1610768 (Refugee)

[2016] AATA 4556

1610768 (Refugee) [2016] AATA 4556 (5 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610768

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Josephine Kelly

DATE:5 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 05 October 2016 at 2:00pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Iraq, applied for the visa [in] July 2014 and the delegate refused to grant the visa [in] July 2016. The applicant provided a copy of the delegate’s decision to the Tribunal.

3. The applicant appeared before the Tribunal on 16 September 2016 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

   SUMMARY OF THE LAW

4. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Regulations, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

5. 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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection 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 the applicant 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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 THE CLAIMS AND EVIDENCE, AND FINDINGS

   The issue in this case

10. The issue in this case is whether the Tribunal accepts that the applicant’s claims for protection are credible. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The applicant was born on [date] in the Ninawa province of Iraq.  He is a Sunni Moslem.  His father died in [year].  His mother and [sisters] remain in Iraq.

    Claims for protection

12. The applicant made the following claims for protection.

13. He was born and grew up in Mosul.  His ethnic group is Arabic/Kurdish. His mother is Arabic and his further was Kurdish.

14. His address from [birth] to June 2013 was [address.]

15. The applicant was an [unofficial militant] from 1998 to 2003.  The unit was located at [location.]

16. [In] 2009, the applicant joined the Iraqi army as a national guard in Al Mosel.  His unit was located [information deleted].

17. On [date] June 2013, the applicant received a phone call from [Mr A] threatening him to leave the Iraqi army or he would be beheaded.  The applicant did not take this seriously and did not respond.

18. On [date] June 2013, the applicant was with his unit.  He received a phone call from his family informing him that someone had left a letter from ISIL (Islamic State of Iraq and the Levant, hereafter Da’esh) at the front door which stated that the applicant had been warned and would be beheaded for working for the Iraqi army.  The applicant told his family to leave the house and go to his uncle’s house on the other side of the city.  

19. On [date] June 2013, the applicant went to his uncle’s house and asked his uncle to check up on the family home.  His uncle went there on [date] June 2013 and later informed the applicant that the house had been blown up.

20. On [date] June 2013, the applicant spoke to a contact named [name], a truck driver who travels to Syria, Jordan, and other places and asked to be smuggled out of Iraq.  He was taken to [location] on the Iraq/Turkey border.  A man called [name] helped the applicant to cross the border by boat.  The applicant then embarked on a road journey to Istanbul.

21. The applicant’s [uncle], was assassinated by [a] militia [group] due to the old enmity since “we worked with the official army”.

22. The applicant fears Peshmerga militias.

23. On [date] July 2013 the applicant arrived in[Country 1] . He applied for protection.  He stayed for one month and 25 days before he withdrew his application for asylum and returned to Turkey where he worked in a [business]for an Iraqi but was not paid.  He left that job to find work selling [goods].

24. [In] June 2014, the applicant left for [Country 2]and [in] June 2014 he left [Country 2] to travel to Australia.  He arrived holding a bogus [Country 3] passport.  He was not immigration cleared and was taken to [to a] detention centre.

25. Towards the end of the hearing, after the Tribunal had questioned him about the above claims and asked if there was any other reason that the applicant was seeking protection in Australia, the applicant said that there were many reasons, the enmity of Kurds, the conflict between Sunni and Shia and that he used to serve in the army.

    Documents in support of the application

26. The applicant provided copies of the following documents in support of his application:

    ·A residency document issued [in] October 2011, including the address “North Ninawa Neighbourhood”, and a photograph.

    ·A ration card which included a street number and the name of the [ration centre]

    ·An Iraq Citizenship Certificate issued [in] May 2013 which included a photograph.

    ·An elector card which included the [election centre name], and a photograph.

    ·A general vehicle driving licence issued [in] February 2003 with an expiry date [in] February 2008, which included the address “[address]”, which included a photograph;

    ·Four photographs of the applicant dressed in a military uniform with military equipment, including a rifle, in different settings and with two different people who were also dressed in military uniforms.

    Consideration of the claims and evidence, and findings

27. The Tribunal does not accept that the applicant’s claims for protection are credible for the following reasons.

28. The applicant stayed in [Country 1] for one month and 25 days and withdrew his claim for protection.  He told the Tribunal that he was in a prison with criminals.  He was in hell with fights and beatings. His psychological condition deteriorated while he was in prison. He described being shackled and handcuffed when taken to interviews. He said that he had been advised that he could be released into the [Country 1] community but that would take another month.  His account at the departmental interview was consistent with the account he gave to the Tribunal.

29. The Tribunal does not accept that withdrawing his application for protection in [Country 1] for the reasons he gave so soon after arriving and with the knowledge he would be released into the [Country 1] community in a further month, is consistent with his claim to fear that Da’esh would cut off his head and his claimed history of military service.  In making that finding, the Tribunal has taken into account that the applicant was not going to be returned to Iraq, but to Turkey.

30. The applicant claims to have served in the [group] as an unofficial militant from 1998 to 2003 and then to have served in the Iraqi army in [location] from 2009 until he left Iraq in 2013.  He described his duties with [this group] as checking identification documents and setting up check points.  He gave the following account of the duties he undertook in the army. For the first seven or eight month he was in watchtowers in [location], and guarding military check points. Every now and then he was hit by mortars and missiles fired by the terrorists.  When a new officer came, the applicant was transferred to [another] unit which had the role of early intervention when there was a confrontation with terrorists. They would attack terrorists very often, sometimes two or three times a day.  He also patrolled military points in the area belonging to his unit.  

31. When the Tribunal commented that it had difficulty accepting that he was confronting terrorists two or three times a day, and asked how long the attacks lasted, the applicant said that it depended on the fire power of the attackers, 10 minutes or an hour. It was unpredictable.  If a car bomb went off he had to rush there.  Depending on the situation, there were a lot of times he treated the wounded, helped people get into ambulances, and collected body parts.  Sometimes car bombs were followed by confrontations when the troops and terrorists fought.  When the Tribunal commented that it did not understand that the situation in Mosul at that time was as he described, the applicant swore that every day two or three car bombs went off and assassinations happened every hour on an hourly basis.

32. If the applicant had undertaken the duties he described in the above paragraph, particularly attacking terrorists, collecting body parts, treating people, and putting them in ambulances after a car-bombing, the Tribunal does not accept that he would have found the conditions in [Country 1] prison so difficult that he withdrew his protection application after one month and 25 days, particularly when he knew he would be released into the [Country 1] community in about a month’s time. The duties he described involved confronting the risk of death to himself from terrorists several times a day, and dealing regularly with the horrific aftermath of car bombings on human beings.  The Tribunal does not accept that the conditions he described in the [Country 1] prison were more terrifying than the duties he claimed he had carried out in Mosul. 

33. The delegate sets out the following in the decision, a copy of which the applicant provided to the Tribunal.  On 4 July 2016, the applicant was sent a natural justice letter regarding military identification cards and asked two questions:

    ·Credible information before the Department indicates that the Iraq Ministry of Defence and Enlisted identity card has been altered. A security feature on this document appears to have come from another document. Can you explain why this is the case?

    ·Credible information before the Department indicates that military identification cards in your possession lack the security features the can be expected from documents of this nature. Can you explain why this is the case?

34. In summary, the applicant’s response was that he had lost his original military identification in Turkey, otherwise he would have loved to have given the original ones. He has been in the military force in Iraq, he has provided pictures of him taken at different times while he was on duty and as he said at the interview, he could name his military captains and did provide some names. He explained that he was on duty in Mosul, [location], and was sure that all his documents were original and he has no reason to give false document or try to fool the Department or himself.

35. The delegate recorded in the decision that the applicant said during the interview that the [Country 1] immigration service had not returned the documents and that he would attempt to retrieve and submit them. The delegate noted in his decision that the applicant had sent two emails to [Country 1] immigration service requesting amongst other documents, “my military IDs (3 different cards)”. 

36. In his visa application form, the applicant wrote that he had lost his two Iraqi Army ID cards, “Al Forsan Militia” ID Card, a letter of threat from ISIS, a picture or his blown up house and recent driving licence, “but the [Country 1] Government has a copy of them enclosed with my old application there.  I do believe that the Australian Immigration is able to communicate with [Country 1] Authorities to bring a copy of them”.

37. When the Tribunal asked the applicant about the military documents not being genuine, the applicant said that he did not provide any to the Australian government and had lost them in Turkey.  The Tribunal accepts that he did not provide them to the Australian government.  He denied telling the delegate that the military cards were not returned to him by the [Country 1] authorities.  He said that the military cards had been given back but two of the civilian cards had not.  He also said that the [Country 1] authorities have around 40 military photographs, his $2,000 cheque and mobile telephone. 

38. The applicant has not provided a satisfactory explanation about the security features on his military cards not conforming to the cards being genuine.

39. In the decision at page nine, the delegate quoted four sources of country information to the effect that wearing of an Iraqi police or army uniform is not a guarantee that the wearer is operating in an official capacity, fake identity cards are available and tailors sell army/police uniforms, that fake identities are available in a bookstore as well is on the street, and that there are a lot of fake documents being used in Iraq in order to enter Kurdistan.

40. The Tribunal has taken into account the photographs of the applicant in a military uniform in various locations with two different men dressed in military uniforms and on his own, including holding a rifle.  The Tribunal gives the photographs no weight because there is no credible reliable evidence to support the applicant’s claim to have been a member of the army.  As it commented to him, such photographs could have been staged. It does not accept his denial that the photographs were staged.

41. The Tribunal finds that the only document that supports the applicant’s claim to have lived in Mosul is the driver’s licence that expired in 2008. The Tribunal does not accept that the photograph on that licence is a photograph of the applicant.  The person in the photograph has a very round face, whereas the applicant has an oval shaped face.  In making that finding, the Tribunal takes into account the applicant’s evidence that it is him and that there is only one person in Iraq with his name, but does not accept that evidence.  It also takes into account that the photograph would have been taken in 2003, 13 years ago, but does not accept that the elapse of time satisfactorily explains the different shaped face of the person in the photograph.  The Tribunal accepts that the other photographs before the Tribunal do show the applicant.  

42. The Tribunal’s finding that the driver’s licence is not the applicant’s, is reinforced by the applicant’s evidence that this is one of the important documents that his mother and sisters took from their home when he told them to leave the day the letter from Da’esh was received at his house [in] June 2013.  The driver’s licence expired in 2008.  The Tribunal does not accept that an expired driver’s licence would be kept for five years or that it would be kept with important documents.  In making that finding the Tribunal has taken into account the applicant’s evidence that he kept it because he could use it to renew his licence, but does not find that a satisfactory explanation.  In his visa application form, the applicant listed among the documents he needed to provide, “recent driving licence”.  He explained in that form that he had lost it but the [Country 1] government had a copy enclosed with his previous application. He therefore did not need a licence that had expired in 2008 to renew his licence because he had a new licence.   

43. The applicant’s citizenship certificate states that he was born in [City 1], as were his parents. The applicant explained that [City 1] is his family’s place of origin and that he was born in Saddam’s time when [City 1] belonged to Mosul.  His family had land in the north of Iraq and did not register in Mosul for the sake of those lands.  That is why his birth is registered in[City 1] . Earlier at the hearing, the applicant claimed that his grandfather was displaced from [City 1] to Mosul in [the 1960’s] because he was a member of the [name] family which was in conflict with [another] family. The applicant said that is why he hates the Kurds from northern Iraq.  

44. There is a lack of reliable documentary evidence that supports the applicant’s claim that he was born in Mosul.  The certificate clearly states that his place of birth was[City 1].  Other documents that he says are genuine, apart from the driver’s licence, do not provide a Mosul address. The address details provided are consistent with the applicant being born in and living in northern Ninawa, a province of Iraq which includes [City 1] and Mosul.  The Tribunal accepts the applicant’s evidence that [City 1] is currently under the control of the Kurds which is consistent with country information referred to below.

45. The Tribunal accepts that the security situation in Iraq is as described in the Department of Foreign Affairs Country Report on Iraq (the Country Report), dated 13 February 2015.  Parts of Ninawa are under the control of the Kurdistan Regional Government (KRG).[1]  

    [1] The Country report at [2.29].

46. At the hearing, the Tribunal questioned the applicant about his apparent lack of concern for his mother and sisters who he said were living in Mosul which is controlled by Da’esh who had threatened to behead him and bombed his house.  The comment followed the applicant telling the Tribunal that telephone reception in Mosul is poor and his mother and sisters have to go to some high land in Mosul to get reception.  When asked if there was high land around Mosul, the applicant said that there a lot of hills around Mosul and sometimes there is reception.  They travel there by car or by taxi.  When the Tribunal expressed surprise that women could travel to hills around Mosul as he described when Mosul was under control of Da’esh, the applicant said that they usually go out with their neighbours and call him whenever they get the chance.  He last spoke to his mother two and a half months ago.

1. The Tribunal does not accept that the applicant’s apparent lack of concern about his female relatives is consistent with their living in Mosul which is under the control of Da’esh which threatened to behead him and bombed his house where those relatives also lived.  The applicant is the head of the household. The ration card he provided states that he is the “family host”. He claimed that he told his female relatives to leave the house when he was told about the letter received at the house. Such behaviour indicates that he thought that Da’esh would act against him indiscriminately, that is, not target him personally as the letter stated, but would act regardless of who would be hurt.

2. Country information reinforces the Tribunal’s finding.  Two extracts from the 2015 Report on International Religious Freedom – Iraq, by the United States Department of State Reports dated 10 August 2016 illustrate how Da’esh behaves:

   Throughout the year, the government fought numerous battles to regain control of significant terrain lost to Da'esh. At the same time, Da'esh pursued a campaign of violence against members of all faiths, but against non-Sunnis in particular. In areas under its control, Da'esh continued to commit killings and mass executions, and to engage in rape, kidnapping, and detention, including mass abductions and enslavement of women and girls from minority religious communities. Da'esh also continued to engage in harassment, intimidation, robbery, and the destruction of personal property and religious sites. In areas not under Da'esh control, it continued suicide bombings and vehicle-borne improvised explosive device (VBIED) attacks against all segments of society. Da'esh also targeted religious pilgrims and pilgrimage sites for attack. The United Nations Assistance Mission to Iraq (UNAMI) reported Da'esh IEDs caused at least 5,403 casualties (1,167 killed and 4,236 wounded), amounting to half of all verified casualties in the first half of the year.

   ...

   In Mosul, Da'esh fighters reportedly continued to threaten with death local residents who did not convert to Islam. They also continued to punish those who failed to adhere to the group's strict interpretation of sharia. Da'esh continued to impose severe restrictions on women's movement and dress, and enforcement patrols by Da'esh forces were reportedly routine occurrences. According to local press reports, in June, Director General of the Yezidi Affairs at the Ministry of Waqf said Da'esh compelled captured Yezidis to fast during Ramadan, and beat those who refused to pray five times daily in Islamic prayer.

3. A report in The Guardian of 17 February 2015 said:

   Women living under Islamic State’s control in Iraq and Syria are facing increasingly harsh restrictions on movement and dress, which are rigorously enforced by religious police and are leading to resentment and despair among moderate Muslims.

   Residents of Mosul, Raqqa and Deir el-Zour have told the Guardian in interviews conducted by phone and Skype that women are forced to be accompanied by a male guardian, known as a mahram, at all times, and are compelled to wear double-layered veils, loose abayas and gloves.

   Their testimonies follow the publication this month of an Isis “manifesto” to clarify the “realities of life and the hallowed existence of women in the Islamic State”. It said that girls could be married from the age of nine, and that women should only leave the house in exceptional circumstances and should remain “hidden and veiled”.[2]

   [2] >

   “There are reports of airstrikes in Ninawa, in Mosul, which killed civilians, although not all of these reports were verified.”[3]  There were plans for an attack on Mosul by Iraqi and Kurdish forces in the Spring of 2015.[4]  There are currently such plans.[5]

   [3] Country Information and Guidance, Iraq: Security situation in the ‘contested’ areas, UK Home Office, Version 1.0 August 2016; Defence One, 19 February 2015; 20 July 2016, >

   The country information reflects that there is danger to the inhabitants of Mosu, internally from Da’esh, and externally from the forces aligned with the Iraqi government.

4. The Tribunal has taken into account the applicant’s evidence that he is concerned for his female relatives and that 1.5 million people live in Mosul and continue to live their lives.  However, his evidence does not satisfy the Tribunal’s concerns, particularly when his mother and sisters do not seem to have a male to protect them or accompany them.  The Tribunal has also taken into account that the applicant’s female relatives are Sunni, as is Da’esh, however, on the country information, that does not alter the Tribunal’s findings.

5. The Tribunal finds that the applicant’s lack of concern is consistent with his female relatives living in an area which is not controlled by Da’esh and which is more secure and is controlled by the KRG, such as[City 1]. While some areas under KRG control such as Kirkuk have suffered explosions and dozens of fatalities since early 2013, no country information before the Tribunal indicates that [City 1] is subject to such insecurity.  The Country Report states that the “greater capacity of Kurdish intelligence and security forces has provided a higher level of public security and this has been reflected in a lower number of successful attacks in Kurdish territory.[6]  Similarly, other country information states that the KRG “remains the safest and most stable region of Iraq, although isolated acts of terrorism occasionally occur. The relatively homogenous Kurdish population and the presence of the KSF mitigate the threat of AQI and other terrorist attacks in the North and reduce ethnic tensions that plague other cities in Iraq. Turkish and Iranian operations against Kurdish terrorist groups along their borders with the KRG have not led to significant numbers of refugees, collateral damage, or political fallout.”[7]

   [6] At [2.39] and [2.40].

   [7] [information deleted]

6. For the above reasons, the Tribunal does not accept that the applicant’s evidence about his protection claims is credible.  It has taken into account that the applicant denied fabricating his claims but does not accept that.

7. The Tribunal does not accept that the applicant was born in Mosul or lived there. It does not accept that his mother and sisters live in Mosul.  It does not accept that the applicant served in the [named group] or any other such group from 1998 to 2003 or that he served in the Iraqi army from 2009 to 2013 or that he was threatened by Da’esh for that reason as he claimed or for any other reason, or that his house was bombed and that consequently he fled Iraq. 

8. The Tribunal does not accept that the applicant’s [uncle], was assassinated by Kurdish Peshmerga militia due to the old enmity since “we worked with the official army” or that the applicant fears [other]militias [information deleted].. None of the documents he provided and which he claimed were genuine referred to that name at all. The Tribunal does not accept his explanation that official documents such as he provided do not refer to the family name. He provided no country information to support that claim.

9. The Tribunal does not accept that the applicant has suffered any harm in Iraq or been threatened by anyone.  It does not accept that there is a real chance that he will suffer serious harm or that there is a real risk that he will suffer significant harm from Da’esh, Kurds from the north of Iraq or the Kurdish Peshmerga, or enemies of the [a certain] family.   

10. The Tribunal does not accept the applicant’s general claim to fear harm because of Sunni/Shia conflict in Iraq. He has not suffered any harm for that reason in the past. His mother and sisters are living in Iraq without male protection.  He did not claim that they had suffered such harm.  The Tribunal does not accept there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm because of the Sunni/Shia conflict in Iraq. In making that finding, the Tribunal has taken into account that he left Iraq in June 2013.

11. The applicant had indicated on the Response to hearing invitation that he wanted the Tribunal to telephone two witnesses in Iraq. He stated that one was a neighbour who was a member of the [volunteer force] who could witness that the applicant had been in that force and a soldier in the Iraqi Army.  The other was a neighbour who knew about the bombing of the applicant’s house, his participation in the Iraqi Army and the [other] militia.

12. Towards the end of the hearing, the Tribunal asked the applicant if he wanted the Tribunal to call those witnesses.  After some discussion, he said yes.  The Tribunal told the applicant that it did not consider that their evidence would assist the Tribunal because if it did not believe what he was saying was true, it would not believe their evidence, and if it did believe what he was saying, it was unnecessary. 

13. For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Iraq.

14. The applicant does not have a well-founded fear of persecution for a Convention reason.

15. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

16. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

17. Because the Tribunal does not accept that the applicant’s claims for protection are credible, it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to Iraq, there is a real risk that he will suffer significant harm.

18. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Protection visa

    Josephine Kelly
    Senior Member