1614243 (Refugee)

1614243 (Refugee) [2018] AATA 5887 (8 November 2018)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614243
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Rodger Shanahan
DATE:8 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 November 2018 at 2:50pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Shi‘a Islam – provided financial assistance to the family of a Sunni soldier – Shi‘a militias – blackmail and extortion – drive-by shooting – credibility issues – claimed attack against military checkpoint and against the applicant – financial situation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 13 March 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
Protection Visa Application
The applicant has been running his own [business] in Baghdad since 2014 in [District 1]. They used to pay the militias, police and soldiers protecting their area. The militias were greedy and continued to ask them for more money which they had to pay.
In June 2015 there was an armed robbery and three Iraqi soldiers at the checkpoint were killed; one was a Sunni called [Mr A] who had three children. The business owners donated money to the dead soldiers’ families. The applicant committed to pay [Mr A]’s family a monthly wage as he knew they were very poor.
In January 2016 he prepared to come to Australia and on 25 January three militiamen came into his shop to question him about the money he was paying to [Mr A]’s family. He said that he paid [Mr A]’s family because [Mr A] had defended their area and he didn’t care about his religion. They were offended and told him that as a Shi’a he should only be concerned about Shi’a, not Sunnis. He repudiated this and told them he didn’t care about people’s religion.
The militia left but told them that he had betrayed his people and had converted to become a Sunni; they hinted that they would kill him and turn his family life to hell. On [date] he was going home and noticed a car following him so he drove faster but the car sped up and people within it fired shots at him. He escaped but was afraid to go home. He went to a relative’s place and called his family to tell them to be careful and to wait for his brother [Brother B] to move them to another area. He decided not to wait and gave his brother power of attorney to sell everything and to close his business.
He was afraid of the armed militias and the government forces because they were blackmailing him all those years and he had lived under continuous threats. He cannot get protection from the government because it is weak and cannot relocate because the current situation doesn’t allow it and the security situation is deteriorating.
AAT Hearing
The applicant was advised that he had presented three telephone-contactable witnesses outlined and was asked what evidence he wanted them to give. He claimed that two were brothers and one an ex-brother in law. They knew everything about him and his story. It was put to him that it was his right to call witnesses but if they were all just going to say the one thing there wasn’t much point in calling all three. He claimed that it was up to the Tribunal and it was put to him that a decision on who to call would be made later.
He was asked whether he had ever entered [Country 1] and he said that he hadn’t and had no visa from there. It was put to him that there was a visa from the [Country 1] embassy in Baghdad and he said they had one but he had withdrawn his passport as his mother was sick and needed to go to [Country 2]. He claimed he withdrew the passport and didn’t know if it was approved or not. He was asked why he would be given a visa in his passport if it wasn’t approved and he said he didn’t know as he was in a hurry and took his passport. He went to [Country 2] in March or May 2015 as his mother was very sick and had an [operation].
He currently worked in a [company] but it was now bankrupt and he didn’t work currently. The documents that he had provided to the Tribunal were gone through. Asked about his [Bank 1] account, he claimed he needed it for his business. He claimed it was in his name because he couldn’t register it in his business name. It was the money transfer business but he also used it for personal business sometimes. He opened the business in 2014 and closed it in 2016 because he came to Australia – there was only a little amount of money so his brother closed the account.
The [Bank 2] account was exactly the same. Asked why he had two accounts for the same business, he said the [Bank 2] account was for general business. Asked to clarify, he said that it was a different bank. People who transferred money to him used these two banks for his business. He had no other personal or business bank accounts. He then said he had one in 2012 at [Bank 3] but he closed it in 2015 because he didn’t use it. Asked to clarify that it had no activity in that account between 2012-2105, he clarified it was a joint account with his brother and he then said he transferred money for [his Business 1].
He clarified it was just in his name and he used it to transfer and withdraw money for [Business 1]. It was put to him that he said he didn’t use it – he then said he opened a [Business 1] in 2014. It was put to him that he opened the account in 2012 and asked why and he said it was for [Business 1] only. He then said he opened [Business 1] in 2008. They had no account then but opened one in 2012 because it was not safe to just use cash. It was only in his name because his brother was in [Country 3]. Asked why he didn’t use this account, he said it was only for [Business 1] – the name was that of the shop.
It was put to him that he owed his brother USD 90,000 because it was lent to him to open [Business 2] in 2014 (he also opened [the Bank 2] account then). Asked if he owed money on his house, he said he owed USD 150,000 to the bank that he had borrowed around May/June 2015. He bought the house in 2015.
The [Bank 1] account statement was given to the interpreter and she was asked the first transaction date and she said it was [June] 2014 (this was clarified after an initial mistranslation). The entry said the transaction was ‘circle cheque’. The last transaction was on [November] 2015 and said cash payment and the total was ID 6,000,000. The final credit total was ID 499,000,000 on [November] 2015. The [Bank 2] statement last entry was [November] 2015 and the total was ID 600,000,000. The first deposit was 3 June 2015.
The applicant claimed that if he returned to Iraq he would be killed by the militia (Saraya Salam, Hizbullah, Asaib al-Haqq) because he had helped someone. He had no other claims. In June 2015 there was much conflict and a few soldiers (one Sunni, two Shi’a) had died. The applicant helped the family of the Sunni soldier. The soldier’s family was very poor and the applicant gave then USD 2-300 a month. After the soldier’s death, the applicant saw the soldier’s father and felt very sorry for him because he was so poor and had lost his son.
Asked about the incident, he claimed that in June 2015 militia groups came and had a war. Asked to be more specific, he claimed that militia came to the area and the soldiers tried to stop them in their unmarked car. The Shi‘a militia began shooting and killed the three soldiers. The general security situation was very bad and the militia used to control everything about security in Iraq.
After he began giving the dead soldier’s family the money two people from the militia came into his shop and asked why he gave the family money – he explained. This occurred 25 January 2016. They were wearing military uniforms. They knew he was giving money because everyone knew. It was put to him that surely this would have been done quietly and he claimed the other shopkeepers saw the father as he came to the shop to collect the money. The militia asked why he wasn’t helping the Shi’a families and he was accused of being Sunni. He denied this and said no one else was helping the poor family. They then began threatening him and his family and said they would take him and his family to the hill.
At that time he had a visa application for Australia so he didn’t care. He said goodbye to his friends and on [date] he was going home and a car followed him and began shooting. Asked for details, he claimed that he went home about 7 pm and he noticed he was being followed by a car without a number plate. He saw them when he was entering [District 1] where he lived. They began shooting from about 3-400 metres behind him. There were no cars between him and their car as the street was empty. It was put to him that it was strange that there were no cars in the 3-400 metres between him and the other car at 7 pm in [District 1]. He claimed it wasn’t a main street.
There were about three to four shots and he was driving very quickly. He pulled over to a building where there was security (military checkpoint) and stayed in his car and the other car just drove straight ahead. Asked if the soldiers came out when the shooting started he claimed they didn’t and just told him to stay there. He was so terrified he went to his uncle’s house and stayed there – he rang his brother and his (now) ex- came over. He left at 0600 the next morning and came to Australia.
He arrived in Australia [in] January 2016 and applied for protection less than two months later. It was put to him that he took about six weeks and asked what caused the delay, he claimed he was a visitor and was about to go back. He asked if the militia were still after him and he was told by his brother the militia were still after him and his family moved to another area. He had [a number of siblings] still in Iraq. His brother moved away from [District 1] but had moved back. His other brother lived in another area of Baghdad. Asked if anything had happened to his family members since he had left given they had also been threatened, he claimed nothing had happened.
It was put to him that this was strange, but he said they had moved away. One had moved back to [District 1] which was questionable if he was under threat. The militia by his admission had come to his brother’s shop and appeared at their mother’s funeral. He claimed the problem was with him not his family and he began to talk about a confrontation between his brother and militia at his mother’s funeral. They wanted to know where the applicant was, but didn’t do anything to his brother. It was put to him that the militia had threatened his family at the end of 2015 yet they did nothing practically despite allegedly turning up at places such as the shop and the funeral. He said the threats were directed at his ex-wife. His brother had reported the militia to the police after the funeral, but they didn’t even come because even the police were scared.
It was put to him that he had been asked prior to the hearing to provide information about the attack he referred to, as the Tribunal had been unable to, even though there were reports of other attacks in the [District 1] area. He said that he had no evidence to support the claim that there was an attack as he claimed and he agreed that the Tribunal had to rely solely on his oral claim. It was put to him that the timing of his alleged attack appeared very coincidental – he had applied for a visa to Australia, this had been refused and then granted on appeal. After it was approved and two days before he left Iraq a group of militia who had never targeted him before began to follow him in a car.
