1702954 (Refugee)

1702954 (Refugee) [2020] AATA 6088 (7 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702954
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Rodger Shanahan
DATE:7 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 07 February 2020 at 1:24pm

CATCHWORDS
REFUGEE – protection visa – Iraq – business that uses alcohol – threats and harassment from Islamists – Wife’s status as female – extensive travel to other countries and return to Iraq – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Iraq, applied for the visas on 23 March 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant (this term will be used hereafter and refers to the first-named applicant. When I use the term ‘applicants’ unless specified it refers to all five applicants) claimed that he was an Iraqi Chaldean Christian. He fears that if he returns to Iraq he would face serious and significant harm. They lived in Zakho but moved to Baghdad when Saddam destroyed their village because he said the Kurds built their bases there. He was discriminated against but completed conscription and a diploma [and] freely practised his religion.
After the collapse of Saddam Christians became easy targets for the radical Muslims in government and radical Sunnis who opposed them. Churches were blown up and people threatened daily. In 2004 he and his brother [received] a threat and were attacked by Shi’a militias for dealing with alcohol at their work. His home was raided by them and he was shot at – he survived and left Baghdad for Zakho.
His brother fled to [another country] and was granted a humanitarian visa to Australia in November 2004. His nephew [was] also kidnapped by the Sunni militias and tortured but they paid a ransom and [his nephew] and his father [fled] to [the same country] and were granted a humanitarian visa to Australia.
The applicant re-established his life in the north where the lands were occupied by the Kurdish authorities who mistreated them. He opened a [business] in Zakho which included alcohol and also registered a company in Baghdad for trading where he employed one person. In December 2011 just prior to Christmas extremist Kurds called for jihad against Christians, including those selling alcohol. Businesses were destroyed and his [business] was damaged and the alcohol destroyed.
The Kurds tried to establish control but threats were relayed over mosque loudspeakers saying that the province would be converted to Islam. He was frightened that ISIS would reach them. Many times the [official] from the mosque advised him not to sell alcohol or play music which he took as a threat and they sent people to spy on him.
On one occasion he had [clients] (where he didn’t serve alcohol) for the family of a senior Kurdish politician but the client said they would bring their own and he would serve it. When the [event] was finished three bearded men came to see him, they were angry and had weapons under their jackets. They accused him of not taking their warnings seriously – he explained what had occurred but they spat at him, cursed and left.
He owns land in the area but the Kurds were using it to trade and smuggle and he and other Christians wanted to stop them but they were directly threatened by [an official]’s family who were too strong to stop. His lands were confiscated but they were too weak to resist.
Just prior to coming to Australia to see his brother who had [an operation] the applicant, the mayor and the priest decided to lodge a complaint to the local Kurdish Democratic Party office about the land confiscation. He was interviewed by the media about it. After he arrived in Australia he received a call [in] March 2016 from the priest advising him not to return as all three of them had been seriously threatened. The mayor fled to [Country 1] but the priest stayed to meet his fate.
AAT Hearing
The second- and last-named applicants also attended and were asked if they relied on the first-named applicant’s claims and they said that they had no separate claims. The third- and fourth-named applicants did not attend but did not make any claims of their own. The other two witnesses were asked when they were last in Iraq and said it was 2016 and this year respectively. They were sworn in, in the case that their testimony would be required.
The applicant was asked about the documents that had been given to the member prior to the hearing and what they represented. He claimed they were copies of land titles owned by his father and grandfather. He was asked what share he had and he said that the land was shared by the village but he owned six shares. Asked if his name was on it, he claimed that one of the titles showed he had three shares. It was put to him that he needed to present the Tribunal with a covering letter explaining what the documents meant and showing what he owned and how it related to his claim – from what he had submitted the member could not see a translation showing that he owned three shares.
He was advised that after the hearing he needed to submit something that showed how the document supported his claim. He claimed that the document showed that some land was owned by his father and some by him. The other (untranslated) Arabic language document also mentioned the names of some people who were lost or killed. Asked what the source was, he claimed that it was from a website showing people who were oppressed – the website was named on the document. Asked who ran the website and whether it was an objective or subjective source, he claimed that it was a group of advocates who tried to protect their rights.
He claimed a journalist had been arrested who had written about their plight. This story had been written about his village a week before. It was put to him that it was strange a story had appeared a week before his hearing and he was asked if there were other stories. He claimed there had been many other stories about his village and he was asked to provide them after the hearing. It was put to him that US aid groups had put out information about the Iraqi land title system and this for example is a good objective source.
The applicant claimed that if he returned to Iraq he would be killed by the family of [the official] because they wanted to take over their land and destroy their identity. He had had this fear since 2004 when the land dispute first occurred. He was asked and said he had no other claims. He said that he had to leave Baghdad because of the Islamic parties and was then asked if he had a claim in relation to them as he had previously said he only had one claim.
He said he did have another claim – he feared being harmed by a fanatical Islamic group because he had sold alcohol. They set fire to Christian shops in 2011. If he returned to Iraq he wouldn’t be able to do his work or have his freedom of speech or rights. He was asked to be more specific (other than not being able to sell alcohol) and he said that he believed he would be killed by the Islamic group. He had no other claims.
Regarding the alcohol claim, he said that a group of thugs burnt shops in their area [in] November 2011 – they targeted massage and alcohol shops. They came to his [business] and took his alcohol out and destroyed it. His building was also burnt. Asked if he had photos of his establishment he claimed that he had some photos. Asked if he was insured he claimed he had no such type of insurance – it was put to him that it was possible to get building insurance and he claimed this was possible in the 1980s but it wasn’t possible now.
It was put to him that this occurred eight years ago and he was asked why it would still be a problem – he claimed that there were still the same people with the same views. He heard some people had been arrested but they were later released. Asked if this type of incident had occurred again (the member had seen accounts of the 2011 incident in the media) given people had been arrested and it was a long time ago so it didn’t appear to be systematic. He claimed there was a big shopping centre and they used to have a big crucifix that had been knocked down – he then clarified this to say that people put crucifixes on the soles of shoes. It was put to him that the member was unsure how widespread this was and the claim had to relate to him.
He was asked whether he had left Iraq subsequent to this incident in which his hall was burnt. He claimed he had visited Australia and [Country 1], he also went to [Country 2] and [Country 3] and [Country 4]. He had returned to Iraq after these visits. He was asked why he hadn’t applied for protection during any of these visits but had returned to Iraq instead. This may indicate that he wasn’t fearful of returning to Iraq. He claimed that he didn’t take the threats seriously and believed the government would respect minority rights.
He was asked why the Islamic group hadn’t targeted him since November 2011 and he claimed that he had made an undertaking to [the official] that he would never sell alcohol again. Asked if he had mentioned this before, he said he had stated this in his written submission. He was asked why it would be a problem if he no longer sold alcohol and had not been touched in the eight years that had passed.
He said that a senior person from Dohuk City told him that he wanted [have an event] with alcohol. The applicant told him he had signed an undertaking not to sell after the 2011 incident but this person forced his staff to do so. Three bearded men then came and threatened him – this was around December 2015.
Asked when his [business] was rebuilt, he said that around 2012 when the renovations were done. Between then and December 2015 he never sold alcohol nor had anyone asked him to do so. The person who asked him to sell alcohol was a Muslim. He was asked why he couldn’t tell the person about the undertaking he had made to the [official] and he said he was under pressure. He was asked why this senior person couldn’t provide protection for him given the nature of the request and he said he may protect him one day and then afterwards may ignore him.
Then three bearded men came to him the same night after the party and threatened him and spat in his face. Asked if anyone else sold alcohol in the town and he said he was the only [one]; asked about shops or restaurants he said there were others but his was the most luxurious. He was asked if the bearded Islamists went to the restaurants and shops and told them to stop selling alcohol and he claimed they banned all shops.
He was asked to confirm that no one could sell alcohol but he said that Christians could be licenced and were – he was asked why he was then singled out. He said it was believed it was related to his [business]. It was put to him that it was hard to believe that the Islamists would only want to stop one establishment from selling alcohol if they were totally opposed to alcohol. He said their actions had forced people to emigrate and leave the country – he was again asked why they didn’t try to ban all alcohol. He claimed they targeted him personally but he didn’t know why.
Asked about his second claim regarding being targeted by [the official’s] family, he claimed that their land was in a sensitive area where borders met and [the official’s] family looked to get more and more land there. The [official’s family]' had designs on his land from around 2005/6 but even six months ago land had been taken to build army bases on the land.
He was asked if he had documentation that showed the government was repossessing his land for the army base and he said they just took it without permission. This land was taken by the Kurdish military forces. Asked if he went to court to try to get some recompense for his land or to get it back, he said they went to the political party to get their land back. It was put to him that there must be some legal body that solved land disputes in Iraq and he claimed that it wasn’t really a dispute but had been taken. It was put to him that they would either have to give them notice or they could take them to court. He was asked if he had any documentation from the government to him or him to the court regarding the land and he claimed that he had the land title but he only spoke to people/authorities face to face as he couldn’t do anything else.
Asked why someone would kill them because of this, he claimed that the man ([the official]) wanted to shut him up and disgrace him. It was put to him that the documents said he had only three shares so it was strange that he was the focus of the dispute. He claimed that his father owned six and he owned three shares but he wanted top protect all the village land. It was put to him that there appeared to be dozens and dozens of shareholders on the document she had provided and was asked if [the official’s family] were trying to kill everyone.
He claimed he was the representative of the village which was why he was targeted. Asked how he was targeted, he claimed he was the one who spoke up. Asked if anything had happened to him, he claimed that after he came to Australia he received lots of threats via the priest and his father. A friend had been killed, another left for [overseas]. Asked how he received these threats, he said that his bishop told him via phone and that if he returned they would kill him. Asked if he had received any threats directly, he claimed that the bishop told him people came to the bishop and threatened the applicant but when he was there he was always told not to say too much.
Asked about the priest, he claimed that he moves from place to place but has been asked not to leave the village by the highest authority. It was put to him that he wrote three and a half years ago that he, the priest and mayor were all seriously threatened but the priest would stay in the village to face his fate as he couldn’t leave the people. Yet nothing appears to have happened to the priest despite the claim he faced the same danger.
The applicant claimed that the priest stopped talking and nobody mentioned the case any more. It was also put to him that the applicant had arrived in Australia in February 2016 and he received a call from the priest saying they had been threatened. This appeared to be quite fortuitous timing given he had only arrived here a month before. He claimed they received many threats but this was a serious one.
He was asked why [the official’s family] threatened them – if they wanted to buy the land they could have made an offer but nobody had. Someone had built an army base but only in June 2019 – he was asked what happened in June 2016 that caused them to be threatened given the dispute allegedly began in 2004. The timing of the alleged call that prompted a protection claim just after arriving in Australia appeared to be fortuitous and strange.
He claimed that the land used to be taken bit by bit every time he went overseas; they would go to the authorities and complain and the authorities would promise to speak to them about the issue but never did. They had taken their land and their dignity.
The applicant’s brother was brought in as a witness. He claimed that [the official’s family] were powerful and presented the biggest threat. He began repeating the claim but was asked to limit himself to his witness testimony. They were from a well-known family in the village and were connected to the priest; they started many conferences with journalists activists and so had a profile. Asked if there was any evidence of their activism and his brother as the spokesperson he claimed that they had provided evidence from the priest and others.
It was put to him that they would be given time post-hearing to provide evidence of the applicants’ media profile that he claimed the applicant possessed. He was asked if the priest was still in the village and he said he was but they dare not touch him because he was the representative of the Christians – he was brave though. It was put to him that their written evidence said that the applicant, the mayor and the priest were all at risk yet nothing appeared to have happened to the priest over the past three and a half years. He claimed there were four priests involved in this dispute and the bishop was also involved.

The second witness then said that he had visited Iraq and was told that the applicant was lucky he wasn’t in Iraq as some fanatic people had threatened him. He was asked if he thought it strange that the applicant’s life had been threatened the month he arrived in Australia when they hadn’t done it previously. He claimed that it wasn’t the main subject but he expected something to happen. He then claimed that the religious fanatics look down on the Christians there. He was in Iraq in November 2016 when he heard about the applicant being spoken badly of – he was told this by his friends.
It was put to him that this wasn’t mentioned previously by the applicant in his written or oral claims and it had occurred more than three years before. He said that he had just mentioned it now. He claimed that in Iraq if they were looking for someone and couldn’t find them they would take someone else. He said that if the applicant wasn’t there they would take one of his family.
A 424A letter was sent to the applicant stating that he had claimed to have lived in a displacement camp in Zakho in 2014 yet his tourist visa indicated that he owned a four-bedroom house in Baghdad at the same time. In his response he claimed that he was not living in it, and it was taken over by militias.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age] year-old married male. I accept that he is an Iraqi citizen and his claim will be assessed accordingly. He last arrived in Australia [in] February 2016 on a tourist visa and he applied for protection on 23 March 2016.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claim to be vague, inconsistent and lack credibility. For reasons set out below I did not find him to be a reliable, credible or truthful witness, and that he fabricated much of his claim in order to be granted a protection visa.
Islamist Threat
I do not accept that the applicant had his alcohol destroyed by a group of Islamists who also burnt down his [business] in 2011 or that he was forced to serve alcohol at [an event] in 2015 and subsequently threatened by three bearded men as a result. I accept that there were riots in the Zakho area in 2011 and some businesses that sold alcohol were burnt, but I also note that the actions were condemned by the Kurdish government, order restored after a few days and that the UN noted the attack did not target minorities but perceived ‘un-Islamic’ establishments and a number of Muslim owners also faced damages.[1]
[1] UNAMI Human Rights Office, Baghdad, ‘Report on Human Rights in Iraq: 2011’, 2012, p 32
I do not however accept that it led to the destruction of the applicant’s business. While I accept that the applicant may have operated a [business], there are no photographs or the like to prove that the business he had was burnt down and then re-built. Nor is there any evidence that he had insurance cover, let alone used it to re-build. He claimed that he was not insured because, while it was possible to have property insurance during the 1980s none such existed now.
A perfunctory check of the internet showed that this was not correct, and that Iraq has a functioning insurance industry that includes cover for property, including an insurance company in Kurdistan that sells insurance to cover ‘Property All Risks’ that includes fire and riot.[2] The applicant had been a business owner for several years and it is reasonable to assume that, given this the applicant would be aware that he could have taken out property insurance and so his denial that there is such an option raises questions about the credibility of his oral evidence.
[2] accessed 15 January 2020
The applicant also travelled regularly in the region and further afield ([Country 1] 7 times between 2011-14, [Country 2] in 2013, [Country 3] in 2011/12 and Australia in 2012 and 2014/15) and each time returned to Iraq. These are not the actions of someone who fears serious harm in Iraq. I do not accept that this was because he didn’t take the threats seriously or because he believed the government would respect minority rights. It lacks credibility that he would think that the government would respect minority rights from 2011-14 but then change his mind less than a year later without evident foundation for doing so.
His account of being threatened by three bearded men because he had allowed alcohol to be sold in his [business] under duress even though he had made a commitment to [the official] not to do so lacks credibility. If the [official] was so opposed to alcohol being served in the town that he made a ‘hidden threat’ to the applicant and sent spies to check on him (folio 149) it is implausible that the [official] would allow Christian shops to sell alcohol elsewhere in the village. The applicant was unable to say why he would have been singled out.
Threat from [the official’s] Family
I do not accept that the applicant would be killed by [the official’s] family because they wished to take his land and destroy his identity. To begin with, he claims to have had this fear since 2004 yet, as I have highlighted above his history of traveling overseas and voluntarily returning to Iraq many times since then is not indicative of someone with a fear of being killed.
The applicant also showed the land title registration regarding the land in question. It was difficult to read as it refers to shares of land owned by dozens and dozens of people who are the sons and daughters of what appears to be the land owners (folios 47-70). The adviser was asked to provide translated copies of the titles and explain how it related to the applicant – he did this but his explanation does nothing to explain why so many people are contained on the one title of land registration. Regardless, looking at the documents I am satisfied that he has some parcels of land but they are minor relative to much larger ones owned by different shareholders.
There is no documentation that supports his claim that the land was taken by the government, nor any indication that the applicant has instituted any legal action relating to his land being seized. Country information indicates that property disputes are covered by the Civil Code and that there exists laws that relate to compensation in the case of expropriation of land.[3] I lend little weight to the handwritten note(s) given post-hearing as proof that the dispute was raised with the local branch of the Kurdish Democratic Party (KDP) or the mayor (folios 53-5). They could have been written by anyone and it makes little sense that the individuals would not seek legal action to stop or seek compensation for expropriation of their land when such an avenue was open to them, and instead write a letter to the local KDP branch.
[3] accessed 30 January 2020
I also do not accept that the applicant, the mayor and the local priest were threatened with death over the land dispute. Not only because I have found that no such dispute took place in the first place, but it lacks credibility that if such a threat had been made against the priest (who stayed behind to ‘meet his fate’) by such powerful people that the priest would still be alive three and a half years later. I do not accept that the priest would be able to ‘move from place to place’ yet stay in the same village unmolested for this period of time if there were any threats against him. I also note the coincidental timing of the serious threat relayed to the applicant, coming as it did just over a month after arriving in Australia with the rest of his family.
I also do not accept that the applicant had a higher profile than the other land holders or would be targeted because he was a representative, that they were from a well-known family or linked to the priest and so would be in trouble. I have already noted the ability of the priest to avoid being targeted even though he was also of an allegedly high profile in the land dispute. I have taken into account evidence he provided in support of his claim about a high media profile relating to the land dispute however lend them little weight.
He appears in one newspaper interview (folio 59 – the Arabic language document referred to at the start of the hearing) but does not mention anything about a land dispute. There is also a still from what appears to be a TV interview but there is no indication of the date/time when it was taken or what was being discussed. I have also taken into account a range of other letters from secular and religious figures that are essentially character or religious references but lend them little weight given they don’t address the claims being made. The inability to claim protection previously although he had the opportunity to do so though, is indicative of someone who was not fearful of serious harm regardless of how well known they claimed to be.
Other Issues
The applicant’s wife was asked at the hearing whether she had any claims of her own and she replied that she didn’t. In the post-hearing submission however, her adviser said that she claimed that she would face serious harm because her religion is being abused, that she suffered discrimination on the basis of being a Christian woman and on the basis of being an Iraqi woman. She also claimed to fear serious harm due to her imputed political beliefs.
No reason was given as to why these were not raised at hearing when she was specifically given the opportunity to do so. Regardless, I do not accept that there is a real chance that any of the applicants will suffer serious harm based on their religion.
To begin with, country information indicates that Christians face low levels of official discrimination but moderate levels of societal discrimination and violence, although violence in Kurdistan is less common.[4] Not only did the second-named applicant raise a late claim, but (in common with her husband) according to the copies of her passport that were submitted to the Tribunal she has also travelled to Australia and [Country 2] previously and voluntarily returned to Iraq without claiming protection.
[4] DFAT Country information Report – Iraq, 9 October 2018.
This is not indicative of someone fearing serious harm based on their religion and/or gender and shows that the applicants were willing to return to their homes in Iraq. Given this willingness to travel and return to Iraq from protection visa granting countries without seeking asylum, as well as the lateness of her claim I am also not satisfied that there is a real chance that the second-named applicant will suffer serious harm on the basis of her status as a woman on its own, or as a Christian woman more specifically.
I note that country information indicates that women face a moderate risk of official and societal discrimination.[5] There is no hint of domestic violence nor is there any evidence that she was unable to dress the way she wants to. The submission cites the societal pressure for non-Muslim, non-Shi’a women to wear black during ‘Ashura to avoid harassment. No evidence was presented that she has been forced to wear such clothes and, given that she is in Kurdistan and well away from the Shi’a-dominated south or suburbs of Baghdad it makes no sense she would be forced to dress in a manner ‘acceptable’ to Shi’a in an area where there are no Shi’a.
[5] Ibid
The submission made no effort to explain what political opinion she would be imputed with, and the claim related only to her status as a woman, so in the absence of any claim at hearing or evidence presented post-hearing I do not accept that there is a real chance that she would suffer serious harm based on any imputed political opinion.
I also do not accept that the applicant’s house in Baghdad was taken over by militias. He never mentioned this until a question was asked about his Baghdad property and it is reasonable to believe that such an important issue would have been mentioned previously had it actually been the case.
As the applicants haven’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicants claims both singularly and cumulatively, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the that the applicant’s [business] was burnt down and that he has been threatened because he sold alcohol, that he has been threatened because of a land dispute with [the official’s] family, that the second-named applicant has or will be forced to dress in a particular way, has or will suffer violence because of her gender, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
While I accept that the security situation is unstable in parts of Iraq, country information indicates that Kurdistan has experienced lower levels of insecurity than other areas of the country. I also note again their willingness to travel to asylum-seeking countries previously and return to Iraq which is indicative of a belief that they are secure there.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iraq, there is a real risk that the applicants will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 6088

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