1700428 (Refugee)

Case [2020] AATA 4272

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

  1. 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).

  2. 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

  3. 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…

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AGLC
1700428 (Refugee) [2020] AATA 4272
Case
[2020] AATA 4272
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to affirm the refusal of a protection visa for Iraqi nationals. The primary applicant claimed to be of Shia Muslim Arab ethnicity, but with a mother of mixed racial background, which he alleged led to discrimination and lack of promotion during his service as an aviation officer in the Iraqi military under Saddam Hussein's regime. He further claimed that upon discharge, he faced difficulties finding work and later received threats due to his past employment, and that his brother was shot in a case of mistaken identity. The applicants sought protection on the basis of fear of persecution due to their imputed political opinion, membership in a particular social group (military deserters), and perceived collaboration with the former regime.

The court was required to determine whether the applicants met the criteria for a protection visa, specifically whether they satisfied the refugee criterion under section 36(2)(a) of the Act, or alternatively, the complementary protection criterion under section 36(2)(aa). This involved assessing the real risk of significant harm upon removal from Australia, considering the applicants' claims of past discrimination, threats, and the general country conditions in Iraq. The court also considered the definition of "member of the same family unit" under section 5(1) of the Act and regulation 1.12 of the Regulations.

The Tribunal affirmed the delegate's decision, concluding that the applicants did not meet the refugee criterion. The reasoning indicated that the claims of discrimination and threats were not sufficiently substantiated to establish a well-founded fear of persecution. The Tribunal also considered the complementary protection criterion, assessing the risk of significant harm, and found that the evidence did not support a real risk of such harm upon removal. The Tribunal applied the principles outlined in sections 36(2)(a), (aa), (2A), and (2B) of the Act, as well as Ministerial Direction No. 84, and relevant country information. The court ultimately affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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: Post hearing submission from the applicants’ Representative dated 27 April 2020; A letter dated [in] 2019, of guarantee bond demand (titled “Assurance letter”); A letter dated [in] February 2018 letter from [his agency] advising completion of the applicant’s post; and A letter dated [in] January 2018 from [Agency 1] in Australia to [Iraqi Department 1] advising the return of the applicant. 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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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].