1705476 (Refugee)

1705476 (Refugee) [2018] AATA 5663 (14 December 2018)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705476
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Michael Hawkins
DATE OF DECISION:  14 December 2018
DATE CORRIGENDUM
SIGNED:5 March 2019
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:
1.Paragraph 215 which contains no content is to be deleted from decision.

Michael Hawkins
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705476
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Michael Hawkins
DATE:14 December 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 December 2018 at 11:20am

CATCHWORDS
REFUGEE – protection visa – Iraq – ethnicity – Kurd – particular social group – traded in banned goods – traitor – discriminated for daughter’s name – supporter of Saddam – conscript of Australian Army – political opinion – non-member of Baath Party – worked for high ranking Iraqi Army General – victim of shop bombing incident – possible relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIEA V Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Iraq, applied for the visa on 14 April 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Claims and evidence
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal affirms the decision not to grant the applicant a protection visa.
Background (as claimed in Protection Visa Application Form):
The applicant is [age] year old man born in the city of Duhok, Iraq.
The applicant is married and has [number of] children.
The applicant is of the Sunni Muslim faith, is of Kurdish ethnicity and speaks Arabic and Kurdish.
The applicant states his father is deceased, and his wife, [children], mother and [brothers] live in Dohuk in Iraq.
Since completing school he has completed military service and then worked as [Occupation 1].
He claims to have lived in Dohuk until he was [age], whereupon he moved to Mosul.
He claims to have left Iraq in 2007 and then lived in [Country 1] until April 2010.
He moved from [Country 1] to [Country 2] in 2010 where he stayed until February 2012.
Background (Immigration)
[In] February 2012, the applicant arrived in Australia on a vessel as an unauthorized maritime arrival. The applicant was detained under s 189 of the Act.
On 21 April 2012, the applicant took part in an Entry Interview.
On 22 June 2012, the applicant submitted an application for a Class XA Protection Visa.
On 5 February 2014 the applicant’s protection visa application was refused.
On 15 March 2016, the Minister decided to remove the bar at s46A preventing the applicant from lodging a further application.
On 14 April 2016, the applicant lodged a valid application for a Temporary Protection (XD 785) visa.
On 22 February 2017, the applicant was interviewed by the delegate in relation to his claims for protection.
Claims:
Claims raised in Protection Visa Application
The applicant claims that he is an Iraqi national of Kurdish ethnicity from Dohuk.
The applicant claims that in 1990 he was summoned for military service. He served as [Occupation 2] in Mosul until March 1991 when the Kurdish uprising began in the north of Iraq and the Kurdistan Region became independent.
The applicant claims that after this he began working as [an Occupation 2] for a senior general [in] Mosul until the fall the Baathist regime in April 2003.
The applicant claims that his job created problems for him with Kurdish militia and parties as they considered him to be a Kurd who had remained loyal to the Iraqi army and [senior general].
The applicant claims that after some months the applicant returned to his previous profession as [Occupation 1], starting work in January 2004. At the time the applicant did not know he was under the surveillance of the Kurdish parties or Islamists.
The applicant claims that in July 2007 when he was opening the shop where he worked a bomb detonated. The applicant sustained various injuries from this and he was moved to hospital in critical condition, where he remained for two weeks.
The applicant claims that on discharge the applicant and his family moved to the countryside and stayed with a friend. In August 2007 he moved to hide in a [location] owned by his uncle, where he stayed until October 2007.
The applicant claims that when staying there he began marketing [goods] which was brought in by trucks that were using the .[location]
The applicant claims that soon the uncle who owned the [location] and was a religious man, discovered what he was doing. His uncle thought such activities would bring down the wrath of Allah and of Islamic groups, if it was discovered such activities were happening in a [location] owned by him.
The applicant claims that due to fear his hiding place would be discovered by Islamic groups and Kurdish parties who considered him a traitor, the applicant fled Iraq for [Country 1] where he remained until 2010. He then went to [Country 2] where he stayed until 2012.
The applicant claims that he is an Iraqi Kurd who is considered a traitor by Kurdish and Islamic groups because he worked with the Baathist regime, and traded in goods banned by religion. He is fearful about returning to Iraq, including the Kurdistan Region, for this reason.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
§The applicant’s protection visa application form completed and signed on 14 April 2016, lodged on 14 April 2016 (“visa application”);
§The applicant’s identity documents being uncertified copies of a Iraqi national ID card, military service card, and driver’s licence;
§The protection visa decision record (‘delegate’s decision record’) of 7 March 2017;
§The review application form which included a copy of the delegate’s decision record;
§Undated submission of representative apparently prepared pre-hearing but submitted post-hearing;
§Country information from the applicant’s submissions and other sources. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Iraq, published on 26 June 2017.
Country of reference / receiving country
The applicant claims to be an Iraqi national. Based on the copy of his identity documents provided to the Department of Immigration and Border Security (The Department) by the applicant, the Tribunal finds that Iraq is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Hearing:
The applicant attended the hearing on 20 June 2018. He was represented by his registered migration [agent]. The hearing was assisted by an interpreter in the Kurdish Badînî and English languages.
The Tribunal confirmed with the applicant, the Representative and the Interpreter, that each were understanding each other.
The Tribunal discussed with the applicant that it wanted to get to know him a little better. It noted that the applicant had had quite the adventure. He had been in Iraq, he has been to [Country 1], he has been to [Country 2] and now he is in Australia. The applicant confirmed that that was correct.
The Tribunal confirmed that the applicant is married and has eight children.
The Tribunal asked the applicant where his family was currently living. The applicant replied that they are living in Duhok. The applicant said they were all living in Duhok but when the situation in Duhok became unsafe, they moved to Mosul and they stayed there for some time but then they received a threatening letter and thereafter moved to his father’s house and now they are all living with his father. The Tribunal confirmed that that was back in Duhok. The applicant replied that it is not inside the city of Duhok, it is in a village just outside of Duhok.
The Tribunal confirmed that they moved to Mosul about three months ago. The applicant confirmed that was the case and then they moved back to Duhok after they received a threatening letter from a group called Asaiburac.
The Tribunal asked the applicant to go back in time to when they were living in Mosul before leaving for [Country 1]. The applicant confirmed that the family was living in Mosul.
The applicant confirmed that the whole family then went to [Country 1]. From [Country 1], the applicant went on to [Country 2], but the rest of the family returned to Mosul. The applicant confirmed that it was Mosul, and that the family returned back to Mosul in 2010.
The Tribunal confirmed again that the family returned to Mosul and they stayed there until they received calls and a threatening letter, which was about three months ago, and then the family up and moved to Duhok to live with his father.
The Tribunal sought to confirm again where the family had moved to. It noted from the Delegate’s decision that the applicant had previously advised that the family had returned to Domez. The applicant confirmed that that was correct - that Domez is between Duhok and Mosul and that Domez is like within a province of the city of Mosul. The applicant confirmed that Domez was within the Regional Government of Kurdistan.
The applicant stressed that the family did not settle in one place. He advised that they were constantly on the move, that it was unsafe to settle down in one area.
The Tribunal again sought confirmation of where the family were today and for how long they had been there. The applicant replied that they were in Duhok, living with his father, and they had been there for about three months after they got the threatening letter.
The Tribunal asked the applicant about the nature of the threatening letter. It asked what was in the letter. The applicant replied that the letter said they had to leave Mosul. It said that if they did not, maybe they will be detained or put in jail or maybe even be killed.
The Tribunal asked the applicant again when they received this letter. The applicant replied that it was three months ago.
The Tribunal asked why they received this letter. The applicant replied that it was like it was in 2003 after Saddam was removed; that that area came under the control of the KRG and then after a while, the central government came and controlled the area and they were Shiites. And then the Shiites told us that we were against our own Kurdish nationality.
The Tribunal said to the applicant that it understood what has been happening since 2003 but the Tribunal asked the applicant could he explain why the family received such a letter just three months ago. He replied that they had been receiving such letters for some time, even when he was there, but he did not care about that.
The Tribunal again asked why. Why are the family receiving these letters? The applicant replied that they went to settle in Mosul and they were happy to be there until they received a letter. He claims that he doesn’t know the main reason why they were sending such letters other than to speculate that he has a daughter whose name is “Raghad” which is the same name as Saddam’s daughter. The Tribunal asked whether he believed they were receiving such letters because his daughter had the same name as the daughter of Saddam. The applicant replied that it probably was, together with the fact that they were thinking that he, the applicant, was still cooperating with the Ba’ath Party.
The Tribunal persisted and asked again, why, given that the applicant has been away from Iraq for 10 years, why they would receive such a letter only three months ago. The applicant replied that he has been out of Iraq for 10 years. The Tribunal agreed and asked again why, after 10 years, the family would receive such a letter just three months ago. The applicant explained that the community in Iraq is quite different from the community in Australia. He said that in Australia, neighbours know very little about each other, but in Iraq it is quite different. In Iraq, every single neighbour in an area knows everything about their neighbours, for example, to which tribe they belong, and they know everything about the whole family.
The Tribunal confirmed with the applicant that he had left Iraq in 2007 and travelled to [Country 1], and stayed in [Country 1] for 2½ years. The applicant confirmed that was correct. The Tribunal asked the applicant how he had got from Iraq to [Country 1]. The applicant replied that he moved from Syria and took a plane from Syria to [Country 1]. He said he transited through Syria.

The Tribunal confirmed that the whole family travelled together and that they all had passports. The applicant confirmed that was correct. He said they had two passports and all the kids, all the names of the kids, are within their mum’s passport.
The Tribunal asked whether the applicant had any trouble getting out of Iraq. The applicant replied that they took a car from Iraq and went to Syria and from Syria they left the airport. The applicant confirmed they had no problem getting through the borders out of Iraq. He said they hired a car and early in the morning they crossed the border.
The Tribunal confirmed that the applicant left Iraq legally. The applicant said that was correct - that they went through a checkpoint at the border between Iraq and Syria. He said they actually bribed an officer there and he let them cross the border.
The Tribunal asked the applicant what he did in [Country 1]. The applicant replied that he had his own business in [Country 1] and carried on that business until he learned that he could not stay any longer. When he received the notification, the applicant said he tried to contact the UN Representative there and he even wrote a letter to the Australian Embassy asking to come to Australia legally.
The Tribunal asked the applicant whether he had applied for a visa. The applicant replied that he had written a letter to the Embassy with the assistance of a friend, but he did not receive a reply.
The Tribunal asked the applicant what it was that made him need to leave [Country 1]. The applicant replied that he was only allowed to stay in [Country 1] for two years and after that he had to leave.
The applicant said that when he received the notification, he advised the family to return to Iraq and that he would move to Australia. He confirmed that he went from [Country 1] to [Country 2] and on to Australia and confirmed that the family flew from [Country 1] back to Syria and from Syria back to Iraq.
The Tribunal confirmed that the applicant paid for tickets for the family to return to Iraq. He said he did, but after paying for the tickets, he was very low on money.
The Tribunal asked the applicant how he got to [Country 2]. The applicant said he went by boat. He said they would not give visas to Iraqis to go to [Country 2].
The Tribunal asked the applicant how long he was in [Country 2]. The applicant replied that he was in [Country 2] for nearly two years, about two weeks short of two years.
The Tribunal asked the applicant why he was in [Country 2] for two years, was there any magic to that period of two years. The applicant replied that he was there just short of two years because he was running out of money and he spent the remainder of his money paying a people smuggler to get out of [Country 2].
The Tribunal confirmed that the applicant was working in [Country 2]. He said he was doing a type of delivery for someone.
The Tribunal asked the applicant whether he could remember how much he had paid the people smuggler. The applicant replied that he couldn’t remember as it was seven or eight years ago.
The Tribunal asked the applicant how he found the people smuggler. Were they advertised on TV or on the radio, for example? The applicant replied that the people smugglers hang out in cafés and restaurants and look out for fellow Iraqis assuming that they wish to be smuggled. The people smugglers seek the Iraqis out, asking do they wish to go to Australia.
The Tribunal asked the applicant whereabouts in [Country 2] he was. The applicant replied that he was in Bogor. The applicant said that he was also moving around and moving in between Bandung and Java, moving around getting jobs in different places.
The Tribunal asked the applicant about his exchanges with the people smugglers. The applicant replied that all the people smugglers say that it is very dangerous to travel but that travelling with them is very safe. The smugglers tell them that they have the best quality boat and that they will be safe with them. The applicant said that when you turn up to the boat, however, the boat is worth like $3.00 and that they are the worst boat imaginable. He said the people smugglers tell you that that boat is the small boat that will take you to the big boat, which is the safe boat.
The Tribunal asked the applicant why he chose the people smuggler that he chose. The applicant replied that you actually have no choice. He said there are many people smugglers, each with three or five people, and they turn up at the boat and all the people go together. So he said there really is no choice.
The Tribunal asked the applicant his expectations when he arrived in Australia. The applicant replied that he understood that he would be put into a camp and from there, it would depend on whether he got a visa as to whether he stayed.
The Tribunal confirmed that the applicant therefore had a very realistic expectation of what would happen. The applicant replied that yes, he had a very real expectation that he could die, but if it gave him the chance to see his family again, then he really had no other choice. If he knew his family was going to be safe, he would not have needed to have come here.
The Tribunal confirmed with the applicant that he knew he was coming to Australia unlawfully. The applicant confirmed that he knew he was coming here unlawfully, but he had no other choice. He tried to get permission before he came.
The Tribunal asked the applicant about what he did with his passport. He noted from his claims that he had given his passport over to the people smuggler.
The applicant replied that the smugglers usually take the passport. He said that as he is travelling unlawfully, he has no need for the passport and as the people smuggler asked for the passport, he said he had no choice but to hand it over.
The Tribunal confirmed that the people smuggler took everyone’s passport. The applicant said they did. The Tribunal asked the applicant what happened to his passport. The applicant replied that he had no idea. He had no idea whether the people smuggler threw it in the ocean. The Tribunal asked the applicant where he was when he handed over his passport. Was he on the boat or was it before he got on the boat? The applicant replied that it was before he got on the bus that the passport was taken. The applicant said it was either just before he got on the bus or just after he got on the bus, but it was before he got on the boat.
The Tribunal confirmed with the applicant that his passport had been the only form of identification that he carried. The applicant confirmed that was the case. He said that when his passport was taken from him, he had no other form of identification.
The Tribunal confirmed with the representative that it understood this evidence as the applicant having disposed of, or having caused the disposal of, his passport and that the passport was destroyed. The Tribunal advised the applicant and the representative that it would now need to consider the possible application of s.91WA of the Act.
circumstances preventing the grant of the visa
The Tribunal has considered whether the applicant’s visa application is required to be refused under s.91WA of the Act on the basis that he disposed of or destroyed an identity document.
Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is precluded by s.91WA of the Act (emphasis added). Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s.91WA(1) of the Act will not apply if the applicant: first, has a reasonable explanation for the provision, destruction or disposal; and second, either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2) of the Act. Section 91WA is extracted in the attachment to this decision.
The provisions of s.91WA of the Act were introduced into the Act with effect from 18 April 2015 and apply to all applications currently before the Tribunal as at that date,[1] including this application.
Did the applicant dispose of or destroy documentary evidence of his identity?
[1] Section 2 of the Migration Amendment (Protection and Other Measures) Act 2015
The applicant gave evidence that he handed over passport to one of the smugglers on the bus when the smuggler asked for it.
The applicant stated that he didn’t see what the smuggler did with his passport or whether it was destroyed.
Having considered all of the evidence the Tribunal finds that the applicant caused the disposal of his passport being documentary evidence of his identity, nationality or citizenship.
Does the applicant have a reasonable explanation for disposing of documentary evidence of his identity?
The Tribunal asked the applicant whether he had an explanation for disposing or causing the disposal of his passport.
The applicant replied that when you make a deal with a smuggler, you have no choice but to do whatever he tells you to do. If he asks you to do something, you must obey. Therefore, when he asked for the passports, the applicant said he gave it to him just like every other person.
The Tribunal asked whether he was frightened of the smuggler. The applicant replied that of course he was, he was very scared and very afraid of them because he may be told to go back, and the applicant went on to say that he would not go back by that same boat even if he was given five million dollars.
The Tribunal asked the applicant why he was scared of the people smuggler. The applicant replied because “They are smugglers and none of them can be trusted, they are not innocent people”. He said, “You were in their boat”. He said, “Wherever you put your foot, it was making a noise and it seemed that a part of the boat was loose and you were expecting it to break to pieces at any time”.
The Tribunal explained that it needed to consider the reasonableness of the applicant’s explanation. It discussed with the applicant that he had given the Tribunal an explanation that he simply had to give the people smuggler his passport and the applicant had explained it to the Tribunal against a background of knowing that he was coming to Australia illegally and that he probably wouldn’t need his passport anymore. The Tribunal explained that it needed to consider whether that was a reasonable explanation. The Tribunal said that it would ask the Representative her opinion.
The Representative explained that in relation to what the applicant was saying, the option he was faced with at the time when he was in [Country 2] is you have no right to stay there because he has entered the country illegally. So the option he has is either return back to Iraq where he fears persecution or abide by the smuggler’s words to hand over the passport before they could enter Australia. The Representative went on to explain that something else the applicant had said which appeared to have got lost in translation was that he said if he had known the process that he had gone through up until this stage in Australia, which would take him seven years, and that he would have to hand over his passport and be away from his family for seven years, he wouldn’t have taken that option, he would have just returned back home and been killed. He said he preferred to have ended his life rather than go through this process.
The Tribunal is satisfied that the applicant feared the people smugglers. It is also satisfied that all of the asylum seekers gave up their passports. The Tribunal is also aware that the destruction and confiscation of asylum seekers’ travel and identity documents by people smugglers is a common occurrence. It is aware that agents or people smugglers who arrange unauthorised passage for refugees will confiscate or order identity papers destroyed. This could be for a number of reasons, but likely because the people smugglers want to ensure there is no paper trail that might lead authorities to their eventual arrest.
Accordingly, the Tribunal is satisfied that the applicant had no choice other than to dispose of his passport.
Accordingly, the Tribunal finds that the applicant does have a reasonable explanation for disposing of documentary evidence of his identity, nationality or citizenship. For these reasons, section 91WA(1) does not apply to the applicant. Therefore, the grant of a visa is not prevented by section 91WA.
Consideration of claims continued
The Tribunal discussed with the applicant that it would now turn to his specific claims.
The Tribunal confirmed with the applicant that the protection visa application form was completed by the applicant himself, with the assistance of a lawyer, and was signed by him. The applicant confirmed that it was.
The Tribunal read to the applicant his claims as set out in his visa application form and as summarised in paragraphs 29 - 39. He confirmed that the claims were accurate and complete.
The Tribunal asked the representative if she felt the claims were accurately summarised as stated. The representative confirmed that the claims were accurate and complete.
The Tribunal noted that the applicant’s departmental file included a certificate and notification regarding the disclosure of certain information under s. 438 of the Act. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folio contains information relating to ‘an internal working document and business affairs’. The Tribunal had allowed the applicant to view the certificate and discussed the contents of the certificate with the applicant.
The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folios, finds the certificate invalid. The folios the subject of the invalid certificate were, in the view of the Tribunal, procedural documents only, and the Tribunal gave them no weight in its consideration of this matter.
The Tribunal asked the applicant about his military service. The applicant replied that in 1990 he had to join the Army.
The Tribunal asked the applicant when he began driving for Senior General Hassan Zadin. The applicant replied that after 1991, after the uprising, he went to Mosul and he began to work as a Driver. Some time after that, he began working as a Personal Driver for Hassan Zadin and he continued doing that until the fall of the Ba’athist regime in April 2003.
The Tribunal asked the applicant to explain how his job created problems for him. The applicant replied that as the Kurdish militia and other parties considered him to be a Kurd who had remained loyal to the Iraqi Army and Hassan Zadin, he had problems. They didn’t trust him.
The Tribunal asked the applicant about what he did after his military service. The applicant replied that in January 2004 he returned to his previous profession as a Metalsmith. He says that at that time, he wasn’t aware that he was under the surveillance of the Kurdish parties and Islamists.
The Tribunal asked the applicant about the events in July 2007. The applicant replied that one day as he was opening his shop, a bomb detonated. He said he sustained very serious injuries and was in hospital in a critical condition for two weeks. The applicant attempted to show the Tribunal the many injuries on his body. The Tribunal said that it accepted that he had scars of those injuries.
The Tribunal asked what he did when he was released from hospital. The applicant replied that he and the family moved to the countryside and stayed with a friend. In August 2007, he moved to hide in a large truck garage owned by his uncle. He stayed there until October 2007.
The Tribunal asked the applicant how he got involved with marketing alcohol. He said because he was hiding in this large shed, or trying to hide himself, someone told him that he could bring them alcohol and cigarettes and he could sell them so that he could earn a living. “So I did that. The shed was owned by my uncle who was a religious man. When he found out what I was doing, he said that I had to stop doing that. My uncle said that such activities would bring down the wrath of Allah and of Islamic groups if it was discovered that such activities were happening in his garage”.
The Tribunal asked the applicant to explain how this would impact him. He said that if the hiding place was discovered by Islamic groups or Kurdish parties who considered him to be a traitor, then he could be killed and that is why he fled Iraq for [Country 1].
The Tribunal summarised the applicant’s claim that he is an Iraqi Kurd who is considered a traitor by Kurdish and Islamic groups. The applicant replied that was right, that is exactly right.
The Tribunal then added that because he had traded in goods that were banned by religion, he was fearful of returning to Iraq, including the KRG for this reason. The applicant said that was right ; that he cannot live either in the KRG or in Iraq.
The Tribunal referred to the threatening letter that the family received three months ago. The Tribunal asked the applicant whether he had a copy of it. The applicant replied that he had a copy of the original with him. The Tribunal noted that the threatening letter had been generated by computer.
The Tribunal asked the applicant how he knew he was under the surveillance of the Kurdish parties or Islamists.
The applicant replied that he was actually threatened a couple of times because if he was on the side of the government, he was threatened by the Kurdish authorities. And if he was one with the Kurdish authorities, he would be threatened by the other side or the government’s side.
The Tribunal noted that he seemed to be telling it about the threats, but the Tribunal explained that it was trying to understand how did he know he was under surveillance. The Tribunal noted that he had been working since January 2004 until July 2007, which was over three years, and that he had said he had been working peacefully, and happily until the explosion. But then he said that he was under surveillance for that period of time. The Tribunal asked again how it was that he knew he was under surveillance? The applicant replied that “It’s a matter of who you are with. If you are with them, then the other side are watching you”. And then he went on to add that maybe some people don’t like him, so there are some people who don’t like him and therefore he was feeling that he was being watched and monitored.
The Tribunal confirmed then that it was only speculation that the applicant was being monitored. He had no concrete proof. The applicant replied yes, he had no proof, but he was quite sure that he was being monitored because everywhere he was arriving, he said he felt like he was being watched.
The Tribunal was concerned that the applicant’s answer wasn’t matching the question and was concerned that perhaps the question was being lost in translation. It therefore asked the Representative to intervene. The Representative asked the applicant the question and then the representative explained the answer as follows:
“The answer that I got from the applicant is because he was working with the government and he believes one of the reasons why he might be monitored is because of his daughter’s name, he has named his daughter after Saddam’s daughter. So if you are living within the Kurds, they know that you are a supporter of the Saddam regime because you’ve picked one of your child’s names to be the same as Saddam’s daughter.”

The Representative went on and said:
“Because I cannot live within the Arabs because if you don’t support Saddam’s regime, so I’ve got problems with both sides”.
The applicant told the Representative that he doesn’t have any proof of being under surveillance, it was just his understanding - meaning his understanding is because of him working with the government and the area where he lives, everyone in the area eventually will know who you are because it’s very tribal. It depends on which village you are from or which family you come from. So when they figure out who he is, that’s how he gets targeted.
The Tribunal asked the applicant about the shop he was working in. Was it his shop or was it owned by someone else? The applicant replied that he was renting the shop.
The Tribunal asked was it his business or was he employed by someone else. The applicant replied that it was his business, but that it was under his son’s name. The Tribunal asked why was it in his son’s name. The applicant replied that it is cultural, a person is not usually called by his name, but rather as being the father of the son or the daughter, usually the son, and that is why the shop was in his son’s name.
The Tribunal asked why he thought that after working in the shop, his business for 3½ years, someone suddenly decided to blow it up. The applicant replied that he didn’t know. He didn’t know, but he concluded that if his shop was exploded, then that meant that there was an intention to kill him. There was obviously an intention to kill whoever was in that shop.
The Tribunal suggested that there is a lot of unrest in Mosul where the shop was and the Tribunal was wondering was it actually a targeted attack at the applicant or was it a random bombing?
The applicant replied that the bomb was planted inside the shop. When he opened the shop, the bomb exploded.
The Tribunal asked what does that tell us? It said that what it was getting at is why is the applicant so certain that the bomb was targeted at him and wasn’t just a random bomb attack which our Country Information would tell us was happening in Mosul at the time.
The applicant said that if, for example, the bomb was outside, or on the street or on the road, then that would be a random bombing and he would accept that and that he would accept that he was not targeted. But in this case, the bomb was inside the shop. It was inside the house.
The Tribunal confirmed that it was detonated when he opened the door. The applicant confirmed that was correct. The applicant said that outside the shop, there is a big gate, but within the gate there is a small door and when that small door was opened, that was when the explosion happened.
The Tribunal asked whether any member of the public could have got access to that little door. The applicant replied that no one can because it was a locked door. The applicant said that in order to access the shop, someone would have to jump over the wall or over the big door or gate as the door was otherwise locked.
The Tribunal asked the applicant whether he knew what had happened to General Zadin. The applicant replied that he knew he had been killed. He said he was killed in 2009. He said that after Saddam was removed, the Iranian authority and people came there and tried to kill every single person who they knew had participated in the military service and it was just like it had been in the Iraqi and Saddam’s military service. Therefore, they tried to chase everyone who participated in that Army and therefore he was sure that, yes, he was certain, the Iranian government tried to kill him.
The Tribunal asked the applicant whether he had any photos of he and General Zadin. The applicant replied that he did not.
The Tribunal asked whether the applicant had been a member of the Ba’athist Party or was he simply imputed as being involved only because of his employment. The applicant replied that anyone who is serving with a member in the military service or anyone who is supporting the Iraqi or Saddam government was seen to be cooperating with Saddam’s government and so they would be targeted.
The Tribunal asked the applicant to confirm that his view was that anyone working in the Army or serving in the Army or anyone cooperating with Saddam was regarded as a Ba’athist. The applicant confirmed that, yes, they would be regarded as being with Ba’ath.
The Tribunal asked the applicant again whether he was a member of that Ba’athist Party or just somebody who worked for it. The applicant replied that he would be regarded just like a member. Because he worked for the government, he was considered to be a member.
The Tribunal invited the Representative to make further submissions.
The Tribunal duly received from the Representative an undated submission. The submission contained a lengthy recitation of the law relating to refugees.
The submission provided very little factual support as to the applicant’s circumstances.
The submission provided substantial extracts of Country Information relating to the security situation in Iraq, including several paragraphs extracted from the DFAT Report. The paragraphs extracted included paragraphs 2.33, 3.55 and 5.13.
The submission also included a lengthy recitation of the case law relating to internal relocation.
The submission included a summary of incidents of past harm that have occurred to the applicant and his family, and were provided as support for the proposition that past persecution is an excellent indicator of future risk of harm as postulated by a Professor J. Hathaway in his book ‘The Law of Refugee Status’, Butterworths, Toronto, 1991, page 88.
The incidents of past harm included:
·     The applicant’s place of employment was bombed and he was hospitalised for two weeks in critical condition. The bomb was inside the shop and not on a street for it to be random, but rather targeted because it was detonated when the applicant opened the shop door.
·     The applicant’s home has been occupied by terrorists and destroyed in this conflict in the region.
·     The applicant’s family has received death threats for being traitors and the applicant’s family have had to move towns several times.
The Representative made an extensive submission as to relocation in circumstances where the applicant was suffering from a mental health condition. However, it is noted by the Tribunal that apart from a general statement as to the applicant’s state of mental health, no evidence has been produced to suggest a mental health condition.
The Representative concluded her submission by stating the following:
·     The applicant’s fears are not limited problems of a private nature, but concern his fear of persecution and an absence of effective State protection for convention reasons. In light of the above, it is submitted that the applicant is owed Australia’s protection obligations as a refugee. It is admitted that the applicant cannot return to Iraq or safely relocate. The applicant will be unable to avail himself of the protection of the State.
·     The applicant and his family face the difficulty of returning to a country where they face growing persecution. Mosul has been overrun by Isis since he departed Iraq, and there is no hope of returning as it is likely that his home no longer exists. The security situation regarding the rest of the country only worsens by the day and it is difficult to imagine the applicant relocating to another area where he and his family will face a similar amount of danger.
·     Furthermore, we submit that it would be extremely difficult for the applicant to find adequate housing in Iraq given his lengthy absence from that country, the security situation, his financial situation and his lack of family connections in Iraq and his mental health conditions. We submit that this treatment amounts to “serious harm”. The applicant does not have adequate and effective State protection available to him. We submit that the applicant has a well-founded fear of persecution for a convention reason in Iraq.
The Tribunal reconvened for a further hearing on 6 December 2018. The applicant was again represented by his Registered Migration [Agent]. The hearing was assisted by an Interpreter in the Kurdish Badini and English languages.
The Tribunal again confirmed with the applicant, the Representative and the Interpreter that each were understanding each other.
The Tribunal explained to the applicant that there were a couple of matters that needed further clarification.
The Tribunal asked the applicant who it was that his wife and family were staying with in Duhok. It asked were they staying with his father.
The applicant replied that his father was deceased.
The Tribunal explained that on numerous occasions at the previous hearing, when asked the same question, the applicant replied that his wife and family were staying with his father. The applicant clarified to say that that was not possible and that they were staying with her father.
The Tribunal noted that the applicant had provided a very detailed account of the circumstances of the bombing of his shop. The Tribunal asked the applicant who he believed had set the bomb. He replied that it was set by extremists, either extremist Shi’a militia or Kurdish militia.
The Tribunal queried the applicant as to whether Kurdish militia were present in Mosul at the time of the bombing. The applicant replied, without hesitation, that they were and stated that they are present in Mosul even now.
The Tribunal asked the applicant where his wife presently was. It had indicated that it would have liked to have heard from his wife during the hearing. The applicant replied that he has not heard from his wife for three months. He replied that she was in Mosul until three months ago. The Tribunal interrupted and sought clarification from the applicant, noting that on 20 June, the date of the last hearing, the applicant had stated that his wife had already left Mosul after receiving a letter from extremists and had already gone to Duhok.
The applicant restated that three months ago, his wife contacted him asking for money so that she and the family could go to [Country 3] illegally.
The applicant asked why she would want to go to [Country 3]. The applicant replied that his wife was tired of being constantly displaced and wanted to get away from ISIS.
The Tribunal asked again why she would leave her father, having lived with him now for some time. He replied that she wanted to get away from ISIS. He said that her father did not want them living with him any more as he did not want to be involved with her problems.
The Tribunal noted that the applicant had not been to Kurdistan for over 14 years. The Tribunal asked the applicant why he could not return to Kurdistan, noting that he was born there. The applicant replied that he can’t live amongst the Kurds.
The applicant said that he could not live with the Kurds because of his daughter’s name. The Tribunal was reminded that his daughter’s name was the same as [another name] daughter’s name. The Tribunal asked the applicant whether anyone had ever said anything to him or his wife about his daughter’s name. The applicant said that he has been here for over seven years, so he can only rely upon what his wife has said and his wife has told him that people note and comment on his daughter’s name. The Tribunal noted that that could only have been in Mosul where she was previously living. The applicant replied that it makes no difference where they are.
The applicant stated again that he can’t return to Kurdistan because he can’t mix with Kurds. The Tribunal again asked why that was. The applicant replied that it is because of his daughter’s name, that the Kurdish people will believe that he is a Saddam supporter for having named his daughter after [and] for the fact that he worked for the regime. The applicant went on to say that he can’t mix with Kurds, even in Australia. The Tribunal asked why not. He said that once the Kurdish people learn about him and his background, they harass him. The Tribunal asked how the local Kurdish people (in Australia) could possibly know about his background unless he told them. The applicant replied that the Kurdish people all know each other, and all know each other’s families, and as soon as they hear of his daughter’s name, they say to him that she was named after [someone’s name].
The Tribunal asked the applicant whether his daughter was named after [another person]. The applicant replied that she was. The Tribunal asked why that was. The applicant’s reply was that you name your children after people you like and he liked [name].
The Tribunal recapped the discussion by noting that the applicant claims that he can’t go back to Duhok as the locals will perceive him as:
·a supporter of Saddam;
·a supporter of the regime; and
·as someone who named his daughter after [another person].
The Tribunal noted that the applicant had not previously mentioned that he was a supporter of Saddam. The applicant replied that he had not been asked. The Tribunal noted that the applicant had said that he had had to do military service and that he had to do what he was told, which included driving for the regime. The applicant replied that he had stayed on after his military service voluntarily in his job as [Occupation 2] for the regime and for General [name].
The Tribunal noted the Representative’s final submission. The Tribunal thanked the Representative for that submission, but noted that it related largely to the provision of Country Information that discussed the prevailing circumstances in Iraq and Kurdistan. It noted that the circumstances referenced applied generally to the population of Iraq. The Tribunal asked the Representative how the circumstances she had cited related specifically to the applicant.
The Representative replied that it was imperative to understand that the applicant will be perceived as a traitor. In doing so, the Tribunal must remember that the applicant is a Kurd, and is not an Arab. She said that Kurds are treated very differently to Arabs when they are considered as supporters of Saddam. The Representative referenced the Country Information that the Tribunal had referred to, being that people who worked for the government were generally required to become members of the Ba’athist Party and that since the fall of the regime, such people received understanding that they were made to be members or followers of the Ba’ath Party in order to secure employment. The Representative went on to add that that is the case where former Kurdish Ba’ath Party members or supporters are seeking employment with the government. The government will acknowledge that, but the Representative went on to state that the Kurdish people themselves do not forget and that Kurdish people will not forgive the applicant for being a traitor, as he stayed on to voluntarily serve the regime as a driver and even named his daughter after the daughter of [name]. The Representative said that as an Arab, he may be forgiven for that, but as a Kurd, the Kurdish people will never forgive or forget. The applicant agreed and claimed it was the people, not the government that was the source of his fear.
The Tribunal stated that it would consider those matters further in the context of the Country Information provided.
ASSESSMENT
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal was mindful of the nuances when communicating through an interpreter and clarified the applicants’ evidence throughout the hearing to ensure accuracy of understanding and that they understood Tribunal concerns. The Tribunal checked throughout the hearing that the interpreter and questions were understood and each time the applicant said he understood the interpreter. The Tribunal considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way. The Tribunal told the applicant that he may have breaks during the hearing as well to allow a break for him and the interpreter.
The Tribunal was satisfied that the applicant has been honest in giving his evidence about events that occurred in the past, as his written application and his evidence given orally at the Delegate’s interview and the Tribunal’s hearing has been broadly consistent.
The Tribunal was moved by the applicant’s evidence as to the lengths he has taken to avoid returning to Iraq. The Tribunal also formed the view that the applicant has been genuinely traumatised by his experiences, particularly his voyage from [Country 2] to Australia. The Tribunal has further formed the view that the applicant is genuinely scared at the prospect of returning to Iraq. Notwithstanding those observations, the Tribunal must nevertheless determine whether the applicant fulfils the refugee or complimentary protection criteria within the Act.
The Tribunal was appreciative of the Representative’s submission but found in relation to the extensive extracts of Country Information provided that they related to generalised violence that can occur in Iraq rather than circumstances that particularly applied to the applicant.
The Representative summed up the applicant’s claims very concisely on page 3 of her submission. She said:
“The applicant has not returned back to Iraq since October 2007 because he fears he will be discovered by Kurdish parties and Islamic groups who consider him a traitor because he worked with the Baathist regime and traded in goods banned by religion”.
Dealing with the second part of that claim first, the Tribunal finds that any chance that the applicant would face serious harm for being involved for a short time in the black market distribution of [banned goods] in Mosul in 2007 to be remote.
The Tribunal is not satisfied that the applicant’s activities in the black market distribution of alcohol was known to anybody outside the immediate distribution network. Further, the Tribunal is not satisfied that the applicant had any issues in relation to the black market distribution of alcohol prior to his departure from Iraq in 2007.
The Tribunal is not satisfied that it is likely that the applicant’s involvement in the black market distribution of [goods] more than 10 years ago would now be known to anyone else in Mosul or in Duhok.
The applicant spoke extensively of his work as [Occupation 2] for General [name] from 1992 to 2003. He admitted that he had no relationship as such with General [name] and was nothing more than one of many local [workers]. He stated that [Genera] had more senior officers who drove him to and from his home.
Whilst it took some time for the Tribunal to ultimately extract it from the applicant, the applicant conceded that he was not a member of the Baathist Party. But he was adamant that he would be regarded as a member of the Baathist Party for having worked for the regime for the period of time that he did.

The Tribunal is satisfied as to the applicant’s military service history which was supported by the applicant’s military ID card, which he had presented at interview and a copy of which was on the file. The Tribunal accepts that the applicant was a conscript in the Iraqi Army between 1990 until he was discharged in 1996.
Whilst the Tribunal is satisfied as to the applicant’s concession that he was not a member of the Baath Party, it does have significant concerns as to whether an ethnic Kurd, and non-member of the Baath Party would be charged with the responsibility of being [an Occupation 2] for the Iraqi [General].
Country Information reveals that [name] was an Iraqi Army General under the Baathist regime of Saddam Hussein. He was one of the senior officers that led the 1990 invasion of Kuwait and prior to the fall of the Baathist regime was Commander of the Iraqi Military Academy. Following the fall of the Saddam government in 2003, [General] was imprisoned until 2004. When he was released from prison, he lived in Jordan until he returned to Iraq in 2008. He became [member] of [a] Political [Party]. He was assassinated in his [hometown].[2]
[2] [Source deleted].
The Tribunal notes the findings of the Delegate in relation to the applicant’s claims to have been [an Occupation 2] for [General]. The Tribunal notes that the Delegate was not persuaded as to the credibility of the claim by reason that the applicant had little knowledge of [General], given the fact he had driven for him for several years.
When quizzed by the Tribunal, the applicant was aware of the General’s rank and knew that he had been assassinated in 2009. As to any additional information, the applicant stated that it was not his place to engage in conversation with a high-ranking General.
Whilst the Tribunal had concerns as to an ethnic Kurd, not being a member of the Baath Party, being a [an Occupation 2]for a high-ranking Iraqi General, the Tribunal does accept that the same is not impossible, noting that the Kurdish Democratic Party (KDP) actually aligned with the Saddam government in the mid-1990s and that there were pro-Saddam Kurdish militia operating in Iraq in the 1980s and 1990s.
Accordingly, the Tribunal accepts, giving the applicant the benefit of any doubt, that the applicant was [an Occupation 2] for General [name] up until the overthrow of the regime in 2003.
This claim is corroborated to some extent by the outline of the applicant’s work history in his application form and his evidence in both the Delegate interview and the Tribunal hearing that he recommenced employment as [Occupation 1], on his own account, in 2004.
The next concern for the Tribunal is whether, having accepted that the applicant was a [Occupation 2] for the Iraqi General, General [name], would this impute the applicant with political opinion such that his countrymen would consider him to be a traitor?
In addressing this concern, the Tribunal will separately consider three issues.
The first is the time elapsed since the applicant left Iraq. The applicant left Mosul in Iraq in 2007. It is now 2018. When the Tribunal put this issue to the applicant, he responded that no matter where he goes, by the nature of Iraqi people being inquisitive as to wanting to know every detail about their neighbours, they would find out about his past. He then went on to claim that his family have received threats wherever they have been. The Tribunal notes that the threat letter that the applicant claims that the family received only three months ago was received by them in Mosul.
The Tribunal noted, however, that no evidence had been adduced of those previous threats except for a threat letter that had been issued some three months before the hearing. The Tribunal noted the prevalence of fraudulent documents as referenced in the DFAT Report and the coincidence of the timing of the receipt of such a threat letter and is inclined to give that threat letter very little weight.
The second consideration is what Country Information tells us about the acceptance of former Baathist regime employees into the community.
The Tribunal referred to the DFAT Report, paragraphs 3.48 to 3.51. In summary, it notes that between 1968 and 2003, membership of the Baath Party was a precondition for employment with the government. After the removal of Saddam Hussein and his government in 2003, the US led transitional administration implemented a de-Baathification process which led to the dismissal of thousands of individuals. The report goes on to note that a broad consensus exists in Iraq that sanctions against the Baath Party should not apply to Baathists as individuals. This consensus is based on a recognition that the dominance of the Baath Party in all aspects of government forced millions of Iraqis to join the party. The DFAT Report also notes that former high ranking officials of the Baath Party face a high risk of official and societal discrimination, particularly when trying to secure employment. Individuals with lower level links to the Baath Party face a lower risk of official and societal discrimination.
In this instance, the Tribunal has already found that the applicant was unlikely a member of the Baath Party. He certainly was not a high ranking official of the Baath Party. As such, the Tribunal considered the Country Information that the applicant does not face a real risk of persecution to be persuasive with regards to this claim.
But what does concern the Tribunal is that the applicant was discharged from the military in 1996 yet continued to work for General [name] as [an Occupation 2] until 2003. That suggests to the Tribunal that the applicant undertook this role voluntarily and whilst the applicant most likely maintained the employment because it was a good job, that may have led to him being considered by his countrymen as a traitor.
There was much discussion in the hearing relating to the bombing of the applicant’s shop and the injuries that he sustained therefrom. The Tribunal, on a number of occasions, challenged the applicant to consider that the bombing incident may have been no more than an act of general violence that Country Information suggests occurred regularly within the region. That is to say, the Tribunal proposed to the applicant that the bombing of which he was a victim, was not specifically targeted at him. The applicant, and perhaps to his credit, acknowledged the Country Information and admitted that he would be prepared to accept that was the case had it not been for the fact that the bomb was installed within his premises and designed to activate upon him opening the door. The Tribunal acknowledges that it has no evidence of this apart from the applicant’s word, however, the Tribunal did test the applicant on several occasions to recount the events of that day, and found the applicant to be both animated in his description of the events and consistent in the recounting of those events.
Accordingly, the Tribunal is inclined to accept the applicant’s account of events and that the bombing was the consequence of a bomb being installed within his shop. There appears to be little doubt that the shop was his, they were not shared premises and he had been working from the premises for at least three years. This does cause the Tribunal to conclude that the bombing was at least a targeted act against the applicant and whether there is a causal connection between the fact of that act and his previous employment as [Occupation 2] for the General can be concluded only by giving the applicant the benefit of the doubt.
Accordingly, and for the reasons enumerated above, the Tribunal finds that the applicant does have a well-founded fear of persecution of returning to Mosul in Iraq. The Tribunal further finds that the fear of persecution is for one or more of the reasons provided for in the definition of well-founded fear of persecution in 5J(1)(a) of the Act, being imputed political opinion and membership of a particular social group, being a group of people who continued to work for the Baathist regime voluntarily after completing of military service.
The next issue for the Tribunal to consider is whether that real chance of persecution relates to all areas ofIraq for the purpose of satisfying the Act’s definition of well-founded fear of persecution: 5J(1)(c). In this instance, the Tribunal notes that the applicant, notwithstanding having lived in Mosul for 17 years, originated from Kurdistan.
The Tribunal notes that the applicant’s [brothers] and now his wife and children, all reside back in Duhok in the Kurdistan Region.
The Tribunal also notes that Erbil, which is within the Kurdistan Region, has a functioning international airport, and that Duhok is accessible directly by road from Erbil and the route is entirely within the Kurdistan Region. To this end, the Tribunal finds that Duhok can be safely accessed by the applicant with no requirement to go near Mosul.
The Tribunal is again drawn to the DFAT Report.
That report notes that since 2006, many people have found refuge in the Kurdistan region. DFAT is not aware of any official Regulations concerning procedures and practices at checkpoints into the region. Whilst admission into the Kurdistan region remains at the discretion of the KRG, which has increased restrictions, including requiring individuals wishing to enter to have a sponsor, local sources say the implementation of this requirement is often inconsistent in practice. The report goes on to add that individuals who were previously from the Kurdistan region or who are ethnically Kurdish should be able to enter the Kurdistan region with relative administrative ease.
At paragraph 5.13, the report advises that upon entry into the Kurdistan region, people (including foreigners) born in the region or with family ties in the region may obtain Kurdish identity papers, including national identity papers noting residence in the Kurdistan region.
The Tribunal notes that DFAT assesses that internal relocation to the Kurdistan region is difficult for anyone without a sponsor or existing networks within the region. However, the Tribunal has previously noted that the applicant’s two brothers and now wife and children reside in the Kurdistan region and the applicant was born in the Kurdistan Region.
Kurdistan RegionThe Tribunal notes Country Information from the Dahuk Governorate Profile, taken from the International Organisation for Migration dated 10 November 2015 that the resident population of Duhok enjoyed a stable security situation.
The Tribunal notes that in a March 2016 paper, the Immigration and Refugee Board (IRB) of Canada reported that no serious terrorist attacks have occurred in Duhok since the start of 2015. It further noted that in the first half of 2016, the Kurdistan Region had fewer security incidents and lower levels of sectarian violence than the rest of the country. The Tribunal further notes a report from the Institute for the Study of War of 15 December 2016 which advises that the Iraqi government, Shia Militia and Kurdish forces have conducted joint offensives against Islamic State in Iraq which have pushed back the frontlines away from the Kurdistan Region border. The Tribunal also noted a report from the UK Home Office in August 2016 that advised that ethnic Kurds are free to enter the Kurdistan Region. That report went further to suggest that even for ethnic Kurds not from the Kurdistan Region, it may be possible for Kurds who do not originate from the Kurdistan Region to relocate to the region.
The Tribunal notes that there is no Country Information available that suggests that returnees or failed asylum seekers face issues in the Kurdistan Region on return on account of their residence abroad.
The Tribunal does, however, note the difficult economic circumstances prevailing in Kurdistan, largely as a consequence of the high intake of IDPs. The Danish Immigration Service reported unemployment at a level of 13.5% in 2016 and the DFAT Report notes that familial connections are important in the Kurdistan region for the purposes of reintegration and particularly access to employment and housing noting that the same is easier for those who have maintained connections in the region.
As previously acknowledged, at face value, there is a case for the applicant’s relocation to Kurdistan, based on considerations such as him originating from Duhok, that he lived in Duhok as a young man; that his [brothers] and now his wife and children reside in Duhok. It is noted that the applicant has had no contact with his brothers for some years.
As his wife and children have secured accommodation with family in Duhok, so it is that the Tribunal believes that the applicant would similarly secure accommodation for himself with familywere he to return to Duhok. The issue for the Tribunal is whether, given the economic challenges facing Kurdistan, would the applicant be able to secure employment in Duhok so as to subsist. The Tribunal notes that the applicant is [an Occupation 1], has managed to find employment at each port of call he has made on his journey to Australia, including work as [Occupation 1] in [Country 1], as [another occupation] in [Country 2] and latterly as [different job] in Australia. The Tribunal is of the view that the applicant is resilient.
The Tribunal notes the Representative’s submissions in relation to the mental state of health of the applicant, though the Tribunal notes that no evidence has been adduced as to the fact of his state of mental health by way of the furnishing of any medical reports. Indeed there has been no reference to medical health issues in his claims.
.
In considering if the applicant’s well-founded fear of persecution relates to all areas of Iraq, the Tribunal considered the applicant’s circumstances, the information provided and the Country Information before it.
The applicant conceded in the hearing on 6 December 2018 that he has no claims that relate to the government of the Kurdistan region.
The applicant’s profile is sufficiently low that during a time the country information indicates had heightened tension he and his family were able to legally leave the country. Moreover, his family was able to legally return and have recently been able to relocate to the Kurdistan Region that the country information suggest would require them going through thorough checkpoints. The applicant’s family does not appear to have been imputed with the applicant’s political opinion, or affected by it with respect to moving through the controlled borders of the Kurdistan Region.
The applicant claims the Kurdish people will view him as a traitor for his work with Ba’athist regime. The Tribunal notes the applicant has not been to the Kurdistan Region of Iraq for over 14 years, and has made no specific claims of threats from Kurdish militia.
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA (1989) 169 CLR 379, Dawson J stated: ‘“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’Following considerable enquiry, no Country Information available to the Tribunal or claims of the applicant suggested that his prospective neighbours in the Kurdistan Region knowing his political opinion or employment history would result in persecution or serious harm. In MIEA V Guo (1997) 191 CLR 559 the court said: ‘Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it.’ The Tribunal notes Country Information indicates that Kurds that participated in the Anfal campaign are considered “Jash” a derogatory term meaning donkey’s foal, but colloquially used to refer to a traitor. However, no Country Information was identified or available to the Tribunal that suggest that Kurds who participated in the military at the same time as the KDP collaborated with Saddam are considered traitors or face a real risk of significant harm. Further, the Tribunal does not accept that rancour directed towards the applicant resulting from the applicant’s political opinion, post 1996 work or daughter’s name amounts to serious harm for the purpose of s.5J(4)(b) of the Act
The Tribunal finds that with the combination of the lengthy passage of time, the applicant’s low profile, his family’s relocation to the region, the applicant’s Kurdish heritage and the Country Information relating to former Ba’athist available to the Tribunal, the applicant is unlikely to suffer persecution in the Kurdistan Region.
Accordingly, pursuant to s.5J(1)(c), the Tribunal finds that there is no real chance that the persecution claimed by the applicant relates to all areas of Iraq. The applicant does not have well-founded fear of persecution based on his claims of threatening letters received by his family in Mosul, or the bombing of his shop in Mosul and does not satisfy s.36(2)(a), if he was returned to Iraq.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application, the Tribunal finds that there is no real chance that the applicant will suffer serious harm on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Iraq, namely Dohuk, now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Iraq. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Cumulative Claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of him returning to Iraq or any other reason if he returns to Iraq now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Iraq. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The High Court in SZATV v MIAC and SZFDV v MIAC upheld the principle of reasonable internal relocation considered in Randhawa v MILGEA (1994) 52 FCR 437. Whether relocation is reasonable, in the sense of 'practicable', must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
The Tribunal has considered the written submissions submitted by the applicant’s representative in support of the applicant's claims and against internal relocation. Further, the Tribunal has given due regard to the Country Information provided by the representative. However, the Tribunal notes the Country Information provided by the representative is general, does not relate specifically to the applicant’s circumstances and in some respects is outdated. For these reasons, the Tribunal affords more weight to the more contemporaneous DFAT Country Information from 9 October 2018 and Country Information that reflects the security situation and practicability of relocation to Duhok or the Kurdistan Region Generally.
Although the Tribunal notes internal relocation to the Kurdistan region can be difficult without a sponsor, the applicant acknowledges his family have relocated to this region from Mosul only recently. Currently, [brothers], wife and children are living in the Kurdistan Region. The applicant himself has relocated from this region. Moreover, persons originating from the three Northern Governorates can enter the Governorate of Duhok without any restrictions as assessed by the UNHCR Rapid Needs Assessment of Recently Displaced Persons in the Kurdistan Region.
Country Information notes that relative to other parts of Iraq Dohuk, Erbil and Sulaymaniyah have a favourable security situation and as previously noted the population of the Dahuk governorate enjoy a stable security situation. Further DFAT’s Country Information considers the greater capacity of the Kurdish security forces to be a part of the reason for the lower levels of insecurity in the Kurdistan region. The Tribunal finds the applicant’s claims and evidence relate to a fear of persecution in Mosul, and accepts that the applicant has a well-founded fear of persecution with respect to returning to Mosul. However, the Tribunal is not persuaded that the applicant has a well-founded fear of persecution in the Kurdistan Region or that there is real risk that applicant will suffer significant harm in that region. The Tribunal has no evidence before it, save for the applicant’s comparatively vague claims of being watched, that there is real risk that applicant will suffer significant harm in the Kurdistan Region. In determining whether the applicant is a person in respect of whom Australia has protection obligations, it is necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country. Having regard to the security situation in the Kurdistan Region, and the applicant’s aforementioned ability to find employment, familial connections, and legal right of accessing and remaining in the proposed area of relocation the Tribunal finds that the circumstances of the applicant are such that it is reasonable and practical for him to relocate to Duhok from Mosul, as his family has just done.
Therefore, for the reasons provided above the Tribunal finds that the applicant could relocate to another area within Iraq such that there would not be a real risk that he will suffer significant harm.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Iraq now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins
Member

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

[2018] AATA 5663

14 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction