1700428 (Refugee)

1700428 (Refugee) [2020] AATA 4272 (31 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1700428

COUNTRY OF REFERENCE: Iraq
MEMBER:Michael Hawkins
DATE:31 July 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 31 July 2020 at 2:48pm

CATCHWORDS
REFUGEE – protection visa – Iraq – race – mixed racial background – imputed political opinion – working for former Baathist regime – particular social group – deserters from the military – aviation officer – religion – Shia – perceived collaborator – education – fear of killing – attack on family member – fear of militias – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91
Migration Regulations 1994, Schedule 2; r 1.12
CASES
Chan v MIEA (1989) 169 CLR 379
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MILGEA v Che Guang Xiang (unreported, Federal Court of Australia, 12 August 1994)
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZAFZ v MIBP [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
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 and Border Protection on 20 December 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Iraq, applied for the visas on 4 December 2015. The delegate refused to grant the visas on the basis that on the basis that the applicants are not refugees as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to their receiving country, there was a real risk they would suffer significant harm.
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 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).
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
Member of the same family unit
Subsections 36(2)(b) and (c) of the Act provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the wife and children of the family head.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:
The applicant is an Iraqi national.
The second to seventh-named applicants are also Iraqi nationals.
Prior to travelling to Australia, the applicants lived in Baghdad.
The applicant’s mother [and specified family members] still reside in Baghdad.
The applicant received his [specified level] education in Baghdad.
The applicant states that he received a bachelor degree in [subject] in [Country 1].
The applicant arrived in Australia [in] November 2014, holding a [temporary visa] to work for [Agency 1] in [Australia].
The second, fifth, sixth and seventh-named applicants arrived in Australia accompanying the applicant.
The third and fourth-named applicants arrived in Australia [in] September 2015 pursuant to [separate] visas.
The applicant applied for a protection visa on 4 December 2015.
The applicant attended an interview with the delegate on 26 April 2016.
Claims:
The applicant‘s claims are summarised in his Protection Visa application and in the Delegate’s Decision.
The applicant claims he was born in Baghdad and is a Shia Muslim of Arab ethnicity.
The applicant claims his mother was [of mixed racial background], and this caused him serious discrimination during Saddam’s regime because of his mother's background.
The applicant claims that due to his mother's background, he was not promoted when he worked for the military as an aviation officer and this caused him embarrassment as he had to salute his school mates.
The applicant claims that when he was discharged from the military, he was unable to find work because of his background.
The applicant claims that in 2003, militias took revenge on people who worked for the Iraqi aviation forces. A threatening letter was left for him and he was forced to keep a low profile to avoid harm.
The applicant claims that in 2006, his brother was fired upon as the perpetrators thought his brother was him.
The applicant claims that in 2010 he started work as [an occupation 1] and he was mistreated at work because he worked for Saddam's regime and was perceived to be a Baathist.
The applicant claims that prior to his departure to Australia, he received threatening phone calls because he worked for the air force during Saddam's reign.
The applicant claims that he cannot return to Iraq because he will be killed, and the authorities cannot protect him.
The second to seventh-named applicants have no separate claims of their own.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicants’ protection visa application forms completed on 2 December 2015 and lodged on 4 December 2015 (visa application);
- The applicants’ identity document being photocopies of passports, Iraqi Nationality and Iraqi Citizenship Certificates presented to the Department;
- A statement of claims for a protection visa of the primary visa applicant dated 1 December 2015;
- Visa grant notices for the applicants’ for [specified temporary] visas,
- Letter from the Embassy of the Republic of Iraq in [another country] dated [in] June 2014;
- Letter from [a government agency of the] Republic of Iraq dated [in] June 2014;
- [deleted];
- Record of interview with the delegate dated 26 April 2016;
- The protection visa decision record (delegate’s decision record) dated 20 December 2016;
- The application for review form lodged 9 January 2017 which did include a copy of the delegate’s decision record;
- Pre-hearing written submission from the applicants’ Representative dated 3 March 2020;
- Submissions received on 28 April 2020 in response to a request for information from the Tribunal sent on 22 April 2020, which included:
- Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Iraq, published on 9 October 2018 (the DFAT Report).
Pre-hearing Submission
The Tribunal received a pre-hearing submission from the applicants’ representative dated 3 March 2020. The contents of this submission are set out as follows:
We act as the legal representative for the above-named applicant and his dependents, and wish to provide the following submission on his behalf in support of his review application:
REFUSAL OF APPLICATION FOR A PROTECTION (SUBCLASS 866) VISA
The applicant arrived in Australia [in] November 2014, holding a [temporary] visa to work for [Agency 1] in [Australia]. On 04 December 2015, he lodged an application for a Protection (subclass 866) visa. On 20 December 2016, the visa was refused by the Department; a delegate for the Minister stated that after careful consideration of all the information provided, the delegate was not satisfied that the applicant met the relevant criteria for the grant of this visa as set out in subsection 36(2) of the Migration Act 1958 (the Act). That provision requires the applicant to be a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person.
The applicant, subsequently, applied for review of the decision on 9 January 2017, believing that he is a person in respect of whom Australia has protection obligations under section 36 of the Migration Act 1958 (Migration Act) and clause 866.221 of Schedule 2 to the Migration regulations 1994 (Migration Regulations).
EVIDENCE AND REASONS
The applicant is a citizen of Iraq and he does not hold any other citizenship or have a current right to enter and reside in a third country. There is no material evidence presently before the Tribunal that contradicts these facts.
Therefore, the applicant does not have statutory effective protection in a third country as set out in subsection 36(3) of the Migration Act.
Claims for Protection
The applicant's detailed written claims are on the Department file [number] from folios 219-221. The applicant's written claims are summarised below:
·He was born in Baghdad and is a Shia Muslim of Arab[1]1 ethnicity.
[1] He is not full Arab due to his mother’s ethnicity.
·His mother was [of mixed racial background], and this caused him serious discrimination during Saddam’s regime because of his mother's background.
·Due to his mother's background, he was not promoted when he worked for the military as an aviation officer and this caused him embarrassment as he had to salute his school mates.
·When he was discharged from the military, he was unable to find work because of his background.
·In 2003, militias took revenge on people who worked for the Iraqi aviation forces. A threatening letter was left for him and he was forced to keep a low profile to avoid harm.
·In 2006, his brother was fired upon as the perpetrators thought his brother was him.
·In 2010 he started work as [an occupation 1] and he was mistreated at work because he worked for Saddam's regime and was perceived to be a Baathist.
·Prior to his departure to Australia, he received threatening phone calls because he worked for the air force during Saddam's reign.
·He cannot return to Iraq because he will be killed, and the authorities cannot protect him.
Findings of Fact
Based on the testimony given at interview and evidence supplied by the applicant and his representative, the delegate accepted the claims as stated in the Protection Claims section as stated. However, the delegate did not accept some of the claims that will be discussed below.
Protection in another country assessment
The Department found that based on the evidence before the delegate, the 'applicant does not have a right to enter and reside in a country other than Iraq; therefore, the delegate accepted that s36(3) of the Act does not apply to the applicant. In other words, Australia has obligations to provide protection.
Refugee criteria assessment-s36(2)(a) of the Act
Baathist claims
Considering the applicant’s claim, the delegate was of view that:
The delegate did not accept that the applicant had been targeted or threatened by any person or group in Iraq because of an actual or imputed affiliation with the Baathist party; therefore, the delegate rejected his claimed incidents of threats or harm. The delegate relied on the fact that the applicant has not provided any evidence to support his claim that he was a high-level Baathist member, other than by simply making the claim. Therefore, the delegate rejected his claim. However, on the other hand, the delegate accepted the claim, stating that:
“Country information discussed in Part 3 of this decision supports the applicant's claim that his education and wealth is an indicator that he was affiliated with the Baath party, I therefore accept that he had low level affiliation with the Baathist party during Saddam's reign.”
Without giving evidence or reasons to his opinion, the delegate rejected the claimed incidents of threats or harm. The applicant stated: “I realized that I was targeted when a threatening letter was left at my doorstep.” (Para 6 of statement of claims) the applicant further stated that “In 2006, I was repeatedly staying at my brother's place at [a named] suburb. My brother [named] looked like me and when he left the house, he was followed by an armed group who opened their fire at him.”
Relevant Country Information
United Nations Office for the Coordination of Humanitarian Affairs report published 30 July 2007 states that:
"Militias are conducting a campaign to exterminate over 4,000 members of the Baath Party," said Hassan Dureid, spokesperson for Iraqi Brothers Relief, a local NGO working in southern Iraq. "Most of these people didn't have a choice and were obliged to join the party during the ex-regime."[2]
[2] report above further states that:
“Militants affiliated with Shia groups refused to give detailed information about the campaign but said their action was to guarantee the "cleansing of any remnants of Saddam Hussein's regime".
"We want to prevent Saddam's followers from returning to power and the best way is to exterminate them," Abu Khalid Alawi, who said he was a senior local Shia militia member but declined to name his organisation, told IRIN. "Only Shia families in the southern governorates really know what we suffered in their hands and we don't want to risk having them back," he added.”
The above information brings no doubt to submit that the delegate erred in the assessment and that the applicant was threatened and subject to serious harm for his imputed or real affiliation with Baath party.
Ethnicity Claim
The delegate again with no evidence suggests that:
“There is no information before me that Arab males born from [mixed racial background] mothers are discriminated against or are at risk of harm. I consider that the applicant fabricated this claim in order to strengthen his claims for protection.”
The applicant disagrees with the delegate’s finding and that the applicant provided real and credible information in relation to his ethnicity; he needed not to fabricate this claim while he has other claims that are supported by evidence, including his position at [Agency 1] and deserting his work which subsequently put the applicant at risk of harm.
Relevant Country Information
The Situation of Ethnic and Religious Minorities, European Parliament[3], 20 June 2013 report states that:
[3] of the most pressing issues facing minorities is the lack of political representation in Iraq’s political system. The government does not provide political representation of the interests or concerns of minorities in the Iraqi state. Moreover, it fails to recognise or protect minorities, in respect of their indigenous or ethnic status…
…Minority communities and other vulnerable populations in Iraq report a continuing lack of meaningful mechanisms to protect them from targeted violence on behalf of the government; systemic discrimination in law and practice; practical limitations on the exercise of political, civil, social, cultural, and economic rights; and challenges to access to and use of identity documents…
Religion
The applicant has claimed that he is a Shia Muslim who lived in Baghdad. Although the applicant has not made any specific claims that he has been persecuted because of his religion, he has made claims against the militias in Iraq, most of which are religiously motivated.
Although the delegate accepted that the applicant to be Shia Muslim. The delegate paid no regard to the fact being Shia and Baathist would strengthen the perpetrators’ motivation to easily harm him.
Military as an Aviation Officer
The delegate did not assess the claims of the fact that the applicant stated that “militias took revenge on people who worked for the Iraqi aviation forces. A threatening letter was left for him and he was forced to keep a low profile to avoid harm.”
Thomas E. Ricks[4], May 8, 2012, who is killing former Iraqi air force pilots? Wrote:
[4] former Iraqi military pilot was killed while driving in east Mosul. Unexceptional, except that it reminded me of a rumour I heard in Iraq a few years ago, that the Kurdish government was determined to identify and kill everyone involved in the use of poison gas against Kurdish civilians in Halabja 25 years ago.”
Aljazeera[5] News supports the fact that aviation officers were seriously targeted:
[5] Iraqi air force pilots say they are the targets of a witch hunt and are seeking refuge from a wave of assassinations that has killed almost two dozen since Saddam Hussein was removed from power in 2003…
… "No fewer than 23 officers have been killed by groups with ties to Iran, which wants revenge,"…
…The son of Najm al-Din al-Obeidi, another former pilot who was killed, blames peshmerga fighters for his murder three months ago in front of their home near Baiji, a strategic oil refinery town south of Mosul.”
The number of militias is reportedly multiplying in Iraq, while their loyalties grow more dispersed and their tactics more violent and sectarian-focused. The Council Foreign Relations[6] stated that:
[6] experts say the militias provide vital security in places rife with sectarian violence and therefore many officials in the Shiite-led government tacitly support them”.
Deserter of Military Order
The applicant shall be punished by the Iraqi authorities for being a failure asylum seeker if he has not been granted the protection for the reason of being proven to “commit an act, negligence, or slackness disturbing military order with no designated penalties by law, is punishable with one of the disciplinary penalties stated in Articles LXXIX (79) and LXXX (80) herein.”[7]
[7] nat.nsf/9C60EDC34C397A53C1257C080040F111/TEXT/Iraq%20-%20Military%20Penal%20Code%20%5Bin%20English%5D.pdf.
The applicant will be subjected to:
a. Severe imprisonment for a period of (five years) in accordance with the provisions of Article (35/Fifth/D) of the amended Military Penal Code No. 19 for the year 2007 and pursuant to Article 78) of the Military Criminal Procedure Code No. 22 for the year 2016.
b. The imprisonment penalty referred to in point (a) shall be enforced upon him as of the date of his arrest or upon surrendering himself, subject to the provisions of Article (243) of the Criminal Procedure Code No. 23 for the year 1971 and its amendments.
c. Grant the right to public citizens to arrest him wherever they find him and impose on officials and public servants to report his whereabouts according to the provisions of Article (80/Third/Fourth) of the Military Criminal Procedure Code No. 22 for the year 2016.
d. Terminate his contract with the Army pursuant to the provisions of Article (15/Second) of the amended Military Penal Code No. 19 for the year 2007.
The above information brings no doubt to submit that the applicant will be at risk in the foreseeable future should he return to Iraq.
Submission:
Definition of a Refugee – Article 1A of the Refugees Convention
Article 1A (2) of the 1951 Refugees Convention as amended by the 1967 Refugees Protocol, provides that a ‘refugee’ is a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of her nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of her former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A (2) of the Refugees Convention for the purposes of the application of the Act and the regulations to a Protection visa applicant.
The applicant has well-founded fear of being persecuted for reasons of his imputed faith, his membership of particular social group that was discussed above “former aviation officers”, his ethnicity and his real and/or imputed political opinion
Evidence and Reasons
It is submitted that the applicant fears he would be seriously harmed by the Shi’a militias or by Kurds if he was to return to Iraq for convention reasons. Country information provided above brings no doubt to submit that his fear is well founded.
Conclusion:
As discussed above, the applicant genuinely fears the harm in Iraq on the Refugees Convention grounds, and he meets the requirements for subsection 91R (1) (a) of the Migration Act. The essential and significant reason requirement of section 91R (1) (a) “reinforces the fact that there is a strong causal connection or nexus between the harm caused to the applicant and one or more of the five Convention grounds”.
In light of the above information supported by ample country information, the harm the applicant would face in foreseeable future is serious and systematic and discriminatory in its conduct as required by subsections 91R(1)(b) and (c) of the Migration Act.
Is the fear well- founded?
A fear of being persecuted is well-founded if there is a ‘real chance’ that a claimant may be persecuted (see Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8 McHugh J at 428-9). A ‘real chance’ may be below a 50 per cent chance. However, a real chance is not a remote chance; there needs to be a real substantial basis for a fear of persecution in order for it to be well founded.
A fear may be well-founded for the purpose of the Convention even though persecution is unlikely to occur[8].
[8] Chan v MIEA (1989) 169 CLR 379 at 429; see also MIEA v Guo (1997) 191 CLR 559 at 573, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ; and MILGEA v Che Guang Xiang (unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994) where the Court stated at 17: ‘The delegate may have thought it was unlikely that [the applicant’s] fears would be realised but the question to be answered was whether the prospect of persecution was so remote as to demonstrate the fear to be groundless.
The process of establishing whether an applicant’s fear is well-founded will involve making findings of fact based on an assessment of the applicant’s claims and relevant country information, speculation as to the reasonably foreseeable future and a finding as to whether there is a real chance that persecution will occur. MIEA v Wu Shan Liang (1996) 185 CLR 259 per Kirby J at 294 states:
‘The process of determination involves the delegate’s making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the ‘real chance’ affecting the treatment of the applicant if he or she were to be returned to China’. As to the ‘reasonably foreseeable future’, see Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at 66; and MIEA v Wu Shan Liang (1996) 185 CLR 259, per Brennan CJ, Toohey, McHugh and Gummow JJ at 279 where the High Court referred with approval to the test that the Tribunal had applied in Chen Ru Mei v MIEA (1995) 58 FCR 96.
In determining what is likely to occur in the future will require findings as to what has occurred in the past. Such findings provide a rational basis from which to assess whether an applicant’s fear of being persecuted for a Convention reason is well-founded.
The extent to which past events can be a guide to the future was explained in Guo’s case. As the High Court observed:
Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence[9].
Usually, therefore, in the process of determining the chance of something occurring in the future, conclusions will need to be formed concerning past events:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
It is submitted that what has occurred in the past for the applicant will occur to him in the future in light of the above legal determining sources. Moreover, without concerning past events, reputable country information cited above brings no doubt to submit that the applicant will engage Australia’s protection obligations under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol.
As a result, we submit that the applicant meets the criteria for the grant of a Protection visa under subsection 36 (2)(a) of the Migration Act and subclause 866.221(2) of Schedule 2 to the Migration Regulations.
Finally, we submit that the applicant’s fear of being persecuted is well-founded. The applicant is an Iraqi national who is outside his home country, has well-founded fear of persecution for the reasons stated above, he is therefore, a refugee as defined by the Act and UN convention, and in the absence of available protection in a third country, he is a person in respect of whom Australia has protection obligations under section 36 of the Migration Act 1958 (Migration Act).
[9] MIEA v Guo (1997) 191 CLR 559 at 574.
Post-hearing Submission

The Tribunal sent a request for further information to the applicants on 22 April 2020 via their representative.
On 28 April 2020, the Tribunal received the following post hearing submission from the applicant’s representative dated 27 April 2020. The contents of this submission are set out as follows:
We refer to your letter dated 22 April 2020 in which the applicant was requested to provide the following information in relation to his employment at [Agency 1] in [Australia]:
·Date of Commencement of Employment;
·Date of Cessation of Employment;
·Date of intended expiration of employment;
·Date of moving to [State 1];
·Reasons for being “sacked” by [Agency 1].
·Any documentation relating to “sacking’; and
·Conditions imposed on applicant as a result of “sacking” – eg, requirement to return to Iraq and by what date.
·The following is the applicant’s response and our submission on his behalf in support of his review application:
[In ]2010 the applicant was appointed as [an occupation 1] at [Department 1]. [In 2014] the applicant was nominated within [Department 1] to work for [Agency 1]. [Later in 2014], he commenced his work as an [occupation 1] at the [Agency 1] in [Australia];
·[In 2018] the applicant was sacked from his job upon his disobeying [Agency 1’s] order to immediately return to Iraq;
·His [Agency] work was supposed to end [later in 2018] in light of his nomination, whereas, his permanent position at [Department 1] was supposed to be continuing until the age of retirement (65 years), approximately in the year [specified];
·The applicant’s family moved to [State 1] in July 2017 and the applicant moved on [early in 2018] after finalising his lease agreement of [his previous] property;
·Reasons for sacking were due to [Agency 1’s] knowledge of the applicant being a protection visa applicant and for the applicant’s refusal to return to Baghdad; and,
·Attached please find the following supporting evidence:
oA letter of guarantee bond demand (titled “Assurance letter”);
oA letter from [his agency] advising completion of the applicant’s post[10]; and,
[10] This is not the real completion date as the applicant was supposed to serve 4 years from commencement date.
oA letter from [Agency 1] in Australia to [Department 1] advising the return of the applicant.
·Prior to commencing his post in [Australia], the applicant was assured by 4 [officials] in Baghdad. The consequence of his disobeying the order to return will consequently affect the assurers with fines, jail time or sacking from their jobs; otherwise they will have to pay Iraq D [amount]. The applicant has made his arrangement to pay the assurance bond to the assurers in instalments as he feels sorry for this consequence. However, if returned to Iraq, the applicant would have to pay this amount in a lump sum and that is beyond his capability. If he were able to pay this amount, this fact would lead him to facing hardship. (further information is provided below)
Undocumented Information
The following information was leaked to the applicant from a sympathising staff at [Agency 1]. The Information was considered as “Top Secret”:
·Upon the knowledge of the applicant’s application for protection. [Agency 1] received a letter from [Department 1] in Baghdad summoning him and his family to return immediately to Iraq;
·[Agency 1] was ordered to provide details of the applicant’s Itinerary and was ordered to book one-way flight tickets for him and his family. Further, [Agency 1] was ordered to keep the [Department 1] posted for any updates; and,
·[Department 1] has already established an interrogation council which means the applicant would be subject to having their discriminative decisions against him in light of the law previously submitted to the Tribunal.
·In addition to what has previously been submitted, the applicant fears that he would be deprived from his work (the only source of income) which will subsequently impact his ability to subsist. The applicant would be denied his right to obtain the legal advice to defend him against the charges that would be imposed against him. In addition to the fact that the applicant would be deprived from his liberty to express his political views that are real or imputed.
The applicant fears that he would face “readymade” accusations including “perceived collaborator”. UK Department of Justice, Country Policy and Information Note Iraq: Perceived collaborators, January 2018[11] made it clear that:
[11] accessed on 27 April 2020.
1.2      Points to note
1.2.1     The Upper Tribunal, in the case of BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC) (23 January 2017), heard on 24-25 August 2016, which considered the treatment of perceived collaborators in Iraq, recognised the difficulty in defining the term ‘perceived collaborator’ and thus concluded that ‘[the] assessment of whether a person is likely to be perceived as a collaborator will depend on the facts of each case’ (paragraph 49).
1.2.2     For the purposes of this note, the term ‘perceived collaborator’ means:
·those who have worked for:
o        coalition forces; and/or
o        international (particularly Western) organisations; and/or
·anyone, including those who work(ed) for or assist(ed) the GoI, perceived to be acting contrary to the agenda of various armed groups, principally Daesh (ISIS) and the Shia militia; and
·returnees from the West
The report above provides ample information on the risk associated with the above perception.
Country of reference/ receiving country:
The applicants claim to be Iraqi nationals. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Iraq is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns in relation to holding a telephone hearing during the hearing. The Representative did not raise any concerns in relation to holding a telephone hearing before or during the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the representative, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.
The applicant appeared before the Tribunal on 21 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was accompanied by his Representative.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Iraq. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Iraq. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Iraq.
The Tribunal discussed his claims as summarised in the Delegate’s Decision and as prefaced above. The Tribunal also noted the applicant’s claims were restated in the Representative’s pre-hearing submission. It confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
Notwithstanding that confirmation, the Tribunal noted that a new claim had evolved during the hearing, and in the pre and post-hearing submissions in relation to the applicant’s departure from his employment at [Agency 1] in [Australia].
Section 438 Certificate
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that disclosure of information held at folios 223 and 224 of the department file would be contrary to the public interest because it contains information relating to an internal working document and business affairs.
A copy of the Certificate was provided to the applicant and the Representative prior to the hearing.
The Tribunal has considered the material identified in the certificates and considers the certificate is not valid. In MZAFZ v MIBP [2016] FCA 1081, the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were 'internal working documents'. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words 'internal working documents' disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.
The Tribunal determined that the Certificate was invalid.
The applicant did not disagree with the Tribunal’s finding.
The information held at folios 223 and 224 do nothing more than confirm applicant identification details and the latter is an advice about the date of the applicant’s interview with the delegate. It contains no information which is relevant to the applicant’s claim for protection in Australia and has had no impact on the Tribunal’s decision in his case. The Tribunal has put no weight on those documents.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has strong reservations about the credibility of the applicant’s claims.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal discussed these concerns with the applicant at length.
The Tribunal noted that the applicant left Iraq in November of 2014, arriving in Australia [in] November 2014. The Tribunal further noted that the applicant applied for a Protection Visa on 4 December 2015, some 13 months later. The Tribunal enquired of the applicant as to the reason for that delay. The applicant replied that he was scared at that time about militias in Iraq. He stated that the militias became strong in 2015 with the support of the government and stated that in 2019, the militias had killed some military officers.
The Tribunal discussed the arrival in Australia of his [specified family members] in September 2015. The Tribunal suggested to the applicant that when he left Iraq in November 2014, he left [these family members] behind, obviously believing they would be safe. The applicant responded that he had applied for [them] to go to Australia with him in 2014, but as they were over 20 years of age, they did not receive approval. He advised that [these] received [separate] Visas in September 2015 and came to Australia then.
Noting again the lapse of three months from their arrival to the time of making his Protection Visa Application, the applicant restated that it was about December 2015 that he became particularly concerned about the activities of the militias in Iraq.
The Tribunal advised that it would further consider the applicant’s response.
The Tribunal also discussed with the applicant a number of concerns that it had in relation to other time delays.
The Tribunal noted as an example, that the applicant’s claims appeared to arise from events that took place in 2003, the receipt of a threatening letter.
As a further example, the applicant advised the Tribunal that his brother had received a phone call in 2015 enquiring about the applicant’s whereabouts. The Tribunal noted that the applicant’s claims related to a threatening letter being left for the applicant at the front door of his residence in 2003 and to an incident involving his brother in 2006. Yet the phone call to the applicant’s brother was received by his brother in 2015, some nine years after the 2006 incident and 12 years after the 2003 incident. When asked to explain why such a phone call would be made after such a long lapse of time, the applicant replied that militias have their own agendas and that they come back or revisit those agendas from time to time.
The Tribunal discussed with the applicant his history of study, army service and employment since the completion of his university degree in [year] at a university in [Country 1].
The applicant readily provided the following information about his career.
The applicant stated that in [year], he was involved in officer training in the Army. He clarified that it was his compulsory service which lasted six months. He stated that he did not wish to be a pilot, but wanted to be [a related occupation]. However, he said his ambitions were frustrated and he was unable to become an officer because he needed to have a father of Iraqi background and a mother of Arab background. Unfortunately, he had a mother of [mixed racial] background and then spoke of the discrimination he had received at school and in the Army as a consequence of his mother’s background. He stated that as a consequence of that, he completed his compulsory service as a soldier in the Army. He said that upon completion of his compulsory service, he was discharged.
The applicant stated that in [year], he tried to find work within the government. As he was unable to do that, he started up his own small [business].
It was during this time ([specified years]) that he believed the Secret Service was following him because of his mother’s background. Asked why he thought that, the applicant replied that the regime had no trust in foreign backgrounds. The Tribunal confirmed with the applicant that during this period, whilst he thought he was being followed, he was never actually intercepted, questioned or harmed. The Tribunal confirmed that he had no evidence of actually being followed and that at best, his concerns were only suspicions.
The applicant stated that in [year], he commenced a [specified] business which he continued in until the fall of the regime in 2003.
The Tribunal enquired of the applicant as to the significance of the fall of the regime in 2003. The applicant replied that in 2003, he received a threatening letter that had been left at the door of his residence. He elaborated to state that the letter was thrown through the front door.
The Tribunal asked the applicant what was in the letter. The applicant replied that the letter stated that “They knew the applicant was a Ba’athist and that he worked for the Aviation Force”.
The Tribunal stated to the applicant that he hadn’t in fact worked for the Aviation Force. The applicant agreed that was the case, but that he had completed his training.

The Tribunal asked the applicant whether he had a copy of the threat letter. The applicant replied that he did not as he had thrown it away.
The Tribunal asked the applicant where he worked during 2003. The applicant replied that he was unemployed and was living off his savings.
The applicant stated that between 2004 and 2010, he did some [line of work].
The applicant stated that in 2010, he saw some advertisements for jobs in [Department 1] and so he applied and got a job in [deleted].
The applicant spoke of discrimination in that job relating to his treatment as a Ba’athist. The Tribunal enquired of the applicant as to who treated him as such. He replied that the officers who worked above him would put him down and gave him lots of work - he felt bullied by them.
The Tribunal asked the applicant whether he was in fact a Ba’athist. He replied that he had been. He stated that he joined the Ba’athist party in [year] whilst he was at secondary school. The Tribunal asked the applicant why he did that. He stated that he did so in order to cover up his mother’s background. Asked about his participation in the party, the applicant replied that he had meetings with fellow students and organised outings. He claimed he attended meetings.
The Tribunal asked the applicant how long he remained a member of the Ba’athist party. The applicant replied that he was a member for about a year while he was at high school and then he went to [Country 1].
The Tribunal asked the applicant how he happened to obtain a job at [Agency 1] in Australia. The applicant replied that he had heard that applications were open for [staff] in foreign offices. He stated that as he had a degree and spoke English, he applied and in 2014 was appointed. He stated that he was allocated to Australia and arrived in Australia in November 2014.
The Tribunal asked the applicant about his current employment status. He advised that he was now unemployed and living in [State 1]. He stated that his [specified family members] were working and were supporting the family. He stated that the family relocated to [State 1] in 2018.
The Tribunal asked the applicant how he came to be in [State 1] and more specifically, how he came to leave [Agency 1]. The applicant initially advised that he had a three year term and was supposed to return to Iraq upon its completion. He then clarified that response to state that he was supposed to be in Australia for four years but got sacked after three years.
The Tribunal asked the applicant what he meant by being sacked. He replied that he was told to return to Iraq.
The Tribunal asked the applicant how he managed to leave the [Agency’s] office if he had been so sacked. The applicant replied that he just left. He was supposed to get his own ticket to go home but he didn’t and he just left.
The Tribunal asked the applicant whether [Agency 1] knew where he was. He replied that there was no question that the government would know that he must still be in Australia.
The Tribunal returned to events mentioned in the applicant’s claims that occurred in 2006. The applicant claimed that his brother had been fired upon.
The Tribunal asked whether his brother had been injured. He replied that his brother had been shot in the foot and the shoulder.
The Tribunal asked the applicant how his brother had come to incur those injuries. The applicant replied that he had been staying at his brother’s house. He stated that one day, his brother went out and he was shot. The applicant stated that his brother was shot because it was assumed that the brother was actually him, the applicant.
The Tribunal asked the applicant whether it was known who had shot his brother. He replied that he didn’t know who it was.
The Tribunal asked the applicant how he knew the incident actually related to him. He replied that it followed a threatening telephone call. He stated that the shooters had the backing of the government. The Tribunal challenged that response given that the applicant didn’t know who had shot his brother.
The Tribunal asked the applicant about the telephone call. He replied that the calls commenced in 2006. Pressed for more information, the applicant stated that the callers would state that they knew the applicant was a “dirty Ba’athist and worked with the regime” and that it was “time he lost his head”.
The Tribunal asked the applicant how many such calls he had received. He replied that he had received two calls and then changed his phone number.
The Tribunal confirmed again that the applicant had completed his military training, which was his compulsory service, in [year]. The applicant confirmed that was the case. The Tribunal again expressed its grave concern about the lapse of time between the making and receipt of these two calls and his service back in [year], a lapse of [over] 20 years. The applicant replied with a similar explanation to earlier - that the militia works in stages. He stated that even today, the militia would still be carrying out operations against the Aviation Forces.
At this moment, the Representative referenced Country Information that he had provided in his Submission which referred to pilots who were being killed by militias.
The Tribunal noted the Country Information but observed that the applicant was not a pilot, had never been a pilot, and that he had never intended to be a pilot. The Tribunal further observed that the applicant had only trained for a period of six months back in [year].

100. The applicant responded that the militias don’t differentiate between pilots and others who worked for the Aviation Force. And the Tribunal reiterated that the applicant had not worked for the aviation forces.
101. The Tribunal again restated its concerns about the lapses in time between his training and subsequent events which took place and that are purported to be in relation to, and as a consequence of, that training that took place in [year].
102. The Tribunal had discussed with the applicant and his Representative its concerns about having not one scintilla of corroborative evidence in support of the applicant’s claim. The applicant confirmed that he had no evidence in support of his claims. The Tribunal noted from the delegate’s decision that he had told the delegate the same.
103. The Tribunal noted that the applicant did not have a copy of the letter containing a threat that was sent to him in 2003. He did not have any statements in support of his claims from family members, particularly his brother who was shot (mistakenly for the applicant, as claimed), no evidence of phone calls received, or threats made. He had no evidence of the phone call received in 2015 purportedly inquiring about his whereabouts. He had no knowledge or evidence of who shot his brother, or of the injuries sustained by his brother. He has suffered no physical injury or harm personally whilst he was in Iraq.
104. In the absence of any such corroborating evidence, the Tribunal was faced with a simple decision - was it persuaded that his claims were genuine?
105. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[12]
[12] Guidelines on the Assessment of Credibility (July 2015) Available at However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[13]
[13] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
107. The Tribunal turned to the applicant’s specific claims and considered Country Information available to it in relation to each.
108. Whilst no specific evidence was produced in relation to his claim as to being a Shi’a Muslim, apart from a paragraph in the representative’s submission, the Tribunal has dealt with the matter as a specific claim for the sake of completeness.
109. The Tribunal considered country information contained in the DFAT report.
110. Shi’a communities live in most areas of Iraq but are concentrated in the south and east. The majority of Baghdad’s population is Shi’a[14]. The Tribunal noted that the applicant lived in Baghdad before traveling to Australia and still has family residing in Baghdad. The Tribunal noted the following:[15]
[14] DFAT Report, paragraph 2.12.
[15] DFAT Report, paragraphs 3.32 – 3.34.
Shi’a have traditionally lived across Iraq. The sharp increase in sectarian violence since 2003 has seen some Shi’as leave Sunni areas. The rise of ISIL in 2014 led many Turkmen and Shabak Shi’a to relocate to other areas. As the majority community in Iraq with a dominant role in the government, Shi’a face little or no official discrimination. DFAT assesses that reported instances of societal discrimination, particularly in relation to economic and employment opportunities, are likely to be associated with patronage and nepotism, such as not having the right contacts to secure access to jobs or housing. In areas where Shi’a are not the majority religious group, employment discrimination is likely to be more pronounced, but still closely linked to patronage and nepotism. Relocation to Shi’a areas substantially reduces the risk of discrimination, but relocation is difficult in the absence of familial or other links at the destination.
Anti-Shi’a violence has reduced in 2018 following the defeat of ISIL. However, isolated incidents of violence in Shi’a dominated areas of Iraq, claimed by ISIL, continue to occur. Violence between opposing Shi’a militias (including those in the PMF) also occurs, more often in Shi’a areas, such as Baghdad and southern Iraq. Intra-Shi’a violence is often linked to other criminal activities, including robbery and kidnapping. Local sources report that those who are actively involved in a militia group face a greater risk of intra-Shi’a violence than ordinary civilians, who may be perceived to be part of a militia or tribal group’s constituency.
DFAT assesses that Shi’a do not face official discrimination. DFAT further assesses that Shi’a do not face societal discrimination in Shi’a areas, although they face a moderate risk of violence during significant Shi’a religious festivals and pilgrimages.
111. The Tribunal accepts that country information and finds that the applicant does not have a well-founded fear of persecution based on his religion of Shi’a Muslim now, or in the reasonably foreseeable future.
112. The applicant claimed to encounter discrimination due to his mother’s [mixed racial] background.
113. The Tribunal considered country information contained in the DFAT report[16]. It was unable to find any specific information in relation to parents of applicants of [his specific mixed racial] ethnicity.
[16] DFAT Report, paragraphs 3.2 – 3.3.
Ethnic minorities report widespread societal discrimination in the form of difficulty in accessing employment, housing and services, including education. This reflects nepotism, sectarian identity and societal prejudice rather than discriminatory government policies.
DFAT assesses that individuals face a low risk of official discrimination on the basis of their ethnicity, but that individuals may face a moderate risk of societal discrimination if they live in an area where their ethnicity is in the minority.
114. The Tribunal has also considered the most recent UN guidelines[17] on international protection considerations for people fleeing Iraq. The guidelines list several profiles of persons who might be at risk if they return to Iraq now or in the foreseeable future. The Tribunal does not consider the applicant, as the son of a woman of [mixed racial] ethnicity, falls within any of the profile groups set out in those guidelines.
[17] ‘International Protection Considerations with Regard to People Fleeing the Republic of Iraq’, UNHCR, 3 May 2019, pp.59-109.
115. The Tribunal is satisfied that a low or moderate risk of official or societal discrimination does not amount to a real chance of serious harm.
116. The Tribunal accepts that country information and finds that the applicant does not have a well-founded fear of persecution based on his maternal [mixed racial] ethnicity now, or in the reasonably foreseeable future.
117. The applicant claimed to be a Ba’athist and that he had actually been a member of the Ba’athist Party whilst he was a student at school, as a schoolboy and had experienced discrimination in his workplaces as a consequence. His membership was for only one year before he went to university in [Country 1].
118. The Tribunal considered country information contained in the DFAT report[18].
[18] DFAT Report, paragraphs 3.48 – 3.51.
Between 1968 and 2003, membership of the Ba’ath party was a precondition for employment with the government. After the removal of Saddam Hussein and his government in 2003, the US-led transitional administration implemented a de-Ba’athification process, which led to the dismissal of thousands of individuals. The Constitution prohibits the party, but provides for equality before the law for former ‘mere members’ of the Ba’ath Party.
The post-war transitional administration established a High Commission for De-Ba’athification to steer efforts to remove the influence of the Ba’ath Party. The Accountability and Justice Act (2008) established its replacement, the Accountability and Justice Commission. The Act included measures to ensure that Sunnis, who dominated the Ba’ath Party, were not excluded from Iraq’s governance processes, including by allowing some lower-level Ba’athists to return to government service. Most individuals dismissed under the previous regulations were entitled to access their pensions.
A broad consensus exists in Iraq that sanctions against the Ba’ath Party should not apply to Ba’athists as individuals. This consensus is based on a recognition that the dominance of the Ba’ath Party in all aspects of government forced millions of Iraqis to join the Party. Nonetheless, local sources report that imputed association with the Ba’ath Party is used as a threat against Sunnis, particularly in Shi’a majority areas such as southern Iraq. Colleagues competing for advancement in government employment may threaten Sunni civil servants with accusations of being Ba’athist.
DFAT assesses that former high-ranking officials of the Ba’ath Party face a high risk of official and societal discrimination, particularly when trying to secure employment. Individuals with lower-level links to the Ba’ath Party face a lower risk of official and societal discrimination.
119. Again, the Tribunal is satisfied that a low or moderate risk of official or societal discrimination does not amount to a real chance of serious harm.
120. The Tribunal, despite the absence of any corroborating evidence, is prepared to accept that the applicant may have been a member of the Ba’ath Party when he was a school boy for one year, but finds that his involvement in the party at that time was so low key and at such low-level to be of negligible connection to the Party.
121. Despite his desire to seek government employment, the applicant was largely self-employed from [year] until the fall of the regime in 2003. Consequently, the Tribunal is satisfied that the applicant would not have been imputed with Ba’ath beliefs or views on account of his employment.
122. The Tribunal accepts the country information above and finds that the applicant does not have a well-founded fear of persecution based on his former membership of the Ba’ath Party when he was a school boy, or the perception that he may have been a member of the Ba’ath party when he completed his compulsory service or training, now, or in the reasonably foreseeable future.
123. During the hearing, the applicant alluded to his fears of militias being active in Iraq from December 2015.
124. The Tribunal considered country information contained in the DFAT report[19].
[19] DFAT Report, paragraphs 2.32 – 2.36.
Several factors influence the security situation in Iraq, including actions of remaining ISIL fighters (or other extremist fighters that have emerged since ISIL’s defeat) and other armed groups (including the state-sanctioned Popular Mobilisation Forces, and historical intra-Shi’a and intra-Sunni tensions.
The remaining ISIL and other extremist fighters and the increasing influence of the PMF are the most acute issues influencing the current security situation throughout Iraq. Although ISIL has lost its self-declared ‘caliphate’ in Iraq and Syria, it remains a threat to Iraq. A report submitted to the UN Security Council by the UN Analytical Support and Sanctions Monitoring Team in August 2018 estimated that up to 30,000 ISIL fighters remained active in Iraq and Syria.
ISIL will likely continue to indiscriminately target Iraqi civilians and commit human rights abuses as a small-scale insurgency. For example, on 15 January 2018, ISIL attacked a market in central Baghdad, killing at least 38 people and injuring 105. In Iraq’s northern region of Kirkuk, 25 people were killed by ISIL in the lead-up to national elections. ISIL claims to have carried out 58 attacks in the region since December 2017. In the Kurdistan Region, ISIL killed 12 members of one family in June 2018. .
The Iraqi security forces will be focused for some time on consolidating the gains made against ISIL and containing the threat from a likely ISIL insurgency in Iraq. Clashes between ISIL and security forces continue, particularly in Iraq’s eastern desert region. For example, Iraqi security forces reported killing 45 ISIL members in June 2018, and forces of the Global Coalition to defeat ISIL conducted 31 strikes in the week of 2-8 July.
The numerous Shi’a armed groups in Iraq include Saraya Al-Salam (SAS, also known as the ‘Peace Brigades’, and partly made up of former Mahdi Army fighters), Asaib Ahl al-Haq (AAH), Kataib Hizbullah (KH), and the Badr Corps. SAS and the Badr Corps are the military arms of the Sadrist and Badr political movements respectively. Some Shi’a groups have sponsored the formation of local factional Christian and Sunni militias to divide and weaken these communities. Local and international observers have accused some PMF groups of committing abuses against civilians and engaging in criminal activities. Violence between different Shi’a armed groups is also frequent, but usually low-level.
125. The Tribunal accepts the country information above and acknowledges that there may be indiscriminate acts of violence by militias, notably ISIL. The Tribunal also acknowledges that the applicant may have been fearful of such violence at around the time he made his protection visa application. However, the Tribunal is satisfied that his fear is a fear held by the community at large and is not one unique to him.
126. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution based on his fear of militias operating in Iraq on or around the time he made his protection visa application, now, or in the reasonably foreseeable future.
127. The Tribunal also considered the fact that the applicant was, or had been, a government employee.
128. The Tribunal considered country information contained in the DFAT report[20].
[20] DFAT Report, paragraphs 3.45 – 3.47.
Armed groups, including remaining ISIL cells, may target individuals working in particular areas of the government. During the ISIL occupation, many government and municipal workers in those areas performed their regular public service functions, but within ISIL’s well-organised bureaucracy.

Senior politicians and civil servants have substantial protective security details. The government is not able to provide protective security for all employees. DFAT has no evidence to suggest that armed groups regularly target the families of government officials, although family members have been killed or injured during attacks on government officials or ISF members.
DFAT assesses that senior and mid-ranking officials in the armed forces face a moderate risk of violence from armed opponents of the government. Lower-level officials and office-based public servants face a low risk of violence.

129. The Tribunal accepts the country information above and acknowledges that there may be indiscriminate and targeted acts of violence by militias, against officials, and family members of officials, in the armed forces and public servants. The Tribunal acknowledges that the applicant has been a government employee since 2010 in [Department 1]. However, the Tribunal is of the view that the applicant’s role has been [deleted]. It is clear from the applicant’s evidence and the representative’s submission, that the applicant was a [certain type of] staff member of the Department and latterly [Agency 1] in Australia. The Tribunal is satisfied that the applicant is [a particular role] within the [department].
130. Again, the Tribunal is satisfied that a low risk of violence does not amount to a real chance of serious harm.
131. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution based on his fear of militias operating in Iraq on or around the time he made his protection visa application, now, or in the reasonably foreseeable future.
132. The Tribunal considered the applicant’s claims as to threats of harm by militias, being the receipt of a letter, telephone calls and his brother being attacked as being mistaken for him. The Tribunal reiterates that it received no corroborative evidence of any of these events and claims. The applicant could not say who it was who attacked his brother, other than to speculate they had government backing. Further, the Tribunal had the gravest of concerns about the time elapsed between these events and the applicant’s claimed causes for the events, being his training in the aviation forces. Again, no evidence was produced to corroborate his experiences in the aviation forces other than his statements as to training. His training took place in [year], yet the purported letter of threat was received in 2003, his brother allegedly attacked in 2006, preceded by two telephone calls in 2006 and a follow up telephone call in 2015. Despite all of that alleged activity and incidents, the applicant remained in Iraq, took a government job in Iraq and did not leave Iraq until November 2014, after applying for a job in an international office. There was never at any time any sense of urgency to leave Iraq. Similarly, there was no urgency to apply for a protection visa when he arrived in Australia – he waited some 13 months to do so, and when asked why there was such a delay, he replied that he was concerned about the activity of the militias in Iraq at the time of making the application (December 2015). It was clear to the Tribunal that the applicant did not leave Iraq in 2014 due to any fear of serious harm or threat of serious harm.
133. In summary, the Tribunal does not accept that the applicant left Iraq due to threats of serious harm from his being a Shi’a, of [mixed racial] ethnicity, being a member of, or being imputed as a member of, the Ba’ath Party, or because of threats from militias.
134. The Tribunal considered the applicant’s position as a returnee to Iraq.
135. The Tribunal considered country information contained in the DFAT report[21].
[21] DFAT Report, paragraphs 5.20 – 5.24.
On arrival at Baghdad International Airport, all passengers irrespective of nationality have their identity information recorded. This process occurs at all international airports in Iraq, including the Kurdistan Region. Authorities will arrest an Iraqi on return if they had committed a criminal offence and a warrant had been issued for their arrest. Others, even those who had left illegally, would not be subject to arrest on arrival.
Valid documentation (usually a passport) and appropriate approval (such as a visa) for entry to the intended destination is required in order to exit Iraq. Irregular exit from Iraq (including through use of fraudulent documentation) is unlawful. DFAT understands that an individual caught exiting illegally may be detained and charged. DFAT is not aware of any prosecutions of individuals for irregular exit.
Iraqis who have lost, or do not have, an Iraqi passport must apply for a laissez passer at an Iraqi embassy or consulate abroad. To issue a laissez passer, the Iraqi post verifies the identity and nationality of the returnee against source documents in Iraq; confirms the person is returning to Iraq voluntarily; and checks for outstanding criminal actions against Ministry of Interior records in Iraq.
Upon arrival in Iraq, border officials check the details of the laissez passer and re-confirm that the individual is entering voluntarily. Officials record the details of the laissez passer along with the name and date of birth of the bearer. The border officer will then inform the bearer that the laissez passer is not valid for further travel. According to the UK Home Office, border officials can issue a letter at Baghdad Airport in order to facilitate movement to an individual’s place of origin or relocation within Iraq. Laissez passers are common and individuals who enter on laissez passers are not questioned about how they exited Iraq, nor asked to explain why they do not have other forms of documentation.
DFAT is aware of considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. However, local sources have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of life.

136. Country information indicates that family networks play an important role in providing support to persons returning to Iraq.[22] The Tribunal notes that the applicant has family members still residing in Baghdad. The Tribunal also notes that despite the applicant’s desire to work in government jobs, when he has been unable to obtain such jobs, he has always managed to be self-employed.
[22] ‘EASO Country of Origin Information Report - Iraq Key socio-economic indicators’, European Asylum Support Office (EASO), 4 February 2019, pp.103-105; ‘Iraqi Migration to Europe in 2016: Profiles, Drivers and Return’, REACH Initiative, June 2017, p.26.
137. Further the country information indicates that returnees have not faced serious harm on their return even if they have applied for asylum overseas. It is reported that it is quite common for Iraqis to return to Iraq for family and employment reasons after they have obtained international protection.
138. The Tribunal finds that the applicant does not have a well-founded fear of persecution based on his fear of being a returnee to Iraq, and even one who has sought asylum abroad, now, or in the reasonably foreseeable future.
139. Since the delegate’s decision which was delivered on 20 December 2016, a set of circumstances has arisen which has given rise to a claim by the applicant articulated in his evidence and in his representative’s submission. The applicant has claimed that he has been sacked by [Agency 1] and has been ordered to return to Iraq. He has not so returned, and his representative has submitted that the applicant has deserted his post. He claims to fear returning to Iraq as a consequence of that desertion.
140. Again, the applicant produced no evidence before or during the hearing to support those claims. The representative referred to the Military Penal Code arguing that the applicant will be subject to the Code and will therefore be subject to severe imprisonment for a period of five years as a deserter of the Military Order.
141. Upon perusal of that Code, the Tribunal noted that the Code appeared to apply to military personnel only, and that as the applicant was a member of the [deleted] staff, the Code would not be applicable to him. The representative simply submitted that it did.
142. Following the hearing, the Tribunal invited the applicant, through his representative, to seek certain information that might offer some corroboration of his claims. That request and the information provided in response, has been referenced above in this decision.
143. A number of documents, duly translated, were submitted to the Tribunal. The Tribunal considered each of the letters in chronological order.
144. The first letter was dated [in] 2018 and as translated, appeared to be a letter from [Department 1] to [Agency 1] and it stated that its subject related to staff return. The letter references two employees, one apparently being the applicant. The Tribunal notes that there is no reference to his surname in this letter. The Tribunal also notes that their return is due to “the end of their current term of office”. The Tribunal notes that certain attachments referenced in the letter have not been forwarded to the Tribunal, including a “copy of the Orders of the Second Division”.
145. The second letter was dated [later in] 2018 from [a representatives] of Iraq in [Australia] addressed to the Department of Foreign Affairs and Trade - Protocol Branch. The letter advises DFAT that the two staff members and their spouses have completed their posts in Australia. The letter to DFAT also encloses the Identification Cards for the staff members and their spouses. The Tribunal notes that in this letter, the surnames of the two staff members are referenced and written in capital letters.
146. The third letter was another letter from [Department 1] addressed to [Department 2] and noted a subject matter of “guarantee”. This letter is dated [in] 2019. It has the purpose of informing three employees of [Department 2], as the Guarantors of “the fugitive official [the applicant]” to appear before the Department “as soon as they receive our letter” and to bring with them the guarantee amount of [amount] Dinars. The letter goes on to advise that if they do not, legal action will be taken against them pursuant to the Amended Government Debt Collection Law.
147. A copy of the same letter was forwarded to [another] Department to one of its employees who is also a Guarantor.
148. The Tribunal notes again that a copy of the “Guarantee letter” which is attached to the letter has not been forwarded to the Tribunal. The Tribunal also noted the vague timelines as to when the recipients were to appear and queries whether such a letter of demand could have effect without specific dates at which to appear.
149. The Tribunal notes from the text of the letter that the Guarantee Bond is dated [in] 2014 which is some six months before the applicant commenced work as [an occupation 1] at [Agency 1] in [Australia].
150. The Representative has made a number of submissions as statements of fact.
151. He states that [in] January 2018 the applicant was sacked from his job upon his disobeying the [Agency’s] order to immediately return to Iraq. Despite a specific request from the Tribunal for corroborative evidence of that advice, the Tribunal has received nothing other than the aforementioned letters that refer to nothing more than the completion of his term of office.
152. The Representative states that the applicant’s work was supposed to end [in] November 2018, but the Tribunal received no evidence of that.
153. The Representative states that the applicant’s family moved to [State 1] in July 2017 and the applicant moved [in] February 2018 after finalising his Lease Agreement of his [previous Australian] property. No evidence of such Lease Agreement was provided and the Tribunal could draw the conclusion that his relocation to [State 1] coincided with the completion of his term of office at [Agency 1].
154. The Representative states that the reasons for his sacking were due to [Agency 1’s] knowledge of the applicant being a protection visa applicant and for the applicant’s refusal to return to Baghdad. There has been no reference to either of those claims in the letters provided. Nor was there any reference to a reason for his sacking being his protection visa application during the hearing.
155. The Representative states that prior to commencing his post in [Australia], the applicant was assured by four [officials] in Baghdad. He states that the consequence of his disobeying the order to return will consequently affect the assurers with fines, jail time or sacking from their jobs.
156. The Tribunal has concerns about the statements made by the Representative in the aforegoing paragraph. There is no evidence that the four alleged assurers are [specified officials] as the letters are addressed to [Department 2] and the [other named] Department. There is no reference to how these four individuals may be related to the applicant or indeed why they would have provided such an assurance or guarantee and nor is there any evidence as to why such a Guarantee was required in relation to the applicant.
157. The Representative goes on to state that the applicant has made an arrangement to pay the assurance bond to the assurers in instalments. The Tribunal notes that [the specified amount in] Iraqi Dinars is about the equivalent of $[amount] Australian.
158. Together with the omission of key documents specifically requested by the Tribunal, the Tribunal has grave concerns about the genuineness of the claims contained in the submission.
159. The Representative went on to provide details of certain undocumented information that the applicant allegedly received from a sympathetic staff member at [Agency 1]. The information is variously referred to as having been “leaked” and been considered as “top secret”.
160. The undocumented information is set out in the post-hearing submission referenced in this decision.
161. Interestingly, the undocumented information leaked to the applicant states that [Agency 1] was ordered to provide details of the applicant’s itinerary and was ordered to book one-way flight tickets for him and his family. This is inconsistent with evidence provided by the applicant to the Tribunal during the hearing when specifically asked by the Tribunal about his return travel arrangements, the applicant advised the Tribunal that it was he, the applicant, who was responsible for arranging his own flights to return to Iraq.
162. The final piece of information leaked to the applicant was that [Department 1] has already established an interrogation council that awaits the applicant upon his return.
163. The Tribunal has considered that information, together with the Representative’s submissions as to the applicant being considered a military deserter with Country Information available to it.
164. The Tribunal has considered the EASO (European Asylum Support Office) Country of Origin Information Report, Iraq, Targeting of Individuals of March 2019, referenced earlier herein. The report identifies individuals likely to be targeted in Iraq. In that report, there is reference to a section (section 1.8) relating to desertion.
165. That section references the Military Penal Code, a copy of which was provided to the Tribunal by the Representative, and it states that the Military Penal Code applies to Iraqi military forces personnel in service, cadets of military colleges and army schools or institutes. It speaks of military persons escaping abroad during their military service. It refers to army deserters. It refers to members of the Armed Forces and them surrendering themselves. It speaks of absenteeism from one’s unit or place of duty.
166. At page 69 of the report, the Tribunal notes a reference to an interview with a Joel Wing, a US based Iraqi expert and operator of the blog Musings on Iraq, who stated that he was not aware of any consequences for people who had deserted a unit of PMUs.
167. As stated by the Tribunal during the hearing, in relation to the application of the Military Penal Code to the applicant, and its concerns in that regard, the Tribunal has not been satisfied at all by the post-hearing submission and reference to Country Information, that the Penal Code and/or any penalties for desertion apply to the applicant who is an [occupation 1] staff member at [an agency] office.
168. The Tribunal also notes the Representative’s submission in relation to “perceived collaborators”.
169. It notes the references to what the term “perceived collaborator” means and notes from the definitions provided (referenced in the post-hearing submission included in this decision) that the only relevant category would be considered to be a returnee from the west.
170. Whilst the Representative states that the Home Office, Country Policy and Information Note, Iraq; Perceived Collaborators, dated February 2019 provides ample information on the risk associated with the perception of being a returnee from the west, the Tribunal has scoured the Report and found only vague references contained in articles of a family being targeted because they worked in a US military base in Baghdad or who worked with Americans or Translators working for US Forces.
171. The Tribunal is satisfied with the Country Information referenced above from the DFAT Report in relation to Conditions for Returnees (see paragraph 5.24 of the DFAT Report).
172. As the Tribunal noted earlier, the country information indicates that returnees have not faced serious harm on their return even if they have applied for asylum overseas. It is reported that it is quite common for Iraqis to return to Iraq for family and employment reasons after they have obtained international protection. Further, the Iraqi Government appears to support nationals working and particularly studying abroad, offering scholarships to study abroad, and in western countries, and guarantees employment for such students on their return[23].
[23] DFAT Report, paragraph 3.61.
173. The Tribunal finds that the applicant does not have a well-founded fear of persecution based on his fear of being a perceived collaborator or returnee from the west to Iraq, and even one who has sought asylum abroad, now, or in the reasonably foreseeable future.
174. In all, the Tribunal is grateful to the Representative for his submission, but finds that the assertions and statements contained in the submission to be wholly unsupported by probative evidence.
175. The Tribunal has also finally considered again the most recent UN guidelines[24] on international protection considerations for people fleeing Iraq. As noted earlier, the guidelines list several profiles of persons who might be at risk if they return to Iraq now or in the foreseeable future. The Tribunal does not consider the applicant falls within any of the profile groups set out in those guidelines.
[24] ‘International Protection Considerations with Regard to People Fleeing the Republic of Iraq’, UNHCR, 3 May 2019, pp.59-109.
Cumulative claims
176. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his being a Shi’a Muslim, of [mixed] ethnicity, a Ba’ath party member, being imputed as a regime supporter, having performed compulsory military service or trained in the aviation force, a returnee to Iraq, a government worker, or as a deserter or perceived collaborator or returnee from the west, or any other reason if he returns to Iraq now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Iraq. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
177. The Tribunal has considered the applicant’s claims under complementary protection.
178. Having regard to the Tribunal’s findings of fact above the Tribunal does not accept that the applicant left Iraq because of his being a Shi’a Muslim, of [mixed] ethnicity, a Ba’ath party member, being imputed as a regime supporter, having performed compulsory military service or trained in the aviation force. Further, the Tribunal does not accept that the applicant fears that he will suffer significant harm as a returnee, a deserter or perceived collaborator, or returnee from the west.
179. The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation or employment in Iraq if he was required to return as his family still lives in Iraq and he has a record of successfully being self-employed when he lived in Iraq. Consequently the Tribunal is of the view that he will have no issues with subsistence.
180. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Iraq now or in the reasonably foreseeable future.
181. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iraq now or in the reasonably foreseeable future.
182. Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is not satisfied 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 he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
183. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
184. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there is a real risk that he will suffer significant harm.
Overall conclusion:
185. 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).
186. 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).
187. 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).
188. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
189. The Tribunal affirms the decision not to grant the applicants protection visas.
Michael Hawkins
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.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

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 the 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.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.
…

[2020] AATA 4272

31 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal