1613127 (Refugee)

1613127 (Refugee) [2017] AATA 1264 (19 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613127
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Rodger Shanahan
DATE:19 July 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 19 July 2017 at 4:19pm

CATCHWORDS
Refugee – Protection visa – Iraq – Social group – Relationship to son – Son’s persecution by political parties – Women in Iraq – Credibility issues – Inconsistent with applicant son’s evidence – Applicant son’s return to Iraq – Delay in application
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 424AA, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The applicants who claim to be citizens of Iraq, applied for the visas [in] February 2016.
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.
CLAIMS AND EVIDENCE
It was put to the applicant that the Tribunal noted that she had previously stated that she relied on everything in her son’s claim as representing her claim. She agreed that her son’s documents from the claim he made were still valid and she still relied on them for her personal claim.
She claimed that if she returned to Iraq she would be assaulted by political parties. She had been beaten every day in Iraq and had been hit in her head with a metal bar that required stitches. Asked again what would happen to her in the future if she returned to Iraq, she said she had no house as it had been bombed. She had no relatives, no wages, no house and her son was in Iraq and had to live with friends.
There were people who wanted to harm her son and if she returned to Iraq they would kidnap her and wait for him to get her and then kill him. She was advised that this claim related to her only and she repeated that she would be kidnapped on return. She didn’t know who the group who would kidnap her.
When they were in Australia, their house had been bombed – they had wanted to sell it. Their neighbour told them people had planted explosives at the door and blew it up – it wasn’t a big house. This was after they arrived in Australia (October 2013) and was perhaps in early 2014 but she couldn’t recall the date. She repeated she arrived [in] October 2013 and was asked whether it was in 2015. She passed the passport over and it showed her arrival date was [in] October 2015.
She said her son had told her about the bombing but she couldn’t recall when this was. The bomb had destroyed the garden, entrance hall, living room. The house remained unrepaired – only one bedroom at the back was remaining. They had sold the land and house but her son had been ripped off as they only gave him some of the money.
She lived in [suburb] and had done so since April 2017. Prior to that she lived elsewhere in [that suburb] from the time she arrived in Australia. Asked whose name was on the lease, she claimed that there was [a] woman with [children] who lived with her [sibling] and she rented a room from them. The lease was in the name of [name]. When she arrived in October 2015 she lived with the same people with whom she lives now.
On the day she arrived in Australia she and her son stayed at the girl’s ([Ms A]) rented house with whom her son was engaged. They stayed there for about seven or eight months then [her son] and [Ms A] were separated (there was no wedding ceremony) and her son stopped coming to [Ms A]’s house. Asked how she found the people with whom she is currently living, she claimed that [Ms A] helped her. [Ms A] took her to the woman ([Ms B]) with whom she was now living. Asked how long after she moved in with [Ms A], she moved out with [Ms B] she claimed it was about seven or eight months. She knew nothing about her son’s whereabouts during this time.
She was advised about s 424AA and it was put to her that she had claimed that there was no marriage ceremony, yet in her son’s protection visa application (folio 126) that she had stated she relied upon, her son had claimed that following his marriage to [Ms A] in Australia ‘..we offered a splendid marriage party attended by great numbers of relatives and friends.’ Yet she claimed there was nothing.
He had also claimed (folio 125) that ‘[In] December 2015 the relationship was closed and I was evicted out of the matrimonial home by force. I and my mother rented a residence in the same city at [address].’ There was an inconsistency between accounts of the existence of a wedding party, as well as their residential arrangements in Australia given she claimed that she had lived with [Ms A] for seven or eight months before she introduced her to this [woman] [Ms B]. These inconsistencies may adversely impact on the Tribunal’s view of the applicant’s credibility as a witness.
She claimed that she was extremely sick and had [medical conditions] and she was in hospital and didn’t pay attention as to whether her son got married or had a wedding ceremony or not. Her son hadn’t told her. Asked why he hadn’t taken photos or postponed the party until she got better, she claimed that he told her they would sort themselves out because she was sick.
It was also put to her that her son had claimed that he would be killed if he returned to Iraq, yet he returned voluntarily just a few months after his protection visa was refused. This raised serious questions as to whether there was any actual fear of serious harm in Iraq or whether anyone was actually interested in him in Iraq. And if no one was interested in her son, then it followed that people would not seek to kidnap her to get at her son. His willingness to return may adversely impact on the veracity of her claim.
She claimed she didn’t know about his return to Iraq. It was put to her that the concern was that his story regarding being of adverse interest to people in Iraq was fabricated, and hence she would not have a valid claim given nobody would be after her either. He had been there for nearly nine months and nothing appeared to have happened to him. She claimed that since [Ms A] had left her he had been in a poor state. He cried and smoked and his friend in Iraq had been killed in Mosul. He felt that he needed to go back to Iraq.
Asked when she feared having to return to Iraq, she claimed ever since she had arrived in Australia. It was put to her that her son left in October 2016 yet she didn’t seek protection until April 2017 and was asked the reason for the delay. She claimed she was confused and didn’t know English. It was put to her that she lived in a house with English speakers. She claimed she was sick and found it hard to hear. It was put to her that she had no problems at the Tribunal hearing the member and she claimed she had put drops in her ears.
It was put to her that the first mention of her being assaulted in Iraq was in April 2017 and she was asked if she had mentioned this previously. If it hadn’t been mentioned, she was asked why this was the case. She claimed that her adviser mentioned it. She was again asked if she had mentioned this prior to April 2017, and she claimed that when she came she forgot to tell her adviser but had told him after her son left. She remembered lots of things after her son left.
Also under s 424AA it was put to her that there had been no mention from her son that their house had been blown up. She claimed this had been mentioned in their claim – she was asked to show the Tribunal where this was written as it didn’t appear to be the case. It was also put to her that she said the house was small, yet her son had claimed the group was after the house because it was suitable for a HQ. There were concerns about the inconsistencies between her claim the house was blown up whereas her son went to sell the house, and the difference between her claim the house was small and the other claim that it was wanted as a HQ which would indicate it was large. These inconsistencies could also impact on her credibility. She claimed that the house was small but was on big [land]. Another house could be built in the garden.
It was put to her that there was a report about the situation regarding women in Iraq in her submission, yet she had never raised this as a claim previously nor had she today. She claimed she didn’t realise they paid that much attention to women in Australia. She was alone and without family. She was asked why her son had spoken about family members coming to the party. She claimed that they were his friends and there may have been distant relatives, but there were no relations in Australia. There were too many Iraqis living in Australia, and her son had known some Iraqis living in Australia.
The adviser claimed that the son was counselled not to return to Iraq yet he still did and he didn’t know why. He was living in [location] near Kuwait and wasn’t leaving where he was staying. He also claimed that the applicant wasn’t experienced in the Tribunal matters and should be given the benefit of the doubt.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first-named applicant is a [age] year-old separated male and the second-named applicant his [age] year-old mother. I accept that the applicants are Iraqi citizens, and their claim will be assessed accordingly.
The first-named applicant departed for Australia for Iraq [in] October 2016 and remains there. Therefore, he does not satisfy the requirements of s.5H of the Act as he is not currently outside his country of nationality and cannot be granted a protection visa. The second-named applicant advised the Tribunal that she still wished her claim to be heard. The second-named applicant (hereafter simply referred to as ‘the applicant’) claimed that if she returned to Iraq she would be kidnapped by an unknown group in order to force her son to come and get her.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding her claim to be inconsistent and lack credibility. For reasons set out below I did not find her to be a reliable, credible or truthful witness, and that she fabricated much of his claim in order to be granted a protection visa.
Credibility
I am not satisfied that the applicant is a witness of truth. Having said that she relied on her son’s application, she then provided inconsistent information about some fundamental issues. To begin with she claimed that there was no wedding for her son in Australia, whereas he described a splendid party attended by great numbers of relatives and friends. I do not accept that her ignorance of this event was because she was sick in hospital and didn’t pay attention to what her son did.
It is reasonable to believe that, given she claimed he was her only child and he had brought her out specifically for the marriage they would have postponed celebrations until she was better, or at least taken photos and shown her such that she would have been aware of the splendid party had by her son and daughter-in-law.
She was also inconsistent with regards to her accommodation arrangements in Australia. She claimed that she and her son moved in with [Ms A] when they arrived in Australia and stayed with her for seven or eight months until [Ms A] and her son broke up and her son stopped coming to the house, and that [Ms A] then helped the applicant find new accommodation with another [woman] with [children].
Her son however, had claimed that the relationship had broken down after [number] months, he was evicted by force and then he and his mother (the applicant) rented a residence. It also lacks credibility that [Ms A] would allow her mother to stay sharing her house with her for another five to six months after the marriage broke down, particularly as the son claimed that [Ms A] rejected the concept of his mother living with them (folio 126)
Danger in Iraq
I do not accept that the applicant will be kidnapped on return to Iraq in order to lure her son out to rescue her. Despite describing untold horrors in Iraq (‘I hardly believed that the plane would fly [leaving Iraq] without being blown up by someone.’, ‘I [was] determined not to return to Iraq because it would be the country of my grave’ [folios 123/5]), (‘..our arrival in Australia…was a golden opportunity to start a new life and escape the hell of death in Iraq.’ [folio 191]), her son voluntarily returned to Iraq in October 2016. This action is not indicative of someone who fears serious harm on return to Iraq. I do not accept that he had to return because of the death of a friend, both because this relies on the oral evidence of the applicant which I have found to lack credibility, and because he has continued to remain in Iraq.
Because the son’s actions indicate that he had no fear of serious harm in Iraq, it follows that there is not a real chance that the applicant will face kidnapping from a group that is allegedly targeting her son. I do not accept that the applicant had been assaulted by men who hit her over the head with an iron bar causing her to require stitches. She made no mention of this until April 2017, and it is reasonable to believe that she would have brought this to the attention of immigration or Tribunal authorities much earlier. I do not accept that she forgot to tell her adviser, and place more weight on the applicant’s lack of credibility in finding that this claim has been fabricated.
This lack of credibility is also the reason that I do not accept that she would be assaulted by political parties if she returned to Iraq. She did not say what parties would assault her nor why. I also do not accept that their house had been attacked with explosives and much of it destroyed. She could not recall the date on which it occurred, which itself appears unusual given the significance of the event. She made no mention in her written submissions of August 2016 (folio 189) and April 2017 (folio 36) that such an event had occurred, nor did her son in any of his submissions. For the same reason regarding her lack of credibility I am not satisfied that their house has been sold at a low price and she received none of it, or that groups had taken over all of their leased shops.
Further, I do not accept that there is a real chance that the applicant will face serious harm because she is a woman. Whilst I note that country information[1] indicates that women in Iraq face a high risk of discrimination and violence, I note that the violence is focused on domestic violence and forced marriage. The applicant is a widow of nearly [age] years of age and not in the workforce. I am not satisfied that the areas in which Iraqi women are vulnerable to violence apply to her situation.
[1] DFAT Country Advice – Iraq, dated 26 June 2017.
I also note that she did not explicitly claim to fear serious harm as a woman in her early claims. In her August 2016 statement she referred to the fact that she was ‘a woman living all the worries and anxieties’. She raised her fear of being subject to the ‘carnal desires of men’ in April 2017 and during the interview she claimed that she was alone and without family. I am not satisfied that there is a real chance of this being the case, given her son mentioned the presence of many relatives at his wedding party in Australia and her claim to be without relations is reliant solely on her oral evidence which I have found to be lacking credibility.
Complementary Protection
Because I do not accept that the that the applicant will be kidnapped on return to Iraq, assaulted by political parties, that her house has been destroyed with explosives, she is without relatives or that she would suffer violence or serious harm because she was a woman, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

While I accept that the security situation is unstable in parts of Iraq, country information indicates that southern Iraq (including Basra, where the applicant is from) has been and remains more secure than other parts of the country. I also note that her son willingly returned to Iraq in October 2016 and remains there.
As a consequence I also do not accept 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 the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
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.
…

[2017] AATA 1264

19 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice