1706150 (Refugee)

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

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).
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.
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.
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.
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.
The applicants were provided with additional time following the hearing to provide further evidence and submissions. Additional material was received following the hearing and has been taken into account by the Tribunal in reaching a decision on the application.
LEGAL FRAMEWORK
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[6]
[6] Prasad v MIEA (1985) 6 FCR 155 t 169-70; SZBEL v MIMIA (2006) 228 CLR 152 [40]; Re Ruddoc; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003 at [57] ad [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The applicants’ obligations to present their case in full before the primary decision-maker and not wait until after the decision has been made are particularly relevant. Firstly, the ongoing requirement under s.104 of the Act is for an applicant to ensure that their relevant details are correct and to change any incorrect information at the first reasonable opportunity. Secondly, applicants are required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.
The Tribunal also notes that if it makes findings that an applicant’s claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant genuinely holds a subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.
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 EVIDENCE
Country 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.
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.
As noted above, this summary was put to the applicant at the hearing. He confirmed it was a true and correct summary of his claims. When asked whether he had any additional claims or updates to these claims he said he did not have any additional claims to those which are summarised.
The Tribunal notes that the applicant did not raise any new claims at the review stage, however he did submit additional documentary evidence and submissions.
Although not a claim articulated but the applicant the Tribunal has also considered and his status as a returnee from a Western country or as a failed asylum seeker.
Evidence
The Tribunal had before it a copy of the delegate’s decision record dated 28 February 2017 which was provided by the applicant with his application for review. The Tribunal also had a copy of the Department’s file and information submitted by the applicant to the Tribunal in support of his application for review.
The applicant was interviewed by the Department[7]. Relevant information provided at the interview was included in the delegate’s decision record.
[7] The delegate’s decision refers to the interview but does not record the date.
Other relevant material before the Tribunal includes:
·A ‘Statement of Claims for a Protection Visa’ signed by the applicant on 1 December 2015.
·A translation of an undated message from [social media] received by Mr X (name and date not given) referring to ‘[Mr B], the Assyrian’ making threats against the receiver’s father, grandfather and sister;
·A translation of an undated message from [social media] received by Mr X (name not given) referring to ‘[a named group]’ making threats against the receiver;
·A translation of an undated message on [social media] received by Mr X (name and date not given) from ‘[Mr C]’ referring to a person saying they were from the ‘fighting groups and the militias’ coming and threatening her son to stop talking about the Al-Hashd/Warriors and the Militias;
·A list of hypertext links to posts (approximately 86) claimed to be of the applicant’s political opinion expressed online. The Tribunal notes these were untranslated. The posts are considered further below;
·A selection of different posts from the applicant’s [social media] page along with certified translations;
·Recent posts the applicant referred to at the hearing in which he claims he was threatened;
·Surgical admission instructions addressed to the applicant’s wife regarding the admission of his son for an [specified] operation or procedure at [Hospital 1] [in] August 2019;
·Country information in relation to the current situation in Iraq as it related to the circumstances of the applicant. This includes country information which was detailed in the delegate’s decision. Country information was discussed at the Tribunal hearing and in submissions. This is referred to further in the body of this decision.

The applicant’s representative made written submissions dated 6 August 2019 to the Tribunal prior to the hearing. The Tribunal provided the applicant’s representative with an opportunity to submit further written submissions following the hearing. Further information and brief submissions were received on 29 August 2019. That information is dealt with further below.
The Tribunal has taken the applicant’s submissions into account and considers them in further detail in the assessment below. In summary, these submissions were:
·The applicant is a secular liberal and is not being targeted not because of his religion but because of his political opinion.
·The applicant has a well-founded fear of being persecuted for reasons of his imputed faith being secularist and being perceived as apostate, his membership of a particular social group being a ‘civilian activist’ and his real or imputed political opinion.
·The applicant has a well-known profile over online posts evidenced by the posts he provided, and he has been approached by the militias and therefore has a well-founded fear of persecution for his political opinion.
·Country information supports a finding that someone with the applicant’s profile has a well-founded fear of persecution in Iraq.
At the hearing the applicant gave evidence about his claims and the events which had given rise to his fears of returning to Iraq. The applicant’s claims centred on his fear of persecution from Shia militias in Iraq. These claims focused on the applicant’s status as a secular Shia Muslim, his position an as ‘academic’ and his father’s perceived political views as a secular Shia Muslim.
When asked about the experiences in Iraq that made him fear returning there, the applicant stated that there were threats coming from armed groups if you object this included kidnapping and torture.
The Tribunal asked about the claimed incident in 2004 involving his father, He said he was in the car with his father when the car was attacked. He said an armed person with machine gun attacked them and his father was injured. He said they have continued from that time to threaten him and the day prior to the hearing he had received a threat including details that he was outside Iraq.
The applicant said his father was giving him a lift to university and he was going to work. They were about ten minutes from home. The Tribunal queried how they knew this was connected to his father’s work or statements he had made at work and he said it was because the threats continued from that day until now. He said at work they used to tell his father that he shouldn’t talk and should be afraid of talking. The Tribunal asked who said this and he said people within the Department who belonged to another party.
The Tribunal asked whether his father had been subjected to any attacks since then and the applicant said he had not been because left his job in 2006 and stayed at home.
The applicant said at the time of the threat against this father he was living with him. The Tribunal asked why they weren’t at risk then and he said they moved every 6 months. The Tribunal queried if he was still working at the same place while moving and the applicant said his father took sick leave in 2004 and 2005 and then left in 2006. He said they rented a house rather than owned it. The Tribunal queried why if they had been moving every six months, he had listed one address on his application from 1982 until leaving Iraq. He said they didn’t change addresses as they would be registered with the government.
The Tribunal observed that according to their applications the children were registered at that address from birth. The Tribunal queried how that was possible if they were not living there. He said most of the government belong to the militia so they couldn’t use addresses. The Tribunal queried then whose address it was they had used to say they had been residing at since 1982. The applicant did not provide an answer to this question but said they rented from people and did not have an agent.
The Tribunal queried he had lived at the address used in the application and the applicant said it was an address they lived at for 6 or 7 months maybe in 20010 or 2014. He said he didn’t recall exactly. The Tribunal queried why the applicant didn’t put correct addresses on the applications and he said because they were moving a lot and they don’t have specific address in Iraq. He said, ‘I tried very hard to get this address.’ The Tribunal queried where they were living until 2004 and he said they were renting a house. The Tribunal asked how often they moved prior to 2004 and the applicant said every 6 to 8 months. Tribunal sought to clarify this answer and the applicant said prior to 2004 he didn’t have any problems . The Tribunal asked where he was living prior to 2004 and he said at an address in ‘[District 1]’ (a district in Najaf). He said they moved from one house to another.
The Tribunal notes the address the applicant used for the entire period since 1982 is also used for his children. In light of inconsistencies in the evidence given by the applicant and his inability to provide other than very vague details of his residential addresses prior to the claimed incident in 2004 or after, the Tribunal regards the story of his changing addresses every six months as implausible. This issue is dealt with further below.
The Tribunal inquired about the threat he had received the previous day and he said he had received it on [social media] (a direct messaging service connected to [social media]’s social media platform). He said the message said he ‘didn’t have a religion…be careful and your writing, We know where you didn’t come to Iraq for long time. Don’t come to your masters with any bad things you should be afraid about yourself.’ He said the message was in an Iraqi dialect. The interpreter read the message at the hearing; however he had some difficulties due to the dialect of the message.
The Tribunal asked whether he had received earlier threats and he said he had in April 2015, and another threat in 2016. He couldn’t remember exactly when. He said he would look for copies in Messenger. He said the threats arose because ‘I was addressing my view about the militia and I was writing.’ The Tribunal asked about the message from his mother and he said as that she called him and also sent him a message about 3 people coming to the house, one in religious clothes, one armed. They informed his mother to tell her son not talk about the government and that they were not going to leave him alone. They said if he didn’t stop they would hurt her. The Tribunal asked whether he stopped as a result of the threats and he said no.
The Tribunal notes that following the hearing the applicant submitted additional material related to the [social media] posts and messages. The applicant’s representative submitted that these were:
·A list of hypertext links to posts of the applicant’s political opinion expressed online;
·A section of posts from [social media] with official translations; and
·Recent posts in which the applicant was threatened which the applicant referred to in the hearing.
The applicant submitted that these evidenced that he had a ‘well-known profile’ and has been approached by militias.
The Tribunal notes that the translated [social media] posts (together with those submitted to the Department) cover a range of posts from the applicant’s [social media] page. They include material critical of the Iraqi government and militias. A number appear to be resharing or positing material from third parties or other [social media] pages. The ‘threats’ appear to have been made in August (presumably 2019 as testified by the applicant). They make various challenges and threats to the applicant. In several he responds to the messages which are from unidentified sources except for one source ‘[named]’. One makes a reference suggesting the applicant is outside Iraq and that his wife has returned there twice and that he was ‘scared to come’.
The hypertext links lead to around 25 [social media] posts by the applicant on his home page. The remainder which were accessible were links to other [social media] pages and other sites. The vast majority were in Arabic though the Tribunal was able to read some of them through the [social media] translation offered. Around 5 of the links did not connect. The Tribunal notes that the Applicant’s [social media] site lists him as living in Perth and provides other personal details. As noted in the delegate’s decision such details are optional but they would have provided information the applicant was outside Iraq. The Tribunal notes the applicant’s page indicates he has a small number of ‘followers’ (17 when last viewed by the Tribunal in June 2020) and most of the posts receive a relatively small number of ‘comments’ or ‘shares’. On the posts viewed by the Tribunal most comments appeared to be positive indicated by the fact the applicant had posted a ‘thumbs up’ sign on many of the comments or had responded to them in a positive fashion. In the Tribunal’s view this is not consistent with the applicant’s submission that he has a ‘well-known profile’ as a civilian activist, or that these comments were being monitored or drawn to the attention of militia or authorities in Iraq.
The Tribunal asked whether his mother or anyone else in the family had been harmed in Iraq and the applicant said the threats still continue, which is why his family keep moving. He said he was an employee of the government and if he has any dealings with the government ‘they will know’ [the militia] and be able to find him if he returns to Iraq. The Tribunal pointed out that he had told the Tribunal earlier that he just used the one address which was used on the visa application form so safety reasons and that, in any event, they didn’t have specific addresses Iraq. The Tribunal queried how would the militias would know where he was in such circumstances. He said that sometimes they needed to tell the government where they live and ‘some of them believe they know me, and they know my father through relatives and social media. They know.’ This would enable him to be located if he returns to Iraq.
The Tribunal asked what activities the applicant had been involved in in Iraq that placed him at risk. He said he used to talk on social media and at meetings. He said that anything he saw that was wrong, he talked about. The Tribunal asked what sorts of things he talked about and he said killing for identity, restricting freedom and special occasions. He said he did this on [social media].
He said in Iraq he used to have some altercations and treats face-to-face. He said they would say ‘don’t talk about the Shia or any militia’. They said, ‘if you talk about them, I will kill you, your family, your children’. He said an accident happened to a well-known writer and they killed him. The Tribunal asked whether he reported the threats he said had been made against him and his family and he said his father was aware of the threats, but you can’t report to the government because they are connected to the militia. He said his father used to calm things between him and ‘them’. The Tribunal understood him to be talking about persons he was having disagreements with at work. He said his father used to talk to him and tell him he should be afraid about them.
The Tribunal notes the applicant said he joined the same department as his father in 2009 and queried why he would you go to work there when his father had had to leave due to threats to his life. The applicant said the problem was not with the department but with the militia and they are all over the country.
The Tribunal asked why if it was not about the department his father had left work and he said his father ‘felt bad about himself, he wanted to walk away from this situation’. He said that ‘because people know him he tried to hide from these people’. He said all the militia knew about his father and that people were looking for him. The Tribunal queried what his father had done and he said he talked about ‘thefts and assaults and a lack of respect.’ The Tribunal noted that it may be difficult to accept that people had been looking for his father on that basis for 13-15 years and the applicant said if they are looking for somebody a religious ‘fatwa’ would continue. He said that if they want to kill somebody, they still want to kill him.
The Tribunal asked about the claimed threats while he was in [Country 1]. He said his father contacted him and said he needed to return because ‘they’ had threatened him about his wife and daughter. He said he was taking a training course in [Country 1] and he returned at the end of the course. He said he didn’t seek protection in [Country 1] because he was alone, and he was afraid for his family.
The Tribunal asked whether there was anything else he wanted to raise and he said that he used to work with youth so they can develop. The Tribunal asked if this was related to his work at the department and he said no it was when he saw ‘people in the bus, university. I talk to them, everywhere’. He did not provide any specific examples of this activity.
The Tribunal asked about his claim to be an academic. The Tribunal queried whether he was claiming to be an academic himself and he said ‘no’ rather that his wife was an academic. The Tribunal queried why his wife was not an applicant for the visa and he said she did not fear returning to Iraq. She did not think she was at risk from militias and would be safe with her family. He said they had a problem talking to each other and they separated on 16 September 2015. The Tribunal queried whether he had told the Department he had separated from his wife and he said he didn’t know he had to. The Tribunal queried whether when he was interviewed by the department he told them he was sepated and he said no because he didn’t know the laws. The Tribunal queried whether he talked to the Department about whether his wife was at risk if she returned and he said he told them that it is possible she was at risk if she returned but he could not force her to stay. He said the main interest of the militia was on him and not on his wife but if they cannot reach him they will try to get his wife. He said she has an obligation to return to Iraq because she has contract with the government and she insists that she has to go back.
The Tribunal queried who the children were living with and he said that he and his wife were still living together with the children because one of the children is sick so she has to stay because of the child. It was not clear for his evidence if his wife was aware the children were applicants for the visa. The Tribunal asked what his plan was if he was granted the visa and he said she would return and the children would stay with him.
In response to country information regarding Shia militia groups, and the threat to civilian activists, the applicant said that most of the attacks in Najaf are coming not from Daesh but from the militia. He said if you have a different opinion you face assassination. He said that 3 or so months prior to the hearing there were demonstrations and lots of people were killed. The Tribunal queried whether the applicant had ever participated in a demonstration and he said, ‘No, just through the [social media], we incite them’. The Tribunal asked whether he would participate and he said, ‘for sure’. The Tribunal asked why if he hadn’t participated in demonstationd before he would now. He said that he hadn’t participated recently but he had before between 2009-2014. The Tribunal queried which demonstrations he had participated in and he said they were demonstrations against the government when he was in Baghdad. The Tribunal queried why he was in Baghdad and he said he was at a demonstration called by writers and academics. He said he travelled to Baghdad for the demonstration.
The Tribunal asked when the demonstrations were and what they were about and he said he recalled one demonstration in 2012 for ‘changing the government’. He said the other was in Najaf but couldn’t recall exactly the time. He said it was a demonstration against the militia who were governing the country.
Talking about the applicant’s activities since coming to Australia, the Tribunal pointed out that under the Act the Tribunal was required to disregard any conduct engaged in in Australia unless it is satisfied that the applicant engaged in the conduct otherwise than for the purposes of strengthening his claims to be a refugee. The Tribunal indicated that whether it would be satisfied depended on the evidence. The applicant said that he had expressed his views on social media in Australia though [social media] and Viber talking to his friends. The Tribunal queried how talking to friends on Viber put him at risk and he said it didn’t, he just tried to make them aware what was going on.
The Tribunal asked the applicant why when he arrived in Australia in December 2014 he did not apply for protection until December 2015. He said that in May 2015 he received the first threat and he took it seriously so he started to look for a lawyer. He started to look again in September 2015. The Tribunal asked whether he approached the Department when he received the threats in May 2015 to see what his options were. He said he did not, he just told his representative and he started the process in December 2015.
The Tribunal notes that the delegate’s decision indicates the applicant had also raised a claim that he had developed a psychological disorder due to the stress he experienced from threats in Iraq and ‘being provoked to express his opinion by workmates’. The applicant did not raise this claim before the Tribunal and did not offer any evidence to support his claim to have been suffering a psychological disorder.
Country information
The Tribunal discussed with the applicant the country information relevant to his claims including on the general security situation in southern Iraq and Najaf.
General security situation in Iraq and Popular Mobilisation Forces (PMF)
The 2018 Department of Foreign Affairs and Trade (DFAT) Country Information Report, Iraq (the 2018 DFAT Report) states that although ISIL has lost its self-declared ‘caliphate’ in Iraq and Syria, it remains a threat to Iraq, with an estimated 30,000 ISIL fighters remaining active in both countries.[8] DFAT assesses that ISIL will likely continue to indiscriminately target Iraqi civilians and commit human rights abuses as a small scale insurgency, which they state will likely be for many years.[9]
[8] DFAT Country Information Report, Iraq, 9 October 2018 at 2.33.
[9] DFAT Country Information Report, Iraq, 9 October 2018 at 2.5 and 2.34.
The US State Department human rights report on Iraq states that ISIL continued to commit serious abuses and atrocities, including killings, and that there were numerous reports that some government forces, including the PMF, committed arbitrary or unlawful killings.[10] As well, they reported that ‘individuals, militias, and organized criminal groups carried out abductions and kidnappings for personal gain or for political or sectarian reasons’.[11]
[10] US State Department, Country Report on Human Rights Practices – Iraq 2018, March 2019, Executive summary, Ibid at s.1b.

The 2018 DFAT Report notes that the PMF or Al-Sashd Al-Sha’abi is a state-sanction umbrella group of armed militia groups. The report notes:[12]

the PMF is a state sanctioned umbrella organisation comprising over 200 armed groups, mostly sheer. The PMF includes small numbers of Sunni tribal fighters and minority groups. Many of these groups have existed for some time and have close links to Iran. In 2016, the Council of ministers decided to bring the PMF under centralised control is an independent military organisation and this was formalised by the Prime Minister in March 2018. However, the US State Department Department assesses that the central government lacks capacity to maintain consistent control of the PMF and that PMF groups have committed human rights abuses, including enforced disappearance, extortion, torture and extrajudicial killings. Many PMF groups consist of volunteers who have received limited training. It is not yet clear the extent to which the formal incorporation of the PMF into the ISF will extend the federal government’s actual control of the PMF activities.
[12] DFAT Country Information Report, Iraq, 9 October 2018 at 5.4.

Shia militias have increased their presence and influence in Iraq as a result of their involvement in the defeat of ISIL in Mosul and other parts of Iraq. According to Brookings Doha Centre,[13] many of these militias have engaged in destructive behaviour, including human rights abuses, refusal to submit to government or civilian oversight and promotion of sectarian discourse.
[13] Ranj Alaaldin, ‘Containing Shiite Militias: The Battle for Stability in Iraq’, Brookings Doha Center Policy Brief December 2017; and Ranj Alaaldin, ‘Fragility and Resilience in Iraq’, Istituto Affari Internazionali (IAI), November 2017, >
Country information indicates that Shia militias became involved in the battle to overthrow ISIL and played a significant role in its military defeat. Many of these militias currently belong to the state-sanctioned PMF. A November 2018 UK Home Office report, which refers to a March 2016 Congressional Research Service report, stated that estimates of the total Shia militiamen in Iraq number about 110,000-120,000.[14] The report goes on to describe Shia militia and the Popular Mobilisation Units (PMUs[15]) in Iraq as follows:
Organised in the immediate wake of the invasion by the Islamic State, Popular Mobilization Units (PMUs) are primarily Shia militias affiliated to particular ethnic or religious leaders. Most are believed to be heavily subsidised and supported by Iran, and the PMUs have become better trained and equipped during the conflict with the Islamic State. The PMUs have been recognised by the state as legitimate security actors and are under the authority of the Ministry of the Interior.
In combat operations they are nominally under control of IA commanders but have been seen to act largely independently of centralised command. Estimated to number approximately 10,000 militiamen, PMUs have been guaranteed a role in the future security apparatus of the Iraqi state, likely in the form of a regionally-based national guard. With their deployment against Kurdish Peshmerga in October 2017, the PMUs have been further legitimised as a federal security actor of the state, despite calls from the US to disband the organisation in a post-IS security environment.[16]
[14] UK Home Office, Country policy and information note, Iraq: Security and Humanitarian Situation, November 2018, 5.5.1
[15] Another term of PMF’s.
[16] DFAT Country Information Report, Iraq, 9 October 2018 at 5.5.2.
DFAT also reports that many groups who make up the PMF have committed human rights abuses, as follows:
The PMF is a state-sanctioned umbrella organisation comprising over 200 armed groups, mostly Shi’a. The PMF includes small numbers of Sunni tribal fighters and minority groups. Many of these groups have existed for some time and have close links to Iran. In 2016, the Council of Ministers decided to bring the PMF under centralised control as an independent military organisation and this was formalised by the Prime Minister in March 2018. However, the US State Department assesses that the central government lacks capacity to maintain consistent control over the PMF and that PMF groups have committed human rights abuses, including enforced disappearance, extortion, torture and extra-judicial killings. Many PMF groups consist of volunteers who have received limited training. It is not yet clear the extent to which the formal incorporation of the PMF into the ISF will extend the federal government’s actual control over PMF activities.[17]
[17] DFAT Country Information Report, Iraq, 9 October 2018 at 5.4.
With respect to the current political situation in Iraq, country information indicates that no party gained a majority in the national elections in May 2018, although the highest number of votes and seats went to the party of Shia cleric, Muqtada al-Sadr, a former anti-US militia leader who ran on an anti-corruption platform in alliance with the Communist Party. Negotiations to form a government continue, however, recent reports indicate that rivalry between Shia factions is paralysing the government. A December 2018 article by Reuters indicates that Iraq’s return to deadlocked parliamentary politics now involves Shia factions rather than the Sunni-Shia sectarianism that followed the 2003 US-led invasion.[18]
[18] John Davison and Ahmed Rasheed, Reuters, Baghdad, ‘Shi’ite rivalry paralyses Iraq’s government’, 4 December 2018, >
A March 2019 report produced by the European Asylum Support Office (EASO) states[19]:
Since the declared military victory against ISIL a significant decline in violence has been noted. In addition to the Iraqi government’s inability to establish firm control over rural areas, ISIL is regrouping to launch attacks again, switching to insurgent tactics. ISIL is described in December 2018 by analyst Michael Knights [a specialist of security issues in Iraq] as still being a “highly active and aggressive insurgent movement”, though following its territorial defeat in 2017, it was operating at its “lowest operational tempo” nationally since 2010.’
(Citations omitted)
[19] EASO, Country of Origin Report Iraq: Security Situation, March 2019, p.18.
The United Nations High Commissioner for Refugees (UNHCR) reported in May 2019 that with respect to the southern Governates including Najaf[20]:
In late 2014, significant numbers of ISF members were deployed from the South to other parts of the country to fight ISIS. Since then, criminal gangs, militias and tribes are reported to have exploited the ensuing security vacuum. Armed robberies, kidnappings for ransom or intimidation, drug trafficking, extortion and payment of protection fees, as well as tribal feuds are reported to be a common occurrence. Feuds between tribes often involve gun violence and even the use of heavy weapons, resulting in casualties among bystanders. The use of small IEDs as an intimidation tactic mostly by tribes has also been reported…
In 2018, protests105 over corruption, government neglect, unemployment and poor services, erupted in Basrah and in other southern cities, with some protests turning violent and leading to deaths and injuries among protesters and security forces. The situation is reported to have calmed down following the reinforcement of local security and imposition of a curfew. Protest organizers also reported that they decided to suspend further protests after receiving death threats from militias. Several protest leaders and activists were reportedly assassinated in September and October 2018. At the time of writing, protests continue, with occasional violence reported.
ISIS is reported to lack operational space and support in the predominantly Shi’ite South, but has in the past years occasionally launched, or attempted to launch, mass casualty attacks, particularly during religious celebrations.
(Citations omitted)
[20] UNHCR, Protection Considerations with Regard to People Fleeing Iraq, May 2019, p.19-20.
The EASO Country Guidance Report notes that there are no governates in Iraq with a degree of in discriminant violence reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant region, would, solely on account of his or her presence in the territory of that region, face a real risk of being subject to serious harm.[21]
Civilian activists
[21] EASO, Country Guidance: Iraq, June 2019, p.29; see also UK Home Office, Country Policy and Information Note Iraq: Security and humanitarian situation, November 2018.
The applicant’s representative submitted that country information suggests that secular critics and writers are subject to serious harm for their views citing the 2 February 2019 death of writer and Novelist Dr Aala Mashthob Abboud by armed gunmen outside his home in Karbala.[22] The applicant submitted it was not known if the writer’s death was linked to his criticism of militias. A number of other cities in Iraq have seen activists and celebrities shot and killed. At the hearing he also made reference to students being attacked at a university Kardesea.
[22]‘ Iraq: Writer and novelist Dr. Alaa Mashthob Abboud assassinated’, GCHR, 3 February 2019 ‘ ‘Iraqi writer gunned down following criticism of Karbala militias’, The New Arab, 3 February 2019 >
The applicant’s submissions draw the Tribunal’s attention to the report ‘Civilian Activists under Threat in Iraq’ by the Ceasefire Centre for Civilian Rights and Minority Rights produced in December 2018.[23] The report notes:[24]
2018 has been a year of protest in Iraq: protest against established politicians, against foreign powers and against authorities on the ground, expressed through the ballot box and, with increasing frustration, on the streets.
Yet a series of high-profile killings of activists throughout 2018 has shown that those who protest and campaign for human rights do so at tremendous risk to themselves. Discerning a pattern from the violence is complicated by the fact that the assassinations of activists have been anonymous. While these attacks have been shocking because of their very public nature, the killers did not try to claim credit for them after the fact, unlike the typical modus operandi of terrorists.
Rather, their intention appears to be a generalized warning: that Iraqis should not interfere with the plans of powerful elements in Iraq’s political landscape, or else face the consequences. Because of the ambiguous relationships between the Iraqi state and the sectarian militias connected to leading politicians and political parties, killings can be carried out with relative impunity.
[23] ‘Civilian Activitis under Threat in Iraq, Ceasefire Centre for Civilian and Moinority Rights, December 2018. The Tribunal notes the submissions made reference to the fact that the report was produced with the financial assistance of the Swiss Federal Department of Foreign Affairs and the EU. However the Tribunal also notes the report states that ‘The contents of this report are the sole responsibility of the publishers and can under no circumstances be regarded as reflecting the position of the Swiss FDFA or the European Union’
[24] ‘Civilian Activitist under Threat in Iraq, Ceasefire Centre for Civilian and Minority Rights, December 2018, page 4.
The report includes accounts of attacks on protesters in Basra, civilian activists and government critics, journalists and media workers, and judges and lawyers, noting:
A wide range of civilian activists including protestors, media professionals, lawyers, women in public life and other human rights defenders have been subjected to arbitrary detention, torture and summary killings by militias, including those affiliated to the Popular Mobilization Forces, and by the Iraqi Security Forces and police. Scores of activists have been killed and hundreds detained.
While the 2005 Iraqi constitution acknowledges the role of civil society and protects freedoms of expression and assembly, relevant legislation in Iraq is outdated and activists remain highly vulnerable. Official investigations announced into the deaths of activists have been seriously deficient, with perpetrators generally described as ‘unknown’. Lawyers representing activists have themselves been targeted for intimidation or attack.
With respect to Najaf the EASO notes:
The control of Najaf is in the hands of the Iraqi government. The PMU maintain a strong presence independent of the ISF and during the protests in the southern governorates there were reports that the Iran-backed PMU were acting to defend the political order and Iran’s interests against the protesters, while some PMU affiliated with Shia cleric Al-Sistani were siding with the protesters. As with most southern governorates, most problems are related to tribal violence and local riots against the government, which have to do with water scarcity and poverty. The riots started in Basrah and have influenced other southern governorates, such as Najaf.
The UNHCR May 2019 report notes:[25]
Individuals who criticize or are perceived to criticize government officials, politicians or others with political influence, or who allege government abuse or corruption are reported to have been targeted by state and state-affiliated actors, including influential government and party officials, their security staff, and affiliated armed groups. Forms of targeting are reported to include intimidation, harassment, physical attacks, arbitrary arrest and politically motivated criminal prosecution (e.g. on defamation charges), abduction and, in some instances, killing. Those falling under this profile include in particular media professionals; civil society activists and protestors; the profiles of whom may also overlap, as well as law enforcement and judicial officials engaged in combatting corrupt practices. The government’s announcements to investigate killings rarely result in the identification and prosecution of perpetrators.
(Citations omitted)
[25] At pp 70-71.
UNHCR concludes that persons opposing or perceived to be opposing government officials (including at the local level), politicians or others with political influence may be in need of international refugee protection on the grounds of their political opinion or imputed political opinion, and/or other relevant grounds, depending on the individual circumstances of the case.
Academics
In relation to academics, DFAT indicates that it is not aware of any specific examples of targeting of academics or students, including students who have studied or lived abroad. DFAT assesses that students and academics do not risk societal or official discrimination on the basis of their employment or education either in Iraq or abroad.[26]
[26] DFAT Country Information Report, Iraq, 9 October 2018 at 3.61 – 3.6.
Students, academics and academic institutions have been targeted by ISIL, but students and academics do not risk official or societal discrimination on the basis of their employment or education either in Iraq or abroad. ISIL targeted libraries, museums, and academic institutions in violent attacks and abducted students and faculty staff.[27] Many academic staff from Mosul University were executed by ISIL during the period that the city was under its control.[28] Several universities closed as a result of ISIL’s 2014 campaign,[29] and many schools and universities in ISIL areas have remained closed after liberation, due in part to insufficient funds from the state.[30] Various groups in all regions of Iraq have sought to control the granting of academic positions and the content being taught at schools.[31]
[27] ‘EASO Country of Origin Information Report - Iraq Targeting of Individuals’, 7 March 2019, p.126; ‘Country Reports on Human Rights Practices for 2017 – Iraq’, US Department of State, 20 April 2018, Section 2.a.
[28] ‘Education Under Attack 2018’, Global Coalition to Protect Education from Attack (GCPEA), 10 May 2018, pp.144-145; ‘Making Victory Count After Defeating ISIS: Stabilization Challenges in Mosul and Beyond’, Culbertson, S and Robinson, L, RAND Corporation, 24 July 2017, p.43.
[29] ‘Freedom in the World 2017 – Iraq’, Freedom House, 2 June 2017.
[30] ‘Freedom in the World 2017 – Iraq’, Freedom House, 2 June 2017.
[31] ‘Country Reports on Human Rights Practices for 2018 – Iraq’, US Department of State, 13 March 2019, Section 2.a.
Reports indicate that attacks against academics in Iraq occurred predominantly in 2006 and 2007, when sectarian violence was at its height.[32] Three academics in Baghdad were, however, killed in targeted bomb attacks during 2016[33] and 2017.[34] Another academic was injured in an armed attack in the Abi Gharaq area of Babil in November 2017.[35]
[32] DFAT Country Report, Iraq, 13 February 2015, Section 3.101, p.21; ‘Education Under Attack 2014 – Iraq’, Global Coalition to Protect Education from Attack (GCPEA), 27 February 2014,.
[33] ‘University professor by bomb in Shorta tunnel, west Baghdad’, Iraq Body Count, 17 August 2016; ‘University professor by adhesive bomb in Waziriya, east Baghdad’, Iraq Body Count, 3 November 2016.
[34] ‘University professor, soldier killed in two western Baghdad bomb blasts’, Iraqi News, 19 August 2017..
[35] ‘A University Professor injured in an armed attack in the Abi Gharaq area in Babylon’, National Iraqi News Agency (NINA), 18 November 2017.
DFAT stated in October 2018 that it was not aware of any specific examples of academics or students being targeted and assessed that students or academics do not risk official or societal discrimination on the basis of their employment or education either in Iraq or abroad.[36]
Risk of harm from insurgents or extremists due to Shia religion
[36] DFAT Country Information Report, Iraq, 9 October 2018, 3.61-3.62, p.20.
The applicant indicated he was not worried about extremists like ISIL but was worried about the government and militia. However, the applicant submitted that ‘he is perceived to be apostate and this perception by itself would lead to get him seriously harmed in pursuant with the Islamic fundamentalism’.
According to credible country information, Shias make up the majority of the population in the southern Iraqi governorates,[37] which are more secure than other parts of the country.[38] However, Shia religious marches in the south are a popular target for terrorist groups.[39] After major losses in Mosul at the end of 2016, ISIS reportedly sought to escalate its campaign in the Shia-dominated south. ISIS has used orchards and farms in the ‘Baghdad Belts’ adjacent to the central and southern cities for training facilities and bases for suicide bombers.[40] However, figures from 2017 did not indicate a marked increase in casualties in the south[41] compared with 2016.[42] The number of security incidents and related casualties in the southern governorates has remained markedly lower in comparison to the rest of Iraq in 2018.[43] Bomb attacks are considered to be relatively rare in southern Iraq.[44] Despite this, bombings and armed attacks did occur in a number of southern governorates during 2017 and 2018.[45]
[37] DFAT Country Information Report, Iraq, 9 October 2018 pp 20-21.; 'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 5 November 2018, p.44, 'Iraqi authorities cancel planned curfew in Basra', Aljazeera, 6 September 2018; 'Iraq’s Shia militias: capturing the state', England, A, Financial Times, 31 July 2018,
[38] DFAT Country Information Report, Iraq, 9 October 2018, at 5.15, p.29.
[39] 'Iraq 2018 Crime & Safety Report: Basrah', Overseas Security Advisory Council (OSAC), 20 March 2018, p.5, CIS7B83941523; ‘International Religious Freedom Report for 2016 – Iraq’, US Department of State, 15 August 2017, Section II; 'International Religious Freedom Report for 2017 – Iraq', US Department of State, 29 May 2018, Executive Summary.
[40] ‘Losing ground in north, IS targets Iraq's Shiite south’, Al-Monitor, 18 January 2017.
[41] See 'Situational Update: Iraq: Security incidents', Country of Origin Information Services Section (COISS), 8 January 2018, p.4, CR239EC815. The statistics provided in this Situational Update are based on statistics taken from the following reports: ‘Violence In Iraq January 2017’, Musings on Iraq, 5 February 2017; ‘4,290 Dead And Wounded In Iraq In February 2017’, Musings on Iraq, 2 March 2017; ‘6,732 Dead and Wounded In Iraq In March 2017’, Musings on Iraq, 9 April 2017; ‘2,677 Killed and 1,742 Wounded In Iraq April 2017’, Musings on Iraq, 10 May 2017; ‘2,001 Killed, 1,459 Wounded In Iraq In May 2017’, Musings on Iraq, 9 June 2017; ‘3,230 Dead, 1,128 Wounded In Iraq June 2017’, Musings on Iraq, 8 July 2017; ‘1,459 Killed, 636 Wounded In Iraq July 2017’, Musings on Iraq, 3 August 2017; ‘1,958 Killed and 1,261 Wounded In Iraq In August 2017’, Musings on Iraq, 3 September 2017; ‘728 Dead And 549 Wounded In September 2017 In Iraq’, Musings on Iraq, 4 October 2017; ‘1,093 Killed 721 Wounded In Iraq In October 2017’, Musings on Iraq, 3 November 2017, CISEDB50AD7471; ‘1,282 Dead and 425 Wounded In Iraq, November 2017’, Musings on Iraq, 4 December 2017; ‘Incidents and Casualties All Down In Iraq Dec 2017’, Musings on Iraq, 2 January 2018.
[42] ‘24,091 Reported Dead And 39,205 Wounded In Iraq In 2016 (2nd Revision)’, Musings on Iraq, 2 January 2017.
[43] 'Violence Up In Iraq, Jan 2018', Musings on Iraq, 2 February 2018; '649 Deaths, 275 Wounded Feb 2018 In Iraq (UPDATED)', Musings on Iraq, 3 March 2018; 'March 2018 The Return Of The Islamic State Insurgency', Musings on Iraq, 2 April 2018; 'April 2018 Large Drop In Violence In Iraq', 2 May 2018; 'Security In Iraq Largely Unchanged In May 2018', Musings on Iraq, 2 June 2018; 'June 2018 Islamic State Rebuilding In Rural Areas Of Central Iraq', Musings on Iraq, 3 July 2018; 'Violence Slightly Down In Iraq July 2018', Musings on Iraq, 2 August 2018; 'Violence Remained Steady In Iraq August 2018', Musings on Iraq, 3 September 2018; 'Islamic State Returns To Baghdad While Overall Security In Iraq Remains Steady', Musings on Iraq, 6 October 2018; 'October 2018: Islamic State Expanding Operations In Iraq', Musings on Iraq, 2 November 2018; 'Large Drop In Violence In Iraq November 2018', Musings on Iraq, 3 December 2018.
[44] 'Suicide Bomber Kills 6 in Southern Iraq', Voice of America (VOA), 14 November 2016; 'Terror blasts in Iraq’s Basra, Baghdad kill 35, injure 45', Press TV, 20 May 2017; 'At least 60 die in twin attacks near Nasiriya', BBC News, 15 September 2017
[45] See for example: ‘Losing ground in north, IS targets Iraq's Shiite south’, Al-Monitor, 18 January 2017 ‘United Nations Iraq - UN Casualty Figures for Iraq for the Month of May 2017’, United Nations Assistance Mission for Iraq (UNAMI), 1 June 2017; ‘Karbala suicide bombing: 30 killed in Iraq terror attack’, The Independent, 9 June 2017; ‘Suicide attacks in Iraqi Shiite region target civilians’, CNN, 9 June 2017; ‘Never Ending Story Of Extremism In Iraq’, Habib, M, Niqash, 16 November 2017; 'Unknown attackers target Sadr-linked sites in S. Iraq;, Jawad, A, Anadolu News Agency, 15 May 2018; 'Sadr’s bases and religious centres attacked in Maysan after provincial win', Rudlaw, 16 May 2018

The 2018 DFAT Report states that Shias do not face official discrimination in Iraq and do not face societal discrimination in Shia areas. Other country information cited in the delegate’s decision indicates that there was a significant drop in security-related incidents in late 2018.[46] Country information indicates that southern governorates in Iraq are under the control of Iraqi security forces.[47]
[46]"Large Drop In Violence In Iraq November 2018", Musings on Iraq, 03 December 2018
[47] Institute for the Study of War , ISIS Sanctuary, January 29, 2016
There have been large scale protests in some parts of Iraq including Southern Governorates such as have Basra concerning issues such as poverty and water shortages. This civil unrest has resulted in casualties. The Tribunal accepts that incidents of violence, continue to occur in southern Iraq. However, the Tribunal attaches significant weight to the latest DFAT advice which indicates the southern regions of Iraq, including Najaf are more secure than other parts of the country.[48] This assessment is supported by other country information including that cited in the delegate’s decision.
Returnees or failed asylum seeker from a Western country
[48] DFAT Country Information Report, Iraq, 9 October 2018 at 5.15, p.29
The 2018 DFAT Report notes that returning to Iraq can be difficult, particularly if the individual in question does not return to their original community.[49] This is because integration within new communities is difficult and complicated by the influence of patronage and nepotism on many aspects of Iraqi life.[50] Conflict has also resulted in previously religiously mixed areas becoming more homogeneous, usually Shia or Sunni, which further limits relocation options. As a result, DFAT has assessed that, in most cases, internal relocation for religious and ethnic minorities is difficult.[51]
[49] DFAT Country Information Report, Iraq, 9 October 2018, at 5.11, pp.28-31.
[50] DFAT Country Information Report, Iraq, 9 October 2018, at 5.24, pp.30-31.
[51] DFAT Country Information Report, Iraq, 9 October 2018, at 5.11, pp.28-29.
According to UNHCR, access and residency requirements in Iraq relating to relocation and return are not always clearly defined. Implementation can vary or be subject to changes depending mostly on the security situation. DFAT reports that the practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, evidenced by the large number of dual nationals from the US, Western Europe and Australia returning to Iraq. DFAT has limited evidence to suggest the voluntary returnees face difficulties in assimilating back into their communities. However, returning to Iraq can be difficult if Iraqis do not return to their original community.[52]
[52] DFAT Country Information Report, Iraq, 9 October 2018, pp 30-31.
Failed asylum seekers would not be harmed following their return to Iraq but returning to Iraq may be difficult for those who do not return to their original community. The practice of departing Iraq to seek asylum overseas and then returning once conditions permit is one that is well accepted among Iraqis. Iraqis reportedly return to Iraq to reunite with families, establish and manage businesses, or take up or resume employment.[53] Family networks play an important role in providing support to persons returning to Iraq.[54]
Generalised violence in Iraq
[53] DFAT Country Information Report, Iraq, 9 October 2018, at 5.24, p.30.
[54] 'EASO Country of Origin Information Report - Iraq Key socio-economic indicators', 4 February 2019, pp.103-105; 'Iraqi Migration to Europe in 2016: Profiles, Drivers and Return', REACH Initiative, June 2017, p.26,.
The survey of credible country information regarding the general security situation in Iraq highlights that there is a generalised experience of religious, sectional and other forms of violence in Iraq. The agents of harm perpetrating this generalised violence include, but are not limited to, ISIS in Iraq. Further, country information indicates that security operations conducted by agencies of the Iraqi state have had considerable success in addressing this environment of generalised violence by ISIS and other extremists, regaining all territory of the ISIS caliphate and fracturing the leadership of ISIS in Iraq and Syria.
The Tribunal notes that the 2018 DFAT Report states that ‘years of conflict, including the recent conflict with ISIL, have limited the capacity of state infrastructure, including state protection mechanisms to deliver services’.[55] The Tribunal accepts on country information that in the event protection is required from persecution or serious harm such protection may not be available in Iraq.
[55] DFAT Country Information Report, Iraq, 9 October 2018, p 27.
Credible country information also suggests that, having regard to the general level of violence there is no longer a high level of indiscriminate violence in Iraq such that substantial grounds exist for believing that an applicant for protection would, solely by being present there, face a real risk which threatens their life or person.[56]
[56] UK Home Office, Country Policy and Information Note Iraq: Security and humanitarian situation, November 2018; EASO, Country Guidance: Iraq, June 2019, p.29.
Factual findings and consideration
The first named applicant (the applicant)

100. The Tribunal accepts, on the basis that it is plausible, that the applicant is a Shia Muslim of Arab ethnicity who was born in Najaf and would be identified as such on return to Iraq. His parents, with whom he was living prior to coming to Australia, and siblings remain living in Najaf. He is married to a Shia Muslim who is also from Najaf and whose family remain in Najaf. The Tribunal accepts that the applicant is an [Occupation 2] and who worked for [specified government department] prior to coming to Australia.
101. The Tribunal also accepts that the applicant has posted material critical of militias and some elements of the Iraqi government on [social media]. Evidence of these posts begins in 2013 prior to the applicant coming to Australia. The Tribunal accepts the applicant has secular views and is critical of elements of the Iraqi government and the militias operating in Iraq. The Tribunal also accepts, on the basis it is plausible, that the applicant has expressed similar views to friends and family in Iraq.
102. The Tribunal notes that the delegate accepted, in broad terms, the applicant’s claims. However, the evidence before the Tribunal, including the applicant’s testimony when compared with documentary evidence and prior statements caused the Tribunal to have significant concerns about those claims. These were discussed with the applicant at the hearing where the Tribunal attempted to explore inconsistencies with the applicant and gave him an opportunity to clarify or explain issues. These concerns are detailed further below.
103. Giving the applicant the benefit of the doubt, the Tribunal is prepared to accept, on the basis it is plausible, that the applicant and his father were the subject of an attack in 2004 by unidentified people while driving near in Najaf. There is no corroborative evidence relating to the attack including to substantiate the claim that his father was injured in the attack. However, given country information regarding the general security situation in Iraq, including in 2004 which was during aftermath of the Iraq war which commenced in 2003, the Tribunal accepts he may have been injured in the attack.
104. However, there is no evidence linking that attack to any political activity or perceived political views of his father as claimed. When asked how the applicant knew the attack was because of things his father had said the applicant said it was because the threats had continued from then until now. Given the general level of instability in Iraq at that time and in light of the Tribunal’s concerns regarding the credibility of the applicant’s claims which are detailed below, the Tribunal does not accept that the attack was the result of unidentified anti-militia or anti-government statements by the applicant’s father in his workplace or elsewhere from militia or any other group. Further, the fact that the applicant’s father lived and continues to live safely in Najaf since 2004 without suffering any further harm suggests that he is not of interest to militia, the Iraqi government or extremists and there is no ‘fatwa’ against him and the Tribunal so finds.
105. While the Tribunal accepts that the applicant is a secular Muslim and has posted views reflecting this on [social media], the Tribunal does not accept on the evidence that the applicant is at risk of serious harm from the Iraqi government, militia groups or extremists because of these expressions of his political beliefs or for any other reason. This is because of both the level of the applicant’s profile, or more accurately a lack of profile as a ‘civilian activist’ and because of concerns the Tribunal has regarding the credibility of the applicant’s evidence, particularly concerning previous threats made against him or his father in Iraq.
106. The Tribunal has significant concerns about the credibility of the elements of the applicant’s claims in particular claims relating to harm and treats of harm arising from perceived or actual secular political opinions expressed while he was living in Iraq. There were marked inconsistencies in his statements, including in relation to events which occurred in Iraq and of the harm, or threats of harm, he claimed to suffer as a result of his activities there. These included in relation to claims detailed further below.
107. The applicant’s evidence regarding his family’s living arrangements in Iraq were vague and inconsistent. The applicant told the Tribunal he and his wife and children were living with his parents prior to coming to Iraq. He said his parents had moved every six months since the incident in 2004 yet he listed on his application an address he claimed to have been living in since 1982. When questioned about this the applicant said he just used that address as they didn’t tell the authorities where they living as this might alert the militia as they were connected to the government. Later, when he was asked how he would be located on return he said the authorities would have his address because he needed to give them addresses from time to time. When asked where the family had lived prior to 2004 he had initially said they moved every 6 to 8 months and then he said they didn’t have problems then. He was unable to say specifically where they lived prior to 2004 but said it was in the ‘[District 1]’ area. He said they rented so they moved regularly. The Tribunal notes on the applicant’s evidence he was at university in 2004. He was unable to give the Tribunal any address other than that provided on the application and the general area of ‘[District 1]’.
108. The Tribunal also found it implausible that the applicant claimed the risk to his father which he described as a ‘fatwa’ had been sufficiently significant for the family to move every 6 months since 2004 but the family chose to remain in Najaf and did so without any further harm in the following 15 or so years. Notwithstanding this the applicant was only able to provide one address where the family had resided for the period 1982-2014, including when questioned at the hearing. Further, he claimed militants were able to find his parents and issue the threat against him to his mother in 2015. He claimed they would find him again if he returned to Iraq. Yet the family have suffered no harm in Iraq since the 2004 incident despite remaining in the same city, Najaf. While the Tribunal accepts addresses used in Iraq may be difficult to translate into English, the applicant’s inability to recall any address details, including for homes the family lived in prior to their ‘problems ‘ in 2004, casts doubt on the claim the family was forced to move every six months due to threats. It also casts doubt on this an explanation for why they have avoided any further incidents of harm since 2004.
109. As noted above, the Tribunal found the applicant’s evidence regarding where he lived in Iraq to be vague, implausible and lacking the level of detail one would expect from a person giving evidence about the locations in which they have lived including as an adult. The Tribunal found the lack of detail regarding his living arrangements to be particularly concerning given this was a core element of his claims for protection. In light of the applicant’s inability to give a credible account of where his family had lived in the period prior to and since the claimed attack in 2004 the Tribunal is unable to accept that the applicant and his family moved every six to eight months due to a fear of harm from militia or authorities. Further, the Tribunal notes that even if the applicant’s family moved frequently, which on the basis of the information provided in the applications for protection the Tribunal doubts, he told the Tribunal they had moved regularly prior to 2004, when they had no problems with militias, as they were rented rather than owned their homes. This further suggests moves by the family were not linked to threats by militias but to changes in rental arrangements. The issue of the applicant’s evidence of his living arrangements is considered further below.
110. The Tribunal also had concerns regarding inconsistencies in the applicant’s evidence regarding his political or activist activities in Iraq and since coming to Australia. Initially asked what kind of activities he had been involved in in Iraq, he said posting on [social media] and talking to friends and people on the bus. Later when he was asked whether he had participated in demonstrations he initially said he had not and later said he had between 2009-2014. He struggled to remember any details of those demonstrations including when they had occurred. He said he travelled to Baghdad for one and another was in Najaf but he could not recall when. The Tribunal regards it as implausible, given the claims the applicant has made regarding the threats from militia and the authorities to demonstrators and activists, that the applicant would not recall the details of his participation in such events. The Tribunal also regards the fact that he did not mention them earlier in his claims to cast doubt on the credibility of those claims. Accordingly, the Tribunal does not accept them.
111. The Tribunal also found elements of the applicant’s evidence concerning threats received while he was in [Country 1] to be implausible. The applicant did not seek protection in [Country 1] when he visited there for some months, notwithstanding claimed threats made against him by militias in Iraq during this time. He said this was because his family had been threatened in Iraq and he was under a promise to his employer (an Iraqi Department) to return. The Tribunal accepts there may have been a financial incentive to return but is concerned that the fact his family had been threated is not a credible explanation for returning to a country where he feared harm, including kidnapping or death, particularly as similar claims have been made against his parents and sister since he has been in Australia and these threats have not compelled him to return to Iraq. The Tribunal also notes his evidence is his wife does not regard herself at risk on return to Iraq which contradicts his claim his family members, including his children, would be at risk. The Tribunal does not accept as credible that the applicant’s wife would be prepared to return to Iraq if the children would be at risk or that she intends to return to Iraq without them.
112. Further, the Tribunal does not accept the applicant’s father ceased work in 2006 due to fears concerning the 2004 incident. When queried about whether his father had suffered further threats prior to leaving his workplace the applicant said he had been on sick leave for the two years between the incident and his resignation. No corroborative evidence was offered to support this assertion. However, the Tribunal considers that it provides a plausible explanation for why his father may have ceased working in 2006, having been on sick leave for two years following the 2004 attack. Further, the Tribunal regards it to be implausible that, as suggested by the applicant, his father would leave a job due to fears for his safety in 2006, as a result of an indictment two years prior, and in 2009 encourage his son to work in the same environment. The Tribunal regards it as implausible because if the claims are accepted this would have placed his son at the same risk of harm he had experienced as a result of working there and because it would have potentially allowed his own whereabouts to be determined by those seeking to harm the father. While the applicant said in response to these concerns that the workplace was not the problem rather it was the militia this was at odds with his claim that it was in the work environment his, and his father’s, views became known to militia. This included his claim to have suffered a ‘psychological disorder’ due to being ‘provoked to express his opinion by workmates’.
113. In addition to these concerns the Tribunal was concerned that the applicant’s explanation for his delay in seeking protection until a year after arriving in Australia lacked credibility. The applicants’ application for protection was delayed for a year after arriving in Australia despite his claiming to have been threatened by militias prior to leaving Iraq for his secular political comments and due to the ongoing ‘fatwa’ against his father. He claimed this was due to threats received via [social media] Messenger in May 2015 yet he did not lodge his application until December and says he started looking for a lawyer again in September, the same month he also said he had separated from his wife. He had also earlier claimed that the threats made to his mother in Iraq because of his statements on [social media] were made in February 2015. These claims are not consistent with the applicant’s decision to delay seeking protection until December 2019 and this contributes to the Tribunal’s doubts regarding the genuineness of those claims.
114. The situation of the applicant’s wife also cast doubts on his claims. The applicant stated that his wife, an educated Shia academic, did not have any fears about returning to Iraq and believed she would be safe there with her family. She returned home in 2016 for a visit following the death of her father, without suffering harm. However, while the delegate’s decision reflects that his wife’s position was discussed at the interview, the applicant confirmed at the hearing that he failed to notify the Department or the delegate that they had separated in September 2015, shortly before he made the application for protection. In the Tribunal’s view his failure to declare this information while a dependent on his wife’s student visa casts further doubt on the credibility of the information he has provided in the context of migration matters. This also raised a concern that the timing of the application for protection was driven by the change in his relationship status and not in response to threats from militia which he claimed (variously) to have occurred in February or May of that year (2015).
115. As discussed with the representative at the hearing, the Tribunal was concerned that the incidences of violence cited by him in support of the application appeared to relate to persons with a higher profile than the evidence suggested the applicant had. Notwithstanding the public nature of [social media], the country information suggests that targeted attacks are directed at political activists with a public profile well above that which is suggested by evidence of the applicant’s [social media] posts, as detailed earlier in the decision. The Tribunal finds on the evidence that the applicant is not a well-known civilian activist in Iraq, Australia or elsewhere.

116. Further, while the Tribunal accepts the applicant received several threatening messages visa [social media] in response to messages he posted on his personal page, the copies of those messages given to the Tribunal were not marked with a year and it unclear over what space of time they were received or which posts they were in response to. The four provided to the Tribunal appeared to be received in August and the applicant’s evidence was that they were received in August 2019. On the applicant’s evidence he has received several messages since May 2015. He provided evidence of four to the Tribunal and three to the Department including one from his mother reporting a visit to their home in Iraq by militia. This was also not identified by year in the evidence provided.
117. The Tribunal was also concerned about the applicant’s claim that militants had visited his parent’s home and threated him in 2015 in Iraq. As noted above, the claim that militants had visited his parent’s home was inconsistent with his evidence that his home address in Iraq was kept secret or withheld from authorities to avoid attention from militias and his claim that this was the reason his family had not faced harm in the years since the 2004 incident. Further, it gave rise to concerns about why his family had not been harmed if their whereabouts was known in 2015. Further, as detailed in the delegate’s decision, the applicant initially told the delegate that his mother was threatened in February 2015. He told the Tribunal he first received threats in May 2015 which was a catalyst for him seeking protection. In addition, he told the Tribunal that his mother called him about the threat and then sent him a text. The Tribunal notes the copy of the message provided to the Tribunal does not provide the date of the message but indicates a missed call and two return calls prior to the time the message was sent. The Tribunal regards it as implausible that his mother would tell him about the threat on the phone and then text him about the same in terms suggesting she had not previously told him. The Tribunal finds that the message was sent to create a record of the claimed threat. In light of these inconsistences, the implausibility of the account given by the applicant and the Tribunal’s concerns regarding the credibility of his evidence the Tribunal does not accept the applicant’s mother was visited by unidentified persons who threated the applicant in Iraq in February or May 2015 and the Tribunal so finds.
118. As noted above, the applicant earlier raised a claim that he had developed a psychological disorder due to the stress he experienced from threats in Iraq and ‘being provoked to express his opinion by workmates’. The applicant did not raise this claim before the Tribunal and did not offer any evidence to support his claim to have been suffering a psychological disorder. Based on the Tribunal’s observation of the applicant at the hearing, concerns regarding the credibility of his evidence and the lack of corroborative evidence the Tribunal does not accept the applicant developed a psychological disorder as a result of threats received in Iraq, pressure placed on him to reveal his political views in his workplace or for any other reason.
119. The Tribunal gave careful consideration to the applicant’s responses to issues of inconsistent or implausible evidence. The Tribunal is mindful of the passage of time and the effect this may have on the ability of the applicant to precisely recall dates and events. The Tribunal is also mindful that reliance on interpreters may result in inconsistences in evidence. The Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to clarify dates and evidence where it appeared to contradict earlier sworn statements.
120. However, the Tribunal found that the large number of inconsistencies and vague, contradictory or implausible evidence including in relation to key events relating to the claims could not be explained merely by the passage of time, poor recollection or issues in translation. On the basis of these concerns about in the applicant’s claims, the Tribunal did not find the aspects of the applicant’s evidence to be credible.
121. The Tribunal notes in this regard that the applicant claimed he was having difficulty focussing at the hearing because his son had been in hospital. The Tribunal accepts the applicant’s son had [specified] treatment or surgery [in] August 2019, prior to the hearing before the Tribunal. This was no doubt stressful for the applicant and his family. However, the Tribunal notes that the applicant did not raise this issue until well into the hearing and while his answers to questions were at time evasive at no point did the Tribunal have cause to be concerned he did not understand the proceedings or was unable to fully particulate in them. Further the Tribunal does not regard that inconsistences or implausible aspects of the applicant’s claims relating to information provided at the time of application can be explained by stress associated with events in the applicant’s life around the time of the hearing.
122. In light of these concerns regarding the credibility of core elements of the applicant’s claims, on the basis of the Tribunal finds that the claimed fears of persecution from the Iraqi government, the militia or extremists on the basis of his membership of a particular social group of ‘civilian activists’ or because of his actual or imputed political opinions as a secular Shia are not genuinely held by the applicant.
123. Further and in any event, while the Tribunal accepts on credible country information that high profile activists who come to the attention of militia or the government in Iraq may be at risk of harm, the Tribunal does not accept the applicant fits this profile. The Tribunal finds that available credible country information does not support the applicant’s submission that someone who expresses views on their [social media] page and talks to friends and family about secular political beliefs would face a real chance of serious harm on that basis. And while protestors have been injured in demonstrations the Tribunal does not accept on the evidence that those who merely participated in such events, as distinct from those who organised and lead them, were targeted in a manner which was systematic and discriminatory. In any event, the Tribunal does not accept that the applicant participated in demonstrations in Iraq previously and regards that this casts serious doubt on the credibility of his claim that he would do so in the future. Given the Tribunal does not accept he is, as claimed, a well-known civilian activist and does not accept his claim to have participated in demonstrations in the past in Iraq the Tribunal also does not accept that he would do so in the future.
124. Due to these concerns and based on the evidence and credible country information, the Tribunal finds that the applicant does not face a real chance of serious harm due to his real or imputed political opinion as a secular Shia Muslim, or because of his membership of a particular social group as a ‘civilian activist’, due to real or imputed political opinion of his father from Shia militia or authorities or any organisation connected with them on return to Iraq now or in the reasonably foreseeable future.
125. The applicant claimed he would face persecution on return to Iraq as he had real or imputed secular political opinions as a Shia Muslim. These have been considered above. The Tribunal assessed the applicant’s claims on the additional basis that he feared harm on return to Iraq as a returnee from a Western country, as a failed asylum seeker from a Western country and for real or imputed secular political opinions having spent time in a Western country.
126. The applicant did not raise any claims regarding a risk of persecution from Iraqi authorities because he had claimed asylum in Australia. Country information suggests that Iraqi authorities will arrest returnees on their return to Iraq if they committed criminal offences and a warrant had been issued for their arrest. Others, even persons who left Iraq illegally, would not be subject to arrest on arrival. The Tribunal notes the applicants left the country on their own passports and there is no information before the Tribunal that there was anything irregular about their departure.[57]
[57] DFAT Country Information Report Iraq, 9 October 2018, p 30
127. Country information suggests the practice of departing Iraq, seeking asylum overseas and then returning once conditions permit is one that is well accepted among Iraqis.[58] Iraqis reportedly return to Iraq to reunite with their families, establish and manage businesses, or take up or resume employment. Country information suggests that returning to Iraq can be difficult, particularly if the individual in question does not return to their original community.[59] This is because integration with new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of Iraqi life. DFAT has assessed that in most cases internal relocation for religious and ethnic minorities is difficult.[60]
[58] DFAT Country Information Report Iraq, 9 October 2018, p 30
[59]DFAT Country Information Report Iraq, 9 October 2018, p 30.
[60]DFAT Country Information Report Iraq, 9 October 2018, p 30.
128. However, the Tribunal notes that the applicant would be returning to his home area of Najaf where he has an established family network who can support him during as he re-established himself.
129. Country information also suggests that assistance is also available to returnees through the International Organisation for Migration in coordination with the Iraqi government and United Nations agencies, as well as non-government partners which include cash grants, job training, salary subsidies and job placements, referrals and housing allowance.[61]
[61] ‘Movement and Assisted Migration’, International Organization for Migration, February 2013; ‘The returnees: what happens when refugees decide to go back home?’, Nianias, H, The Guardian, 20 July 2016; 'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 5 November 2018, pp.87-88.
130. The applicant’s evidence was that he maintains contact with his family and was living with them prior to coming to Iraq. The Tribunal finds the applicant has a well-established family network in Najaf which will assist with his re-integration into Iraqi society. His family network could also assist him to avoid adverse attention in Iraq as he said his father had done in the past in relation to him disagreements with colleagues at work.
131. For these reasons, the Tribunal finds the applicant does not face a real chance of persecution for being a failed asylum seeker from a Western country, a returnee who has spent time in a Western country or for actual or imputed secular political opinions on account of having spent time in a Western country.
132. The Tribunal also considered whether the applicant would be harmed by ISIS or other extremist groups on the basis of his Shia religion or imputed political opinion in Iraq.
133. The Tribunal notes that in evidence before the Tribunal the applicant did not express any specific fears relating to fears of harm due to his Shia religion. The Tribunal has assessed the applicant’s claim to fear harm due to his Shia religion as a claim relating to the general risk to the Shia population due to (non-Shia) extremist activity in Najaf. As noted above, the applicant is a Shia who originates from the Najaf governorate which has a predominantly Shia population. His parents and siblings currently live in Najaf.
134. The Tribunal finds on the evidence and country information before it that the presence of ISIS or associated Muslim extremist groups in southern Iraq is minimal. The Tribunal finds that southern Iraq, including Najaf is more secure than other areas of Iraq. While incidents of extremist violence still occur, southern Iraq has been experiencing significantly fewer incidences of extremist violence since the defeat of ISIL and in particular most recently during 2018 and 2019.
135. The Tribunal finds that the applicant has not previously come to the adverse attention of extremists in Iraq. The Tribunal finds that the applicant does not face a well-founded fear of persecution from Shia extremists in Najaf due to his Shia faith on return to Iraq or on the reasonably foreseeable future. Further, based on credible country information the Tribunal finds that ISIS does not pose a real risk of serious harm to the Shia population in southern Iraq now or on the reasonably foreseeable future.
136. The Tribunal has also considered whether the applicant would face a real chance of serious harm as the spouse of a female academic in Iraq. Based on credible country information the Tribunal finds that the applicant would not face a real chance of serious harm on that basis alone. This is supported by the fact that the applicant has testified his wife does not regard herself as being at risk on return to Iraq. Further, and in any event, as the applicant testified that he is separated from his wife which the Tribunal finds would reduce any risk he may face as a result of her profile as a female academic to below a real chance of serious harm.
137. On the evidence before it the Tribunal finds there is no real chance of serious harm to the applicant on return to Iraq now or in the reasonably foreseeable future on account of his membership of a particular social group of ‘civilian activists’, due to real or imputed political opinion as a secular Shia Muslim, due to real or imputed political opinion of his father, due to his time spent in a Western country including any real or imputed political opinions arising from having spent time in such a country or as a failed asylum seeker, due to his Shia religion or because he is married to a female academic or for any other reason.
PROTECTION ASSESSMENT
Does the applicant meet the refugee criterion?
138. Based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Iraq, he would be persecuted because of his membership of a particular social group of ‘civilian activists’ or because of his actual or imputed political opinions as a secular Shia are not credible. Further, the Tribunal has found that the applicant’s claimed fears that he would be persecuted because of his father’s perceived or actual political beliefs are also not credible.
139. The Tribunal has found there is no real chance that the applicant would be seriously harmed on account of his membership of a particular social group of ‘civilian activists’, due to real or imputed political opinion as a secular Shia Muslim, due to his Shia religion, due to his time spent in a Western country including any real or imputed political opinions arising from having spent time in such a country or as a failed asylum seeker or because he is married to a female academic or for any other reason on return to Iraq now or in the reasonably foreseeable future.
140. Having considered all the factors in combination with each other and also cumulatively, the Tribunal finds there is no real chance the applicant would be persecuted for any of the reasons claimed or for any other reason.
141. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in the Act.
142. As the Tribunal has found the applicant does not face a well-founded fear of persecution on the bases claimed, the issue of his protection from that persecution does not arise.
Does the applicant meet the complementary protection criterion?
143. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s.36(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
144. As discussed above in the assessment of the evidence, the Tribunal has found that there are no substantial grounds for believing that there is a real chance that the applicant will suffer serious harm on return to Iraq now or in the reasonably foreseeable future on account of his membership of a particular social group of ‘civilian activists’, due to real or imputed political opinion as a secular Shia Muslim, due to real or imputed political opinion of his father, due to his Shia religion, due to his time spent in a Western country including any real or imputed political opinions arising from having spent time in such a country or as a failed asylum seeker or because he is married to a female academic or for any other reason.
145. The Tribunal notes the threshold for the real risk element of the complementary protection criterion that s.36(2)(aa) is the same as that for the real chance test in the refugee criterion at s.36(2)(a) of the Act. The Tribunal further notes that the necessary and foreseeable consequence element at s.36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.
146. The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm discussed above with respect to his claims for refugee protection in the context of the complementary protection criterion regarding the real risk of significant harm at s.36(2)(aa).
147. The Tribunal accepts that the security situation has been unstable in some parts of Iraq. The Tribunal is not satisfied this alone constitutes a real risk of significant harm. Credible country information suggests that ISIS has essentially been defeated and Iraqi government control reasserted over those areas previously held by ISIS. In any event, the applicant and his family reside in an area of Iraq which country information considers to be significantly safer and more stable than areas previously held by ISIS. His family have continued to live in Najaf notwithstanding clamed threats of harm against the applicant and his father. The applicant’s wife has returned there since coming to Australia without suffering harm. The Tribunal is satisfied that, given the effective defeat of ISIS and the fact that the applicant’s family lives on an ongoing basis without significant incident in Najaf the applicant would be able to return and live safely in Iraq.
148. Further, country information suggests that the risk of generalised violence in Iraq, and in Najaf, does not reach the level which would constitute a real risk of significant harm for the purposes of the complementary protection assessment.
149. The Tribunal finds there is no real risk that the applicant would be arbitrarily deprived of his life; subject to the death penalty; subjected to torture; subjected to cruel or inhuman treatment or punishment; or to degrading treatment or punishment on account of his membership of a particular social group of ‘civilian activists’, due to real or imputed political opinion as a secular Shia Muslim, due to real or imputed political opinion of his father, due to his Shia religion, due to his time spent in a Western country including any real or imputed political opinions arising from having spent time in such a country or as a failed asylum seeker or because he is married to a female academic or for any other reason as a reasonably foreseeable consequence of his return to Iraq.

150. Further, the Tribunal finds, based on credible country information that there is no longer a high level of indiscriminate violence in Iraq such that substantial grounds exist for believing that an applicant for protection would, solely by being present there, face a real risk which threatens their life or person.
151. Even if the Tribunal is incorrect in its finding that the level of violence in Iraq does not amount to a real risk which threatens the applicant’s life or person, the Tribunal is satisfied, on available country information and having regard to the applicant’s individual circumstances that the risk is one faced by the population of Iraq generally and not faced by the applicant personally: s.36(2B)(c) for the reasons that follow.
152. The Tribunal notes, with reference to the complementary protection assessment at s.36(2)(aa) of the Act, the qualification at s.36(2B)(c) that there is taken not to be a real risk that an applicant will suffer significant harm in a country if “the real risk is one faced by the population generally and is not faced by the applicant personally”.
153. The authorities provide that the natural and ordinary meaning of s.36(2B)(c) requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[62] In SZSPT v MIBP the Court held that, while every citizen who broke a law of general application would necessarily face a risk of punishment personally, s.36(2B)(c) applied because it was no different from the risk faced by the population generally.[63] Similarly, in SZTES v MIBP, the Court held that a risk faced ‘personally’ is one that is particular to the individual and is not attributable to his or her membership of the population of the country, or shared by that population group in general.[64] In BBK15 v MIBP the Court held that the ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s.36(2B)(c) to apply.[65] These cases make it apparent that where a real risk is faced by an individual applicant but that real risk is the same as is faced by the general population of the country, s.36(2B)(c) applies.
[62] SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[13]. An application for special leave to appeal this aspect of the judgment was dismissed by the High Court: SZSPT v MIBP [2015] HCASL 114 (Kiefel J, 18 June 2015). See also SZSPT v MIBP [2014] FCCA 1388 (Judge Raphael, 1 July 2014) at [15]; SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013) at [33], [49]; SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [24]; SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013) at [43].
[63] SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) where the Court observed that there was no differential treatment as the law was one of general application and was not applied in a discriminatory manner: at [12]-[14].
[64] SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [23]-[24], citing SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013). In SZTES v MIBP, the Court found there was no error in the Tribunal’s finding that harm from insurgent attacks in Kabul was faced by the population generally and not by the applicant personally. An application for leave to appeal from the judgment was dismissed by the Federal Court: SZTES v MIBP [2015] FCA 719 (Wigney J, 17 July 2015).
[65]BBK15 v MIBP [2016] FCA 680 (Buchanan J, 8 June 2016) at [32].
154. The Tribunal finds that the credible country information on Iraq establishes that the general risk of violence is to the civilian population at large. While individual groups may be targeted in Iraq based on the Tribunal’s findings the applicant is not exposed on the bases claimed, or on any other basis, to a real risk of harm distinguishable to that of the general population.
155. Accordingly, the Tribunal finds that the applicant’s claim to hold a well-founded fear of persecution in Iraq on account of generalised acts of violence throughout that country by ISIS or other related or un-related extremist groups, does not give rise to protection obligations in Australia under either s.36(2)(a) or s.36(2)(aa) of the Act.
156. The Tribunal finds that the applicant’s return to Iraq does not give rise to a necessary and foreseeable risk of significant harm for the purposes of s.36(2)(aa) of the Act.
157. The Tribunal, therefore, finds that there are no grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk of significant harm for the purposes of s.36(2)(aa) of the Act.
The second and third named applicants
158. The second and third named applicants did not raise any claims of their own and there is nothing in the material before the Tribunal which suggests they may have claims not dependant on findings made with respect to the claims made by the first named applicant.
159. Accordingly, the Tribunal is not satisfied they meet the criterion set out in s.36(2)(b) or (c) of the Act.
Conclusion
160. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.
DECISION
161. The Tribunal affirms the decision not to grant the applicants protection visas.
Simone Burford
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 6172

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Remedies