1702698 (Refugee)

[2020] AATA 2371

1702698 (Refugee) [2020] AATA 2371 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702698

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Simone Burford

DATE:13 February 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the second applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first applicant.

STATEMENT MADE ON 13 FEBRUARY 2020 AT 4:28PM

CATCHWORDS

REFUGEE – protection visa – Iraq – religion – Sunni Muslim – secular views – imputed political opinion – advocate for women’s rights – perceived supporter of Islamic State (ISIS) – perceived support for Iraqi government – particular social group – female professional – academic – returnees from the West – fear of killing – mistreatment from militia groups and Islamic State – originating from formerly ISIS-held areas – return trips to Iraq – business operating under ISIS administration – member of the same family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 February 2017 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 29 January 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations as outlined in the Act and were not members of the same family unit as a non-citizen in respect of whom Australia has protection obligations.

3. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 16 February 2017. They provided a copy of the delegate’s decision with their application for review.

4. The applicants attended a hearing before the Tribunal on 9 August 2019 to give evidence and make submissions in support of the review application. The Tribunal was assisted by an interpreter in the Arabic and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the Tribunal hearing.

5. The applicants were provided with additional time following the hearing to provide further evidence and submissions. Additional material was received following the hearing and has been taken into account by the Tribunal in reaching a decision on the application.

   REVIEW ISSUES

6. 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). The issue in this case is whether any of the applicants meet one or more of the alternative criteria in s.36(2)(a), (aa), (b) or (c) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. A summary of the relevant law is included at Attachment A.

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

8. For the following reasons, the Tribunal has concluded that the matter under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality

9. The applicants travelled to Australia on Iraqi passports and claim to be Iraqi nationals.  On this basis, and given the delegate had no concerns about their claimed nationality, the Tribunal accepts the applicants are nationals of Iraq and has assessed their protection claims accordingly. 

   The applicants’ migration history

10. According to the delegate’s decision, the applicants arrived in Australia [in] December 2011 on [a temporary] visa.

11. The visa was applied for [in] July 2011 and granted [in] November 2011. It expired [in] January 2016. The applicants applied for a protection visa on 29 January 2016.

    Background

12. The applicants are both Arab Sunni Muslims originating from and residing in Mosul, Iraq. The applicants married in Mosul in 1997.  They have no children. They travelled to Australia in December 2011 on [a visa granted] to the first applicant (or the first named applicant). Prior to travelling to Australia, the first applicant was working as a lecturer at [University 1], in the [named] Department. The second applicant (or the second named applicant) was working as [an occupation] in his own business providing [specified services].

13. The first applicant was born and raised in Mosul. Her parents are now deceased.  She is one of [number] children, all of whom married and had families.  Two of her [siblings] are now deceased.  A number of her family members remain in Mosul. Several of the family members have moved to areas outside Mosul and one sister has moved to [Country 1]. 

14. The second applicant was also born in Mosul. His parents are deceased. He has [family members] living in Mosul. He has extended family living in Baghdad and Northern Iraq. Other family members have moved to [another country].

15. The applicants travelled to Australia in 2011 for the first applicant to complete [a course] at [an Australian university].  Her field of study was [specified subject areas].

16. The applicants’ registered migration agent submitted detailed written submissions to the Tribunal on 11 October 2018 which summarise the applicants’ claims for protection. The submissions indicated that the applicants relied on previously provided written and oral statements to the Department, and statutory declarations submitted to the Tribunal which address more recent issues that have evolved since they were interviewed by the delegate in September 2016.

17. The Tribunal put to the applicants a summary of the claims contained in the representative’s submission (detailed below). The applicants confirmed this was a fair and accurate summary of their claims.

18. The applicants claimed that they both fear persecution in all areas of Iraq for the essential and significant reason of the first applicant’s:

    ·Actual or imputed political opinion as an active and vocal advocate for women’s rights and against extremist ideology that seeks to repress or restrict the freedom of women and girls in Iraq; as someone seen to be supportive of Islamic State in the Levant (ISIL or ISIL) and the Sunni insurgency because she was born and bred in Mosul; as someone seen to be affiliated with or supportive of the Iraqi government and particularly, given her prolonged presence in Australia and significant work with the Christian organisation in [City 1, Australia], as someone seen to hold progressive and/or “Westernised” views that are unacceptable to extremist Shia and Sunni groups that hold sway in all areas of Iraq;

    ·Religion, as someone with secular views and Westernised conduct that may be viewed as anti-Islamic; and

    ·Actual or perceived membership of a particular social group, being “female professionals”, “academics”, “women activists or advocates” and “residents or former residents of Mosul.”

19. In addition, the second applicant has raised his own fears of harm for the following reasons:

    ·His actual or imputed political opinion as someone seen to be supportive of ISIL and the Sunni insurgency because he was born and bred in Mosul; as someone affiliated with or supportive of the Iraqi government or a threat to extremist ideology due to his prolonged stay in Australia, his Western democratic opinions and his association with a partner who works for a Christian organisation; as someone who may be alleged to support Sunni extremist groups because he refuses to pay bribes to Shia militia militants; or

    ·His religion as a Sunni Muslim or someone with progressive and/or secular views that may be viewed as anti-Islamic; and

    ·His actual or perceived membership of a particular social group comprising “residents or former residents of Mosul”.

20. As noted above, this summary was put to the applicants at the hearing. They confirmed it was a true and correct summary of their claims.

21. The applicants detailed claims for protection in the original visa application.  They also submitted statutory declarations to the Tribunal dated 5 August 2019, which provided further updated details of their claims.  Material provided in support of the visa application included:

    ·A translated copy of a letter [confirming] the first applicant’s scholarship.

    ·A copy of the first and second applicant’s curriculum vitae.

    ·Academic records dated [1993 and 2002] from [a named university], showing the applicant completed [specified courses].

    ·Enrolment documents from [her Australian university] relating to the first applicant’s admission to [her named] course in [2011].

    ·A translation of a notice by the Republic of Iraq, Ministry of Higher Education and Scientific Research, Minister’s Office, dated 15 December 2016 noting the names of a number of University Chancellors, and asking universities to take steps to protect university teachers/professors following security information that terrorists intend to target these staff.  It does not appear from the document that it was issued to [University 1].

    ·A translation of a document from the Republic of Iraq, [agency], dated [in] 2019, relating to [a state level agency] indicating approval to collect monies from [Mr A] for a lease on the land for the [installation of specified equipment] on it.

    ·Photographs of a site in Mosul claimed to be the site of one of the second applicant’s [equipment installations].

    ·Post hearing statutory declarations from the applicants dated 20 August 2019.

    ·A statutory declaration from [Leader A], [Welfare Agency 1], dated 16 August 2019 detailing the first applicant’s work for that organisation.

    ·A statutory declaration from [Leader B], [Welfare Agency 1], dated 17 August 2019, detailing the first applicant’s work for that organisation.

