1611773 (Refugee)

[2018] AATA 5038

1611773 (Refugee) [2018] AATA 5038 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611773

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Roslyn Smidt

DATE:5 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 05 November 2018 at 4:43pm

CATCHWORDS

REFUGEE – protection visa – Iraq – religion – secular Shi’a Muslim – imputed political opinion – past Baath Party membership – expressed views against corruption – family of Communist Party member – fear of killing – Shia militias – decision under review remitted

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, 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

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

2. The applicants, who are citizens of Iraq, applied for the visas on 2 October 2014 and the delegate refused to grant the visas on 22 July 2016.

3. The applicant one (the applicant) appeared before the Tribunal on 22 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

   THE RELEVANT LAW

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:

8. 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.

9. 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    BACKGROUND

11. The applicant is [an age] year old married man of Shia Muslim faith from Iraq.  He was born in Baghdad and lived there until 2013 when he moved to Karbala. He has three children.

12. The applicant’s father and one of his brothers are deceased. [Specified family members] remain in Iraq. One of his brothers is a long term resident of [a foreign country], another went to [another country] in 2016.  [His other family members] remain in Iraq.

13. The applicant obtained [a qualification] in [a subject] in [year], a [qualification] in [year] and [a higher qualification] in [subject] in 2007. All of these [qualifications] were obtained from the [University 1]. 

14. From [year range] he worked in a private [business] in Baghdad.  Between [year range] he worked as [an occupation 1] at [an agency]. From [year range] he managed [a different business] in Baghdad.  From [year range] he worked as [an occupation 1 related job] at [Employer 1]. From October 2011 until his departure for Australia he worked as an [occupation 2] at [Employer 2].

15. The applicant’s wife completed a [qualification] at [University 1] in [year]. During that time she worked at a [different section of] at [Employer 2]. After she completed her studies was on [leave] for two years after which she worked as [a different role] at the [Employer 2]. In 2013 she obtained [visa] to study in Australia.

16. On 18 June 2013 the applicant applied for a student visa to accompany his wife to Australia.  The visa was granted on 18 July 2013. He arrived in [August] 2013 with his wife and three children.  He applied for a protection visa on 2 October 2014.   His wife and four children were included in his application as dependents.

    COUNTRY INFORMATION

17. Sunni-majority Ba’ath Party led by President Saddam Hussein was overthrown in March 2003.  Since that time the government have been dominated by Shiite parties and coalitions. There are currently an estimated 300 political parties mostly corresponding to sectarian or ethnic groups, with very few secular and liberal parties. No party gained a majority in national elections in May 2018, although the highest number of votes and seats went to the party of Shi’a cleric, Muqtada al-Sadr, a former anti-US militia leader who ran on an anti-corruption platform in alliance with the Communist Party. Negotiations to form a government continue.

18. Shia militias have played a significant role in Iraq since shortly after the overthrow of the Baath Party regime in 2003.[1] Some, such as the Badr Brigade, were made up of Iraqi exiles returning from Iran and had existed for some time. Others such as the Mahdi Army arose shortly after the US invasion. At different time their aims have included ending the US led coalition presence in Iraq, imposing their version of Islamic behaviour and gaining power or influence for themselves or their political allies. On occasion they have acted as a police force and provided other serves in local areas.  A number of them are closely linked to political parties or leaders who hold or have held political office in Iraq and have significant influence within the government. Some are aligned to Iran. Some act independently. On occasion they have been involved in armed conflict with government forces, Sunni militias and other Shiite militias. They have engaged in ethnic cleansing including assassinating Sunni leaders and forcing Sunnis from areas dominated by Shias.  Some have engaged in criminal activities such as kidnapping or extortion and many have committed human rights abuses against Sunnis and Shiite who oppose them. 

    [1] This overview is based largely on information in Ranj Alaaldin Containing Shiite Militias: The Battle for Stability in Iraq, Brookings Doha Center Policy Brief December 2017 and  Ranj Alaaldin  Fragility and Resilience in Iraq Istituto Affari Internazionali (IAI) November 2017 >

    Much of the worst violence carried out by Shiite militias occurred between about 2004 and 2008 which also marked the height of more general sectarian violence. However, as the Iraqi state and its institutions became more effective their power and influence waned and violence carried out by these militias was greatly reduced. However, this situation changed in 2014 after the Iraqi army virtually collapsed and the Islamic State of Iraq and the Levant (ISIL) took over Mosul and other areas in northern Iraq. Shiite militias became involved in the battle to overthrow ISIS and played a significant role in its military defeat. Many of these militias currently belong to the state-sanctioned Popular Mobilisation Forces umbrella formed in 2016 to bring militias under centralised control. 

19. According to informed observers the power and influence of Shiite militias has increased significantly in Baghdad and throughout the south of Iraq as a result of their role in the defeat of ISIL and the financial and other support which they have received from the government. Reports also indicate that some, although not all, of these militias have been involved in human right abuses against Sunni civilians in area formerly under ISIL control and that some have been involved in seeking to impose their will and committing human rights abuses and criminal acts in Shiite areas against Shiite civilians.

20. Much of the evidence regarding the role of militias provided by the applicant focuses on the power of the militias, the inability of the government to control them and the resulting growth in lawlessness and criminality. However, there is also evidence which suggests that some militias are seeking to impose their ideological views and views on appropriate behaviour in Iraq. A number of media articles note that many of the militias are controlled or funded by Iran and wish to impose theocratic rule. Some provide examples of militias taking action against groups or individuals which oppose them or fail to conform to their view of appropriate behaviour. For example, according to a Washington Post article dated 23 January 2016 provided by the applicant, members of a Shiite militia commanded entire neighbourhoods in Baghdad where they established roadblocks and punished locals for engaging in activities such as drinking, gambling and prostitution. A number of recent articles note that people in Basra who have been involved in protesting against government failures and corruption have been subjected to a campaign of intimidation and arbitrary detentions by powerful Iranian-backed Shiite militias and political groups that control the city.[2]

    [2] Qassim Abdul-Zahra  Iran-backed militias accused of reign of fear in Iraqi Basra AP News  September 23, 2018 >

    According to Brookings Doha Center the PMF is dominated by Iran-aligned, pre-existing militia groups which have established themselves as socio-cultural movements that have social welfare wings and have gained legitimacy as a result of their role in defeating ISIL.  It notes that these militias have engaged in destructive behaviour, including human rights abuses, refusal to submit to government or civilian oversight and promotion of sectarian discourse. Government calls for m    ilitias to disarm have met with fierce resistance and threats to reorganize independently if the PMF is disbanded.  However, the report also notes that Shiite militias were pushed to the margins after the Iraqi state and its institutions became more effective between 2008 and 2011 and in author’s opinion it may be possible for the government to again contain the power of these militias by incorporating them into the Iraqi state in some way. It also notes that the power and influence of the militias will decline if they fail to deliver security and services to local communities and lose popular support as they did in the past.  How likely these outcomes are, and the consequences for Iraq if the government fails to contain or co-opt Shiite militias remains unclear.

21. In reports issued in June 2017 and October 2018 DFAT noted that the central government lacks capacity to maintain consistent control over the PMF and there have been credible allegations that militias committed human rights abuses and engaged in violence and criminal acts.  DFAT assess that violence between opposing Shi’a militias occurs in Baghdad and southern Iraq.  This violence is often linked to other criminal activities and mostly affects who are actively involved in a militia groups rather than ordinary civilians.

22. Sunni militia groups have included former Baath Party members seeking the removal of occupying forces in Iraq or control of Sunni majority areas and extremist Islamic groups such as al-Qaeda and ISIL. In the past Sunni militia groups have been involved in conflict with Shia militias and government forces, ethnic cleansing of Shia populations from areas in which there is a Sunni majority.  Terrorist attacks and bombings of civilian populations, mostly in areas with a Shia majority, have resulted in many deaths.  

23. As noted above, after June 2014 ISIL took control of Mosul and other areas of norther Iraq. In December 2017 the Iraqi Army and Shiite militias recaptured these areas.  However, most observers agree that ISIL remains a threat to Iraq and ISIL fighters are likely to continue to indiscriminately target Iraqi civilians and commit human rights abuses as a small-scale insurgency.  According to DFAT the remaining ISIL and other extremist fighters are amongst the most acute issues influencing the current security situation throughout Iraq. Although ISIL has lost its self-declared ‘caliphate’ in Iraq and Syria, it remains a threat to Iraq. A report submitted to the UN Security Council by the UN Analytical Support and Sanctions Monitoring Team in August 2018 estimated that up to 30,000 ISIL fighters remained active in Iraq and Syria.

    CLAIMS AND EVIDENCE

24. The applicant claims that he would be at risk of serious harm on return to Iraq for a range of reasons, including his past membership of the Baath Party, his Shiite background, the fact that he holds and had expressed secular and liberal views, his status as an [occupation 2] and [a related occupation], his relationship to his brother who belonged to the Communist Party and the fact that he has lived for some years in Australia and would be perceived as holding western views.

25. I found some relatively minor aspects of the applicant evidence lacking in credibility. While I accept that he was required to join the Baath Party while completing post-graduate studies, but I do not accept that he was an active member of the party as claimed for the first time at the hearing. I also accept that his brother left Iraq in [year] because of problems related to his membership of the Communist Party, but I do not accept that all of the applicant’s family were viewed as supporters of the party as also claimed for the first time at the hearing.

26. I also have some concerns about the applicant’s claim that he received two death threats and was shot at on one occasion while working at [Employer 2] between 2011 and 2013. In the first place, while it is certainly true that [professionals] were targeted and killed by militias between, this appears to have been at most a rare occurrence after about xx. Secondly, the applicant’s evidence at the hearing regarding these events was confused and unconvincing. Nevertheless, I found him to be a generally credible witness and am prepared to give him the benefit of the doubt and accept that these claims are also true.

27. The applicant claims, and I accept, that while he is not a political activist he spoke out against government corruption, particularly in relation to the role and power of militias groups in government institutions on a number of occasions at seminars and during a interviews with the media on issues relating to [topics] while working as [an occupation 1 related job] at [Employer 1] and that because of this he received a death threat.

28. I also accept that while working at [Employer 2] he expressed his views on secularism and liberalism to colleagues and [clients]. I also accept that he refused to enforce instructions such as the requirement that [female clients] should wear hijab, which he saw as a matter of personal choice and that he opposed proposals to change the [one program] at [Employer 2] to one devoted to Islamic instruction. Finally, I accept that he supported a small liberal political party called the Iraqi Youth Liberal Party from about 2012 to 2015.

29. I accept that as a result of holding and expressing these views the applicant faced discrimination and harassment from his superiors at the [Employer 2] in a number ways, including being assigned to [projects] which were not appropriate to his qualifications, pressured to serve on a number of committees which were unrelated to his work and penalised by having the annual assessment of his annual performance downgraded to a level which indicated that he was not competent to work as [an occupation 2]. In considering these claims I have noted that the applicant remained in his position as [an occupation 2] until he departed for Australia and that his wife was granted a [visa]. However, he has never claimed that all of his colleagues or all of the senior staff or the Ministry which controlled [his profession] supported Islamist or militia groups and it is plausible that while members of these groups or people aligned with them were able harass the applicant in the manner claimed, they did not have the power to dismiss him or prevent his wife obtaining a [visa] to study [in Australia].

30. As discussed above, I also accept that the applicant received two death threats while working at [Employer 2] and was shot at by unknown assailants in 2013.

31. At the hearing it was established that the applicant was no longer employed at [Employer 2] because he left without applying of the appropriate form of leave.  In these circumstances and given the passage of time since he left Iraq I find it unlikely that his superiors at [Employer 2] or the militias who threatened his life as a result of his activities while working there would seek to pursue or harm him if he returned to Iraq now. However, after considering all of the relevant evidence, while I believe that it is also unlikely that the applicant would suffer serious or significant harm on return to Iraq because of his views on politics or religion or for any other reasons put forward in his application for protection, for the reasons set out below, I do not believe that the risk of such harm is so unlikely as to be remote.

32. I accept that the applicant has a history of speaking out against government and institutional corruption, the power and influence of militias and associated groups which seek to impose their version of Islamic principles on the Iraqi population and in favour of secular and liberal ideals. I also accept that he would continue to express these views in his daily life and his interaction with professional colleagues. I also accept that he would continue to resist attempts to by militias and others to impose their will on the general population.

33. As set out in the country information section above, Shiite militias have a history of human rights abuses against groups and individuals seen as opposing them, holding views they do not approve of or engaging in behaviour viewed as un-Islamic. The worst of these abuses occurred some years ago and were followed by a period in which the power and influence of Shiite militias declined as did their abuse of local populations. However, in recent years Shiite militias have once again become powerful in Baghdad and the south of Iraq. Reports indicate that they have taken control of some areas and are able to move freely in others. There is also evidence that militias are once again threatening or abusing people seen as opposing them or engaging in activities of which they do not approve.

1. Lack of detailed accounts of the situation on the ground since the defeat of ISIL makes it difficult to determine the level of risk faced by someone such as the applicant. However, as noted above, in the current circumstances and given the uncertain future and the possibility that situation with regard to the role and activities of Shiite militias could deteriorate future, I find that there is a real chance that the applicant would suffer serious harm including abduction or significant physical harm for reasons of his political opinion, namely his support for secular and liberal ideals. I also find that the persecution feared is systematic, in the sense of not being random, and discriminatory in that it is directed at the applicant because of his political opinion. I am also satisfied that the persecution feared involves serious harm as it would be a threat of significant physical harassment or ill treatment.

2. In reaching this conclusion I have considered whether the applicant would be able to obtain state protection in Iraq or relocate to an area where he would be safe from harm from Shiite militias. However, it is clear from the evidence set out above that Shiite militias have a presence in Baghdad and throughout southern Iraq and the Iraqi government is currently unable to control their activities or effective protection to the applicant if the militias were to target him. Furthermore, in my view the applicant would face a real chance of persecution for reasons of his Shiite religion if he attempted to relocate to Sunni areas in the north given the history of sectarian violence and the continued presence of ISIL combatants in the Sunni areas. Furthermore, according to DFAT internal relocation to the Kurdistan Region is difficult for anyone without a sponsor or existing networks within the region. The applicant has never lived in Kurdistan on the evidence and on the evidence before me it appears that he would be able to obtain the required permission to relocate to Kurdistan.  In these circumstances I am satisfied that he cannot rely on protection of the state and that a real chance of persecution applies throughout Iraq.

3. As noted above, the applicant’s wife and children are including in this application as dependents. However, in written and oral submissions it was submitted that they would be at risk of abduction or other serious harm if they returned to Iraq because of the time that they have spent in Australia. I am unaware of any evidence which suggests that Iraqis of any age face a real chance of facing serious or significant harm on return to Iraq merely because they had spent time in Australia. On the evidence currently before me I am not satisfied that the applicant’s wife or children have a well-founded fear of persecution for any or the reasons contained in the Convention or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iraq, there is a real risk that they will suffer significant harm

   CONCLUDING PARAGRAPHS

4. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

5. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant’s wife and four children are members of the same family unit as the applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

6. The Tribunal remits the matter for reconsideration with the following directions:

   (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

   (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Roslyn Smidt
   Member