The Tribunal member had a background in the military and the idea that people in a car would lean out to fire shots at a speeding vehicle 3-400 metres in front of them seemed implausible. Then, when their target pulled up by the side of the road next to a military checkpoint (the group previously having killed three soldiers at a checkpoint in June) the car simply drove away rather than stopping to kill the applicant and/or attacking the checkpoint. His account of the chase and shooting and the incredibly coincidental timing of the alleged attack raised serious questions for the Tribunal as to whether any of this actually happened.
He also waited six weeks before applying for protection in Australia, and nothing had occurred to his family since he had left. He claimed this all occurred because of the person he helped. The militia didn’t know him at the start and it took them six months to know him. They controlled the whole country.
It was put to him in accordance with s 442AA that in his appeal against his visitor visa refusal in November 2015 he was asked about the security situation in Baghdad in the area in which he lived and he claimed that the security in the area that he lived was alright and the problems were mainly in Mosul and Ramadi. Yet at the hearing he claimed the security was very bad, he had to pay militias to protect them and they also attacked military checkpoints. This inconsistency could call into question his credibility as a witness.
He claimed that he wasn’t having any problems on the day he spoke to the Tribunal and the problems only occurred in 2016. It was put to him that he was asked at the hearing about the security situation at the time of the attack on the checkpoint and he said that it was very bad. He then said that he couldn’t remember.
It was also put to him under s 424AA and he had also previously said to the MRT in November 2015 that he had no debts and yet he had subsequently said that he had debts to the bank of USD 150,000 and USD 90,000 to his brothers. This inconsistency could also go to issues of his credibility. He claimed that he had never mentioned money in his telephone interview with the MRT. When it was put to him that the notes said he had expressly said that he had no debts, he claimed he was never asked about this and the MRT had all the evidence from the banks so he couldn’t deny this.
He was asked about his residence in [District 1] and possible difficulties with addresses in [District 1] were put to him. He claimed that he lived with his brother in his brother’s house until the applicant was married. He was married in 2013 but never held a joint ccount with his wife.
Additionally under s 424AA it was put to him that he had told the MRT that he had two bank accounts, not three. One had 503 million Iraqi dinar (ID) and the other USD 763,000. The Tribunal could find no evidence that he had USD 763,000 in an account and this also raised questions as to why he owed his brothers USD 90,000 if he had this amount of money. This raised questions about the truthfulness of his financial affairs.
He claimed the third account was just a small one. He was asked what he meant by small, he claimed it was very old and belonged to [Business 1]. Asked why there was a discrepancy in the number of accounts he told this Tribunal and the MRT. He claimed he had just remembered this account now.
Asked why he closed his Iraqi bank accounts if he believed he was returning to Iraq and what he had done with the money, he claimed that he closed his accounts (22,000 and 21,000 dollars approximately) in [Bank 2] and [Bank 1] as this wasn’t much money. Asked about the [Bank 3] account, he claimed that he didn’t have anything in it as it was closed. It was put to him that he said he didn’t use this account and he agreed.
It was then put to him that when he was applying for his visitor’s visa he only provided evidence of his [Bank 3] account and there was no mention of the other two accounts. He had said previously that he didn’t use this account yet he showed that account to the government when applying for his visa. It also showed significant activity over a period in 2014 and some in a period in 2015. He had portrayed this as an inactive account yet it appeared quite active. This also raised questions about his credibility. He claimed there was only a small amount of activity and if the Tribunal wanted a bank statement he would give a statement.

He was asked why, with everything going on in Iraq with fighting Islamic State that the Shi’a militia would have any concern about someone giving $300 a month to a poor person. He claimed that people had to do whatever the militia said. It was also put to him that zakat (or charitable giving) was an element of Islam and he claimed this wasn’t related to zakat. He repeated that the militia could control anything in the state. It was further put to him that it appeared far-fetched that the militia would still be interested in him now, three years after the event. He claimed that they had offices everywhere and that they never forgot.
The applicant said that everything he had said was true and he could have stayed in Australia in 2012 when he had visited here if he had wanted. He had nothing left in Iraq as it had all gone. It was put to him that in his statutory declaration he said that after he sold his [Business 2] there was no deposit in any account and that he didn’t have bank statements but he used his personal account. He was asked what he meant by his ‘personal’ bank account.
He said that he was referring to the [Bank 2]/[Bank 1] accounts. It was out to him that these were business accounts and he claimed that in Iraq they referred to it as his personal account as it was under his name.
He was asked if he wished to call the witnesses and he said it was up to the Tribunal. I said that it was up to the applicant as if it was only up to the Tribunal it would not be seeking to speak to the witnesses. He was again advised that it was up to him to request a witness be called. He was asked who he wished to call and he nominated [Brother C] or [Brother B] (both in Iraq). [Brother C] was called and then stated that a car came at his mother’s funeral with four men (one was armed) who asked about [the applicant]], his brother. Since then he had told his relatives to be careful.
Asked about his brother’s financial affairs, he claimed that his brother had accounts in [Bank 2], and [Bank 4]. Just before 11 October 2018 he had sold up and paid whatever was owing. Asking what he owed, he claimed he owed USD 150,000.
He confirmed that he had power of attorney over [the applicant]’s accounts and he confirmed that he had two accounts; [Bank 2] and [Bank 4] – he couldn’t remember what amounts were in them. Asked if he ever operated a joint account with the applicant, he claimed they didn’t have any because in Iraq people had accounts in their own name. Asked if he knew whether his brother had any other accounts, he stated that he didn’t possess any other accounts and he had not closed any down for him other than the [Bank 2] and [Bank 4] accounts.
It was then put to the applicant under s 424AA that his brother had closed down accounts at [Bank 2] and [Bank 4] whereas he had claimed to have accounts at the [Bank 2] and [Bank 1]. He claimed that when he bought the house he got a loan from [Bank 4],that was all. Asked about [Bank 1] and the fact that [Brother C] didn’t know about it or close it given he had power of attorney, he claimed his brother may not have understood and it was him that got the applicant the [Bank 1] statement.
It was also put to the applicant that [Brother C] didn’t appear to know the joint account allegedly operated by the applicant and [Brother C] for their shop. He had claimed that the [Bank 3 account] was the joint account operated by him and his brother for [Business 1]. There was a concern that he was not being truthful about his financial issues and this called into question his credibility. He claimed the joint account was with his other brother, not [Brother C]. It was put to him that the account was in his name only and wasn’t joint with any brother. He claimed that [Brother C] didn’t know about this account and he was asked how [Brother C] wouldn’t know about it given the applicant claimed it was run by the applicant and his brother, and [Brother C] had power of attorney for the applicant’s financial affairs. He claimed that [Name 1] was the name of [Business 1] and it didn’t mean anything. [Brother C] didn’t know about this account because at the time he was working most closely with his brother [Brother B].
After a break, he claimed that he was not good at judging distances and 3-400 metres was an approximation.
Post-Hearing Submission
A post-hearing submission was provided in which the applicant claimed his description of being shot at from 3-400 metres away was inaccurate because he was not experienced at measuring distance, and that it was more like 3-400 cm, or the distance between the Administrative Appeals Tribunal and Wynyard Station.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age] year-old divorced man. I accept that the applicant is an Iraqi citizen, and his claim will be assessed accordingly. The applicant was originally denied a visitor’s visa in June 2015; successfully appealed the decision and travelled to Australia [in] January 2016 before lodging a protection visa on 13 March 2016.
The applicant claimed that if he returned to Iraq he would be killed by Shi‘a Islamic groups because he had provided financial assistance to the family of a Sunni soldier killed in a militia attack. He had no other claims.
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 his claim to be inconsistent, at times implausible and to lack credibility. For reasons set out below I did not find him to be a reliable, credible or truthful witness, and that he fabricated much of his claim in order to be granted a protection visa.
Fabricated attack against military checkpoint and against the applicant
I am not satisfied that there was an attack against a military checkpoint in June 2015 in which Shi‘a militia got into an argument with the checkpoint and then began firing at it, killing two Shi’a and one Sunni soldier. The Tribunal has searched for any report of such an attack and cannot find any record that fits the description. The applicant was asked prior to the hearing to provide any record (such as media reports) that would support his claim yet he was unable to do so. Whilst this lack of evidence is not in itself sufficient to invalidate the claim, it does mean that the Tribunal has to rely entirely on his oral testimony and, as shown below, it is lacking credibility.
To begin with he claimed in the hearing that the general security situation was very bad and the militia used to control everything about security in Iraq. Yet in his response to the Migration Review tribunal in December 2015 while appealing his visitor’s visa refusal, he claimed that the security situation in Baghdad, where he lived, was alright. He added that this was in contrast to that in Mosul and Ramadi which were far away from Baghdad (folio 63).
I do not accept that he was talking about the situation on the day he was speaking to the MRT only. This was inconsistent with what he had said previously; in his protection visa for example he had claimed that he was ‘afraid from the armed militias and the governmental forces because they were blackmailing us all those years and we have lived under continuous threats.’
I also note the incredibly coincidental timing of the alleged attack on him by the militia. Having allegedly never had problems with the militia for giving money to the dead soldier’s family since he began doing so in June 2015, he was allegedly visited by Shi’a militia wearing military uniforms on 25 January 2016, then followed by a car that allegedly shot at him on [date]. He arrived in Australia [later in] January 2016.
Not only is the timing of the incident in question coincidental in the extreme, I find his description of it implausible. Having visited him in his shop two days prior, it is evident that the militia knew who he was and presumably were able to follow him to establish a ‘pattern of life’ that included his travel routes. They had also shown brazenness in initiating a gunfight with a military checkpoint in June 2015 and killing three soldiers.
It therefore appears implausible that they would follow the applicant and then try to assassinate him by firing at a moving car from behind it while being in a moving car themselves. I am not overly concerned about the applicant’s inability to judge the distance the assailants allegedly were behind the applicant, more the fact that they attacked another moving car from behind when there were no other cars around. There are numerous examples of Islamic State militants conducting drive-by shooting of other cars, and this requires them to pull alongside the target in order to give the shooter(s) the biggest target, best view of the driver being targeted, and more stable platform.[1]
[1] accessed 31 October 2018
Then, when their target pulled up by the side of the street next to a military checkpoint the militia would simply drive straight on. If he were that important that they would risk this attack, and the militia were so powerful that they were able to attack military checkpoints in the middle of [District 1], then it is unlikely that they would simply have driven on past their target if he had pulled up against the side of the road.
Because I do not accept that the attack against the military checkpoint occurred, I also do not accept that the applicant began paying the family of one of the dead Sunni soldiers, that the Shi’a militia found out about it and visited him in his shop to make him stop doing it, that they turned up at his mother’s funeral and asked after his whereabouts or that he was or will be of any interest to the Shi’a militia.
I have taken into account the document that the applicant claims is a police report of the men visiting the funeral (folio 46), however I lend it little weight. Country information indicates that fraudulent documents are cheaply and easily available in Iraq[2], and the document could have been prepared on any home computer. Even if the report is genuine, it is simply a record of a statement from the applicant’s brother. I have taken into account the corroborative evidence given by the brother during the phone interview from Iraq but lend it little weight given the cloe family relationship between the two. There is very little independent evidence to support the claim that the event actually occurred.
[2] DFAT Country Information Report – Iraq, 9 October 2018, p 33
I have also taken into account the more than 100 pages of country information that the applicant’s adviser provided (folios 59 – 136) but lend it little weight. It contains much generic information about Shi’a militias in Iraq and their activities, and aspects of the security situation in Iraq (including one article about the evacuation of the US consulate in Basra whose relevance is not apparent). My concern is not with whether such militia groups exist or actions that they have undertaken. Rather, it is whether any of the events as described by the applicant occurred. And I have found on the basis of his lack of credibility that they haven’t, nor is there any continuing interest in him on the part of the militias.
Fabricated financial position
The Tribunal is not satisfied that the applicant has been truthful regarding his financial situation, and this goes towards the Tribunal’s assessment of his credibility as a witness. During the hearing he claimed that he possessed the following financial assets and liabilities:
a.A [Bank 1] account that was in his name that he used for his [Business 2]. He opened the business in 2014 but his brother closed it in 2016 when the applicant came to Australia – there was only a little amount of money in the account;
b.An account with [Bank 2], also for [Business 2]. He claimed that people who transferred money used these two accounts; and
c.An account with [Bank 3] that was open from 2012-2015 that was a joint account with his brother and that was used for their [Business 1].
Pre-hearing, he was asked to provide copies of his bank statements, which he did at the hearing. These were purportedly statements from [Bank 1] and [Bank 2]. No other documents were provided.
There were a range of inconsistencies in the evidence he gave to the MRT and what he gave at hearing, as well as what his brother (a witness) said. He told the MRT that he had two accounts and no debts (folio 64) yet he told the Tribunal in a pre-hearing submission (folio 148) that he owed his brothers USD 90,000 and the bank USD 150,000 on his house. He denied that he had said that he had no debts, yet it is contained in the MRT decision and, given concerns with the applicant’s credibility I place more weight on the written MRT decision record than I do on the applicant’s denial.
There is also no record that he ever had the sum of USD 763, 000 in one of the two accounts he claimed to possess. I also do not accept as credible that he sold his business for USD 50, 000 to partially pay off a loan to his brothers if he had USD 763, 000 in the bank. I have taken into account the statutory declaration he provided (folio 146) stating the debts he paid in Iraq but lend it little weight given it fails to address the inconsistency highlighted at the start of this paragraph.
His brother (who was telephoned as a witness from Baghdad) confirmed that he had power of attorney over the applicant’s accounts. He then stated that he had closed down the applicant’s accounts at [Bank 2] and [Bank 4]. He also stated that the applicant didn’t have any other accounts and that he had not closed down any for him.
These inconsistencies were put to the applicant, however I do not accept that his responses provide satisfactory explanations for them. He claimed that [Bank 4] was the one to whom the bank loan was owed. Given the applicant’s brother had power of attorney it is reasonable to believe that he would have included this account in the documentation and/or mentioned during the hearing that it was a bank loan account.
There was also no mention at all of the [Bank 1] account (an alleged statement of which was provided) or the [Bank 3] account by the brother. Again it is reasonable to believe that, if the brother was granted power of attorney over the applicant’s financial affairs he would have a good knowledge of them, particularly if he was to close them down. Given that the applicant claimed that [Bank 1] was one of the two accounts his customers used for his alleged money exchange business, I do not accept that the brother failed to mention [Bank 1] because he misunderstood the question – it was straightforward and the applicant has offered no evidence post-hearing that there were any interpreting difficulties.
I have taken into account the documents that he provided claiming to be from [Bank 2] and [Bank 1] (folios 150/151) saying the accounts had been closed and the funds withdrawn but lend them little weight. Footnote 2 describes the concerns over Iraqi documentation and these could have been produced on any home computer. There is also the inconsistency between the production of a statement of an account that has allegedly been closed but that his brother (who has a power of attorney) failed to mention had been closed by him when interviewed.
I also do not accept that there was no mention of the [Bank 3] account because it was operated with his other brother, not [Brother C]. I am willing to accept however, that because the applicant said earlier that he had closed the account in 2015, it would not have been covered by the power of attorney and [Brother C] would have had no cause to close it down.
Other Issues
Because of the applicant’s lack of credibility I am also not satisfied that he paid protection money to the police, army and Shi’a militias, or that he was accused of converting to the Sunni branch of Islam by Shi’a militias.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the that the applicant ever paid protection money to the Iraqi police, army or Shi’a militia, that there was an attack on a military checkpoint near his shop, that he subsequently paid money to the family of one of the dead soldiers, that the Shi’a militia found out, warned him off, tried to kill him and are continuing to look for him, 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 has been unstable in parts of Iraq, I am not satisfied that this alone constitutes a real risk of significant harm. Iraqi government control has been reasserted over those areas previously held by Islamic State.[3] The applicant claimed to the MRT that the security situation in Baghdad where he was in late 2015 was alright and since then Prime Minister declared victory over Islamic State in December 2017.[4] He also resided in only two residences in Baghdad since 1997 (folio 63), and conducted numerous business trips out of the country (folio 56 & 64) and returned to Iraq which would indicate that he feels safe to work and live in the area. I am satisfied that, given the effective defeat of Islamic State and the fact that the applicant’s family lives without incident in Baghdad (including not being the target of Shi’a militia groups) that the applicant would be able to return and live safely in Iraq.
[3] Ibid, p 6
[4] Ibid
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant 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 the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[2018] AATA 5887

8 November 2018

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Immigration

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Procedural Fairness

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