1614088 (Refugee)

[2018] AATA 2458

1614088 (Refugee) [2018] AATA 2458 (23 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614088

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Susan Hoffman

DATE:23 May 2018

PLACE OF DECISION:  Perth

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 23 May 2018 at 4:10pm

CATCHWORDS
Refugee – Protection visa – Iraq – Imputed political opinion – Former Ba’ath party member – Religion – Shia – Death threats – Corruption – Ba’ath party administration – Militant religious groups – Attempted kidnapping – Internal relocation – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Zheng v MIMA [2000] FCA 670

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 on 17 August 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Iraq, applied for the visas on 18 December 2014. The delegate refused to grant the visas on the basis that they did not meet the criteria for protection.  

3. The principal applicant (the applicant) is [name deleted] born [on date]. Messrs [Son A] and [Son B] are his sons, born [on date] and [date] respectively. They are the dependent applicants.

4. The applicant, who claims to be a citizen of Iraq, arrived in Australia [in] November 2014 with the dependent applicants on a [temporary] visa which had been granted on 7 October 2014. The applicant applied for a protection visa on 18 December 2014 with the dependent applicants as members of the same family unit.

5. The delegate interviewed the applicant on 27 November 2015. The delegate refused to grant the visa on the basis that he did not find that the applicant’s fear of harm was well-founded.   

6. The applicant appeared before the Tribunal on 13 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7. A submission dated 4 April 2018 in support of the applicant’s claims was received by the Tribunal prior to the hearing.

8. The applicant was represented in relation to the review by his registered migration agent.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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 themselves 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).

4. 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.  

5. 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

1. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant satisfies the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Background, protection claims, and the delegate’s decision

1. The applicant claims to be a citizen of Iraq. The Tribunal accepts that this is so, and that Iraq is his country of nationality and receiving country. The Tribunal is satisfied on the evidence before it that the applicant does not have the right to enter and reside in another country. The Tribunal finds therefore that he is not excluded under s.36(3).

2. The applicant arrived with his sons on a [temporary] visa [in] November 2014, and on 18 December 2014 he applied for a protection visa with the dependent applicants being members of the same family unit.

3. The applicant claims to be a Shia Muslim who was a resident of Baghdad while living in Iraq.

4. The applicant, who is now [age] years old, claimed that he joined the Ba’ath party when he graduated from university and that he worked in [Agency 1] of the Iraqi government from 1991 to 2008.

5. According to his application form, between [specified years] he was educated at [university], at the [specified college]. Between August 2008 and November 2014, he worked in [Agency 2] and/or for the office of [Agency 3] in Iraq.

6. The applicant claims that he joined the Iraqi military and was involved in the Iran-Iraq war. He was captured [in] January 1981 and then imprisoned in Tehran until August 1991. He was repatriated [to] Iraq in August 1991.

7. The applicant then returned to his job in [Agency 1], working for the government and in 1993, he became [an Occupation 1]. He claims that during this period he witnessed favouritism, cronyism, corruption and the stealing of public funds and that Saddam Hussein and his sons disregarded [Agency 1] and its function.

8. The applicant submitted to the Department what appears to be a copy of a pass into the Green Zone with an expiry date [in] 2015, and a copy of a pass recording that the applicant was a VIP working in [Agency 2] and that his job title was [title].

9. The applicant claimed that in or around 2008 or 2009, he was nominated to work at [Agency 2] and he became [Role 1] and [a second role] of [Agency 3] in Iraq. He claims he witnessed fake transactions and how the Al Dawa party and the Supreme Council of the al-Sadr party dominated the political scene. The applicant claimed he had to overlook certain transactions. He claimed he does not condone the manipulation of public expenditure.

10. The applicant claimed that during this time he drew the attention of many people who wanted to obtain secret information from him or who wanted endorsement from the committee he worked on. The applicant claimed he and his family faced harassment because of his work. He claimed he did not get personal protection like other holders of prestigious positions and that this lack of protection exposed him to grave dangers including the possibility of murder. The applicant claimed that he started to receive threats on the phone.

11. The applicant claimed that on [a date in] June 2014 he was outside the Green Zone with his driver in his car and was chased by people in another vehicle. He claimed they were wearing black clothes and that they belonged to the Asa’ib Ahl al-Haq militia. He claimed they shot at the back of the car and hit it, including the tyres.

12. The applicant claimed that his driver diverted to side streets and he jumped from the car, then hid in one of the shops in the [named] area. He claimed that he reported the incident to the authorities but no one was arrested.

13. The applicant claimed that [in] July 2014 his son was standing with a group of people when two men on a motorbike took aim and fired at the group, and one boy was killed during the incident.

14. The applicant claimed that [in] September 2014 the Asa’ib Ahl al-Haq militia slipped a threatening note under the door of his house with a [bullet] in it. The note demanded that he leave. He claimed that his family and children moved to his [relative’s] house in the [specified] area of Baghdad. His wife and other children are still residing with his [relative] in Baghdad in Iraq.

15. The applicant claimed the security conditions of his country are moving from bad to worse. He claimed his family and the [specified] area are being controlled by Sunni religious groups. The applicant claimed that if he returned to Iraq he would be killed due to his prestigious position and he would not be able to secure protection.

16. The applicant attended a protection interview with the delegate on 27 November 2015.  In their decision, the delegate recorded that the applicant made the following additions and amendments to claims previously made.

17. The delegate recorded that the applicant stated on his protection visa application and character forms that he had not travelled outside of Iraq before his journey to Australia. At the interview with the delegate, the applicant claimed that he had travelled outside of Iraq prior to his journey to Australia as follows:

    ·     From 1981 to 1991 he was imprisoned in Tehran, having been captured by Iranian forces at the start of the Iran-Iraq war when he was [with] the Iraqi army.

    ·     From August 2008 to November 2014 he was the head of [Agency 3] in Iraq, and working within [Agency 2]. In this capacity he accompanied [Official A] overseas: to [Country 1] three times and to [Country 2] once.

    ·     [In] November 2007, he was in [another country].

    ·     In 2012 he travelled to [another country], and two occasions prior to that.

    ·     From 2010 to 2014 he made a number of short 30-day trips to [a country] for his [relative’s] medical treatment: once in each of 2010 and 2011, twice in 2013 and four times in 2014.     

18. The applicant claimed at interview that he left Iraq due to the militia group Asa’ib Ahl al-Haq, who considered him to be part of the Ba’ath party because of his work with [Agency 3]. He claimed that the militias were in pursuit of him because they wanted the applicant’s position as [the second role] which would give them more power and increase the opportunity to operate corruptly.

19. Referring to the assassination attempt that he claimed occurred in June 2014, the applicant said he was able to escape as his driver swerved the car near a T-junction and opened the door. The applicant fell and injured his elbow. The driver and the applicant took cover and then ran to some shops nearby and managed to escape. The applicant claims the persons who were attempting to assassinate him were wearing black clothes and they were from Asa’ib Ahl al-Haq.

20. The applicant claimed that there was an attempted abduction of his son when his son was returning home from school. His son came home and was trembling and claimed someone on a motorbike tried to grab him and he ran away. Then people started to shout at the man on the motorbike, and he rode away. When asked why he had omitted this claim from his statement of claim, the applicant said he did not want his story to become too long. The applicant claimed that maybe it was the Mahdi Army that tried to kidnap his son because the applicant was working for the government or because he was a former Ba’ath party member.

21. The applicant claimed that [in] September 2014 he was in his car when someone pulled up in front of it. He claimed he locked his doors and windows and someone approached him from the other car. The applicant claimed that this person had a handgun and the applicant managed to drive off in his car. He claimed that he heard two shots and luckily he was not injured. Asked why he had not included this incident in the statement of claims, the applicant replied that he had included it.

22. The delegate recorded that the applicant stated at interview that he was no longer a member of the Ba’ath party at the time the Saddam Hussein regime ended.

23. The delegate found that the applicant feared persecution for reasons of imputed political opinion and religion. They recorded that the applicant claimed the following reasons for fearing harm:

    ·     He feared harm due to his imputed political opinion as an ex-Ba’athist and as [an Occupation 1] during the Saddam Hussein regime.

    ·     He feared harm from Sunni extremists.

    ·     He feared harm from Shia militias due to his imputed political opinion.

24. The delegate found that the applicant faced a real chance of persecution as a Shia Muslim because of fear of harm from Sunni Muslims. The delegate did not accept that the applicant was at risk of serious or significant harm from Shia Muslim groups. The delegate found that the applicant would no longer be targeted because of his job, or because members of militias wanted his job, as he was no longer in that role and there was, therefore, no reason for Shia militias to target him.

25. The delegate recorded that they were satisfied there was a real chance of persecution but this did not apply to all parts of Iraq. The delegate found that the applicant could safely relocate to the southern regions of Iraq, specifically Najaf.

26. The delegate also referred to the applicant’s claim that he joined the Iraqi military and was involved in the Iran-Iraq war in the 1980s, and noted that he had not made any findings or considered whether the applicant may have committed crimes against peace or committed war crimes (s.5H(2)).

27. With regard to the applicant’s sons who were both dependents, the delegate was satisfied that they were members of the same family unit as the applicant.

28. In a submission by his former migration agent dated 17 April 2015, it was claimed that the applicant, by defecting from his senior role in the Iraqi government and knowing of the corrupt behaviour as he does, would be regarded as a deserter and traitor, and that as a secular Shia Muslim, he is seen as an enemy (kafir) to both fundamentalist Sunni and Shia groups.

Findings and reasons

1. In order to determine whether or not the applicant meets the criteria for a protection visa, the Tribunal has considered the evidence before it, including the evidence given by the applicant during the hearing, and has also considered the credibility of that evidence. The Tribunal recognises the difficulties facing applicants when giving evidence at a formal hearing. These difficulties include providing evidence through an interpreter and also remembering details of events that happened many years ago. The Tribunal considers that if, in general, the claims made by an applicant are credible and consistent, then the benefit of the doubt should be extended with regard to any claims made by an applicant that they are unable to substantiate. However the Tribunal also recognises that even when the overall claims may be credible, it is possible that an applicant might embellish details, thinking that that can strengthen the case. For this reason the Tribunal undertakes to critically evaluate the claims made by applicants.

2. In this case the Tribunal was satisfied that the applicant’s evidence was truthful and credible. It was inherently coherent and has been broadly consistent across the various statements he has made, at the delegate’s interview and at the Tribunal’s hearing.

3. The Tribunal is satisfied that the applicant meets the criterion for a protection visa for reasons given below. The applicant said that he believed he will face harm if he goes back to Iraq because he received threats of being killed by Islamic militia and even today they still threatened his family. The applicant said that the main reason he has been threatened is linked to the work he did as [Role 1] in [Agency 2].

4. The applicant said that he worked for [Agency 1] until 2008. Between 2008 and 2014 he was appointed to work as an [Occupation 2] in [Agency 2]. He said that [Agency 3] in Iraq was part of a department that was also within [Agency 2]. The applicant said that as well as being the [Occupation 2] manager he was also deputy to the general manager of [Section 1].[1]

   [1] The applicant’s job title was translated to be [Role 1] as well as [Occupation 2] manager. The Tribunal considers these variations to be due to interpretation, which also explains other variations in the titles of the applicant’s work roles.

5. The applicant explained that [Agency 3] was separate from [Section 1], but as [a Section 1 manager] he was responsible for [details deleted]. The applicant said that in his role as the [Section 1] manager it was his task to follow up and to make sure that any documents submitted [were] genuine. He said that after he was appointed to work as an [Occupation 2] in [Agency 2] he discovered fraud in contracts, and decided not to approve certain contracts because of the fraud.

6. The applicant said that after the assassination attempt he became really scared and was forced to leave his employment. He said that he used to be a highly paid employee earning about AU$[amount] a month and had been used to a good standard of living in Iraq. He said that he is currently scared about the well-being of his family.

7. Asked what he thought would happen if the militia found him, he said they would kill him or torture him. Asked if the [tasks] were linked to his protection claim, the applicant said his role on [a particular] committee meant that if he discovered [that something] was not genuine and he declined an [application], then the person who had been turned down could ask for help from other groups.

8. The applicant claimed there were [a number of employees doing his line of work] in [Agency 2] and that he was in charge of them. He said that he reported to the general manager of [his section], and that person reported to the general manager of [Agency 2]. He said that if something came up that was urgent or confidential, he was able to report directly to the general manager of [Agency 2].

1. The applicant claimed that he worked in a secure area in the Green Zone. Asked if he had direct contact with [Official A], the applicant said not directly. He said [Official A] would visit the [team] in the office from time to time. Asked if [Official A] would know him by name if he saw him now, he said yes. He confirmed that the relationship between himself and the former [Official A] was very formal.

2. The applicant said that in Iraq, [Occupation 2] was done differently to [Australia]. Asked if he understood the principles of [a specified element of occupation 2], the applicant answered forcibly that of course he did, and that if asked he would be able to explain it. Asked if his job involved him [details deleted], he said that it did.

3. The applicant had made claims about travelling overseas with [Official A]. He said that the first such trip was made in about 2012 to [Country 1]. He said it was a quick trip, going to [Country 1] and back in [a short time] and that during that trip, [Official A] met with [a senior official]. The applicant said they were in [Country 1] for [a specified time]. The applicant claimed that [specified officials] accompanied [Official A], along with security people and other staff. The applicant said there were around [number] people in the group. They travelled by [plane].

4. Asked what the meeting was about, the applicant said he did not know. He said that [Official A] met with [another official] privately and everyone else in the entourage stayed outside, including the [other officials]. He said at the end of the meeting, [the two key officials greeted] each other and that was it.

5. Asked why he was included in that meeting, the applicant said that he was responsible for [elements of] the [trip]. [Details deleted].

6. The applicant claimed that the next trip he made with [Official A] was about four months later to [Country 2] and they arrived about [time] in the morning. He claimed that [Official A] went to meet [another official] and the entourage stayed in the hall. The applicant claimed that that night they were invited to a free dinner. The Iraqi and [Country 2] [officals] sat next to each other at the same table and the rest of the entourage was seated at another table. They returned to Iraq first thing the next morning. Asked why he was included on that trip, he claimed it was for the same reason: [details deleted].

7. Regarding the third trip, the applicant said that they travelled to [Country 1] in maybe late 2013 or early 2014, and it was essentially the same as the first trip, travelling there and back [during a timeframe]. He said that [Official A] did not meet [the same official] that trip but instead met with [another official]. He is [a specified official]. The applicant said that he did not do any other overseas trips with [Official A].

8. The applicant referred to the delegate stating that the applicant had not mentioned his various trips overseas in his form 80. The applicant said that he had told his representative, this was the representative’s mistake and at the delegate’s interview, the representative apologised for not passing on this information.

9. The applicant claimed that the problems he had were definitely related to corruption [he identified]. The applicant said that because of the corruption he discovered, he was not approving contracts. He said one of his colleagues was the Deputy Manager of [Section 2] and reported to someone in [Agency 2]. He said that the [Section 2] Deputy Manager was a member of al-Sadr and that is how he got his job. The applicant said because of this man’s position, he was the one who could see other employees’ CVs, and this man could see that the applicant used to work for [Agency 1] and that he used to be a member of the Ba’ath party. Asked if he had a suspicion that this man was behind the problems he had, the applicant said he definitely was, as someone must have ordered the attack on him.

10. The applicant said that if he declined [an application] or if a contract was not approved, the person could go to al-Sadr to get revenge on their behalf. The applicant said that with these groups they believe either you belong or you are the enemy, and that as he used to be a member of the Ba’ath party that was seen to be a crime.

11. The Tribunal accepts that if a person is attacked, then someone is responsible for that attack. It also accepts that there may be people who would seek revenge if they were prevented from getting what they wanted. However it does not agree that the applicant’s strong suspicion that the [Section 2] Deputy Manager was responsible for the attacks on the applicant puts that beyond doubt.

12. DFAT makes the following assessments about corruption in Iraq.[2]

    [2] DFAT Country Information Report Iraq, dated 26 June 2017.

2.13    Iraq ranks 166th out of 176 countries on Transparency International’s 2016 Corruption Perceptions Index. Following escalating protests about high levels of corruption and a fatwa (an Islamic legal pronouncement) issued by Grand Ayatollah Sistani in August 2015, Prime Minister Abadi announced an ambitious plan to reform the Government, including through curbing corruption. However, progress has been limited. Corruption, patronage and nepotism affect most aspects of day-to-day life in Iraq and the Kurdish region.

5.10    …Members of the judiciary continue to come under significant pressure including intimidation and violence, particularly in pursuing cases involving organised crime, corruption and the activities of militias. Judges have been violently targeted by militias. Corruption and a lack of resources, including limited forensic capabilities, remain challenges.

DOCUMENTATION

5.27    The 2005 Iraqi Constitution states that citizenship is the right of every Iraqi and is the basis for nationality, noting that anyone born to an Iraqi male or female is Iraqi. The 2006 Nationality Law is more progressive and inclusive than previous legislation – it removed previous distinctions between Arabs and non-Arabs for the naturalisation process and repealed legislation that revoked the citizenship of Faili Kurds. However, it remains discriminatory against Iraqi Jews and Palestinians and is potentially problematic for other vulnerable groups who, without documentation, lack access to services, freedom of movement and other basic rights.

5.28    Procedures for issuing documentation are antiquated. Records are kept manually and most types of documentation do not have adequate security features. Issuance and updating procedures are susceptible to bribery and corruption…

1. Asked if he concealed from people that he used to be a member of the Ba’ath party, the applicant said yes. He referred to the delegate’s decision and that it was written that the applicant joined the Ba’ath party after he graduated from university. The applicant claimed that was wrong as he joined the Ba’ath party in his first year of university.

2. The applicant claimed that when Saddam Hussein and the Ba’ath party came to power, he – the applicant – as [a young man] was one of the first members of the party. The applicant claimed that the Ba’ath party had different ranks and he had a high rank. He claimed that because of the sensitivity of working in [Agency 1], the people in charge would not have accepted someone working there who was not a member of the party.

3. The Tribunal asked the applicant about the senior ranks of the Ba’ath party in relation to being Sunni or Shia. The applicant referred to one man [who] he said was in a senior role and was Shia. The applicant said that in Saddam’s day, being Sunni or Shia was not as significant. This is consistent with country information as follows:[3]

   It appears, then, that, however important sectarian affiliation may have been in the past, in the latter 1980s nationalism was the basic determiner of loyalty. In the case of Iraq's Shias, it should be noted that they are Arabs, not Persians, and that they have been the traditional enemies of the Persians for centuries. The Iraqi government has skillfully exploited this age-old enmity in its propaganda, publicizing the war as part of the ancient struggle between the Arab and Persian empires…

   The real tension in Iraq in the latter 1980s was between the majority of the population, Sunnis as well as Shias, for whom religious belief and practice were significant values, and the secular Baathists, rather than between Sunnis and Shias. Although the Shias had been underrepresented in government posts in the period of the monarchy, they made substantial progress in the educational, business, and legal fields… Observers believed that in the late 1980s Shias were represented at all levels of the party roughly in proportion to government estimates of their numbers in the population. For example, of the eight top Iraqi leaders who in early 1988 sat with Husayn on the Revolutionary Command Council--Iraq's highest governing body-- three were Arab Shias (of whom one had served as Minister of Interior), three were Arab Sunnis, one was an Arab Christian, and one a Kurd. On the Regional Command Council--the ruling body of the party--Shias actually predominated. During the war, a number of highly competent Shia officers have been promoted to corps commanders. The general who turned back the initial Iranian invasions of Iraq in 1982 was a Shia.

   [3] US Library of Congress (1988) ‘Sunni-Shia Relations in Iraq’ in Iraq: A Country Study, edited by Helen Chapin Metz, Washington: GPO.

4. The applicant said that he joined the student group of the Ba’ath party. He worked for the social committee at the [University] and he was at university between [specified years]. He claimed that from 1980, rather than just being a member of the Ba’ath party, he started to work actively within it.

5. The Tribunal asked the applicant a series of questions and about his time in the military and the time he claimed to be a prisoner in Iran. Asked if he was in a command situation or if he was in an ordinary soldier, the applicant claimed that he was a [position]. He claimed that he was not on the front line, and he worked behind the lines which he did for three months until he was captured. He claimed that he was never engaged in fighting.

6. The applicant claimed that after being captured, he was a prisoner in Iran for 10 years. He said that was a very difficult period for him. Asked if that had left him with any problems or difficulties, he said that he got through it.

7. The applicant claimed that when he went back to Iraq, he went back as a hero. He claimed that some of the prisoners of war stayed in Iran because there were connections between Iran and some Iraqis. He claimed that he demonstrated his loyalty to Iraq by returning there whereas others did not. The applicant claimed that when he returned to Iraq, he went back to the job he used to have in [Agency 1]. He claimed that after he got back to Iraq he was vetted strongly by Iraqi authorities to see if his loyalty or his thoughts had changed, and he passed that vetting process. The applicant claimed that without passing that vetting process, and if there had been any doubts about his loyalty, he would not have been able to go back to his old job in such a sensitive department.

8. The applicant claimed he continued to be a member of the Ba’ath party until 2003. After the Iraqi invasion and the end of the Saddam Hussein regime, he continued working for the Iraqi government.

9. The Tribunal asked if it was a problem for him to continue working there as a member of the Ba’ath party. The applicant said his personal history of being in the Ba’ath party and a prisoner of war did not affect him working in [Agency 1] after the fall of the Saddam Hussein regime. He claimed that not all of the people who had been Ba’athists were forced to leave government and some of them were still working there.

10. With regard to the delegate’s point that people of the Shia persuasion could not hold senior positions in the Ba’ath party, the applicant said that his bosses were Sunni and the senior people were Sunni. Asked where he was in the hierarchy – low-level, middle level or senior level – the applicant responded that he was at the top of the middle level of the hierarchy.

11. DFAT has commented on the Ba’ath party as follows:

    Links to the Ba’ath Party

    3.51 Under the former Ba’ath Party regime, membership of the Ba’ath Party was a precondition for employment with the Government, creating a hegemonic party with a presence in every Ministry. After the fall of the Ba’ath Party regime in 2003, a de-Ba’athification process was introduced to remove the Ba’ath Party’s extensive influence. This process led to the dismissal of thousands of individuals based on their rank within the Ba’ath Party hierarchy. The 2005 Constitution prohibits the party, but provides for equality before the law for former members of the Ba’ath Party.

    3.54          At a societal level, it is broadly agreed that what applies to the Ba’ath Party should not apply to Ba’athists as individuals, given the pressures that forced millions of Iraqis to join the Ba’ath Party and the supremacy of the Ba’ath Party in all aspects of Government during the Ba’ath Party regime…DFAT assesses that societal discrimination against individuals with links to the Ba’ath Party is most pronounced in areas where Shias dominate (such as in the south).

    3.55          Overall, DFAT assesses that individuals with high-level links to the Ba’ath Party face high levels of official and societal discrimination, particularly when trying to secure employment. Individuals with lower-level links to the Ba’ath Party face lower levels of official and societal discrimination.

12. The Tribunal accepts that applicant’s claims regarding his membership of the Ba’ath party as a Shia Muslim, as his account has been consistent and aligns with country information, particularly that relevant to Iraq in the 1980s and 1990s.

13. In relation to the incident that happened when he was driving out of the Green Zone, the applicant said that he did not see the men who attacked him as he dropped to the floor because of the gunshots. He said that the people who came to help him said that the attackers wore black and that they belonged to the Asa’ib Ahl al-Haq group. The applicant claimed that this happened because of the corruption and his refusal to participate in it. He said that there had been many attempts to bribe him and he had refused.

14. Asked if there were any particularly controversial decisions he made, the applicant said that almost everything he did was against the wishes of certain people. Asked to give an example of this, the applicant said that there had been a project [in] the southern part of Iraq. He claimed that everything to do with these projects was recorded on paper rather than electronically, and had to be correct. He claimed that he suggested to the general manager of the [Section 1], who had access directly to [Official A], that they go to the sites where the [sites] were being built to make sure it was happening. He claimed they visited the sites and found that although the money had been paid over, nothing had been built.

15. The applicant claimed that the people who got most of the money were members of the al-Sadr group and the amount of money that was involved was US$[amount] million. Asked if he knew it was the al-Sadr group who was responsible or whether that was just his opinion, the applicant said he made enquiries about the people who got the contract and was told that they belong to the al-Sadr group.

16. The applicant said there was a similar incident in relation to a [building].[4] He claimed that the amount of money spent on the [building] was twice its value, and that he wrote a report on it, stating that US$[amount] had been spent on it and it was still not habitable.

    [4] [Deleted.]

17. The applicant said that a huge amount of money was spent on a project to do with [a building] in [location]. The applicant claimed that he wrote a report on this, calling for a site visit to ensure that the money had been spent properly. He said after he wrote the report he went with the consultant [from] [Agency 2] to inspect the property. They were on the way back to Baghdad about an hour after their inspection when they got a phone call saying the ceiling had fallen in. The applicant claimed that the work on this project continued for three years and was just wasted money.

18. The applicant said that the people who were benefiting from all this money were trying to find out who was asking about them and they were told it was him. The applicant claimed that the people wanting a contract signed off warned him that he had to be careful. The applicant claimed that no one else was openly querying what was happening with all this money in the way that he did, because most people were scared. The applicant claimed that he asked questions, wrote reports and received warnings before the shooting incident.

19. The applicant claimed that although he had a driver, he sometimes drove himself. Usually when he left the Green Zone, he used different exits which was a security measure adopted by others who worked inside the Green Zone. He claimed that generally people who worked inside the Green Zone did not tell others as people who worked within the Green Zone were seen by others to be in alliance with the United States.

20. The applicant said that it was his son [Son B] who was targeted in the attack of July 2014. He said he was at home when [Son B] came home and was shaking. The applicant said that he had heard the shots as the incident happened nearby. Asked if he knew that his son was a target or if he suspected it, he said he was sure it was his son who was targeted because there had been the unsuccessful attempt on the applicant the month before.

21. The applicant said there was another incident in September 2014. He was driving on the freeway. He saw in his rear view mirror that someone in the car behind was waving and he thought he was a friend. He started to slow down and stop. Then he saw the person behind him had a gun and he accelerated away. The applicant said that he – the applicant – had a newish car which was quite powerful and fast, whereas the person behind him was in an old car and could not keep up with him.

22. With regard to the other incident in September 2014 when a bullet was delivered to his home, the applicant said that there was a note with it that told him he must leave or he would be killed. The applicant said that he and his family left their home and went to stay at his [relative’s] house. He said he stopped his children going to school and everyone stayed in the house except for him, who continued to go to work. He said it was a horrific period for them. The applicant said that it was that which prompted him to come to Australia.

23. The Tribunal asked him why he applied for a [temporary] visa only for himself and his two sons. The applicant claimed that the person who provided the service and assisted them to get the visas said that Australia would not grant the visas if the application was made for the whole family.

24. The Tribunal asked the applicant if he and the second and third-named applicants, who are now aged [specified ages], live in the same household. He said they did, and added that he cooked for them and washed clothes for them and looked after them. He said that the boys are both at school [and] they speak English fluently. The Tribunal is satisfied that the second and third named applicants are the dependent children of the main applicant and they are members of the same family unit.

25. With regard to the situation in Iraq, the applicant said that his wife and older children are not doing well and they move between different relatives’ homes. He said they used to live a life of luxury but no longer.

26. The applicant said that when he left Iraq to come to Australia, he had arranged leave for himself. He said that according to the law in Iraq, if a person takes leave for a period of time and that leave expires and the person does not go back to work, then it is treated as if the person has resigned. Asked if it was a bit more serious given the nature of his job, the applicant said definitely. The applicant claimed that anyone who leaves Iraq as he did and returns some years later, given his senior role and the sensitive information to which he had access, would have to explain himself.

1. The Tribunal considers it credible that given his job before he left Iraq and the access he had to sensitive information, the authorities would be interested in questioning the applicant should he return to Iraq.

2. The Tribunal asked the applicant what he thought would happen to him if he went back to Iraq. He responded that the same people who tried to kill him are still there.

3. The applicant said that the delegate said that he could go to live in southern Iraq. The applicant rejected that on the basis that in the south, the militias are dominant. Asked if he had any relatives in southern Iraq, the applicant said no.

4. The Tribunal asked the applicant how he knew, and why he was so sure, that the threat to him came from al-Sadr followers when there are so many different groups in Iraq. The applicant said that everyone knows this is as it is on [social media] or he finds out through friends. Asked how he knew it was the Asa’ib Ahl al-Haq group, as he had claimed, the applicant said that originally the various groups were all part of the al-Sadr movement, and Asa’ib Ahl al-Haq, like other groups, had split off from al-Sadr’s group. The applicant indicated that he might use the term al-Sadr as an umbrella term for the different groups.

5. According to country information, the person who started Asa’ib Ahl al-Haq, Qais al-Khazali, was previously ‘the commander of a military brigade within Muqtada al-Sadr’s Mahdi Army’.[5] On this basis the Tribunal accepts that using al-Sadr as an umbrella term for a range of Shia militia groups is not unreasonable.

   [5] Stanford University (2018) Mapping Militant Organizations: Asa'ib Ahl al-Haq, accessed at >

   With regards to the reach of these groups across Iraq, and the general security situation, the Tribunal notes the following DFAT assessment.

   Extra-Judicial Killings

   4.1        While it is difficult to obtain accurate data on extra-judicial killings in Iraq, in-country contacts have raised allegations of extra-judicial killings, including assassinations by Government-linked forces (such as the PMF). Armed groups regularly use targeted assassinations as a tactic to discredit the Government, and for reasons such as ‘moral policing’ and for extortion. Investigations into extra-judicial killings are rarely effective and their independence is questionable. Reports resulting from investigations are unlikely to be published, and a pervasive culture of impunity exists.

   State Protection  
   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

   Popular Mobilisation Forces
   5.5        The PMF is a state-sanctioned umbrella organisation composed of well over 200 armed groups that are predominantly Shia (although the PMF includes Sunni tribal fighters and minority groups). Many of these groups have existed for some time and have close links to Iran…The PMF has an estimated 100,000 to 120,000 members, including approximately 10,000 in Baghdad…

6. On the question of relocation, the DFAT assessment for Arab Shia Muslims is as follows.

   5.16      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.
   5.17      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.

   5.18      A wide range of ethnic and religious minority groups reside in southern Iraq. The overwhelming majority is Shia…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.

   5.20      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.

7. Asked if anything relevant to his protection claim had happened after he left Iraq, the applicant claimed that he had heard through his wife and through his brother that an armed group had gone to what used to be his home, asking when the homeowner would be returning. The applicant says that his former home is currently locked up. Asked how people knew who this group was, the applicant said you could tell who they were as they could be identified through the black clothes they wore and that the cars had darkly tinted windows. He said that everybody knew what that meant.

8. The Tribunal referred to comments made by the delegate to the effect that the applicant had left his job because someone else wanted it, and if he was no longer doing that job, he would no longer be a target. The applicant claimed that someone else wanted his job but they also wanted to get revenge on him.

9. The Tribunal asked further questions about the possibility of relocating to southern Iraq. Asked if people would know him or know of him, the applicant said that he knows that the delegate said there was no law to prevent him from relocating to another city in Iraq. The applicant said this was wrong in that the local council has to give approval. He said that in Baghdad, approval was needed to move from one local council area to another local council area. The applicant said that in the south, the councils were controlled by the militias, and the militias’ offices in the south are related to the local councils. The applicant said they would ask a person why they moved. He also said they have his name on a list.

10. The applicant’s representative made the following submissions.  

    ·     The applicant has expressed fear of death, torture and kidnapping which we submit equals persecution if he returns to Iraq.

    ·     He holds a genuine fear because of the threats he has received from the Shia groups.

    ·     These groups have threatened him and his family and are motivated by political reasons and self-interest.

    ·     The applicant is viewed by them as an enemy of their cause who threatened their ability to continue their corrupt dealings and would be in their way.

    ·     The groups will target anyone, Sunni or Shia, if they threaten the ambition that the groups have to take control of Iraq.

    ·     As per the written submission, the applicant’s past history and country information indicates there is a real chance he will experience the harm he fears should he return to Iraq.

    ·     Regarding relocation, the Shia group which targeted him has extensive networks throughout Baghdad and southern Iraq and will be able to track him as he would be required to register wherever he relocated.

11. The DFAT assessment regarding persons working for the government is as follows.  

    3.48      Individuals working in particular areas of the Government can have an increased vulnerability to deliberate targeting, including by ISIL. In-country contacts suggest that some instances of targeting are about power, rather than political opinion. However, the risk faced by individuals associated with the Government has increased with the emergence of ISIL which has systematically targeted Government employees, particularly members of the ISF. For example, DFAT is aware of credible reports that up to 1,700 mainly Shia Air Force cadets were executed by ISIL in Tikrit in June 2014.

    3.49      All high-level individuals in the Government and the bureaucracy are provided with substantial protective security details. However, the Government does not have the ability to provide protective security for all employees. Overall, DFAT assesses that members of the armed forces as well as senior and mid-ranking officials face a high risk of violence. Other lower-level officials are subject to a low risk of violence. This risk increases significantly in ISIL controlled areas. [Emphasis added.]

    3.50      DFAT has no evidence to suggest that the families of any individuals associated with the Government are targeted by armed groups as a matter of course. However, there are credible reports of families associated with the Government (such as by having a family member who is a member of the Iraqi Security Forces) being injured or killed during attacks on the individual’s car or home.

12. The Tribunal is satisfied that the applicant meets the definition of a mid-ranking official, given he oversaw the work of [a team] and has worked in the area of [his occupation] for the government over decades. It is satisfied that the risk for him intensified as he was trying to stop corruption and waste of public monies, by speaking out and by refusing to sign off on contracts and [applications]. The Tribunal further accepts that the applicant had access to sensitive information which adds to the risk he might face should he return to Iraq.

13. The Tribunal is satisfied that the applicant’s stance against corruption was effectively the expression of a political opinion. Although the applicant did not publicly campaign against corruption, he wrote reports and expressed his concern about corruption and how money was being spent to certain of his colleagues and superiors.

14. The Tribunal notes the DFAT assessment above (paragraph 63), whereby Prime Minister Abadi announced a plan to reform government which included curbing corruption, and that Iraq ranks 166 out of 176 countries on the 2016 Corruption Perceptions Index. These demonstrate the endemic nature of corruption in Iraq. The Tribunal is satisfied that in making a stand against the systemic corruption that permeated government, the applicant’s actions could reasonably be imputed ‘to be an 'act of opposition to the machinery, authority or governance of the state’.[6]

    [6] Zheng v MIMA [2000] FCA 670 (Merkel J at [32]).

15. The Tribunal accepts the applicant’s claims that he was threatened and an attempt was made to kill him, because of the stand he was making against corruption and the waste of public monies. Self-evidently the applicant still has the same knowledge of who was involved in the corruption and how it operated. The Tribunal is satisfied that this knowledge creates a very real chance of serious harm should the applicant return to Iraq.

16. The Tribunal finds therefore that the harm feared by the applicant is for the reason of his imputed political opinion as a person who demonstrated his opposition to the machinery of the state. It is satisfied that the applicant fears persecution by reason of his imputed political opinion and that reason is the essential and significant reason for the persecution It also finds 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 imputed political opinion. The Tribunal is satisfied that the persecution feared by the applicant involves serious harm as it would be a threat to his life, liberty or significant physical harassment or ill treatment.

17. The Tribunal is satisfied that because of the reach of the various militia groups across Iraq, and that the applicant has no familial or tribal links to other parts of Iraq aside from his home town of Baghdad, relocation is not an option for him and a real chance of persecution applies throughout Iraq.   

18. The Tribunal is satisfied that there are no effective protection measures available to the applicant because of the generally poor security situation in Iraq as per the DFAT assessment above. It is also satisfied that there are no reasonable steps the applicant could take to modify his behaviour to avoid a real chance of persecution. For the reasons given above the Tribunal is satisfied that the first named applicant has a well-founded fear of persecution and is a person in respect of whom Australia has protection obligations; he satisfies the criterion set out in s.36(2)(a).

19. The Tribunal is satisfied that the other applicants, being the main applicant’s two sons, are members of the same family unit as the first-named 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

1. 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.

Susan Hoffman
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.

…