1706150 (Refugee)

Case [2020] AATA 6172

1706150 (Refugee) [2020] AATA 6172 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706150

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Simone Burford

DATE:30 June 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 June 2020 at 5:08pm

CATCHWORDS
REFUGEE – protection visa – Iraq – political opinion – secular Shia Muslim – social media activities – father’s political opinion – religion – Shia – secularist – perceived as apostate – particular social group – civilian activist – spouse of a female academic – country information – general security situation in Iraq and Popular Mobilisation Forces (PMF) – academics – failed asylum seeker – credibility concerns – living arrangements – delay in seeking protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 104
Migration Regulations 1994 (Cth), Schedule 2

CASES
BBK15 v MIBP [2016] FCA 680
Iyer v MIMA [2000] FCA 52
SZSPT v MIBP [2014] FCA 1245
SZTES v MIBP [2014] FCCA 1765

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

  2. The applicants, who claim to be citizens of Iraq, applied for the visas on 10 December 2015. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations as outlined in the Act and were not members of the same family unit as a non-citizen in respect of whom Australia has protection obligations.

  3. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 27 March 2017. They provided a copy of the delegate’s decision with their application for review.

  4. The first named applicant ([name redacted] – the applicant) attended a hearing before the Tribunal on 13 August 2019 to give evidence and make submissions in support of the review application. The second and third applicants ([name redacted] and [name redacted]) are the minor children of [the first named applicant].  The children do not have any claims of their own and did not attend the hearing.  The Tribunal notes the applicant’s wife is not an applicant for the visa.

  5. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the Tribunal hearing via telephone from Sydney.

  6. The applicants were provided with additional time following…

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Details
AGLC
1706150 (Refugee) [2020] AATA 6172
Case
[2020] AATA 6172
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an Iraqi citizen. The applicant claimed he feared harm upon return to Iraq from Shia militias due to his secular views, criticism of Shia militias, and his academic position. He also asserted that his father had been threatened and moved frequently due to his opposition to radical parties, and that he himself had received threats both in Iraq and via social media. The applicant's wife, who was not an applicant for the visa, held a student visa and intended to return to Iraq upon completion of her studies.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) as a refugee, or alternatively, under section 36(2)(aa) of the Act, whether Australia had protection obligations towards him due to a real risk of significant harm as a necessary and foreseeable consequence of his removal to Iraq. The court was required to assess the credibility of the applicant's claims and consider relevant guidelines and country information.

The court applied the principles outlined in the Migration and Refugee Division Guidelines on the Assessment of Credibility, acknowledging that the benefit of the doubt should be given to credible asylum seekers unable to substantiate all claims. It also noted that an adverse finding on a material claim must be made with confidence, and if not, the claim should be assessed as possibly true. The court further considered the principle that a decision-maker may first determine if an applicant has a genuinely held subjective fear before examining the objective basis for that fear. The court also referred to the complementary protection criterion under s 36(2)(aa), which requires substantial grounds for believing there is a real risk of significant harm upon removal to a receiving country.

The provided text does not contain the final orders or outcome of the case.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal finds that the applicants are citizens of Iraq, which is also the receiving country for the purpose of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest the applicants have a right to enter and reside in a third country for the purposes of s.36(2)(aa) of the Act.The applicant’s background and migration history The applicant is a [age] year old Iraqi citizen. He is a Shia Muslim of Arab ethnicity. According to the delegate’s decision and the applicant’s evidence, the applicants arrived dependants on his wife’s ([Ms A]) Student [visa]. The applicant’s wife was sponsored by the Iraqi Government. She applied for the visa on 14 August 2014 and it was granted on 28 September 2014. The visa expires on 15 September 2020. She is studying for a PhD in [Discipline 1]. The applicant claims that he was born in [City 1], Najaf Iraq (also referred to as Al-Najaf) where he and his family were living prior to coming to Australia. His mother and father are still living in [City 2], Najaf with his younger sister who is has graduated with a degree in [Discipline 2]. His elder sister is married with 2 children. Her husband has an [specified] business. They also live in Najaf. His mother was a [Occupation 1] and his father worked as a [Position 1] in the [specified government department] in Najaf. This was the same department the applicant worked for before coming to Australia. Before moving to Australia he and his family were living with his parents. The applicant was working for the [specified government department] as a [Occupation 2]. He resigned from his job in 2014. The applicant has been working as an [Occupation 3] in Australia. The applicant’s wife, who is not an applicant for the visa, returned to Iraq in 2016 for a visit following the death of her father. The applicant confirmed that he had travelled to [Country 1] in 2012 for about 3 weeks as part of his work for the [specified government department] in Najaf. He had also travelled a number of times to [Country 2] for medical treatment for one of his children and has holidayed in [Country 3], [Country 4] and [Country 5].Protection claims The applicant filed his application for a protection visa on 10 December 2015. The application was refused on 28 February 2017. The applicant had the assistance of his registered migration agent in completing the application form. The Tribunal put to the applicant a summary of the claims contained in the application as detailed in the delegate’s decision (detailed below). The applicant confirmed this was a fair and accurate summary of his claims. The applicant’s claims for protection are summarised as follows:·The applicant is a married, secular Shia, Iraqi father, employed as an [Occupation 2] and residing in Baghdad.·The applicant fears harm on return to Iraq from Shia militias due to his secular views, criticism of Shia militias and his position as an academic.·The applicant’s father was shot at [in] April 2004 due to his opposition to radical parties, and he continues to receive threats by phone. The applicant has also received threats due to his father’s activities.·Since 2004 his father has moved home every six months in the Al-Najaf area in order to avoid being harmed by militia. His father’s wife and daughter (the applicant’s sister who is currently attending university) also move with him.·The applicant has maintained a low profile in Iraq, only expressing his views to workmates, close friends and relatives. He has also been posting’s views on [social media] since he joined.·Although trying not to be too vocal about his views, his workmates regularly engage him in conversation regarding his secular views in order to pass information on to Shia militia or political groups, and to put him at risk.·He cannot stop expressing his views on [social media] or at work, and therefore there is a risk on that basis.·His views have become known as his [social media] profile is viewable by the public and his co-workers and associates have links to Shia militia and/or political parties.·Although he felt at risk of harm, he did not apply for asylum while in [Country 1] in March 2012 as he had to provide assurance of his return to the Iraqi Government and that same government announced the situation in Iraq had improved.·While he was in [Country 1], he received a threat passed to his father, who stated that he must return, otherwise his children and family will be harmed.·Although his wife feels she is safe, as the applicant is the father of his children, they are at risk from Shia militia. They were safer previously as his eldest child was being cared for by his grandmother and his youngest child was too young to be separated from his family.·When he returned from [Country 1] he continued to receive threats from the Shia militia and religious party representatives while at work. He developed a psychological disorder due to stress he experienced from the threats and being provoked to express his opinion by workmates.·As the applicant holds strong secular views, he has been identified by extremists as being against Islam, and therefore he is at risk of being killed.·Although his father encouraged him to remain silent regarding him views, he could not do so and have criticised religious parties and the government on social media platform [social media].·His father has quit his job (in 2006) and moved in order to remain safe.·However, he cannot leave his field as there is no other department to change to and there will be those with links to the militia or political parties no matter what workplace he is in.·In February 2015, a religious man with two armed men came to his home and informed him that he should stop making his views known on [social media] otherwise he would be threatened on return. He has also received two messages by [social media] from unknown person threatening him to cease criticising Shia militias, the government and expressing his views.·He cannot return to Iraqi as Shia militia will eliminate him due to being secular, his political opinion and being a moderate Muslim who will not obey the rules set by the radicals.·He cannot relocate as Shia militia will target him throughout the country once he registers in a new area.·His wife did not include herself in the application and has not submitted any claims as she believes she is not of interest to the militia, has no claims and does not fear harm on return.·She is also planning to return to Iraq on completion of her degree, as not doing so will put financial hardship on her scholarship guarantors. He also claims that he is the one of interest and not his wife, and that she will be safe with her family.·His wife travel to Iraq in March 2016 was to see her father before he passed away from illness.·He did not delay application for asylum as there was no guarantee scholarship would continue and he would have enough time to apply. Also, threats he received in 2015 galvanised the applicant into applying immediately, rather than delaying his application to 2020.

Evidence

Evidence Before The Court

In considering these issues the Tribunal has had regard to the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility published in July 2015.CLAIMS AND EVIDENCECountry of reference The applicants travelled to Australia on Iraqi passports and the delegate had no concerns with their claimed nationalities. The applicant confirmed at the hearing that he was an Iraqi national and stated that he was not a citizen of any other country. The Tribunal accepts that the applicants are nationals of Iraq and has assessed their protection claims accordingly. The Tribunal finds that the applicants are citizens of Iraq, which is also the receiving country for the purpose of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest the applicants have a right to enter and reside in a third country for the purposes of s.36(2)(aa) of the Act.The applicant’s background and migration history The applicant is a [age] year old Iraqi citizen. He is a Shia Muslim of Arab ethnicity. According to the delegate’s decision and the applicant’s evidence, the applicants arrived dependants on his wife’s ([Ms A]) Student [visa]. The applicant’s wife was sponsored by the Iraqi Government. She applied for the visa on 14 August 2014 and it was granted on 28 September 2014. The visa expires on 15 September 2020. She is studying for a PhD in [Discipline 1]. The applicant claims that he was born in [City 1], Najaf Iraq (also referred to as Al-Najaf) where he and his family were living prior to coming to Australia. His mother and father are still living in [City 2], Najaf with his younger sister who is has graduated with a degree in [Discipline 2]. His elder sister is married with 2 children. Her husband has an [specified] business. They also live in Najaf. His mother was a [Occupation 1] and his father worked as a [Position 1] in the [specified government department] in Najaf. This was the same department the applicant worked for before coming to Australia. Before moving to Australia he and his family were living with his parents. The applicant was working for the [specified government department] as a [Occupation 2]. He resigned from his job in 2014. The applicant has been working as an [Occupation 3] in Australia. The applicant’s wife, who is not an applicant for the visa, returned to Iraq in 2016 for a visit following the death of her father. The applicant confirmed that he had travelled to [Country 1] in 2012 for about 3 weeks as part of his work for the [specified government department] in Najaf. He had also travelled a number of times to [Country 2] for medical treatment for one of his children and has holidayed in [Country 3], [Country 4] and [Country 5].Protection claims The applicant filed his application for a protection visa on 10 December 2015. The application was refused on 28 February 2017. The applicant had the assistance of his registered migration agent in completing the application form. The Tribunal put to the applicant a summary of the claims contained in the application as detailed in the delegate’s decision (detailed below). The applicant confirmed this was a fair and accurate summary of his claims.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Credibility assessments In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1] [1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3] [2] MIMA v Rajalingam (1999) 93 FCR 220.[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547. The Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied. The Tribunal notes that in Iyer[4] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[5] [4] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].[5] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA(2003) 129 FCR 137 at [19] per Cooper J.