for a [occupation] role. He said he was not accepted initially. He heard about the job because the [organisations] were disbanded and the Americans needed new personnel.
The local American base opened its doors for two days per week and advertised on signs seeking personnel. Specifically there were people with health problems and assistance was needed with interpreting for those persons. This occurred in 2008. The applicant said that this was a dangerous job to him. He was not ambitious however. He was not fit either. The applicant was asked what the Americans were looking for. He said that they would take anybody in the beginning - people in the Saddam Hussein era who had been imprisoned or even killers would be taken. The applicant said he had eight weeks training and he then had to do some paperwork. He had to carry [out certain tasks]. He also had to do physical exercise. He was taught specialist [tasks]. The applicant said that the documents he handed to the Tribunal confirmed that he was a [employee]. The applicant said that the documents that he handed up to the Tribunal were kept by a friend [Mr C] - he had contacted [Mr C] subsequent to arriving in Australia to help him prove his case. This contact was done via [social media]. His friend [Mr C] had kept the documents at home. The applicant said this was a normal practice of people, i.e. to keep such documents at home.
The applicant said that he worked for the [organisation] for [number] years. He said he was paid [amount] plus gifts per month. He said this was good money in Iraq. He acknowledged that this was a dangerous job and that there were close calls. He was lucky on one occasion when an explosive was put in a building in which he worked. He could describe two ways of explosions occurring one by remote, and the second by fixed outside remote after entered by mobile phone. He said the close call was after two and a halfyears of service. The bomb happened not to succeed in this case.
He said that in 2011 a device was attached to a car. He said in those days they installed bombs on all persons who cooperated with the Americans. He said that this was not on his car but a car parked outside the door of [location]. He said responsibility was claimed by a group called the Army of Mahdi. He said a friend was shot and injured in 2011 by the same people. He said that these were victims of Shia groups.
The applicant was asked to he took orders from. He said [organisation] would send directions via a radio system. The applicant said he was a [position holder] for his area and he could nominate an individual that he reported to. The applicant said he spoke English a little, only some words. He could help out at times with people understanding English. He said American soldiers spoke to him and he worked as an interpreter. He worked for periods of 24 hours or sometimes two days without sleep, dependent upon the job.
The applicant said that he was in fact a [occupation] and said that his document ID was unfortunately earlier lost in Iraq. The applicant later produced a [employee] ID document which was handed up in the hearing.
The applicant was asked if he had to go back to Iraq what risk he would face as an ex-[occupation] from his ongoing contact with the authorities and his American work. The applicant said he was afraid of militias. He said these people were now forming part of the government of Iraq. The applicant said these militia groups had won in a coalition which is sits in Parliament known as Asa'ib Ahl al-Haq, an Iraqi Shi'a paramilitary group active in the Iraqi insurgency. The other group is Saraja al-Salam. The applicant said that ISIS / IS were now in sleeper cells and they cannot kidnap people at the moment. Nonetheless he is remembered as someone who cooperated and he would be included as a target. The applicant said former soldiers had returned in the past and they had all been killed.
The applicant was asked whether he could live in Kurdistan. The applicant said that his name was known to ISIS and that racism on the part of Kurds would be a problem. He said that ISIS could still infiltrate the area and get him. He said that the Kurds were not keen on having Arabs live amongst them and he would not get protection. The applicant said that this was because Saddam Hussein had killed 5,000 Kurds using chemical weapons. The applicant said he could not change his name. He said his name – [Given name] - was something which harmed him. He said nobody would employ him. He said that when he was at university people would assault him because of his name. His parents had named him as a suggestion from a Baathist. One of the army people at the hospital strongly suggested to his parents when he was born that he should be named [Given name]. As Iraq was a police state at the time “you just do it”, he said.

The applicant was asked how it came to be that he left Iraq. He said that he married an Iraqi girl who was visiting from Australia. She was 21 and he was in his mid-20s. He had got to know her a bit and had known the family. The applicant said he was invited to the home of a relative. He had developed feelings towards his future wife. She was an Australian permanent resident citizen who had migrated to Australia. She had run away from Saddam. She sponsored him on a [partner] visa. He then moved to Australia. The applicant was asked what his motivations were for moving to Australia. He said that he admired and was attracted to the girl. He also wished to get rid of fear and threat from his life. He said that he came to Australia but the relationship did not continue. He said waiting for a visa could take one and a half years. But the parties separated. There was parental disapproval of this. There was an attempt to bring the parties back together. He said his wife did not come to the airport to meet him when he arrived in Australia but was instead met by his wife’s [sibling].
Information under section 424AA of the Migration Act was put to the applicant about his unsuccessful application and subsequent unsuccessful appeal for a [permanent partner] visa at the predecessor tribunal to the Tribunal, the Migration Review Tribunal. He was informed that this would be the reason or part of the reason for affirming the decision if accepted. In paragraph 27 of the former tribunal’s decision of 17 February 2015, reads:
“The applicant told the Tribunal that after coming to Australia the sponsor's father told him that the sponsor wanted to cancel the visa a month before he arrived in Australia but could not do so because she did not know the case number.
When asked if he knew why she wanted to cancel the visa, the applicant stated that when he came to Australia he learnt that she had a relationship with another person. The applicant stated that he did not know how long the sponsor had this other relationship however when asked how long he believed she had been in a relationship with another man, he stated that when he was in Iraq the sponsor had asked him how he would feel if he saw her talking to someone, just as a friend, and he had told her that he would not accept this.
He also told the Tribunal that when he came to Australia, the sponsor told him it was normal here to have two men, one for children and one for love.”
The information is relevant to the review because it had been concluded that the parties had no commitment to a shared life and yet the applicant nonetheless pursued a permanent partner visa which requires a continuing relationship. The applicant’s credibility is therefore of concern, because one would not pursue a permanent partner if one knew one was not in a relationship, and this might lead me to doubt his credibility. Reliance on this information may mean that the applicant does not meet the requirements of this visa it was stated.
The applicant was given the opportunity to comment or ask for additional time. He took a short break and responded that he had told the department that his relationship had broken down and learned from the department that he could still pursue the visa if he was claiming that domestic violence had been committed against him. He had an intervention order against his former partner’s parents and had been threatened by mobile phone, and there was a psychologist’s letter in this regard.
It appears that the applicant did not meet certain of the requirements of the process in claiming the family violence exception, and this would be at least one reason why the decision was affirmed. I find that his explanation is satisfactory in regards to the potential adverse information. In a similar light I find that the applicant’s partner application was largely prepared by his former sponsor in English, a language he could not read at all well at the time, and it explains certain incongruities about his employment and other matters between his partner visa papers and the protection application.
The applicant was asked why he waited so long for a protection visa. He said he did not know because he was a stranger in Australia. He said even getting a job was a miracle. He now had work in a [factory]. His agent wanted AUD10,000 from him. Her name was [Ms D]. She took AUD1,000.
The applicant was asked about his religion had been in Iraq to which he replied that he was Shia, but in name only. The applicant was asked what privately he would have called himself, whether it was a Christian, or atheist or Jewish for example. The applicant said that he was a Christian. The applicant was asked what his family would have called themselves privately. He said that his mother’s grandparents were Jewish. The applicant said his father was a Christian in his heart.
The applicant asked was asked whether any of his family went to church or synagogue to which replied no. He also said that none of them prayed. It was asked whether his family read from the Bible or any holy book. The applicant said that they were afraid, particularly as children. The applicant was asked whether he met with any other Christians or Jews. He said he met them whilst working. He was asked whether he had read books about Christianity or Judaism to which he replied that he had forgotten to tell the immigration authorities that he had followed Christian television channels and watched them by satellite TV. After the collapse of the Saddam Hussein regime satellite television was regularly available. He remembered a particular story from an Egyptian television channel. The story was about a person who traveled by train who forgot a handkerchief. Many were then spreading handkerchiefs. At first he was upset but then he became very happy. He said the Lord will not forget you, like the handkerchief.
The applicant was asked whether he had any beliefs about Christianity at that time. He said in a dream he had 17 years ago everything was dark and there was a mountain and he was ascending it, and then reached its peak. There he found a light shining. He saw the cross. He said he was surprised at such a beautiful sign about the Lord Jesus. The applicant was asked whether he believed Jesus was God. He replied yes. He was asked about the death and resurrection of Jesus to which replied that he believed in it. The applicant was asked about the significance of the death and resurrection to him. He said that it was significant to him. The applicant was asked what type of Christianity in Iraq he identified with, to which he replied that it was orthodox Assyrian Christianity.
The applicant was asked when he came to Australia whether he continued to have Christian beliefs. The applicant said the first thing he did was have a picture and he showed a picture of [Cathedral] he had when he arrived. The applicant was asked what other form faith took for him. He said that a friend took him to mass in [Suburb 3].
The applicant was asked how long in been attending the [Church] in [Suburb 1] to which replied two and a half years. He said he frequently went - it was sometimes every Sunday or every other Sunday.
The applicant was asked what he prayed about at a prayer group he attended. He talked about how the Lord had created us. He said the church was Pentecostal. He talked about special gifts. He said he had evangelised and proselyted in Australia. The applicant said that he had encountered a follower of John the Baptist. This person was gambling and playing cards and he was continuingly talking to this person. He said friends talked with this person. He said that if he went back to Iraq he will continue to tell people about the good news. He said that he would continue to talk about Jesus and the gospel. He said at the airport they would take him away – he would never get to live freely.
I asked if he is allowed in by the airport authorities in Iraq by good fortune would he continue to talk about Christianity. He said he could not live in Iraq and that it would kill him. He said that ISIS would be in sleeper cells. He said that he could not go back to his old life of saying that he was not a Christian. He said he spreads things on [social media] and people watch him. He said he had put Christian material on his page in Australia.
The applicant said that he had been in Australia the last five years and had no problems in the country he said he works and goes to church. He said ‘you can check with the police, there are no problems at all’ with him. He said that he liked Australia because of its humanity. He said Australians assisted him and find a job.
The applicant’s friend, the witness, [Mr A] said the parties had known each other since 2015 and had met at church. He said he had met the applicant in the foyer of the church with his family. They were in the welcome lounge. He said a lady called [Ms E] had called him over and they had got to know one another. He said he knew a little Arabic himself and the parties assisted one another learning English and Arabic. There were various migrant groups at this church who are assisting one another with learning English. The applicant had been to [Suburb 4] and [Suburb 5] to assist with this. The applicant has been baptised. The witness said the reason why the applicant had been baptised was because he had a dream years ago about experiencing a light on a mountain. The applicant said in the Middle East dreams are important. The applicant had a Christian background according to the witness. The witness said that the applicant’s theological knowledge was ‘not great’. He said in Iraq he had ‘no idea’. A friend had told him not to share his faith. He had to be constantly careful about his belief.
The witness said that the applicant had had a job as a [occupation] in Iraq. The witness said that there were fears that the applicant would be killed because of his Christian faith. The witness said that the applicant had never struck him as a non-genuine Christian. The applicant had asked the witness how to pray. He prayed the Lord’s Prayer and it came from his heart. The book of Matthew in the Bible was quoted about the person who forgave a servant. The witness said that he would continue to display his Christian faith publicly and still speaks to people.
Facts Accepted
I accept that the applicant is culturally and nominally designated a Shia Muslim in Iraq. I base this conclusion on identification documentation and the consistent oral evidence he gave. I accept that he is a citizen of Iraq based upon the identity documents of a passport copy and identity card supplied to the department. He is 37 years old. He was born in [Location], of the [City] area - the capital city of Iraq's [Province] Governorate, in the [region] of the country.
I find that the applicant joined the Iraqi [organisation] during the American occupation of Iraq and worked as such in [City] for a number of years. The applicant’s oral evidence and written submission were consistent. It is a well-known fact that with de-Ba’athification of Iraq, large numbers of [certain professionals] were dismissed and replacements were urgently needed. The applicant gave a credible account of how he was recruited and trained.
The Tribunal referred an original [employee] identification card of the applicant to the department’s document examination unit, which led to an inconclusive result. I give the benefit of the doubt to the applicant on this score, noting that the card sates that he is an [occupation] and is dated at the time of the applicant’s claimed service in 2008.
I find that the applicant was mainly involved in [technical tasks] and earned a high income in Iraq of [amount] per month plus gifts.
A bomb exploded in or just outside his house, which was intended for him. I find that he was a potential target for various militias in Iraq.
I find that the applicant is a Christian and has identified as such upon making a new life in Australia. I find that he previously had some sympathy for Christianity whilst living in Iraq because of some family faith links. The applicant has been baptised as seen in a certificate supplied and has a good knowledge of his faith although the theological details are not particularly developed. I found his friend [Mr A] to be a credible witness on this score with corroboration of regular church attendance, study of the Bible and the applicant’s detailed discussions with others about his faith.
The applicant if he were returned to Iraq I find would be likely to maintain his Christian faith. He has made Christian references of belief on his [social media] which might be visible. He may well continue to talk to others about his faith and encourage others to join with him in his beliefs. I find that he has spoken to friends and acquaintances in Australia aiming to convert them, and there is some prospect that he will continue on this path if he were returned to Iraq.
Well-founded fear of persecution
Section 5J(1) of the Act provides that a person has a well-founded fear of persecution if:
·they fear persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion; and
·there is a real chance that if returned to the receiving country, the person would be persecuted for one or more of the above reasons; and
·the real chance of persecution relates to all areas of the receiving country.
Section 5L of the Act sets out that a person is to be treated as a member of a particular social group (other than the person’s family) if:
·the person shares, or is perceived as sharing, a characteristic that is shared by each member of that group; and
·the characteristic is an innate or immutable characteristic; or is so fundamental to a member’s identity or conscience the member should not be forced to renounce it; or the characteristic distinguishes the group from society; and
·the characteristic is not a fear of persecution.
I conclude that the applicant is a person who fears persecution for religion – for his Christianity. I also find that he is a member of a social group - former American affiliated [officials or service personnel] .
On the material available to me I am satisfied that this is a particular social group for the purposes of s.5L of the Act and the applicant is a member of this group. I consider this group is identifiable by the characteristics common to all members of the group which distinguishes them from society at large and the applicant share those characteristics. The characteristics or attributes common to all members of the group are not their shared fear of persecution; rather they encompass objective characteristics.
Given my findings above, I accept that if returned to Iraq, there is a real chance the applicant will face serious harm involving systematic and discriminatory conduct amounting to serious harm for the essential and significant reasons of his membership of the particular social group in Iraq - former American affiliated [officials or service personnel].
Therefore I am satisfied the criteria set out in s.5J(1)(a) and (b) of the Act are met.
In considering whether the real chance of persecution relates to all areas of Iraq, in view of DFAT’s advice about the situation for Christians and former personnel as described across Iraq. I am satisfied it does. Therefore I find the criterion set out in s.5J(1)(c) of the Act is met.
Availability of effective protection
Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection measures are available to them. Section 5LA of the Act provides that effective protection is available to a person in a receiving country if it could be provided by the relevant state or a party or organisation (including an international organisation) that controls the state or a substantial part of the territory of the state. A state is taken to be able to offer protection against persecution if the person can access the protection, the protection is durable and in the case of state protection, the protection consists of an appropriate criminal law, a reasonable effective police force and an impartial judicial system.
In considering whether effective protection measures are available to the applicants in Iraq, DFAT advises that years of conflict (including the recent conflict with ISIL) have limited the capacity of state protection mechanisms to deliver services. DFAT reports that the US State Department assesses that Iraqi police have committed human rights abuses and corruption is widespread at many levels, including bribery to reduce or drop charges[1]. While the Iraqi government announced that it had driven ISIL out of Iraq in December 2017, the cost of rebuilding Iraq as it emerges from the devastating conflict with ISIL is estimated to be enormous and as yet unfunded.[2] As set out above, DFAT’s advice also suggests that violence against Christians in Iraq and other violence is prevalent throughout Iraq.
[1] DFAT, DFAT Country Information Report Iraq, 9 October 2018 at 5.1-5.7
[2]
In these circumstances I do not consider the applicant will be able to access effective protection from the state of Iraq. Therefore he is not excluded from having a well-founded fear of persecution by the operation of s.5J(2) of the Act.
Modification of behaviour
Section 5J(3) of the Act provides that 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, with a number of stated exceptions. The exceptions set out in s.5J(3)(a) to (c) include characteristics that are fundamental to a person’s identity or conscience and characteristics that are innate or immutable and I am satisfied that religion here is such a characteristic. In these circumstances I am satisfied the applicant is not excluded from having a well-founded fear of persecution by the operation of s.5J(3).
It follows that the applicant satisfies s.36(2)(a) of the Migration Act and is a person in respect of whom Australia has protection obligations.
Relocation
I am not satisfied that the applicant could move to another part of Iraq to escape persecution. There is no evidence to suggest that he has a right to live in another country.
I note the following from DFAT’s Iraq country report 2018:
Christians
3.21 In 1987, the government estimated 1.4 million Christians lived in Iraq. Christian community leaders estimate this number has fallen to fewer than 250,000. Conflict in Iraq after 2003 directly affected all religious communities, and the Christian community faced a high level of violence at the hands of armed groups. The rise of ISIL exacerbated violence towards Christians and many have fled Iraq.
3.22 Christian groups include Chaldean Catholics (67 per cent of all Christians) and the Assyrian Church of the East (a further 20 per cent). Less numerous denominations include Syrian Orthodox, Syriac Catholic, Armenian Catholic, Armenian Orthodox, Anglican, Evangelical and other Protestants. The Constitution explicitly protects Christians’ freedom of belief and practice.
3.23 Local sources report that Christians have historically played an important mediation role between the Sunni and Shi’a communities. The government provides symbolic support to the Christian community.
Many of Iraq’s political and religious leaders, including former Prime Minister al-Maliki and Shi’a cleric Muqtada al-Sadr, attended the re-consecration of an Assyrian Catholic Church in Baghdad that was destroyed by a bomb in 2010. The inauguration of the Patriarch of the Chaldean Church attracted similarly high-level attendance. This indicates the government values Iraq’s Christian community and is willing to provide protection where it has the capacity to do so.
3.24 The general decline in acceptance of ethnic and religious minorities among majority communities in Iraq also affects Christians. Local sources report increased harassment and violence in areas where Christians are a minority, including Shi’a areas of Baghdad or in Basrah. Christians may disengage from society for their own safety. State protection is often insufficient. Violence against Christians in the Kurdistan Region is less common, but Christians in the region continue to face discrimination in the form of intimidation and denial of access to services. Evangelical Christians in the region claim that they face bureaucratic hurdles that prevent the registration of their churches in the Kurdistan Region.
3.25 ISIL subjected Christians to high levels of violence and discrimination in areas under its control. ISIL forced Christians to convert to Islam, pay jizya or face death or expulsion. The 2017 US State Department Human Rights Report reports numerous abuses by ISIL against Christians (and other minority communities in ISIL-controlled areas) including execution, kidnapping, rape, enslavement, forced marriage, forced abortions, expulsion, theft and destruction of property. ISIL destroyed religious sites including, in January 2016, the 1,400 year old Monastery of Saint Elijah, the oldest Christian monastery in Iraq. Most Christians attempted to flee ISIL-controlled areas and many have sought safety outside Iraq. Some Christians complain that the Peshmerga and other security forces took over homes and at least one town abandoned by Christians fleeing from ISIL. Many Assyrians also claim that Kurds expropriated their land under the Ba’ath Party between 1968 and 2003.
3.26 Some Christians have been returning to areas previously held by ISIL since their defeat in various areas. In 2018, some Christians returned to their homes in the Ninevah plains to hold Easter services for the first time since the occupation and found that Christian churches and homes had been destroyed.
3.27 DFAT assesses that Christians in Iraq face low levels of official discrimination. However, DFAT further assesses that Christians face moderate levels of societal discrimination and violence, similar to that faced by other religious communities in areas where they are a minority.

I find that the applicant as a Christian would be unlikely to modify his behaviour and may well evangelise as he has in the past. He would likely face moderate levels of societal discrimination and violence and I conclude that he would face this across the country including in Southern Iraq and Kurdistan. He may well have difficulty entering Kurdistan as a non-Kurd Arab.
I also note country information drawn to the Tribunal’s attention from the New Straits Times, dated 16 January 2018:
BAGHDAD: Iraq’s Prime Minister Haider al-Abadi called Monday for the elimination
of jihadist “sleeper cells” after a twin suicide bombing killed 31 people in Baghdad in
the second such attack in three days.
There was no immediate claim of responsibility, but most such attacks in Iraq are the
work of the Islamic State jihadist group.
The bombing comes after Abadi’s government declared victory over IS in December
and as the country gears up for parliamentary elections.
“Two suicide bombers blew themselves up in Tayyaran Square in central Baghdad,”
said General Saad Maan, spokesman for the Joint Operations Command (JOC) which
includes the army and police.
A police officer reported “31 dead and 94 wounded.”
Tayyaran Square is a bustling commercial centre and a place where day labourers gather
in the early morning waiting for jobs. It has been the site of deadly attacks in the past.
Iraqi analyst Hisham al-Hashemi said attacks at the square since 2011 have killed 180
people, “often in the run-up to elections or just after the polls.”
They aim to “create chaos and exacerbate sectarian divisions“, he said.
Security forces cordoned off the scene of the blasts as ambulances gathered in the area,
an AFP journalist said.
Abadi held an emergency meeting with the JOC and intelligence officials after the
attack, his office said, asking them to “eliminate IS sleeper cells” and ensure the security
of civilians.
Analysts have warned that IS would increasingly turn to such tactics as it was pushed
underground after losing territory spanning the Iraq-Syria border.
Just hours after the first attack, another person was killed and three wounded in a
grenade explosion east of Baghdad, the police said, blaming it on a tribal dispute.
Attacks increased in Baghdad after the start in 2016 of a battle to retake second city
Mosul from IS. Iraqi forces retook the northern city in July last year.
In December, the government announced the “end of the war” against IS, which has
been expelled from the Baghdad region and urban areas of Iraq that it controlled.
Jihadist elements are still active, however.
On Saturday, a suicide bomb attack near a security checkpoint killed at least five people
in northern Baghdad.
And last November, IS claimed an attack by suicide bombers on a market on the
outskirts of Baghdad that killed 11 people.
The latest attacks come as Iraq gears up for elections in May, with voters deeply
concerned about security in a country wracked by violence since the 2003 US-led
invasion. …
The Hashed, or Popular Mobilisation Units, for its part, is now seeking to become a key
political player in Iraq after proving to be a formidable force on the battlefield.2
It is clear that the threat from IS has not dissipated following its territorial defeat in Iraq. Instead, the insurgents are now resorting to their historical use of guerrilla tactics and underground terrorism to attack anyone who does not follow their radical religious beliefs.
Another submitted article is relevant:
 No IS territory but plenty of armed and trained fighters survive
 IS previously undermined Iraqi state through "asymmetric insurgency"
 Baghdad's embrace of Shia militias leaves Sunnis isolated
A double suicide bombing in central Baghdad is the latest attack to be claimed by the
remnants of the group calling itself Islamic State (IS). Though the group’s territory was
retaken in 2017, experts warn that its switch to underground terrorism may be
particularly effective against a fragile Iraqi state.
Iraqi Prime Minister Haider al-Abadi declared “final victory” over IS on December 9,
2017, roughly three years after the group had seized about a third of Iraq’s territory.
However, Iraq continues to suffer terrorist attacks across the country. On January 15,
an attack in Baghdad killed at least 35 people, and injured 90. It’s the latest attack to be
claimed by IS, indicating a switch in tactics from open fighting over territory to
underground “orthodox” terrorism.
Reverting to the norm
As the group’s territorial control and economy gradually collapsed in 2016 and 2017, it
was widely speculated (Brookings Institute) that IS would redirect its efforts to more
traditional forms of terrorism, and expanding its underground activity.
As far back as June 2014, when IS’s momentum was at its peak, the group’s
magazine, Dabiq, was calling for its international supporters to engage in terrorist
attacks.
2 AFP, Baghdad twin suicide bombing kills 31, New Straits Times, 16 January 2018
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I find that the applicant as a former [occupation] would be a potential target for ISIS or ISIS-related militant groups who have engaged in a switch in tactics from open fighting over territory to underground “orthodox” terrorism. Although it has been several years since the applicant worked for the [organisation], I am persuaded that past animosities are not easily forgotten by militants and I cannot conclude that it is a remote or far-fetched risk in this case. I bear in mind a previous bomb that was intended for him.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Justin Meyer
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.
…

[2019] AATA 3576

21 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Natural Justice

28/12/2011	Applied for a [permanent partner] visa
10/12/2013	[permanent partner] visa application refused
19/02/2015	Migration Review Tribunal affirmed the refusal of the [permanent partner] visa application
10/03/2015	Lodged Protection visa (PV) application
19/01/2016	Interviewed in regard to PV application