    Review

22. The applicants provided separate written statements to the Tribunal. The first applicant’s statements addressed additional claims arising since the filing of the application for protection. Her statements also addressed adverse information raised by the delegate and clarified her activities in Australia which she claimed were relevant to her claims for protection. The second applicant’s statements addressed the general claims including additional claims arising since the application was filed and specific claims in relation to his business activities in Iraq.

23. The representative provided comprehensive written submissions to the Tribunal submitted in preparation for the hearing on 9 August 2019[1].  The representative also provided written submissions to the delegate prior to the initial decision on the application.

    [1] The Tribunal notes that the submissions were dated 11 October 2018, however this appears to be a typographical error.  The submissions were provided to the Tribunal on 7 August 2019.

24. The representative’s written submissions also raised a number of other claims including that the applicants would face harm as returnees from the West due to their perceived wealth and because of their connection with the Western world and the “deep sense of injustice at the west the struggle treatment of Muslims”.

25. The representative’s written submissions also addressed concerns raised by the delegate, the delay in seeking protection, details of the first and second applicant’s claims for protection and referenced updated country information about the security situation in Iraq in general and specific country information related to the applicants’ claims. 

26. It was submitted that in relation to the delay in seeking protection the applicants had originally believed that the deteriorating situation in Mosul would improve, however when they realised this would not happen they sought asylum. It was also submitted that the applicants fear serious harm on return to Iraq for reasons of their religion, their perceived political views and membership of particular social groups as identified above. It was further submitted that in the alternative, the applicants met the requirements for complementary protection as they would face a real and personal risk of significant harm on return to Mosul due to their individual circumstances.

27. In her written and oral evidence to the Tribunal, the first applicant described her background, reasons for leaving Iraq and fears upon returning there now, summarised as follows.

28. The first applicant said that before she came to Australia in 2011 she was working as an academic of [University 1]. She said that prior to the fall of Saddam Hussein’s regime in 2003 she did not encounter any problems in Iraq. However, after Saddam was deposed she encountered violence directed at Sunnis by Shia militia. She stated that her husband’s business was extorted by ISIL and his business partner was held captive for ransom and only released when he paid [amount] dollars.

29. The first applicant noted that at the time of her protection interview most of her family had remained in Mosul when it was under the control of ISIL. They did not have any option to leave the city. The applicant claimed that one of her sisters had fled the city with her [children]. Her husband continues to work in Kirkuk, while the family lives in [Country 1]. [Other relatives] were English teachers and had to leave their jobs and move to another area because they were at risk from Sunni fundamentalists. She lost [specified relatives] and their families during the liberation of Mosul when they were killed while hiding in the homes. Following the liberation of the city from ISIL, [another relative] received threats and had to leave her job as a teacher and change residences. She is currently living in an area under Kurdish control. She claimed that the Shia militia currently in control of Mosul have looted her husband’s business and have demanded exorbitant rent from the business. They have also demanded money for reparations.

30. The first applicant claimed that the university was damaged during the ISIL occupation but she no longer has a position there. She claimed she has heard from academics who have returned overseas that they been subjected to intimidation, harassment, bullying and threats by militia and religious fundamentalists who have influence in Mosul. She states that “they suspect that the returning academics are either supporters of ISIL and the Sunni insurgency or a pro-Western. In particular, women have been harassed because they are perceived to be opponents of strict religious controls”. 

31. The first applicant claimed that [another relative] who was a Sunni academic had gone to [Country 1] to study and on his return to his job in Erbil had been directed to work on a location 75 km away in an area that was not safe for her to reside. The first applicant claimed she had been active in the Australian community, in particular working with the [Welfare Agency 1]. She claimed that she worked with the refugee and migrant [service] and through this work encountered criticism from some Muslim participants because of her expression of Western views. She claimed that she supported secular democracy and women being educated equally and that she had strongly adopted Western values. She claimed that she worked with a Christian organisation and her opinions and work attracted criticism from the Muslim and Arab speaking community in [City 1] and that this information may be passed back to religious and political authorities in Iraq.

32. The first applicant claimed that on a return visit to Mosul to see her terminally ill [relative] she was admonished by a local for expressing non-traditional views regarding healthcare. She claimed that in Mosul, government authorities and militia were intent on revenge against Sunnis for supporting ISIL and were highly suspicious of anyone who might be perceived as supporting Western governments. She claimed that she feared that:

    I will be physically attacked by Shia militia wherever I go in Iraq as I am a modern, educated woman, trained in [subject], who has Western ideas that are anathema to Shia fundamentalists. I have developed and expressed those views in Australia and believe that I would be targeted for expressing them in Iraq. I also fear that those views are already known to authorities in Mosul three informers who live in [City 1].

33. The first applicant claimed she feared she would be refused work because of her political and religious opinions and activities. She said it would not be safe for her anywhere else in Iraq due to suspicion that Mosul Sunnis were supporters of ISIL, or by fundamentalist Sunnis, who were distrustful of those who had lived and studied abroad.

34. In relation to residing in Kurdistan, the applicant said she had no relatives who could sponsor her there, and she claimed that wherever they went the Iraqi authorities would not be able to protect them.

35. In his written statements provided to the Tribunal, the second applicant stated, among other things, that he did experience problems in Iraq prior to Saddam Hussein’s departure. After Saddam was deposed, he encountered dangers as a consequence of sectarian violence in Iraq. From 1998 until he left Iraq in 2011, he operated [a service] business with a partner, [Mr A]. They purchased and repaired [equipment], developing a successful business. In early 2014, prior to ISIL taking control of Mosul, his business was extorted by a gang of Sunni militia who were acting in collusion with ISIL. The militia members were jailed after his partner complained to police. After ISIL took control of Mosul in mid-2014, they were released from jail and his partner was held captive for ransom and put on trial by ISIL. He was released with the payment of [an amount] ransom. He claims that some of his family fled from Mosul to temporary refugee camps in Kurdistan following invasion from ISIL. However, his family members have been forced to leave because they had no right to remain in Kurdistan. He claimed that his [relative] was arrested and tried by ISIL for defending some young people who had been dancing at a wedding party. However, he was later released as a Sunni sheikh vouched for him. He claimed that [another relative] had initially fled to [Country 1] but when he returned to Mosul after it was liberated in 2017 he was harassed and forced to move to Karbala.

36. He said machinery from his business was stolen by the Shia militia who took over the city when ISIL was defeated. He said that police had falsified records when this was reported to them. When they tried to re-establish the business by leasing land, the authorities demanded they rent the land for the previous three years at an inflated price. They also sought reparation payments equal to 30% of the value of the business. He claimed it was not possible to do business in Mosul and that he would be targeted by government officials, militia and criminals that force businesses to pay bribes. He said he feared for his wife because he had heard that academics had been subject to intimidation and threats on return from overseas by militia and religious fundamentalists. He claimed he would be targeted as a businessman in Mosul even if his business was not operating through his connections with his business partner who is operating other businesses.

1. The second applicant said his wife would be identified in Iraq as secular and progressive “simply, the way the woman dresses, without hijab, they perceive her to be secular, the way she makes her own decision or looks for work.”  He said that since coming to Australia she has become more open to her freedom and making her own decisions.  He claimed that her work in Australia would expose them to harm in Iraq because their culture rejected women who work with Christian organisations.  He said he thought the authorities would be aware of these activities through different individuals in [City 1]. He said she would be more at risk as an academic returning from the West because she would be perceived to be liberated.  He was concerned she would be subjected to kidnapping because she would stand out as a target.

2. He said he would also be at risk because he would be perceived to be weak because his wife was a professional and they have no children.  He was concerned he would be subjected to physical harm as a result.  However, he was not aware of any incidences where this had happened in Mosul.  He said he didn’t think he would face harm as a moderate Muslim but rather because of his wife’s position, and his business interests would identify him as a target for harm by extremists or government forces.  He claimed that outside Mosul they may be perceived as people who helped ISIL during the occupation.

   Factual findings

   The first applicant

3. Initially, the Tribunal was concerned about the veracity of the first applicant’s claims because the first applicant does not claim to have faced harm in Iraq prior to coming to Australia. Further, the applicants’ claims for protection were only raised just prior to the first applicant’s student visa expiring.  Further, both applicants have safely made return trips to Iraq during their time in Australia.  Nonetheless, the Tribunal also notes that country circumstances in Iraq have changed significantly over time and in particular, at the time the applicants made their claims for protection, ISIL was in control of Mosul, which had not been the case when the applicants left Iraq for Australia.

4. The Tribunal found the first applicant to be a generally credible witness at the hearing.  The Tribunal regards her detailed oral evidence as consistent with her claims before the Tribunal and the Department and is supported by documents where relevant.  On this basis, the Tribunal accepts the first applicant’s core claims, summarised as follows:

   The first applicant is a Sunni Muslim who was born and bred in Mosul and would be identified as such on return to Iraq;

   The first applicant has been in Australia for a prolonged period and has studied and taught at an Australian university;

   The first applicant has worked with Iraqi women migrants in Australia, including as an advocate for women’s rights.  Through this work she was affiliated with and employed by a Christian organisation in Australia;

   The first applicant is a highly educated female academic who would be likely to work again in Iraq in her field of academic expertise.  She holds progressive and/or “Westernised” views that may be viewed as anti-Islamic.

5. The Tribunal also found the second applicant to be a generally credible witness at the hearing.  On this basis, the Tribunal also makes the following factual findings:

   The second applicant is a Sunni Muslim who was born and bred in Mosul and would be identified as such on return to Iraq;

   The second applicant is the husband of the first applicant;

   The second applicant has had a prolonged stay in Australia;

   The second applicant has Western democratic opinions and secular views that may be viewed as anti-Islamic;

   The second applicant has an interest in a business which supplies [services] in Mosul and in that context has been asked to pay lease monies to Iraqi authorities;

   A business in which the second applicant had an interest supplied [services] in Mosul including during the ISIL occupation.

   Well-founded fear of persecution: first applicant

6. Given these findings, the Tribunal has gone on to consider if the first applicant faces a well-founded fear of persecution on return to Iraq for the reasons claimed, in the foreseeable future.

7. In considering whether the applicant faces a real chance of serious harm from Shia militia, Iraqi authorities and extremists on return to Iraq due to being an “active and vocal advocate for women’s rights and against extremist ideology that seeks to repress or restrict the freedom of women and girls in Iraq”, the Tribunal notes that there are aspects of this case which cast doubt on that proposition, as discussed at hearing.  This includes the fact that there was no evidence by the Tribunal that the first applicant was a public advocate for women’s rights and against extremist ideology such as may have brought her to the adverse attention of authorities in Iraq. In addition, the first applicant did not claim to have faced harm in Iraq on this basis prior to coming to Australia.

8. The Tribunal accepts that the first applicant is an educated Iraqi woman whose own views on women’s quality have evolved during her time in Australia. The Tribunal also accepts that the first applicant has worked in a capacity assisting Iraqi migrant women and that in this work she was familiarising Iraqi women with Australian culture and values, including the promotion of an understanding of women’s rights in Australia.  The Tribunal notes that the statutory declaration of [Leader A], the former Chairman of [a named section] of the [Welfare Agency 1] attests to the first applicant working with [them] for over 30 months at a [service] for new arrived refugees and migrants. [Leader A] notes that the first applicant:

   is enthusiastic in ensuring the women and girls, in particular, become aware of their rights in the Australian community and use the settlement sessions as a means of teaching them how to resort to the network of agencies the authorities have established to protect women’s rights.

   She is a strong advocate of education for girls and freedom of women to express their views and live their lives without fearing adverse reactions from males in the community. Underlying advocacy is her belief that the key to integration is the ability to understand English and that English is an investment the clients for future generations to come.

   She is passionate about the manner of empowering women and discussed the importance of financial freedom for women and encourage them to make their own financial decisions.

   [the first applicant] is also very passionate about connecting different groups within a refugee and migrant community from Iraqi and Syrian backgrounds. One of the reports to a manager, she discusses her success in establishing friendships between Sunni and Shia women.…

   … It was not always well received by fundamentalist members of the Sunni Muslim community as Shia are considered infidels by them.

9. [Leader A] also discusses the first applicant’s assistance to migrant women who were in circumstances of family violence and sexual harassment.

10. Likewise, the statutory declaration of [Leader B], a [member] of [Welfare Agency 1] and volunteer with the [named section] stated that:

    [the first applicant] strongly believes that education and financial independence will liberate these women from the control of their spouses and the male dominant culture they have been raised in. She always encouraged women to discuss their learning options such as doing tertiary education and she referred some women who require protection to police all relevant agencies and was strong advocate of their cases.

    She has also encountered some criticism from some of her clients who have a strong wish to retain their own cultural and disagreed with [the first applicant’s] views on women’s issues. She is polite and persistent in expressing her views, but they have resulted in some aggressive comments that have upset [the first applicant] because she says she gets then gets negative feedback from other members of the community who are not our clients.

    ..

    She has had a positive impact on many of her female clients and helped them to take better control of their lives in a new culture, but I also have serious concerns about her safety and well-being if she return to Iraq, she believes the criticisms that she has been subject to for her work with [Welfare Agency 1] spread of the community were networks in [City 1] and back in Iraq.

11. The Tribunal had some concern regarding the credibility of claims that the first applicant’s activities with [Welfare Agency 1] would have been reported to authorities or extremists in Iraq.  There was no evidence of any threats having been made against or through the first applicant’s family in Iraq.  Further, the evidence of the applicants as to who may have a motivation to pass such information to parties in Iraq was non-specific.  However, the Tribunal found the applicant a credible witness at hearing and finds it plausible that the work she was doing with migrant women may have identified her as progressive and anti-Islamic among some members of the Iraqi community. Further, and more importantly in terms of the risk for the first applicant on return to Iraq, the Tribunal is satisfied the first applicant genuinely holds progressive views on women’s rights, which have been developed and enhanced during her time in Australia and that she would be likely to express such views in an active way on return to Iraq, including if she were to work again as an academic in Iraq, which, based on her employment history, the Tribunal regards as likely.

12. Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

13. Based on the evidence before it, the Tribunal finds that the applicant did not engage in her work with [Welfare Agency 1] for the purpose of strengthening her protection claims in Australia.  For the purposes of s.5J(6) of the Act, the Tribunal is satisfied that the first applicant engaged in activities promoting women’s rights to members of the migrant community in Australia other than for the purpose of strengthening her claim to be a refugee.

14. In written submissions provided to the Tribunal, the representative submits that the applicants fear the deprivation of liberty and physical harm, including death, for the essential and significant reason of their religion, perceived political views and/or membership of the particular social groups claimed. The representative claims the feared harm would be for at least one of the reasons prescribed under s.5J(1)(a) of the Act.  The representative claims that the applicants’ history, together with independent country information, supports a conclusion that the likelihood of persecution cannot be dismissed as remote.

15. Reference is made to relevant articles to support this contention that, within a context of lawlessness, impunity and political opportunism by influential militia groups in Iraq, together with the strength of Shia militia, the applicants’ fears of persecution at the hands of fundamentalist Shia militia for anti-government and pro-Western sentiments should be assessed.

16. The representative submitted that from mid-June 2014, when ISIL invaded Iraq and took control of key areas in mainly northern and western areas, Iraq experienced a dramatic increase in sectarian tension and a new surge in violence. The representative submitted that the conflict had led to mass killing and wounding of civilians and widespread human rights abuses committed by both the Iraqi Security Forces (ISF) and armed opposition groups. In particular, there was a heightened level of religiously and politically motivated violence perpetrated by both Shia and Sunni extremists. The representative submitted that the “Iraq security situation is volatile, deteriorating and that refugee related violence is uncontrollable and continues to occur at an unacceptably high rate” citing in support a report from the United Nations High Commissioner for Refugees (UNHCR) in 2016.[2]

    [2] Citing the United Nation's High Commissioner for Refugees, UNHCR Position on returns to Iraq, 14 November 2016, pages 1 – 3, 16 – 17.

17. The other main points in the submissions include, in summary[3]:

    [3] Citing DFAT Country Information Report, Iraq, 26 June 2017; DFAT Country Information Report, Iraq, 9 October 2018; US Department of State Country Report on human rights practices 2018 – Iraq (USDOS report) and several other articles and reports.

    Security situation and sectarian violence

    ·ISIL seized control of Mosul following the applicants’ arrival in Australia, resulting in a dramatic increase in sectarian tension and violence; the conflict has led to mass killing and wounding of civilians and widespread human rights abuses committed by the ISF and armed opposition groups; in particular there continues to be a heightened level of religiously and politically motivated violence perpetrated by both Shia and Sunni extremists.

    ·Populations that remained in areas under ISIL control are regularly perceived as having supported ISIL and, as a result, have reportedly been targeted by various actors for reprisals. Areas from which ISIL has been dislodged by the ISF and associated forces remain at risk of ISIL infiltration.

    ·The threat from ISIL has not dissipated following its territorial defeat in Iraq.  Instead, they are resorting to their historical use of guerrilla tactics and underground terrorism to attack anyone who does not follow their radical religious beliefs; reference is made to a number of articles about targeted attacks.

    ·There is still a high level of violence throughout Iraq, as various extremist groups continue to be particularly active in increasing sectarian and political violence. This is expected to continue into the future following the defeat of ISIL in Iraq. There are widespread reports of ISIL targeting civilians to avenge its territorial losses.

    Sunni Muslims

    ·Sunni Muslims have been targeted by ISF and Popular Mobilisation Forces (PMF), which accuse them of supporting ISIL. This includes looting and destruction of Sunni property following the expulsion of ISIL. Sunnis have also faced harassment and discrimination outside ISIL controlled areas in the form of more intrusive inspections at checkpoints and the provision of poorer quality services in Sunni areas. Shia militia have engaged in revenge attacks and abuses against Sunni Muslims, including forced displacement, kidnappings, and abductions, abuses at checkpoints, killings and attacks on property.

    ·Sunni extremists remain active and continue to carry out regular mass casualty and targeted attacks against primarily Shia civilians in an effort to stir sectarian tensions and reinvigorate sectarian violence. This will mean targeted revenge attacks against Sunni Muslims will continue.

    ·The fact there is widespread generalised violence in Iraq and that the victims are indiscriminately targeted does not preclude a conclusion that such violence has a refugee nexus.

    Businessmen

    ·Businessmen are at risk of being accused of association with ISIL where their businesses may have provided services under the ISIL administration.

    ·ISIL maintains a capacity to launch hit-and-run attacks and has reportedly attacked energy infrastructure and utilities.

    ·Militias have demanded protection money from both large and small businesses.

    Women

    ·Women face discrimination and violence in Iraq. Women are forced to follow conservative dress requirements and other Shia practices and women are threatened by all sides of the conflict in Iraq, including ISIL, the ISF and armed militia groups.

    ·Women in public roles are the subject of treatment in Iraq amounting to persecution, including violence and killing. While those mentioned in reports as being targeted were of higher profile than the first applicant, conditions in Iraq are deteriorating, particularly for women in public life. Further, the first applicant may be regarded as having a profile in her area compared to the general population there as she was married to a man who had businesses that were providing services to the ISIL administration, she has expressed progressive political views, particularly around female empowerment and women’s rights, and she has a history of refusing to adhere to religiously conservative restrictions around dress, her personal conduct, employment and movement outside the home.

    Academics

    ·Academics have been targeted by ISIL and associated armed groups, including targeted assassinations and abductions. This included a plot by armed criminal groups to attack university professors in southern Iraq (Basra) as reported in December 2016 in the Baghdad Post. A translation of a ministry circular referring to the targeting of university professors and teachers at universities in southern Iraq was submitted in support of this contention.

    Returnees

    ·Returnees from the West are targeted because of their perceived wealth, because they are perceived as supporting Western sentiments and political structures and for a failure to adhere to strict interpretations of Sharia law. There are reports of kidnappings and other attacks against returnees or those perceived as being wealthy by Popular Mobilisation Forces (PMF) militia groups for personal gain or political and sectarian reasons.

18. The Tribunal has also considered independent country information about the security situation in Iraq, including as detailed in the delegate’s decision, to determine if the first applicant’s fears of serious harm are well founded, taking into account the applicant and her representative’s submissions (and country information referenced) on this matter. 

    Security situation and sectarian violence

19. Mosul, Iraq’s second-largest city, was under the control of ISIL from June 2014. Iraqi forces recaptured the last areas still under ISIL control in December 2017.[4] ISIL continues to commit small attacks mainly on government forces and security personnel at road checkpoints. The three-year conflict with ISIL significantly damaged Iraq’s economy and displaced more than three million Iraqis. ISIL has waged a protracted insurgency in Iraq for many years.

    [4] DFAT Country Information Report, Iraq, 9 October 2018, p 6.

20. DFAT states that although ISIL has lost its self-declared ‘caliphate’ in Iraq and Syria, it remains a threat to Iraq, with an estimated 30,000 ISIL fighters remaining active in both countries.[5]  DFAT assesses that ISIL will likely continue to indiscriminately target Iraqi civilians and commit human rights abuses as a small scale insurgency, which they state will likely be for many years.[6]

    [5] Ibid at 2.33.

    [6] Ibid at 2.5 and 2.34.

21. In the most recent US State Department human rights report on Iraq for 2018, it is stated that ISIL continued to commit serious abuses and atrocities, including killings, and that there were numerous reports that some government forces, including the PMF, committed arbitrary or unlawful killings.[7]  As well, they reported that ‘individuals, militias, and organized criminal groups carried out abductions and kidnappings for personal gain or for political or sectarian reasons’.[8]

    [7] US State Department, Country Report on Human Rights Practices – Iraq 2018, March 2019, Executive summary,

    [8] Ibid at s.1b.

1. Shia militias have increased their presence and influence in Iraq as a result of their involvement in the defeat of ISIL in Mosul and other parts of Iraq. According to Brookings Doha Centre,[9] many of these militias have engaged in destructive behaviour, including human rights abuses, refusal to submit to government or civilian oversight and promotion of sectarian discourse.

   [9] Ranj Alaaldin, ‘Containing Shiite Militias: The Battle for Stability in Iraq’, Brookings Doha Center Policy Brief December 2017; and Ranj Alaaldin, ‘Fragility and Resilience in Iraq’, Istituto Affari Internazionali (IAI), November 2017, >

   Country information indicates that Shia militias became involved in the battle to overthrow ISIL and played a significant role in its military defeat. Many of these militias currently belong to the state-sanction PMF umbrella formed in 2016 to bring militias under centralised control.  A November 2018 UK Home Office report, which refers to a March 2016 Congressional Research Service report, stated that estimates of the total Shia militiamen in Iraq number about 110,000-120,000.[10]  The report goes on to describe Shia militia and the Popular Mobilisation Units (PMUs) in Iraq as follows:

   Organised in the immediate wake of the invasion by the Islamic State, Popular Mobilization Units (PMUs) are primarily Shia militias affiliated to particular ethnic or religious leaders. Most are believed to be heavily subsidised and supported by Iran, and the PMUs have become better trained and equipped during the conflict with the Islamic State. The PMUs have been recognised by the state as legitimate security actors and are under the authority of the Ministry of the Interior.

   In combat operations they are nominally under control of IA commanders but have been seen to act largely independently of centralised command. Estimated to number approximately 10,000 militiamen, PMUs have been guaranteed a role in the future security apparatus of the Iraqi state, likely in the form of a regionally-based national guard. With their deployment against Kurdish Peshmerga in October 2017, the PMUs have been further legitimised as a federal security actor of the state, despite calls from the US to disband the organisation in a post-IS security environment.[11]

   [10] UK Home Office, Country policy and information note, Iraq: Security and Humanitarian Situation, November 2018, 5.5.1,

   [11] DFAT Country Information Report, Iraq, 9 October 2018 at 5.5.2.

2. DFAT also reports that many groups who make up the PMF have committed human rights abuses, as follows:

   The PMF is a state-sanctioned umbrella organisation comprising over 200 armed groups, mostly Shi’a. The PMF includes small numbers of Sunni tribal fighters and minority groups. Many of these groups have existed for some time and have close links to Iran. In 2016, the Council of Ministers decided to bring the PMF under centralised control as an independent military organisation and this was formalised by the Prime Minister in March 2018. However, the US State Department assesses that the central government lacks capacity to maintain consistent control over the PMF and that PMF groups have committed human rights abuses, including enforced disappearance, extortion, torture and extra-judicial killings. Many PMF groups consist of volunteers who have received limited training. It is not yet clear the extent to which the formal incorporation of the PMF into the ISF will extend the federal government’s actual control over PMF activities.[12]

   [12] DFAT Country Information Report, Iraq, 9 October 2018 at 5.4.

3. With respect to the current political situation in Iraq, country information indicates that no party gained a majority in the national elections in May 2018, although the highest number of votes and seats went to the party of Shia cleric, Muqtada al-Sadr, a former anti-US militia leader who ran on an anti-corruption platform in alliance with the Communist Party. Negotiations to form a government continue, however, recent reports indicate that rivalry between Shia factions is paralysing the government.  A December 2018 article by Reuters indicates that Iraq’s return to deadlocked parliamentary politics now involves Shia factions rather than the Sunni-Shia sectarianism that followed the 2003 US-led invasion.[13] 

   [13] John Davison and Ahmed Rasheed, Reuters, Baghdad, ‘Shi’ite rivalry paralyses Iraq’s government’, 4 December 2018, >

   Sunnis in north and central Iraq have been subject to violence and discrimination by Iraqi government forces, Shia militia and the Kurdish Peshmerga. In areas liberated from ISIL by Shia militias or the ISF, Sunni civilians have had their homes destroyed or been prevented from returning home, killed, tortured or forcibly disappeared in apparent acts of revenge for actions committed by ISIL.[14] Shia militias are expanding their presence in Sunni-majority liberated areas[15] and have arbitrarily detained people whom they suspect are ISIL-affiliated.[16] PMF continue to be deployed in many of the predominantly Sunni areas which saw heavy fighting during the war to oust ISIL.[17] Forced displacement of Sunni Arabs from Anbar, Salah ad-Din and Diyala has been frequent since 2014.[18]

   Returnees

   [14] '"Punished for Daesh's Crimes": Displaced Iraqis abused by militias and government forces', Amnesty International, 18 October 2016, p. 17, CIS38A80122357; 'Country Report on Human Rights Practices 2016 – Iraq', US Department of State, 3 March 2017, Sections 1.a and 1.g, OGD95BE926886; ‘Freedom in the World 2017 – Iraq’, Freedom House, 2 June 2017, NG2A465F555; ‘Flawed Justice: Accountability for ISIS crimes in Iraq’, Human Rights Watch, 4 December 2017, pp.7, 18, 19 and 67, CISEDB50AD7760; 'Country Reports on Human Rights Practices for 2017 – Iraq', US Department of State, 20 April 2018, Sections 1.d and 1.g, OGD95BE927319; 'United States Commission on International Religious Freedom Annual Report 2018', United States Commission for International Religious Freedom (USCIRF), 25 April 2018, p.177, CIS7B83941863; 'International Religious Freedom Report for 2017 – Iraq'; US Department of State, 29 May 2018, Section II, OGD95BE927497; 'Country Reports on Human Rights Practices for 2018 – Iraq', US Department of State, 13 March 2019, Sections 1.d and 1.g, 20190314092029.

   [15] ‘Shiite militias open offices in Iraq's liberated Sunni areas’, Al-Monitor, 31 January 2017, CXC9040661095.

   [16] 'Country Reports on Human Rights Practices for 2018 – Iraq', US Department of State, 13 March 2019, Section 1.d, 20190314092029; ‘International Religious Freedom Report for 2017 – Iraq'​, US Department of State, 29 May 2018, Section II, OGD95BE927497; ‘EASO COI Meeting Report – Iraq’, European Asylum Support Office (EASO), 11 July 2017, p. 13, CISEDB50AD4807.

   [17] 'EASO Country of Origin Information Report - Iraq Actors of Protection', European Asylum Support Office (EASO), 4 December 2018, p.43, CIS7B8394110419; 'Southern Hashd fighters prepare for cold winter in northern Iraq', Rudaw, 29 November 2018,  CXBB8A1DA39755; 'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 5 November 2018, pp.14-19, CIS7B8394110112; 'Iraq's Shi'ite militias formally inducted into security forces', Reuters, 9 March 2018, CXBB8A1DA23572; 'Iraq’s Sunnis want PMU out of their cities as elections near', Abu Zeed, A, Al-Monitor, 12 February 2018, CXBB8A1DA21884.

   [18] ‘EASO COI Meeting Report – Iraq’, European Asylum Support Office (EASO), 11 July 2017, p. 14 CISEDB50AD4807.

4. DFAT reported in October 2018 that returning to Iraq can be difficult, particularly if the individual in question does not return to their original community. This is because integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of Iraqi life.[19] Conflict has also resulted in previously religiously mixed areas becoming more homogeneous, usually Shia or Sunni, which thus limits relocation options. As a result, DFAT has assessed that, in most cases, internal relocation for religious and ethnic minorities is difficult.[20]

   [19] DFAT Country Information Report, Iraq, 9 October 2018, Section 5.24, pp.30-31.

   [20] DFAT Country Information Report, Iraq, 9 October 2018, Section 5.11, pp.28-29.

5. According to UNHCR, access and residency requirements in Iraq relating to relocation and return are not always clearly defined. Implementation can vary or be subject to changes depending mostly on the security situation. DFAT reports that the practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, evidenced by the large number of dual nationals from the US, Western Europe and Australia returning to Iraq. DFAT has limited evidence to suggest the voluntary returnees face difficulties in assimilating back into their communities. However, returning to Iraq can be difficult if Iraqis do not return to their original community[21].

   [21] DFAT Country Information Report, Iraq, 9 October 2018, pp 30-31.

6. Failed asylum seekers would not be harmed following their return to Iraq, but returning to Iraq may be difficult for those who do not return to their original community. The practice of departing Iraq to seek asylum overseas and then returning once conditions permit is one that is well accepted among Iraqis. Iraqis reportedly return to Iraq to reunite with families, establish and manage businesses, or take up or resume employment.[22] Family networks play an important role in providing support to persons returning to Iraq.[23]

   Academics

   [22] DFAT Country Information Report, Iraq, 9 October 2018, Section 5.24, p.30.

   [23] '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, CISEDB50AD6108.

7. In relation to academics, DFAT indicates that it is not aware of any specific examples of targeting of academics or students, including students who have studied or lived abroad. DFAT assesses that students and academics do not risk societal or official discrimination on the basis of their employment or education either in Iraq or abroad.[24]

   [24] DFAT Country Information Report, Iraq, 9 October 2018 at 3.61 – 3.6.

8. Students, academics and academic institutions have been targeted by ISIL, but students and academics do not risk official or societal discrimination on the basis of their employment or education either in Iraq or abroad. ISIL targeted libraries, museums, and academic institutions in violent attacks and abducted students and faculty staff.[25] Many academic staff from Mosul University were executed by ISIL during the period that the city was under its control.[26] Several universities closed as a result of ISIL’s 2014 campaign,[27] and many schools and universities in ISIL areas have remained closed after liberation, due in part to insufficient funds from the state.[28] Various groups in all regions of Iraq have sought to control the granting of academic positions and the content being taught at schools.[29] Reports indicate that attacks against academics in Iraq occurred predominantly in 2006 and 2007, when sectarian violence was at its height.[30] DFAT stated in October 2018 that it was not aware of any specific examples of academics or students being targeted, and assessed that students or academics do not risk official or societal discrimination on the basis of their employment or education either in Iraq or abroad.[31] Three academics in Baghdad were, however, killed in targeted bomb attacks during 2016[32] and 2017.[33] Another academic was injured in an armed attack in the Abi Gharaq area of Babil in November 2017.[34]

   Women

   [25] 'EASO Country of Origin Information Report - Iraq Targeting of Individuals', European Asylum Support Office (EASO), 7 March 2019, p.126, 20190308091632; 'Country Reports on Human Rights Practices for 2017 – Iraq', US Department of State, 20 April 2018, Section 2.a, OGD95BE927319.

   [26] 'Education Under Attack 2018', Global Coalition to Protect Education from Attack (GCPEA), 10 May 2018, pp.144-145, CIS7B83941977; 'Making Victory Count After Defeating ISIS: Stabilization Challenges in Mosul and Beyond'​​, Culbertson, S and Robinson, L, RAND Corporation, 24 July 2017, p.43, CISEDB50AD5076.

   [27] ‘Freedom in the World 2017 – Iraq’, Freedom House, 2 June 2017, NG2A465F555.

   [28] 'Freedom in the World 2018 - Iraq', Freedom House, 5 April 2018, NGED867A630.

   [29] 'Country Reports on Human Rights Practices for 2018 – Iraq', US Department of State, 13 March 2019, Section 2.a, 20190314092029.

   [30] DFAT Country Report, Iraq, 13 February 2015, Section 3.101, p.21, CISEC96CF1160; ‘Education Under Attack 2014 – Iraq’, Global Coalition to Protect Education from Attack (GCPEA), 27 February 2014, CX1B9ECAB10742.

   [31] DFAT Country Information Report, Iraq, 9 October 2018, 3.61-3.62, p.20.

   [32] ‘University professor by bomb in Shorta tunnel, west Baghdad’, Iraq Body Count, 17 August 2016, CIS38A80125121; ‘University professor by adhesive bomb in Waziriya, east Baghdad’, Iraq Body Count, 3 November 2016, CIS38A80125120.

   [33] ‘University professor, soldier killed in two western Baghdad bomb blasts’, Iraqi News, 19 August 2017, CXC90406619307.

   [34] 'A University Professor injured in an armed attack in the Abi Gharaq area in Babylon', National Iraqi News Agency (NINA), 18 November 2017, CXC90406620633.

9. DFAT reports that the Iraqi constitution provides women with specific rights under the law, however, in practice women face various forms of legal and social discrimination. DFAT assesses that women face a moderate risk of official and societal discrimination and violence and a high risk of domestic and family violence, which is exacerbated for women who are members of ethnic religious minorities[35].

   [35] DFAT Country Information Report, Iraq, 9 October 2018 pp 20-21.

10. There have been a number of recent cases where high-profile women in Iraq appear to have been targeted for going against conservative Islamic norms. On 27 September 2018, Iraqi model Tara Fares was killed by unidentified attackers in Baghdad.[36] Fares was a former Miss Baghdad and one of Iraq’s most followed social media stars, and was famous for her pictures which showed her displaying tattoos, wearing wigs, elaborate makeup and close-fitting dresses, which had attracted criticism from conservatives.[37] Iraq’s Interior Minister, Qasim al-Araji, claimed that an unspecified ‘extremist group’ was responsible for Fares’ murder.[38] It has also been suggested that an armed faction connected to the PMF and/or political parties may have been responsible.[39] Shimaa Qassem, a former Miss Iraq, claimed following Fares’ death that she had received death threats via text messages.[40] Two members of Fares’ social circle, Rasha al-Hassan and Rafif al-Yasiri, were also reported to have died in ‘mysterious circumstances’ in Baghdad one week apart in August.[41] Al-Hassan was a well-known beautician and owner of a coffee shop for women in Baghdad, while al-Yasiri was the owner of a plastic surgery and laser operations centre in the same city, and a well-known figure with a strong social media following.[42] It has been reported that some Muslims in Iraq threaten women and girls, regardless of their religion, for refusing to wear hijab, wearing Western clothing or for not complying with a strict interpretation of Islam in their conduct.[43]

    [36] 'ISHM: September 21 - 27, 2018', Education for Peace in Iraq Center (EPIC), 27 September 2018, CIS7B839419677; 'Video captures murder of Iraqi Instagram model at wheel of Porsche in Baghdad', Arab News, 28 September 2018, CXBB8A1DA36220; 'A Social Media Star Is Shot Dead in Baghdad. Iraqis Fear a Trend.', Specia, M, The New York Times, 29 September 2018, CXBB8A1DA36230.

    [37] 'Video captures murder of Iraqi Instagram model at wheel of Porsche in Baghdad', Arab News, 28 September 2018, CXBB8A1DA36220; 'A Social Media Star Is Shot Dead in Baghdad. Iraqis Fear a Trend.', Specia, M, The New York Times, 29 September 2018, CXBB8A1DA36230.

    [38] 'Extremist group involved in murder of model Tara Fares: Interior Minister', Ebraheem, M, Iraqi News, 8 October 2018, CXBB8A1DA36535.

    [39] 'Security In Iraq Sep 22-28, 2018', Musings on Iraq, 2 October 2018, CXBB8A1DA36250.

    [40] 'Former Miss Iraq 'threatened' after fellow Instagram star's murder', British Broadcasting Corporation (BBC), 1 October 2018, CXBB8A1DA36236.

    [41] 'A Social Media Star Is Shot Dead in Baghdad. Iraqis Fear a Trend.', Specia, M, The New York Times, 29 September 2018, CXBB8A1DA36230; 'Former Miss Iraq 'threatened' after fellow Instagram star's murder', British Broadcasting Corporation (BBC), 1 October 2018, CXBB8A1DA36236; 'Murders of trailblazing Iraqi women spark conspiracy fears', Agence France-Presse (AFP), 1 October 2018, CXBB8A1DA36223.

    [42] 'Iraqi Writers: Iraq's Religious, Political Establishment Is Failing To Protect Women's Lives, Ensure Public Safety', The Middle East Media Research Institute (MEMRI), 28 November 2018, CIS7B8394110382.

    [43] 'Overview of the status of women living without a safety net in Iraq'​, Finnish Immigration Service, 22 May 2018, p.19, CIS7B839419159.

11. UNHCR notes that women active in the political and social spheres, including rights activists and journalists, have been subjected to intimidation, harassment and threats, often forcing them to withdraw from the public sphere or flee the country.[44] UNHCR notes that women in the public sphere may be in need of international refugee protection depending on the individual circumstances of the case.[45]

    [44] UNHCR, International protection considerations with regard to people fleeing the Republic of Iraq, made 2019, page 89.

    [45] UNHCR, International protection considerations with regard to people fleeing the Republic of Iraq, made 2019, page 96.

12. The Tribunal notes that the EASO report cited by the applicants in support of their claims for protection notes as follows:

    not all women in public roles would face the level of risk required to establish a well-founded fear of persecution in relation to being in public in a public role. The individual assessment of whether or not there is a reasonable degree of likelihood for the applicant face persecution should take into account risk impacting circumstances, such as: area of origin, conservative environment, visibility of the applicant (e.g. name of the what nature of the work, public statements perceived negatively by the actor of persecution), perception of traditional gender roles by the family or network, et cetera.

    Consideration – first applicant

13. The Tribunal notes that the first applicant was working as an academic prior to leaving Iraq and has continued to work and study in Australia. The Tribunal accepts on the evidence that the applicant would be likely to work as an academic on return to Iraq. However, based on credible country information, the Tribunal does not accept that the applicant would face a real chance of serious harm on that basis alone. The country information cited by the applicants’ representative indicated that academics perceived of holding or promoting secular or Western views might come to the attention of extremists including the Shia militia. However, in the country information cited, this appears to be connected to the real or imputed secular views espoused or associated with such academics and not due to the fact that they are academics per se.

1. Nor does the Tribunal accept, based on country information, that the first applicant would face a real chance of serious harm for a failure to adhere to a strict Muslim dress code alone.  The Tribunal notes that the applicant accepted she had no faced harm in the past on this basis and that while she did not adhere to more strict forms of Islamic dress, she did maintain some standards of Islamic dress which she regarded as consistent with her religious observance, including in Australia.

2. The Tribunal accepts that the first applicant will choose to live a Western lifestyle, refuse to wear strict forms of Islamic dress and will likely speak and become involved in promoting women’s rights among those she interacts with directly if she returns to Iraq. This may include female students, particularly younger women, should she work as an academic. The Tribunal finds it unlikely that the applicant would experience serious harm for those reasons alone.

3. However, in considering these factors in the context of the violence and displacement taking place in Mosul and the fact that she is a Sunni Muslim in an area formerly occupied by ISIL, and has spent a significant amount of time in the West, the Tribunal is satisfied that she faces a real chance of suffering serious harm on return to Iraq. Extremists and militias who are involved in violence and forced displacements are likely to object to women who do not conform to their views on appropriate behaviour and who speak out on women’s rights. This is particularly the case where such women are in a position to influence younger women in Iraq, including academics. In such circumstances, the Tribunal is satisfied there is a real chance the applicant will come to the attention of extremists or militias and that she would suffer serious harm as a result.

4. The Tribunal considers that the first applicant has a cumulative profile of adverse factors, as a person who:

   ·Is an educated woman;

   ·Is a returnee from the West who has spent significant time studying in the West;

   ·Works as a female academic in [subjects];

   ·Has real or imputed anti-Islamic (pro-women’s rights) views which she would be likely to express in Iraq including to female students;

   ·Has worked in Australia for a Christian organisation, assisting migrant women, including in understanding Australian rights, culture and values;

   ·Is a resident or former resident of Mosul (as a formerly ISIL-held area of Iraq);

   ·Has a husband who had an interest in a business which provided [services] under the ISIL regime.

5. In the Tribunal’s view, in an environment of heightened general security instability in Mosul, there is a real chance these aspects of the first applicant’s profile will result in the first applicant coming to the attention of extremists and militia who would subject her to threats of violence, kidnapping, discrimination and withholding of opportunities for employment services. The Tribunal considers that such instances of harm constitute ‘serious harm’ having regard to s.5J(5).

6. The adverse aspects of the applicant’s profile, as listed above, each bring the first applicant within membership of a particular social group as defined by the Act. They each have a particular characteristic shared by members of the group which is either innate or immutable, and which is not the fear of persecution.

7. The Tribunal is therefore satisfied the criteria set out in s.5J(1)(a) and (b) of the Act are met.

8. The Tribunal accepts that should the applicant return to her home in Mosul, now or in the foreseeable future, there is a real chance she will face ‘serious harm’, of the types noted above,  from the Shia militia, PMF and Shia and Sunni extremist groups including ISIL as required by s.5J(4)(b) of the Act, in that it involves threat to her life or liberty or significant physical harassment or ill-treatment.

9. The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is her membership of each of these particular social groups, as required by s.5J(4)(a). Combined, they heighten the chance of the serious harm occurring to a real one. Further, the Tribunal is satisfied that this harm involves systematic and discriminatory conduct, as required by s.5J(4)(c), in that the persecution which she fears involves systematic and discriminatory conduct that is deliberate or intentional and involves her selective harassment for reason of her membership of these particular social groups.[46]

   [46] UK Home Office, Country Policy and Information Note, Iraq: Perceived collaborators, February 2019 at 1.2.2, >

   The Tribunal has gone on to consider if effective protection measures are available to the first applicant in Iraq as required by s.5LA.  The nature of the harm feared by the first applicant means that there are no effective protection measures available to her. The harm that the applicant fears from extremists and militia is from non-state actors and the first applicant claims that the Iraqi authorities will not protect her from that harm because they do not have capacity to do so, they discriminate against those from former-ISIL controlled territories and, in the case of the militias, they have a strong connection to, and capacity to influence, the government.

10. DFAT advises that years of conflict (including the recent conflict with ISIL) have limited the capacity of state protection mechanisms to deliver services.  They report that respected NGOs have reported on human rights abuses by the ISF, who are responsible for security in Iraq and includes the army, federal police and provincial police forces, and that the ISF have failed to act on human rights abuses by other actors, such as the PMF. They also report that the Iraqi government’s ability to assert centralised control over the actions of the ISF in the field is limited. Although there are an estimated 300,000 police members in total in Iraq, DFAT report that anti-government militia, and ISIL in particular, have targeted police, and the latter may pose a continuing threat to police and other law enforcement.  DFAT also note the pervasive and widespread corruption at many levels, including bribery to reduce or drop charges.[47] With respect to the judiciary in Iraq, DFAT assesses that:

    ...politics and sectarianism continue to influence judicial appointments and decisions, and removing or diminishing this influence has been a key demand of recent popular protests. Members of the judiciary continue to face significant pressure, including intimidation and violence, particularly in cases involving organised crime, corruption and the activities of militias. Armed groups have targeted judges with violence. Corruption is common and courts lack resources, including forensic capabilities.

    ...

    A lack of government capacity and strong traditions mean tribal culture continues to play an important role in dispute resolution, particularly in the poorer areas of the south and west. Some Iraqi citizens have turned to local militias and religious and tribal groups to dispense justice rather than seeking redress through the official justice system. Women are particularly vulnerable, and DFAT is aware of reports of traditional and religious judicial outcomes in which women are awarded as compensation in disputes. Women often face harsh punishment for transgressing tribal customs[48].

    [47] DFAT Country Information Report, Iraq, 9 October 2018 at 5.1-5.7.

    [48] DFAT Country Information Report, Iraq, 9 October 2018 at 5.9 and 5.10.

11. The most recent US State Department report on human rights practices in Iraq states that during the year ‘civilian authorities did not maintain effective control over some elements of the security forces, particularly certain units of the PMF that were aligned with Iran’ and that impunity was a problem.  They also assess that there have been reports of human rights abuses by some members of the ISF, particularly Iran-aligned elements of the PMF and while the government investigated allegations of abuse by the ISF, it rarely made the results public or punished those responsible.[49]

    [49] US State Department, Country Report on Human Rights Practices – Iraq 2018, March 2019, Executive summary,

12. Based on such country information, the Tribunal is not satisfied that the state, or a party or organisation is willing and able to offer protection, noting in particular concerns about the police force’s lack of capacity, and the prevalence of human rights abuses committed by ISF and others, and the lack of control over militias and lack of an impartial judiciary.  The Tribunal is not satisfied that effective protection measures as per s.5LA are available to the first applicant in Iraq as provided by the state, or a party or organisation.

13. The Tribunal has gone on to consider if the first applicant faces a real chance of persecution in all areas of Iraq as required by s.5J(1)(c).  In the Tribunal’s view, the applicant would face a real chance of persecution for reasons of her Sunni religion if she attempted to relocate to Shia areas in the south given the history of sectarian violence. Furthermore, given that, according to DFAT, women face a moderate risk of official and a moderate risk of societal discrimination and violence, and a high risk of domestic and family violence, throughout Iraq, the Tribunal is satisfied that the first applicant would face a real chance of persecution in all areas of Iraq.  

14. Further, the Tribunal notes that country information suggests that returning to Iraq can be difficult, particularly if the individual in question does not return to their original community.[50] This is because integration with new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of Iraqi life. DFAT has assessed that in most cases internal relocation for religious and ethnic minorities is difficult.[51] Based on the country information above, there are also limitations on the internal movement of Iraqis, particularly Sunni Muslims from Northern Iraq, due to suspected connections to ISIL.

    [50] DFAT Country Information Report, Iraq, 9 October 2018, p 30.

    [51] DFAT Country Information Report, Iraq, 9 October 2018, p 30.

15. The Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic.  In this case the Tribunal is satisfied that the modification would require the first applicant to modify her gender and/or ‘her political beliefs or conceal his or her true political beliefs’ and therefore s.5J(3) does not apply.

16. Accordingly, and for the reasons above, the Tribunal finds that the first applicant faces a well-founded fear of persecution for reasons of her cumulative adverse profile if she returns to Iraq, now or in the reasonably foreseeable future.

17. For the reasons given above, the Tribunal is satisfied that the first applicant has a well-founded fear of persecution in accordance with s.5J of the Act. In accordance with s.5H(1)(a) of the Act, the Tribunal is satisfied that the first applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, is unwilling to avail herself of the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.

    Second applicant

18. For the reasons given above, the Tribunal is satisfied that the first applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).

19. The Tribunal is satisfied that the second applicant is the husband of the first named applicant and is a member of the same family unit as the first applicant for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the first applicant’s application. It follows that the second applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

20. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the second applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first applicant.

    Simone Burford
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)    the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)    the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)    a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)    significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)    a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)    any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)    protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)    the person can access the protection; and

    (b)   the protection is durable; and

    (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …