1717958 (Refugee)

1717958 (Refugee) [2020] AATA 2439 (15 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717958
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Michael Hawkins
DATE:15 April 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 15 April 2020 at 2:13pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – atheism – renunciation of Muslim faith – political opinion – criticism of certain powerful political and religious figures – past abduction by Jaish Al-Mahdi (JAM) militia members – social media activities – delay in seeking protection – visa and migration history – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
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 27 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Iraq, applied for the visa on 6 January 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Background:
The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:
The applicant has lived in Nasiriyah since childhood.
The applicant’s mother, [and number of siblings] also reside in Nasiriyah City.
The applicant has studied in [Country 1] and Baghdad and also worked for one year in Baghdad after he finished his studies there.
The applicant and one of his brothers ran a company and shops that sold, repaired and installed [specified products] and other related [services].
The applicant holds an Iraqi Government Scholarship from [University 1].
The applicant obtained his Bachelor Degree at [University 2] from 2004 to June 2008.
The applicant completed his Master’s Degree in [Discipline 1] in [University 3] in [Country 1] from September 2009 to March 2012.
The applicant returned to Iraq in March 2012.
The applicant was granted a [Student] Visa on 22 January 2014.
The applicant arrived in Australia [in] February 2014.
The applicant applied for a Protection Visa on 8 July 2015. On 7 August 2015, the Protection Visa Application was invalidated.
The applicant lodged a further Protection Visa Application on 6 January 2016.
Claims:
As summarised in the decision of the delegate:
The applicant claims that he was raised in a relatively strong Muslim family and started learning about Islam and the Koran when he was six years old. The applicant claims that when he left for university in Baghdad, he realised the population there were more multicultural and it was less restrictive - he listened to music, was involved in a relationship, saw a female without a scarf for the first time and met people with different religious beliefs.
The applicant claims he discussed different beliefs with friends in places such as cafés and their discussions were about politics and religion.
The applicant claims that he could not talk to his family about questions he had regarding Islam and the Koran.
The applicant claims that he left Iraq after a series of threats that began in 2008.
The applicant claims he travelled to [Country 1] to study in 2009 in the hope that the situation would change.
The applicant claims that after he finished his studies in [Country 1] in 2012, he returned to Iraq but found that the country had worsened and the religious parties that threatened him had control over the country.
The applicant claims that he spent around two years in fear of danger until he realised that he should permanently leave Iraq.
The applicant claims that if he returned to Iraq, he may be killed by Muslims who consider him an apostate; religious parties that control Iraq and consider people like him as a threat to their ideology; the government who are controlled by religious parties, as he had a bad experience with them on more than one occasion from which his family saved him; or he could be killed by anyone pursuant to a fatwā. He claims that any Muslim could kill him if they can’t prove that he should be legally executed.
The applicant claims that he was kidnapped by Jaish Al-Mahdi (“JAM”) militia members, also known as the Madhi Army, while he was at a café in Nasiriyah City in 2008. He claims he was kept in a house for five days and that he was tortured until his family rescued him.
The applicant claims that his family are rich and they used contacts such as a local religious figure to protect him. However, he claims that this person advised him that he could not guarantee his safety and that he should stay in another area until he could depart Iraq.
The applicant claims that he has been summoned by National Security for insulting religious figures and for discussing agnosticism.
The applicant claims that his problems relate to powerful parties and religious people and with all Muslims as they think he should be dead as he has changed his religion.
The applicant claims that the authorities in Iraq would not protect him as the authorities are religious, they think he is an apostate, and Iraqi law states that no one can change their religion.
The applicant claims he did not try to relocate as the population of Iraq is 90% Muslim and the government is religious and controls Iraq. He also claims that Iraq is a small country and he would be found.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicants’ protection visa application forms completed on 23 December 2016 and received by the Department on 6 January 2020 (visa application);
- The applicant’s identity document being photocopy of passport presented to the Department;
- Record of interview with the delegate dated 14 October 2016;
- The protection visa decision record (delegate’s decision record) dated 27 July 2017;
- Pre-hearing submission from the Representative dated 18 March 2020 attaching;
- Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Iraq, published on 9 October 2018 (the DFAT Report).
Pre-hearing Submission
The Tribunal received a pre-hearing submission from the representative dated 18 March 2020. The contents of this submission are set out as follows:
1.We have been appointed by [the applicant] to assist in the review before the Administrative Appeals Tribunal (“the Tribunal”) of the decision to refuse to grant him a Protection (Subclass 866) Visa. We are instructed to provide the following submissions in further support of the applicants claims for protection.
Response to decision of the Department of Home Affairs (“the Department”)
2.We acknowledge that the Tribunal will be expected to consider afresh the facts, law and policy relevant to the current decision under review and is not bound by the findings previously made by the Department. However, it is expected that the Tribunal would have regard to the findings made within the Department’s decision. For that reason, we believe it is relevant to respond to material matters raised in the Department’s assessment of [the applicant’s] protection claims.
Religious Based Claims
3.We believe it is evident that [the applicant’s] fears of harm on returning to Iraq are largely centered around his change in religious beliefs that are now more closely aligned to an Atheist. Regardless of the label that may have been given to [the applicant’s] evolving religious views during his protection visa application, he has consistently confirmed his rejection of his former Islamic faith and denial of the existence of the “God” its followers believe in.
4.It is our opinion, the Department failed to adequately assess [the applicant’s] religious based claims. The Department’s decision record instead indicates that no real exploration was made around the nature of [the applicant’s] beliefs beyond accepting that he had “explored different religious ideas”.
5.The Australian courts have recognized that a well-founded fear of being persecuted for reasons of religion should not be limited to those holding a religious belief but can extend also to those persecuted for not holding a religious belief. As was found by Madgwick J in the Federal Court of Australia decision of Prashar v MIMA at paragraph 19:
I interpolate that there may well be an error in the way this matter was approached. The Convention speaks of a “well-founded fear of being persecuted for reasons of religion...”. In my opinion, if persons are persecuted because they do not hold religious beliefs, that is as much persecution for reasons of religion as if somebody were persecuting them for holding a positive religious belief. The Convention protects people in relation to the subject matter of religious belief. It does not protect believers and leave non-believers to the wolves.[1]
[1] Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 57 at para 19.
6.The Department’s assessment of [the applicant’s] risks of harm in Iraq also appeared to be primarily based around his conduct and experiences in the period prior to his departure in 2014. There appears to be no meaningful assessment of the risks he faced in the foreseeable future if returned to Iraq. For example, the Department found the evidence did not support that [the applicant] had been viewed as an apostate at the time of his departure from Iraq. However, there no real assessment was made around changes in his circumstances since 2014 and the potential risks his current religious and/or political beliefs would expose him to on return.
7.We acknowledge that past experiences of harm are a reliable guide to what may happen to an individual in the future. Consideration of past events in an applicant’s country would then be relevant to an assessment. [2] However, the Australian courts have found that a refugee assessment that is focused entirely on what has occurred in the past would not be enough to satisfy the ‘real chance test’ which essentially involves the process of looking to the future.[3]
[2] Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at paras 574-5.
[3] SZSTZ v Minister of Immigration and Border Protection [2015] FCCA 93 at para 42.
8.In this case, [the applicant] claims he had previously experienced serious harm in Iraq for reasons of his religious and/or political views. In particular, he has provided consistent evidence relating to his violent abduction in 2008 by members of the Jaish Al-Mahdi (JAM) after he had been overheard insulting certain powerful political and religious figures. This had included speaking offensively about the JAM’s leader at that time, Muqtada al-Sadr.
9.However, even if [the applicant’s] account of his abduction in 2008 is not accepted as credible, this would not still justify a finding that he does not face a real risk of harm on return to Iraq. As [the applicant’s] confirms in the attached Statutory Declaration provided to the Tribunal, he is not seeking to claim an ongoing fear of repeated acts of violence by the specific individuals who had abducted him back in 2008. [The applicant] acknowledges that his abductors in that case were most likely following orders by those higher up seeking to punish him for his comments rather than the abduction being part of a personal vendetta.
10.However, this incident is still relevant in that it highlights the risks faced by persons suspected of criticizing the government or powerful figures affiliated with it (including Sadr). Recent events within Iraq would support that a real risk of the same, if not worse, harm would arise on the exposure of [the applicant’s] current religious and political beliefs. Also, that the risk of such beliefs being exposed to his feared persecutors, whether through his online activities, participation in protests or another overheard conversation, could not be excluded as farfetched. Submissions in support of the risks of harm [the applicant] faces on return to Iraq are detailed further below.
Credibility Concerns
11.The Department made some limited adverse credibility findings in relation to [the applicant’s] claims. However, these findings did relate to material matters and impacted their overall assessment of [the applicant’s] protection claims. Overall, we believe the reasoning provided by the delegate for these findings were illogical, unreasonable and without merit.
12.Firstly, the Department found that while they accepted [the applicant] had been “questioned” by JAM in 2008 that they did not accept he had been “kidnapped” for five days and held at a house in Al Nasiriyah. The only reason provided by the delegate to support this finding was that they believe [the applicant] had been “vague when discussing the incident” during his protection visa interview and “had to be asked to provide specific details”.
13.[The applicant’s] account of the 2008 incident is contained from around 41.23 to 58.42 minutes on the Department’s tape recording of his Protection Visa Interview held on 14 October 2016 (“the PV Interview”). We believe it is clear from the recording that the Department’s assessment of [the applicant’s] evidence on this incident was highly unreasonable and overly subjective.
14.We believe the recording demonstrates that [the applicant] had provided a detailed response to the questions asked by the delegate around the events leading up to and that occurred during his 2008 abduction. Any limits on the details given by [the applicant] arose as a result of the repeated interruptions made by the delegate while he sought to respond to questions around this incident. When interrupted to respond to specific questions on the incident, [the applicant] give direct and relevant replies without any undue delay or hesitation.
15.We find it unreasonable in listening to this recording for the delegate to have made an adverse finding purely on the basis that they asked specific questions when no real opportunity was given for these details to come out naturally or unprompted by [the applicant]. We also believe it is unreasonable to expect that [the applicant] should have been able to read the mind of the interviewing officer to determine (without prompting) what details on a particular incident they personally attached greater importance or relevance on.
16.The Department also disregarded [the applicant’s] claims around his [social media] activities while in Australia and the subsequent exposure of some of his online comments to the authorities in Iraq. The Department’s reasons for dismissing these claims appeared to be based on entirely on [the applicant’s] failure to produce evidence of his [social media] activities.
17.[The applicant] has detailed in his Statement to the Tribunal his reasons for failing to produce relevant translated extracts of his [social media] activities. In this case [the applicant], confirms that he had immediately after his PV interview located relevant pages from his [social media] and had sent this to an accredited translator in accordance with the instructions of the delegate. A copy of the email that had been sent to the translator with the relevant [social media] pages is attached at Attachment D.
18.[The applicant] confirmed that he had instructed the translator that the translations were required within a deadline set by the Department which was 7 days from the date of his PV interview. [The applicant] followed up with the translator leading up to the expiry of this 7-day deadline. The translator failed to respond to [the applicant] and the translations were not provided by the required date.
19.[The applicant] had understood that the Department would not accept or consider any information provided after the deadline set by the delegate at the PV interview. We believe based on the instructions given by the delegate at the PV interview that this misunderstanding was not an entirely unreasonable one.
20.[The applicant] does take responsibility for his error in failing to clarify this further with the delegate or flag with them the issue he had in obtaining the translations within the agreed deadline. However, this had arisen as a result of [the applicant’s] ignorance on the process and does not indicate that claims made around his [social media] activities were not genuine.
21.We would submit this issue is no longer relevant and that [the applicant] has since supplied to the Tribunal compelling evidence in respect to this aspect of his claims. In particular, we refer to the following documents provided with these submissions:
a.Sample of [social media] posts from [the applicant’s] paid from 2014 to 2020 including his marked comments or the English translation included by [social media]. (See Attachment A);
b.Comments made by [the applicant in] October 2014, referred to in his PV interview, to the post of a friend ([Mr A]) relating to fake reports on the conversion to Islam by an Indian astronaut (Sunita Williams) shortly after returning from space after having seen the lights of Mecca and Medina. [The applicant] called out this story as fake and the irrationality of those who sought to rely on it to push their religion as superior. In the final comment made by [the applicant] he questioned how many scientists and scholars had converted to the Shia faith and included a copy of an English meme that referred to the various geniuses behind the internet who were either atheists, agnostics or free thinkers. (See Attachment B) Further details around the fake reports of Sunita’s conversion that has continued to resurface on [social media] since 2008 is provided in an article published by the [media outlet] located at the following link: [Source deleted]
c.Extract of text message conversation between [Mr A]; and [the applicant] around 9 November 2014. [The applicant] refers to the fact that a “report” had been filed against him by one of [Mr A]’s friends in relation to his post regarding the “Indian woman who converted to Islam”. [The applicant] also refers to a petition being made against his brother ([Brother B]) on reports of “abuse, belittling the faith and vilifying the icons” by [the applicant]. (See Attachment C)
d.Text messages received from [the applicant’s] friend, [Mr C], warning him about his posts and that he faced death on return. (See Attachment E)
e.Text messages between [the applicant] and his brother (referred to as [Brother B]) in August 2014 and January 2015. In these messages, [the applicant] is instructed by his brother to delete posts made on his [social media] page (See Attachment F).
22.The attached evidence supports [the applicant’s] claims that:
a.he has actively expressed his religious and political views on [social media] over the last 6 years he has been in Australia;
b.he is aware of at least one of his posts has resulted in a formal complaint being made against him with the authorities in Iraq that he fears will result in his detention and punishment on return for offences relating to him insulting Islam; and
c.he has received warnings that comments he has made on [social media] has exposed him to a real risk of serious harm if he was to return to Iraq.
General submissions in support of the applicant’ claims
23.Available information supports that [the applicant] would face serious harm on return to Iraq essentially or significantly for reasons of:
a.His actual or perceived political opinion as a critic of the current Shia-dominant government or those affiliated with it; and/or
b.His actual or perceived religion as an atheist, apostate and/or someone who has otherwise contravened strict Islamic rules around behavior.
24.We believe that the risks of harm feared by [the applicant] are objectively justified and thereby well- founded. In support of this, we ask that you refer to the following recent reporting on the evolving situation within Iraq.
Current Security Situation
25.The current security situation within Iraq remains volatile and uncertain. While there had been reports of a decline in attacks in 2018, renewed violence has impacted many parts of the country over the course 2019 and well into 2020.
26.An article published by the United States Institute of Peace published in March 2019 described the current situation in Iraq as follows:
Iraq has been ravaged in recent years by cycles of warfare, an internally displaced persons (IDPs) crisis, crippling sectarianism and, most destructively, a three-year campaign to drive ISIS from the third of the country it controlled. Even after the military defeat of ISIS, Iraq continues to face severe challenges including resolving the political, sectarian, and tribal conflicts that fueled the spread of extremism and its entanglement in regional rivalries.[4]
[4] USIP, The Current Situation in Iraq - A USIP Fact Sheet, 29 March 2019, available at: situation-iraq.
27.An article published by Thought Co in January 2020 similarly referred to the ongoing uncertainty around Iraq’s future noting that “Political divisions in combination with high unemployment and devastating wars have made Iraq one of the most unstable countries in the Middle East”. The article goes on to confirm that while there remains a “potential for economic development” in Iraq “violence remains endemic and many Iraqis fear continued acts of terrorism by jihadist groups”.[5]
[5] Manfreda, P., Current Situation in Iraq - Iraq is managing to stay in one piece in spite of devastating odds. ThoughtCo, 14 Jan 2020, available at: information confirms that ISIS remain a threat in Iraq with fears the instability in the country will provide space for its return. As the UNHCR observed in a report titled “International Protection Considerations with Regard to People Fleeing the Republic of Iraq” published in May 2019:
…. the beginning of 2019 reportedly saw a renewed increase in ISIS attacks. Overall, security gains are mixed, with continued insecurity particularly in formerly ISIS-held areas, where the situation is reported to remain volatile in light of the continued presence of ISIS fighters. Civilians continue to bear “the brunt of the attacks”….
Observers further note that the government’s failure to address the root causes of instability and violence, including the weak rule of law and heavy-handed counterterrorism tactics, confessional politics, tensions between the central government and the KRG, endemic corruption, and gaps in the provision of services, result in popular dissatisfaction with the government68 and risk a renewed strengthening of ISIS.[6]
[6] UNHCR, International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019 available at: in Iraq, however, are not limited to ISIS. A consequence of the recent conflict has been the empowering of a “vast array of armed groups” collectively known as the People Mobilisation Forces (“PMF”).[7] The PMF are credited for playing a key role in the military defeat of ISIS and continue to enjoy popularity among Iraq’s Shia majority.[8] The PMF, however, hold “varying ideologies and allegiances” and have been held responsible for “the targeting of critics and those perceived to be contravening strict Islamic rules.” [9]
[7] UNHCR, International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019 available at: at page 14
[8] Ibid at page 14.
[9] Ibid at pages 14-15.
30.The situation within Iraq has become further destabilised since the publication of the UNHCR’s report as violence has continued to escalate in recent months as a result of growing civil unrest spreading over central and southern regions of Iraq. Despite the resignation of former Prime Minister at the end of 2019, protests have continued as has reports of the abduction, torture and assassinations of civil activists and critics of the government.[10] Recent reports indicate that [the applicant’s] home city of Al Nasiriyah has been at the centre of the recent uprising as it has faced the “highest death toll outside of Baghdad” with “fears civil conﬂict could soon erupt in the province” and “provide the impetus for a harsh crackdown.” [11]
[10] Rival protesters clash in Iraq as unrest continues, France 24, 4 Feb 2020 available at: protesters-clash-in-iraq-as-unrest-continues and Iraq unrest: Escalation of violence in Nasiriya, 9 Dec 2019, available at: Al-Salhy, A., Dhi Qar: The southern province at the heart of Iraq's uprising, Middle East Eye, 2 Feb 2020, available at: the current insecurity in Iraq poses a threat to the general civilian population, we believe the risks faced by individuals with certain profiles would reach the level to engage Australia’s protection obligations. We would submit that this would include individuals in [the applicant’s] circumstances whose religious and political views are likely to result in him being suspected of contravening strict Islamic rules and/or opposing the current government or those affiliated with it.
Risks faced by those suspected of contravening strict Islamic rules (including atheists)
32.In its report published in May 2019, the UNHCR recognised as one of the risk profiles where a need for international protection may arise included “persons perceived as contravening strict Islamic rules”, including ”atheists and secular-minded individuals”, who are reported “to face abduction, harassment and physical attack by various extremist armed groups and vigilantes…”.[12]
[12] UNHCR, International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019 available at: at page 79.
33.The same report goes on to report the following in respect to the current situation faced by atheists in Iraq:
Although open atheism is extremely rare in Iraq, the number of atheists is reported to be on the rise. Although there are no laws prohibiting “atheism”, in some instances, atheists have reportedly been prosecuted for “desecration of religions” and related charges. Moreover, societal tolerance vis-à-vis atheists is reported to be very limited, as evidenced also by the public rhetoric of some politicians and religious leaders. .For fear of rejection, discrimination and violence at the hands of their families, private vigilantes and conservative/hardline religious groups, atheists are reported to often keep their views secret.[13]
[13] Ibid at page 82.
34.The UNHCR goes on to confirm that they consider “atheists may be in need of international refugee protection on the ground of religion, depending on the individual circumstances of the case.” [14]
[14]Ibid at 82.
35.Recent articles reiterate the UNHCR’s observations and confirm that the rise of religious extremism in Iraq has forced atheists and other “non-believers” further underground as there has been an increased push to stop a growing trend of those expressing disbelief in Islam.
36.As was reported in an article published by NBC News in April 2019 titled “Iraq's atheists go underground as Sunni, Shiite hard-liners dominate”:
Many of Iraq’s unbelievers have been forced underground as religious hard-liners battle for control of the young democracy, which is struggling to balance the demands of both Sunnis and Shiites, plus smaller ethnic and religious communities…
Darwin, who was raised in a devoutly Shiite family in the southern holy city of Najaf, once shared his thoughts on science and religion via [social media], where he posted under a false identity.
"We used to talk about different issues, and exchange information," he says. But he deleted this page about a year ago.
"I heard militias had started to chase us, and they had the technology and people to track my account," he says.
In a move that struck fear in Iraq’s small community of atheists, police in October arrested Ihsan Mousa, the owner of a bookstore in southern Iraq. They accused him of selling works that encouraged readers to reject Islam, according to local media reports.[15]
[15] Bruton, F.B., Iraq's atheists go underground as Sunni, Shiite hard-liners dominate, 5 April 2019, NBC news, Available at: article published by the Arab Weekly in July 2019 further went on to report that: “Atheists in Iraq are a growing minority no longer on the political sidelines and increasingly under the state’s radar”.[16] The article went on to observe that “The growing prevalence of atheism is not entirely disconnected from the political misdeeds of political and religious figures...” [17] Despite the growing trend of atheism within Iran the article went on to report that “… vocalising belief in atheism or disbelief in Islam can be a death sentence..” and that “Godless” Iraqis who remained inside Iraq “are subjected to violence or death at the hands of militias…”[18]
[16] Tarzi, N., Iraq’s growing community of atheists no longer peripheral, Arab Weekly, 20 Jul 2019, available at: Ibid.
[18] Ibid.
38.As highlighted in the UNCHR report, concerns among Iraq’s Islamic movements and political parties around the increasing trend of atheism amongst Iraqis is not a new phenomenon. Media reports published in 2017 and 2018 also referred to an intensifying rhetoric being pushed by political and religious leaders warning Iraqis about the spread of atheism and of the need to confront atheists.
39.One article published in June 2017, referred to comments made at that time by the head of the Iraqi National Alliance part, Ammar Al-Hakim, who had held the overwhelming majority in parliament and government at that time. Al-Hakim was reported to have warned against the prevalence of atheism and was quoted having called for “confronting these extraneous atheistic ideas with good thinking and with an iron fist against the supporters of such ideas by exposing the methods they use in disseminating their ideas.”[19] The same article went on to observe that those questioning the fundamental beliefs of Islam “would be ostracized by society in a heartbeat if they expressed their views freely” and that “atheists in Iraq face very difficult circumstances under a government with a majority of Islamic parties and with the dominance of Islamic militias over society…”[20]
[19] Mamouri, A., Islamic parties intimidate, fear atheists in Iraq, Al Monitor, 22 Jun 2017 available at: monitor.com/pulse/ru/originals/2017/06/iraq-atheism-political-islam-human-rights.html#ixzz6GyYORF3u.
[20] Ibid.
40.As concerns around the rise of atheism have increased within Iraq, so has the reports of the arrest of persons perceived as promoting and/or spreading such views. We refer particularly to reports in an article published by Al Monitor in August 2018 that referred to a spate of arrests of atheists within [the applicant’s] home region of Dhi Qar. As this article confirmed:
Arrest warrants have been issued for four Iraqis on atheism charges, according to Dhi Qar province's Garraf district judiciary. The announcement garnered quite a reaction on media and social networks, as some say these hunts infringe on the rights of the Iraqi people, whose constitution guarantees them freedom of belief and expression. Other observers say the campaign has political aspects.
Dhidan al-Ekili, the chief Garraf judge, told local Iraqi newspapers March 11 that security forces had been able to arrest one of the four indicted, as the search for the remaining three continued. Ekili said they are being pursued for “holding seminars during social gatherings to promote the idea of the nonexistence of God and to spread and popularize atheism.”
According to Ekili, the local court administration has tasked intelligence agencies with cracking down on the “atheism phenomenon.” Ekili said the crackdown is in accordance with the Iraqi Penal Code[21].
[21] Al-Jaffal, O, Iraqi courts seeking out atheists for prosecution, Al Monitor, 1 April 2018 available at: monitor.com/pulse/originals/2018/03/atheists-iraq-human-rights.html.
41.While atheists face a risk of harm at the hands of government agents, the biggest threat is reported to arise from armed groups and religious hard-liners within the community. As was reported in an article published by the Washington Times in August 2017:
Many atheists in the region say their bigger fear is not being punished for their beliefs but that they will become targets of violent sectarian groups seeking political support from the faithful.
“It is a distraction from the fact that Islamists were not able to accomplish anything over the past 13 years,” said Faisal al-Mutar, a U.S.-based Iraqi human rights activist who heads Ideas Beyond Borders, a nonprofit that supports minorities in the Middle East. “So they want to create ‘an enemy’ to keep [the] constituency united against and avoid being held accountable for their mistakes.” Keeping their beliefs secret is the norm for atheists of all backgrounds throughout the region.[22]
[22] EASO, EASO COI Meeting Report = Iraq Practical Cooperation Meeting 25-26 April 2017 Brussels, July 2017 available at: At page 20.
42.A recent increase in atheist and secular-minded people in Iraq has not then lead to such views becoming more acceptable or tolerable by the general society. Rather, recent reports would suggest the exact opposite. As was confirmed in a report by the European Asylum Support Office published in April 2017:
Iraq, generally speaking, you are considered to be born into a religion and you will die in that religion – it is not just in Islam, but also in most other religions in Iraq, that apostasy is not just frowned upon as an offence, but seen as unnatural…[23]
[23] Mamouri, A., Iraqi atheists demand recognition, guarantee of their rights, Al Monitor, 6 Mar 2014 available at: March 2014 article by Al-Monitor further referred to the “prevailing social view” on atheists in Iraq that “they are morally corrupt, or that they are but agents and operatives of foreign entities, such as Zionists or Masons, among others. This negative perception might be expanded among some to include all those who call for liberalism or secularism, who would be looked at with suspicion and portrayed as members of global Masonic networks that have come to Iraq to destroy its values and social constructs.”[24]
[24]Mamouri, A., Iraqi atheists demand recognition, guarantee of their rights, Al Monitor, 6 Mar 2014 available at: a result of the general perception against atheism within Iraq, individuals perceived to hold such views are reported to also face risks of harm from members of the general community. As an article published by the Pacific Standard in April 2017 reported:
Because most Middle Eastern rulers incorporate Islam into their policies in one way or another, challenging Islam is seen as challenging authority. But it is not the government that most non-believers say they fear the most; it's their fellow citizens.
As, [a] 30-year-old Iraqi atheist, explains: "In Baghdad, there's no law saying you can't be an atheist. But I'd much rather deal with authorities than with people, because the people could try to kill me for it."[25]
[25] Stuart, H., The Hard Lives Of Non-Believers In The Middle East, Pacific Standard, 14 Jun 2017 available at: justice/the-hard-lives-of-non-believers-in-the-middle-east.
45.Atheists or non-believers face not only a risk physical violence in Iraq but also a denial of access to basic rights that are currently limited to those who self-identify as followers of certain religions. As was reported in the United States Department of State 2018 Report on International Religious Freedom: Iraq published in June:
New national identity cards do not denote the bearer’s religion, although the online application still requests this information. The only religions that may be listed on the national identity card application are Christian, Sabean-Mandean, Yezidi, Jewish, and Muslim. There is no distinction between Shia and Sunni Muslim, or a designation of Christian denominations. Individuals practicing other faiths may only receive identity cards if they self-identify as Muslim, Yezidi, Sabean-Mandean, Jewish, or Christian. Without an official identity card, one may not register one’s marriage, enroll children in public school, acquire passports, or obtain some government services.[26]
[26] USDOS, 2018 Report on International Religious Freedom: Iraq, 21 June 2019, available at: report is consistent with [the applicant’s] claims that as an atheist he would face not only the risk of serious physical harm but that he would be denied access to fundamental rights in Iraq. In particular, he would be prevented from being able to register a marriage in Iraq which would essentially deprive him of what he considers the most important human right there is - the right to a family.
47.We would submit that it would not be a relevant consideration to determine whether [the applicant] could be able to avoid a risk of harm on return to Iraq by self-identifying as a Muslim or otherwise concealing his atheist and secular views. Section 5J(3)(c) of the Migration Act 1958 (Cth) (the Act) confirms that decision-makers should not require an applicant to “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” in order to avoid persecution”.
48.In light of the above country reporting, we believe it could not be considered as far fetched that on return to Iraq [the applicant] would face serious harm as a result of being identified as an “atheist” or for otherwise promoting views considering to be insulting to the Islamic faith. [the applicant] claims that a formal complaint accusing him of expressing such views has already been made with the Iraqi authorities and that it could not be excluded as too remote a possibility that news of his religious views has or would spread within his family, tribe and community exposing him to a real risk of harm by either state or non-state agents.
49.General attitudes held amongst the current Iraqi government around atheism or secularism would support that [the applicant] would face a real risk of being denied protection from the harm he may fear from non-state agents. Instead, recent comments made by powerful figures within the Iraqi government would suggest that they are encouraging behaviour aimed at confronting atheists and stopping the spread of atheism.
Risks faced by those perceived as opposing the government or its affiliates
50.The UNHCR’s May 2019 report identifies another risk profile where a need for protection may arise would include persons who opposed, or are perceived to oppose, the Iraqi government or persons affiliated with the government. As this report confirmed:
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[27]
51.The same report goes on to confirm that the UNHCR considers “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. [28]
52.As noted above, there is also a political element involved in the targeting of individuals in Iraq expressing atheist or secular views. These individuals are not seen to just be questioning or insulting Islam but seeking to expose the corruptibility of politics and politicisation in Islam. In [the applicant’s] case, views he has expressed in the past and that has caused him to face harm in Iraq have involved political elements where he has questioned the way in which religion has and continues to be used by powerful figures like Sadr and Sistani to secure power and control over the country.
53.[The applicant’s] views would then not only be viewed as morally corrupt but as a criticism of the Iraqi government and powerful figures affiliated without it thereby exposing him to further risks of harm by pro-government armed groups like those who have been engaged in escalated acts of violence in recent months across central and southern parts of Iraq, particularly his home city of Al Nasiriyah.
54.In light of the above, we believe that [the applicant’s] circumstances would support he faces a well- founded fear of persecution on return to Iraq owing to his (actual or imputed) religion and political opinion and thereby engages Australia’s protection obligations in accordance with the provisions contained under either Section 36 (2)(a) or (aa) of the Act.
[27] UNHCR, International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019 available at: at page 70.
[28] Ibid at page 72.
Statutory Declaration

The Tribunal received a pre-hearing submission from the representative dated 18 March 2020, including a Statutory Declaration from the applicant dated 16 March 2020 The contents of this Statutory Declaration are set out as follows:
1.The following statement is prepared in support of the application for review of the decision of Department of Home Affairs (the "Department") dated 27 July 2017 refusing grant of a Protection (Subclass 866) Visa to me.
My family
2.As confirmed in my Protection Visa Application, I have [number of] siblings which includes [number of] brothers and [number of] sisters. My father is deceased. My mother and all of my siblings are currently living in Al Nasiriyah in Iraq.
3.My family are very religious as are many of the families living within our home city. From an early age I was educated about Islam and expected to strictly observe religious practices of the Shia faith, including praying, attending mosque and fasting. I was also required to adhere to strict rules around dress and behaviour that were imposed by Shia Muslims in our area. For example, I had been prohibited from listening to music and was only able to experience this for the first time after I moved to Baghdad to study.
4.Growing up, I was always interested in reading and learning new things. All books held in my family's home were religious texts. By the time I was a teenager I had then developed a strong understanding of the teachings of Islam.
5.My brother, [Brother B], is the most religious person in my family. He currently holds the position as [Position 1] of the Department of Islamic Studies at [a university]. [Brother B]'s entire life, including his career, is centred around Islam.
6.[Brother B]'s strong views towards Islam has caused tension between us for most of my life as he has been unwilling to consider any other point of view other than the one put forward by Shia religious leaders. There have been many times where I have questioned the logic behind some of the teachings or rules within Islam and my brother has strongly criticised me for this.
7.My relationship with [Brother B] has completely broken down while I have been in Australia after he became aware of comments I made on [social media] which were critical of Islam or religion generally. I know [Brother B] remains very angry with me and has often sent me messages to be intentionally cruel and try to convince me to return to Iraq. This includes telling me that our mother has been very sick and blaming me for this.
Development of my religious views in Iraq and [Country 1]
8.As mentioned in my Protection Visa interview, I first started to develop different views around religion after I started attending university in Baghdad when I was around [age] years old.
9.Up until I moved to Baghdad, I believe I had been living in a bubble and was only ever exposed to one viewpoint around religion. This view was that the only real religion was Islam, the only true followers of Islam were Shia Muslims and anyone else was an infidel.
10.While studying in Baghdad, I came into contact with many different people. I was able to talk for the first time with people of different faiths - including Christians and Sunni Muslims. Through this I started to learn about the differences but more importantly the similarities between the different religions. Some of the people I met also challenged me on my Shia beliefs and caused me to research more to try to find the real answers.
11.From this time I started to think more independently and realised the problems I had with Islam and the way it was being imposed in Iraq.
12.While my time in Baghdad had given me more opportunity to think independently, there was still no religious freedom there. I had been studying at the university during the time that sectarian violence broke out in Iraq between 2006-2008. During that time, many students and teachers in Baghdad were being targeted by militia groups due to their religion. Non-Muslim girls were forced to wear scarfs on the way to university in case they were stopped by a militia. Both Shia and Sunni Muslim students and teachers were regularly being abducted and killed by different militia groups during this period. At one point, a militia had come to my university and took away 40 Sunni students later killing all of them.
13.It was a dangerous time to hold views that were different to the Shia and Sunni militia groups engaged in this violence. I then was still limited in my ability to express or develop my thoughts about religion. At the same time, I believe being exposed to the violence being carried out by these religious fanatics contributed to my growing distrust in religion.
14.At the time I travelled to [Country 1] in 2009, I was more distrusting of Islam or at least the Islamic leaders in Iraq. However, I still considered myself as a believer overall. My biggest jump towards developing agnostic views occurred while I was in [Country 1]. While in [Country 1] I was able to learn more about [another religion] and realise the similarities it had with Islam. I also was able to set up a [social media] page for the first time that introduced me to an even wider group of people who were expressing different ideas.
15.While in [Country 1] I also met a fellow Iraqi who was an atheist who encouraged me to read books that challenged religion and the Islamic ideas that had been hardwired into my brain. This friend recognised that the views I had started to express where that of an agnostic. This was the first time I started to identify myself as having rejected Islam and to have become an agnostic.
My current religious views
16.My views around religion have continued to change over the time I have been in Australia. Over this time, I have been able to become more educated and read different books or research from the internet. I have studied Christianity and even read the bible. I have also listened to the critiques of multiple academics on the bible who have pointed out the contradictions and errors within the old and new testaments. I have also read many different scientific theories around the creation of the universe and evolution. I have also become active on different agnostic/atheist groups on [social media] where I have been able to read and express different ideas around religion.
17.At this time, I have very little faith in the existence of a God. There may be around 10% of me that thinks that there may have been some kind of higher power or "first mover" who created the universe. I do not believe this "first mover'' was a "God". I do not believe the science supports the story presented in different religious books, including the Koran, as to how the universe and mankind was created.
18.I still have some questions around this that I don't believe scientists have been able to completely answer yet. However, I believe during my time in Australia that I have moved more towards more of an atheist.
19.In either case, I do not identify in any way as a Muslim. I also hold strong views against the way in which Islam has been used by different groups in Iraq as a way to manipulate and control the population. Religion has ultimately been the source of the violence that has existed in Iraq for most of the last 15 years. It has made many people in Iraq blind to what is actually happening within the country. I believe that Iraq could only be saved if religion and politics were kept separate.
20.No matter what my beliefs may be, most people in Iraq would view me to be "godless" and an apostate. A Muslim choosing to believe in anything other than Islam is the issue. Whether I identified as an agnostic or an atheist would make no difference to the risks I faced in Iraq. Currently in Iraq, people are being killed merely for questioning Islam. I recall a recent story of a journalist being killed after they asked a question- on Mohamed. In my case, the situation would be much worse as I am not just criticising certain elements of the Islamic faith but reject the very existence of the God that they believe in
My abduction in 2008
21.The Department accepted that I had been questioned in 2008 by members of the Jaish al-Mahdi (JAM). However, the Department did not accept I had been "kidnapped" by JAM members and was held for 5 days in a house in Nasiriyah.
22.The only reason the Department appeared to provide in its decision to reject this claim was that they believe I had been "vague when discussing this incident" and that I "had to be asked to provide specific details".
23.I believe this is a highly unreasonable assessment of the evidence I had provided around this incident in my Protection Visa Interview. I believe I had responded in detail to all questions asked of me in relation to this incident during my interview. I recall on many occasions I was cut off by the interviewing officer while I tried to go into further detail about what occurred as they directed a different question at me. However, I responded immediately and directly to each of these questions.
24.I do not recall at any stage that the interviewing officer had indicated that my responses were too vague or that they needed any more detail around specific matters. I believe the Department has not then provided any legitimate grounds to reject my evidence around this incident.
25.I would be happy to provide further details about this incident during my upcoming hearing with the Administrative Appeals Tribunal ("the Tribunal"). In the meantime, the following is a summary of the relevant details relating to this incident to assist the Tribunal:
a.The incident occurred in around August 2008 which was during the Summer holiday period. During this school holiday period I had spent most nights at [location] with friends where we would smoke, drink tea, talk and play pool together. It was common for my friends and I to spend most nights a week from 6pm up to 1am at [location] during this holiday period;
b.My friends and I often would enter into religious and political discussions while at
c.this [location]. At this time, I was young and still developing my views around politics and religion. However, I did hold already at that time strong views against certain powerful political and religious figures in Iraq. In particular, I often spoke negatively to my friends about Sayyid Ali Husseini al-Sistani (known as Ayatollah Sistani) and Moqtada al-Sadr.
d.I did not agree with the way in which Sistani, a senior Shia cleric in Iraq, was interfering in political matters. I also was strongly against Sadr who was responsible for the JAM. At that time, the JAM had openly been involved in widespread killing of Sunni Muslims across Baghdad and Southern Iraq. I knew personally at least two Sunni Muslim friends from my university in Baghdad who had been murdered by JAM members.
e.My friend would at times enter into heated discussions at [location] while talking about the issues in our country at that time, including in relation to the conduct of Sistani and Sadr. We would typically not refer to either of these figures by their name but would speak in code. We would typically refer to Sadr by the nickname of "Mongolian". This was used to reflect how we saw Sadr as being incredibly stupid and not right in the head. So for example, instead of saying "Sadr kills people" we would say "The Mongolian kills people". This nickname had also been popular slang used at that time for Sadr by Sistani supporters.
f.One evening, while I was at [location] with some friends, around 4 men entered the premises and demanded I go with them. I recall this was towards the later stage of the night around 10pm.
g.I recognised immediately that these men were from JAM. At that time JAM were very active in my area and they did not operate in secret. While they didn't wear a uniform, JAM members would all wear the same black clothes, often with a short beard and drove black OPEL cars all so they were identifiable.
h.I submitted to the men and accompanied them to their car as I knew I had no other choice. I was driven without a blindfold to a home that was a few kilometres from the [location]. While in the car, the men were yelling at me and saying words along the lines of that they were going to "teach me to talk politely about my masters". They were also accusing me of being a "liberal" which is a word often used in Iraq (including by political figures like Sadr) to describe non-religious people.
i.The car drove to a 1 storey house that I did not recognise. I was then placed in the bathroom of this house, had my hands tied and then started to be questioned by one of the men (who was referred to by the nickname "[Mr D]"). [Mr D] accused me of being disrespectful against their leader, Sadr, and their prophet. At one stage, [Mr D] referred to my use of the word "Mongolian" for Sadr which made me realise that someone must have overheard one of my conversations at the [location] and made a complaint to the JAM.
j.I initially denied speaking out against Sadr. However, I knew that the men would not believe me if I denied everything completely. I eventually had admitted that I had been discussing political matters with my friends but denied ever using the word "Mongolian" to describe Sadr or that I was a liberal.
k.After this, [Mr D] had spoken to one of the other men. I cannot recall the nickname he used. However, I recall he said words to the effect of "Enjoy It". At the time, I was worried this meant that the men were going to sexually abuse me. However, after this the man [Mr D] spoke to started to slap me across the face. This same man also hit at my body with a wooden baton. It was common at that time for JAM members to carry these wooden batons as a weapon. At one point I was hit on my arm with the baton and I remember feeling a strong, burning pain that remained throughout the entire time I was detained.
l.This initial beating lasted a short period. From that point, I was then mostly left by myself in the bathroom. At times, people would enter the bathroom to give me food, ask me annoying questions or tell me that they were "waiting on instructions" on what to do with me. I was not physically abused beyond what I had experienced after the initial period of questioning.
m.Around 5 days after I was taken by these men, they removed me from the house and drove me to the centre of AI-Nasiriya where they let me out of the car. I then made my way back to my home.
n.Directly after I returned home I went to the hospital for treatment on my arm as I was still in a lot of pain. I had an x-ray and they were able to confirm that I had sustained a fracture. I was placed in a cast and allowed to return home.
o.I was then able to find out about how my brothers had been involved in my release. I understand that they had used their connections in order to reach out to the main JAM leader in Al-Nasiriya who was then able to work through his network to track me down and secure my release. My brothers denied paying any money to obtain my release. However, I do not believe this was the case and suspect they may have lied to me so I didn't feel bad about the situation I had placed them in.
p.I remained in Nasiriya at that time for around 2-3 weeks while I was recovering. I kept to the home over this time and rarely went out in public. After this recovery period, my brothers encouraged me to go to Baghdad. While my family did not believe I would be targeted again at that time by the JAM, they were concerned that I may have been at risk from one of the groups supporting the other people I had criticised (eg Sistani supporters).
q.I then travelled to Baghdad staying with a friend while I worked and studied English. I tried to keep my head down and not draw any attention to myself during this period. While in Baghdad I was also trying to find a way out of Iraq. I applied for a new passport in [around] 2008 and was trying initially to arrange to study in [Country 2]. The waiting list to secure admission at a [Country 2] university was long. After waiting a few months, I became anxious and started to look into other options for where I could study. I was able to eventually arrange admission in a master's degree at [University 3] and a student visa. I then travelled to [Country 1] from August 2009.
r.If I had known it would take so long to move up the waiting list for study in [Country 2], I would have applied to [University 3] earlier. I changed the plan around my studies solely for the purpose of enabling me to get out of Iraq quicker.
Return to Iraq in 2012
26.The Department suggested in their decision that the fact I had returned to Iraq in 2012 indicated I did not fear harm. As I had mentioned during my Protection Visa interview, my return back to Iraq following my studies in [Country 1] was not by choice. If there had been a safe option for me to remain permanently outside of Iraq at that time I would have chosen this.
27.My stay in [Country 1] was based on me holding a student visa that was due to expire after I completed my studies. The situation for refugees from Arab countries in [Country 1] was very difficult and they were not offered any proper protection by the [Country 1] government. I did not believe at that time I would be able to legally remain in [Country 1] as a refugee or on any other basis.
28.Throughout my entire stay in [Country 1] I also experienced the widespread corruption that exists in that country. As I was not [Country 1 citizen], I was fearful of the authorities and on many occasions had to pay bribes to the police or other government officers. This situation would have become much worse once my visa ceased and I had no avenue to work or remain legally in [Country 1].
29.As confirmed during my Protection Visa Interview, I had travelled back to Iraq from [Country 1] for a period of 3 weeks in 2010. During this trip, I had travelled up to Erbil in Northern Iraq to meet with a friend who was working in the university there. I had been hopeful that I may be able to secure work at the same university so that I would have the option of relocating to Erbil after completing my studies in [Country 1].
30.However, while in Erbil I was able to confirm that as a Shia Arab I would not be able to secure the necessary residency permit to enable me to remain there. Returning to Erbil would then place me in no safer situation. People identified as agnostics/atheists and apostates were also just as restricted and at risk of harm in Erbil as they were in other parts of Iraq.
31.Towards the end of my study in [Country 1], announcements had also been made in Iraq about plans to offer scholarships to 5000 top students to study abroad. My brother, [Brother B], contacted me in relation to this announcement and told me I needed to return to Iraq in order to have the opportunity to be considered for one of these scholarships. It was not an option for me to apply for one of these scholarships from [Country 1]. I believed securing one of these scholarships was my best chance to be able to escape the problems I was facing in Iraq due to my religious and political beliefs.
32.The Department suggested that in returning to Iraq at this time indicated I did not fear harm from JAM members. I wish to clarify that I do not have an ongoing fear of facing harm in Iraq from the specific JAM members who detained me in 2008 or that my past abduction is the reason I would be exposed to ongoing harm.
33.I acknowledge it has now been over 10 years since my abduction. I believe that the JAM members who had abducted me on that day were following orders and had not taken me due to any personal vendetta they had against me. I suspect that these JAM members had detained a large number of people within my area since 2008 and it is very likely that these JAM members may not even remember me.
34.My fears of returning to Iraq are not then centred around this incident in 2008. I had raised this incident in my protection visa application as an example of what can happen in Iraq to those suspected of having criticised powerful figures or those who hold political influence there. I believe that far worse treatment would be faced by those who are known or even suspected of having rejected Islam altogether.
35.During the brief periods that I spent in Iraq after my abduction, I was not living a normal life. I moved regularly between my home city, Baghdad and Karbala. I rarely spent much timeout in public or socialising. I did not provide much of an opportunity for the people in the areas where I was staying to get to know me. The situation if I was forced to return to Iraq would be much different as it would only be a matter of time before my political and religious views would expose me to serious harm.
36.My abduction in 2008 occurred after only a small part of my political and religious views had been exposed. My views, particularly around religion, have developed significantly since that time. Religious extremism has also since flourished within Iraq as has the power of pro-government, Shia militia groups, including those with former ties to the JAM. This has made it even more dangerous in Iraq for those, like me, who challenge or criticise.
37..
38..[Social media] Activities
39.I first set up a [social media] page while I was studying in [Country 1]. This page was under the name of "[Alias 1]". As confirmed above, I used this page mostly to connect with different groups filled with like-minded individuals who were questioning religion or questioning the influence of religion within Iraqi politics.
40.After I returned back to Iraq in 2012 I continued to use this same [social media] page and remained connected to the people and same groups I had joined while in [Country 1]. I would also share different posts that were of a political nature from time to time. However, I did not use this [social media] page to post anything likely to be too controversial in Al Nasiriyah. I never posted anything while I was in [Country 1] or Iraq that was critical of Islam or religion generally.
41.On this [social media] page I had been connected to a large number of friends (around [number]) which included some [family members]. Whenever I posted anything that was considered in anyway as critical of Islam or the Iraqi government, one of my brothers would tell me I needed to delete this. Often this would be [Brother B]. I had not then been able to use my [social media] page to express my ideas or views while in Iraq.
42.After I arrived in Australia, I deactivated my previous [social media] account and opened up a new page. The purpose of this was to start with a "clean slate". I wanted to keep the number of friends with access to my page only to those who I trusted or believed were open-minded. I did not have any of my brothers as my friends on this new page.
43.The new [social media] page was originally set up under the name of [Alias 2]. I later changed this to the current name of [Alias 3]. I had changed for reasons of a personal preference only as at the time there were many people using the "[Alias 2]" or [Alias 2 variation]" in front of their name and I wanted to move away from this trend.
44.Throughout my time in Australia I have been an active user of [social media]. I have been a part of a number of atheists groups where I have commented and shared posts. I have provided the Tribunal a copy of a number of these posts from 2014 to 2020 (including the English translation as provided by [social media]) at Attachment A.
45.[In] October 2014, I commented on a post that had been forwarded by one of my [social media] friends named [Mr A]. The post was not very controversial and was referring to a female Indian astronaut (Sunita Williams) who was said to have converted to Islam after reportedly being able to view the lights of Mecca and Medina from space. This story was fake.
46.I posted comments in relation to this on [Mr A]'s post criticising Muslims who relied on this fake news to try to legitimise their own religion. A person at the time had responded criticising my comment which I responded to. In one of my responses I attached a meme that was in English that highlighted the hypocrisy of people using social media who present their religion as superior when the geniuses who created that platform were all atheists, agnostics or free thinkers. I have provided a copy of the original post and my comments together with an English translation at Attachment B. The comments made by the other person must have since been deleted by them but it is clear from the content of my own comments what I was responding to.
47.As I indicated during my Protection Visa Interview, this post and my comments were not in my mind particularly controversial or offensive. I believe I have made comments and posted things on [social media] previously that were much more significant. However, I had referred to this post as a result of the consequences that followed from it.
48.As stated in the interview, within a few days after I made these comments on [social media] my brother [Brother B] had been required to meet with officers of the National Intelligence Service in Al Nasiriyah. My brother was advised that a complaint had been made against me in relation to comments I had made on [social media]. My brother was told that this case was a serious one and that on my return to Iraq he was to ensure I reported to them for further questioning.
49.My brother reached out to me after this and informed me of what had happened. My brother was very angry and told me to stop making such comments on [social media].
50.I don't know who made the complaint against me. However, I suspect it was a friend of [Mr A]'s who had been able to see my comments as they were posted on [Mr A]'s page.
51.Shortly after I became aware of this, I reached out to [Mr A] to tell him a case had been made against me and raise my concerns over what was happening. I have included at Attachment C a translated copy of some of the text messages I sent to [Mr A] at this time in relation to this.
52.I also referred during my protection visa interview to other comments I made to a post [in] August 2015 that had resulted in me receiving a warning. I believe the post was again on the page of another [social media] friend and was criticising Sistani. Someone replied to this comment making a threat that they would take legal action against me.
53.As this post and the comments were on another person's page, I have not at this time been able to locate them. I am not sure at this time whether the original post may have since been deleted.
54.During the interview, the Department officer told me that if I wanted to provide any copies of these [social media] pages that they needed to be translated and submitted to her within 7 days. After the interview, I reached out to a translator who I knew through friends to ask for their assistance in translating some of these [social media] posts. I have attached a copy of the email I sent to the translator on 19 October 2016 with the posts I needed translating at Attachment D.
55.After sending this email, I had called and sent a message to the translator following up on this but they never responded. The translations were not received before the end of the 7th day after my interview and so I cancelled the request with the translator.
56.The Department officer had indicated that they required the translated [social media] posts within the 7 days period. When I was unable to meet this I believed it was then too late to submit them. At the time, I also did not fully understand the importance that the case officer would place on this. I was also still upset around my interview and felt like the interviewing officer didn't want to hear my answers and had already made her mind up.
57.In hindsight, knowing that it would take several months before the Department would end up making a decision on my application I realise now I should have continued on in arranging the translations and forwarding the posts to the case officer. I am now seeking to rectify this error by providing copies of the relevant translated posts to the Tribunal.
58.I continue to use [social media] regularly as a tool to express my views on politics and religion. My posts have often regularly criticised powerful figures in Iraq like Sadr and Sistani.
59.My [social media] settings are currently set to private as I do not want to bring further issues to my family and am also concerned about what may happen to me if I am returned back to Iraq.
60.However, I continue to comment on different groups and friend 's pages and so the people able to see my posts does extend to beyond just my own [social media] friends. My privacy settings have not previously protected some of my comments being viewed by the wrong people who have made complaints against me to the Iraqi authorities.
Delay in providing protection claims
61.I understand the Department had indicated in its decision that my delay in lodging my protection visa application indicated that my claimed fear of harm in Iraq is not genuine. Again, I believe this was an illogical and unreasonable assessment in the circumstances.
62.As confirmed during the protection visa interview, I had travelled to Australia with the intention that I would stay here permanently. At the time of arranging a scholarship to study abroad, I had heard through friends that Iraqis had been able to remain in Australia. At that time, I did not understand this was through an asylum process and had not known there existed a "Protection Visa".
63.On my arrival into Australia, I had held a 5 year student visa. I believed that this provided me the opportunity of time to find a solution to be able to remain in Australia permanently. I had believed the most likely option would be to pursue a pathway to permanent residency towards the end of my student visa based on me completing a PhD through an Australian university.
64.However, after I had been in Australia for around a year, I learnt through a fellow Iraqi friend about the "protection visa" and he encouraged me that it was important to not delay lodgement of this application. My friend said it could take several years for the protection visa application to be processed and this may be as long as the time left on my Student Visa.
65.On learning this, I proceeded to arrange lodgement of a Protection Visa. My initial protection visa application was submitted on 8 July 2015. This was just over 18 months into my 5 year visa.
66.My initial protection visa application was eventually invalidated as I had not completed biometrics requirements within the required timeframe. As mentioned in the protection visa interview, I had not become aware my application had been invalidated until I had approached the Department in December 2015 to request an update on my matter.
67.I had never received the letter from the Department requesting I attend biometrics for my first application. I had changed addresses prior to this being sent and had not realised that I was required to update the Department of this. I had presumed any contact with the Department about my application would be sent by email.
68.On learning that my application had been invalidated, I made arrangements as soon as possible to re-submit this. I lodged the second application on 6 January 2016 and followed up with the Department until they confirmed they had received this.
69.At no point did I become unlawful while I have been in Australia. If I had faced within my first year in Australia the prospect of my student visa being cancelled or ceasing, I would have taken more proactive steps to extend my stay to ensure I was not forced to return to Iraq. However, this had not been the case and instead I had no reason to believe on entering Australia on a 5 year visa that I faced an immediate risk of return to Iraq.
70.I do not then believe that the timing of the lodgement of my application indicates that my claims for protection are not genuine. Instead over the time since I have lodged my protection visa the conditions in Iraq have changed dramatically and the situation for people in my particular circumstances has become much worse.
Harm feared if returned to Iraq
71.I fear as someone who would be identified as an atheist and an apostate that I would face a real risk of being detained, tortured and even killed if returned to Iraq. Converting from Islam to another religion would in itself expose a person to a risk of harm in any part of Iraq. In my case, I have not only changed my religious beliefs but I deny the legitimacy of religion generally and the existence of God. This is something that would not be accepted without punishment in present day Iraq.
72.Since I left Iraq, religious extremists have taken over the country and are now wield power within the government. They are supported by armed militias who use violence against anyone seen to challenge their authority or their conservative interpretations of Islam.
73.Atheists and agnostics are now at a much higher risk in Iraq than they where when I left over 6 years ago. It is not acceptable to hold any view that is seen to challenge the status quo or the influence of the religious leaders who currently control Iraq.
74.From October 2019, violence has continued to escalate in Baghdad and Southern Iraq in response to growing civil unrest. Recent protests that had broken out across Central and Southern Iraq have been seen not only as challenging the political authority of the current government and its leaders but also of the religious abuses they have allowed to be carried out against those not belonging to the Shia majority.
75.In the months since the start of these protests there has been a campaign of assassinations carried out against protesters and activists. People seen to be critical of the Iraqi government and pushing secular views have faced arrest, torture and targeted killing. I have read a number of reports of activists who have been shot dead in their homes or cars. It is believed these killings are being carried out by militia who are support and work alongside the government.
76.These assassinations are not only occurring within Baghdad. Protesters within my home city of Al Nasiriyah have faced the highest death toll outside of Baghdad.
77.In this current climate, I face a real chance of harm not only as an "agnostic/atheist” but also as someone who has been actively criticising the Iraqi government and some of its most powerful figures (including Sistani and Sadr) for several years. I believe it is possible that news of my online activities could reach those currently targeting critics of the government in the same way that an overheard conversation of my comments against Sadr had quickly reached JAM members in 2008.
78.Even if news of my [social media] activities did not become known, I believe my political and religious views would eventually be exposed to the wrong people in Iraq and result in me facing serious harm.
79.If I was forced to return to Iraq, I know that I would not be able to keep silent. I would feel compelled to join those currently fighting for a revolution. I feel in being surrounded every day with the corruption and lies being spread by religious frauds like Sadr would make me even more angry and force me to want to expose the truth.
80.It would also not be an option to simply pretend to be a Shia Muslim in order to survive in Iraq. This is not who I am. I could not go on living a life that is not my own and be forced to practice a religion I don't believe and that I think has only been used in Iraq to manipulate and control people.
81.On the other hand, continuing to reject the Shia faith would deny me everything in Iraq. It would not be possible for me to legally register a marriage in Iraq unless I have been married in a mosque and can provide the Islamic marriage certificate. It would not be possible for me to have a relationship with a woman and a family in Iraq unless we are married. As an atheist/agnostic I would then face a denial of what I believe to be the most important right- a right to a family. Life would be without meaning if there was no ability to find love and create life.
82.As an agnostic/atheist I would also face ostracism from the general Iraqi society which would impact my ability to get employment, accommodation and be able to support myself in any part of the country. There are then many ways in which religious hardliners are able to hurt those they consider to be apostates and far worse punishments I could face than death.
83.Many of my family members do not accept my religious views. In particular, [Brother B] remains very angry at me for what I have posted on [social media]. I believe in his mind he thinks if I was to return to Iraq he would be able to force me to change my mind and that I would come back to "God". My brother would never allow me to be my own person and think the way I do. I would be expected to return to a religious life and observe the Shia practices including praying, fasting and attending mosque.
84.If I was to refuse to do this, I know that my brother would ostracise me from the family and tribe. Being rejected by your tribe and family has significant ramifications in Iraq and particularly in areas like Al Nasiriyah where the tribe is placed above everything else.
85.Without my family or tribe I would not be able to support myself and would have no one to protect me. I believe I had only been able to escape from more severe harm from the JAM in 2008 because of the involvement of my brothers in securing my release.
86.Being denied this same protection would make me even more vulnerable to facing harm in Iraq from different groups because of my religious and political views. Instead I believe that some in my family and tribe would consider any harm I was to face by religious hardliners due to my beliefs as being justified.
Hearing

The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Neither the applicant nor the Representative raised any concerns in relation to holding a telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted, it confirmed that all parties could hear each other clearly and the Tribunal paused on several occasions to ensure that all participating parties were satisfied with the clarity of the hearing.
The applicant appeared before the Tribunal on 8 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an Interpreter in the Arabic and English languages. The applicant was accompanied by his Representative.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Iraq. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Iraq. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Iraq.
The Tribunal discussed his claims as summarised in the Delegate’s Decision. It confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
The Tribunal sought to clarify whether the applicant was maintaining his claim that he feared JAM militia members who he claimed kidnapped him in 2008.
The applicant confirmed that he did not have an ongoing fear of facing harm in Iraq from the specific JAM members who detained him in 2008 or that his past abduction is the reason he would be exposed to ongoing harm.
The Tribunal confirmed that he had made this statement in his Statutory Declaration as well.
The applicant confirmed that was the case and went on to state that it had been over 10 years since his abduction and that he was satisfied that the JAM members who had kidnapped him on that day were following orders and had no personal vendetta against him. He stated that it is very likely that these JAM members may not even remember him.
The applicant maintained that those events did occur and now offers those events as an example of what can happen in Iraq to those suspected of criticising those in political power.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has some concerns about the genuineness of the applicant’s claims.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal discussed these concerns with the applicant at length.
The Tribunal pointed out to the applicant that it was concerned that he had not lodged an application for a Protection Visa for nearly two years after arriving in Australia. The applicant replied that he had, in fact, applied for a Protection Visa some six months earlier, but that it had been invalidated as he had not provided his biometric information within the prescribed time. He stated that he had moved residence and not informed the Department of his change of address and was not aware of the invalidation of his Protection Visa application until he rang the Department following-up on its progress. Upon learning that, he immediately lodged a fresh application for a Protection Visa. The Tribunal accepted that, but queried why it had taken him so long to lodge an application for a Protection Visa in the first place. He replied that he was here on a valid Student Visa and wasn’t aware of the requirement to lodge a Protection Visa immediately upon his arrival. However upon learning of that he should, he did make an immediate application. The Tribunal noted that the applicant’s Student Visa was not due to expire until 2019 and that he had made a Protection Visa application some three years ahead of that time.
The Tribunal expressed concern about the cancellation of his student enrolment. It noted from the Delegate’s decision that on 27 January 2016, just three weeks after lodging his second Protection Visa application, the Department was advised of a cessation of studies and that his enrolment had been cancelled.
The applicant readily explained those circumstances, stating that there had been a problem with his first Supervisor and that he was required to change Supervisors during the course. However, the university or he did not notify the Department to that effect. He stated that it was rectified and that his Student Visa continued until its expiration in 2019.
The Tribunal inquired as to the status of the applicant’s enrolment. The applicant replied that his thesis had been submitted very recently and that it was currently with external examiners. He went on to state that his thesis was in relation to [topic] and that he was presently working as a tutor in [subject matter] and was a Research Assistant at [University 4].
The Tribunal accepted the applicant’s explanation as reasonable in all of the circumstances.
Turning to the issue of credibility generally, the Tribunal was impressed by the applicant as a witness. From the outset, the applicant was confident and the Tribunal found his responses to be both spontaneous and fulsome.
The Tribunal had discussed with the applicant and his Representative its concerns about the paucity of corroborative evidence in support of the applicant’s claim. For example, the Tribunal inquired why he had no medical records of the injuries he had sustained as a consequence of the 2008 kidnapping. The applicant replied that medical records are not kept in Iraq as they are in other parts of the world. The Tribunal noted the applicant’s statement that his brother, [Brother B], had been required to meet with Officers of the National Intelligence Service in Al Nazarieh and that he was advised that a complaint had been made against the applicant in relation to comments he had made on [social media]. The Tribunal inquired as to why the applicant did not have a copy of the complaint, a statement from his brother or at least text records of their communication. He replied that he does not know who made the complaint against him, is estranged from his brother and unable to obtain any statement and that there were many texts between he and his brother but they had not been kept. The Tribunal also noted a comment by the applicant that during his university days, at one point a militia had come to his university and taken away 40 Sunni students, later killing all of them. The Tribunal inquired as to whether the applicant had evidence to support that assertion. He undertook to provide media reports of it to the Tribunal.
In the absence of such specific corroborating evidence, the Tribunal was faced with a simple decision - did it accept the applicant’s evidence that he did have and presented, and was it persuaded that his claims were genuine?
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[29]
[29] Guidelines on the Assessment of Credibility (July 2015) Available at >
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[30]
[30] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal noted the applicant’s claims as to him criticising political leaders.
The Tribunal noted Country Information from the DFAT Report that provides that the Constitution of Iraq provides for freedom of assembly and peaceful demonstration as regulated by law. The Tribunal noted that there were now approximately 300 political parties in Iraq, suggesting that Iraq tolerates a diversity of views and that it is likely that in that environment, there would be many people criticising those in power.
The applicant acknowledged the existence of a diverse number of political parties, but stated that generally others are critical of the government and their actions and usually the failure to provide services. His criticisms, however, are of the leaders themselves. He restated that no one is criticising the leaders themselves.
The Representative interjected, citing information in the DFAT Report itself about violence against protesters, particularly in instances where the protesters had turned against their leaders. She also noted that such violence had taken place most recently in Nasiriyah.
The Tribunal considered the applicant’s arguments and the Country Information provided by the Representative, but was not persuaded that there was a distinction between him protesting against the leaders and 300 other political parties protesting against the government and their actions. It is a very fine distinction indeed to propose that one can criticise a government without, by implication, criticising the leaders of that government themselves. And one can be a critic without being a protestor.
Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution for reason of him holding a political opinion adverse to the government and leadership of Iraq.
The Tribunal turned to the applicant’s claim as to being an atheist.
The Tribunal noted Country Information from the DFAT Report that DFAT assesses that Christians, Sabean Mandaeans, Sunnis and Yazidis all face a low risk of official discrimination and face moderate levels of societal discrimination and violence.
The Tribunal also noted that whilst Regulations founded on Islamic law prohibit individuals from converting from the Muslim faith, DFAT is not aware of any prosecutions for this.
The Tribunal inquired as to why being an atheist would be any different to being of a different religion, for example, by being any of the religions mentioned above or not following the practices and rituals of Islam.
The applicant replied that he would be considered an apostate and would thereby face a risk of physical violence and harm in Iraq if he was required to return. The Government permits different religions, but does not permit conversion from Islam.
The Tribunal inquired of the applicant how he came to consider himself as an atheist.
The applicant provided a long explanation, consistent with his claims and Statutory Declaration, of his experiences as an undergraduate student in Baghdad, being exposed to opinions and views that were different to the teachings that had been imposed upon him as a child. He found the exchanges interesting and stimulating, not to mention his exposure to pop culture and music. He went on to explain that when he went to [Country 1], he became exposed to other religions and became even more intrigued by the various teachings and beliefs. He stated that as he became exposed to more religions and beliefs and learned more about them, he also became more aware of their inconsistencies and hypocrisies. The Tribunal engaged the applicant in a discussion about such inconsistencies and hypocrisies and the applicant provided to the Tribunal a detailed recitation of many such inconsistencies, firstly between the Christian New and Old Testaments, literal inconsistencies in the Christian Bible and then proceeded to offer the same in relation to the Koran and Hinduism. The Tribunal expressed it view that it was impressed with the applicant’s broad knowledge of so many different religions.
The Tribunal turned then to the copious [social media] entries submitted to the Tribunal that were annexed to his Statutory Declaration. The Tribunal invited the applicant to explain them. The applicant went through many of the [social media] postings which were dated from 2014 to 2020. There were numerous examples of him having expressed his views about the Muslim faith and many responses to his postings being harshly critical of him and his agnosticism.
The Tribunal noted that many of his postings appeared to be within a private [social media] group. The applicant confirmed that was the case, but also referenced many postings he had made in response to the postings of others which were not in private [social media] groups. The Tribunal noted Country Information that suggested that many atheists kept their views secret and the Tribunal inquired of the applicant, whether by expressing his views in a private [social media] group, he was not doing the same and that as a corollary to that, if he returned to Iraq, he would continue to do the same – express his views secretly and privately.
The applicant replied that it was true that many of his postings were within a private [social media] group as he was fearful of making commentary that was too direct and too forceful. However, there were many instances where he had responded to the posts of others which may have been very public and which may have had the capacity of being observed by religious clerics and leaders in Iraq and which were clearly critical of them and which would have clearly given the impression that he had become an atheist. He referred to his brother having been approached by the National Intelligence Service with a complaint about a posting. He spoke of two university friends who had noted his change in his ideologies and referenced their postings. He spoke of his most recent postings about COVID-19 and his criticism of religious clerics who proposed that people should attend a particular shrine and they would be protected from the virus. He stated that he was so incensed by those statements that he had posted publicly about them.
The Tribunal noted the applicant’s claim in paragraph 79 of his statement that stated that if he was forced to return to Iraq, he knows that he would not be able to keep silent. He would feel compelled to join those currently fighting for a revolution. The Tribunal asked the applicant why it should believe that he would speak out now when in the past he has not. The Tribunal noted paragraph 80 where it said it would not be an option for him to simply pretend to be a Shia Muslim in order to survive in Iraq. The Tribunal inquired as to whether the applicant had not done that when he completed his Protection Visa application wherein he stated that he was a Muslim.
In response, the applicant stated that he had merely completed the Application Form in accordance with the information on all other documentation being submitted as his National ID Card stated that he was a Muslim. As to having made public pronouncements, the applicant again reiterated the numerous examples of postings he had made that were public and that went beyond his private [social media] group and gave a clear picture of him having denounced and criticised Islam.
The Representative stated that there were an increasing number of atheists coming out in Iraq and referred to the Country Information in her pre-hearing submission that spoke to the risk of harm that they are exposed to.

The Tribunal referenced that Country Information, noting that 6% of Iraqis identified as atheists, but that nowhere near that number professed the same publicly. The Country Information proposed that most atheists kept their views secret.
The Tribunal considered Country Information from the DFAT Report. The Tribunal considered the plethora of Country Information it obtained internally and the Country Information provided to it by the Representative.
The Tribunal considered extracts from the DFAT Report as follows:
Several factors influence the security situation in Iraq, including actions of remaining ISIL fighters (or other extremist fighters that have emerged since ISIL’s defeat) and other armed groups (including the state-sanctioned Popular Mobilisation Forces (PMF or Al-Hashd Al-Sha'abi)), and historical intra-Shi’a and intra-Sunni tensions.
The numerous Shi’a armed groups in Iraq include Saraya Al-Salam (SAS, also known as the ‘Peace Brigades’, and partly made up of former Mahdi Army fighters), Asaib Ahl al-Haq (AAH), Kataib Hizbullah (KH), and the Badr Corps. SAS and the Badr Corps are the military arms of the Sadrist and Badr political movements respectively. Some Shi’a groups have sponsored the formation of local factional Christian and Sunni militias to divide and weaken these communities. Local and international observers have accused some PMF groups of committing abuses against civilians (PMF or Al-Hashd Al-Sha'abi)) and engaging in criminal activities. Violence between different Shi’a armed groups is also frequent, but usually low-level.[31]
DFAT is not aware of any specific examples of targeting of academics or students, including students who have studied or lived abroad. The government expects students who have studied abroad on Iraqi government scholarships to return, and guarantees employment for those students. Government connections are usually required to obtain a scholarship and scholar-returnees are likely to come from well-connected families. Many high-ranking government officials have studied abroad.
DFAT assesses that students or academics do not risk official or societal discrimination on the basis of their employment or education either in Iraq or abroad.[32]
Years of conflict, including the recent conflict with ISIL, have limited the capacity of state infrastructure, including state protection mechanisms to deliver services.
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.
The US State Department assesses that Iraqi police have committed human rights abuses, including coerced confessions. Corruption is widespread at many levels, including bribery to reduce or drop charges. The Minister of Interior, Mohammed al-Ghabban, admitted to UK media in 2016 that many Iraqis do not trust police because of their ‘failure to stop the bombers’ and ‘pervasive’ corruption.[33]
Years of conflict, including conflict with ISIL, displaced large numbers of people. The International Organization for Migration estimates 3.5 million people returned to their place of origin between January 2014 and February 2018. The UN Office for the Coordination of Humanitarian Affairs estimates that over 1.6 million people have returned to their homes since April 2017. As of July 2018, approximately two million people remain displaced, and about four million people have returned to their homes, including almost 1.5 million people who have returned to Ninevah. Disproportionately high numbers of IDPs come from minority communities, including Sunnis, Turkmen, Yazidi, Shabak and Christians. Conflict has led to previously religiously mixed areas becoming more homogenous – usually Shi’a or Sunni – thereby limiting internal relocation options. DFAT assesses that, in most cases, internal relocation for religious and ethnic minorities is difficult. Each provincial council has its own policies regarding local entry requirements, including for other Iraqi citizens.[34]
Employment opportunities remain limited in southern Iraq despite the large oil industry. Local sources note that people from southern Iraq are internally relocating to other areas of Iraq, such as Baghdad, in search of jobs. Local governments struggle to provide basic infrastructure services such as electricity and water. The capacity, and at times willingness, of local authorities to provide protection for minority groups in southern Iraq is limited.
DFAT assesses that internal relocation to southern Iraq is possible for anyone with local familial, tribal or political networks. Relocation to southern Iraq is difficult for those lacking such connections.[35]
DFAT is aware of considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. However, local sources have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of life.[36]
[31] Paragraphs 2.32 and 2.36, DFAT Report.
[32] Paragraphs 3.61 and 3.62, DFAT Report.
[33] Chapter 5, DFAT Report.
[34] Paragraph 5.11, DFAT Report
[35] Paragraphs 5.18 and 5.19, DFAT Report
[36] Paragraph 5.24, DFAT Report
The Tribunal also took into account information that despite the resignation of the former Prime Minister at the end of 2019, protests have continued as has reports of the abduction, torture and assassinations of civil activists and critics of the government. Recent reports indicate that the applicant’s home city of Nasiriyah has been the centre of the recent uprising as it has faced the :”highest death toll outside of Baghdad” with “fears civil conflict could soon erupt in the province” and “provide the impetus for a harsh crackdown”.[37]
[37] Al-Salhy, A., Dhi Qar: The southern province at the heart of Iraq’s uprising, Middle East Eye, 2 Feb 2020, available at: >
The Tribunal also accessed Country Information from its own external resources that was consistent with, and in fact mirrored, that tendered by the Representative.
The Tribunal particularly noted the following Country Information:
In its report published in May 2019, the UNHCR recognised as one of the risk profiles where a need for international protection may arise included “persons perceived as contravening strict Islamic rules”, including ”atheists and secular-minded individuals”, who are reported “to face abduction, harassment and physical attack by various extremist armed groups and vigilantes…”.[38]
[38] UNHCR, International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019 available at: at page 79.
In relation to atheists in Iraq, the same report states:
Although open atheism is extremely rare in Iraq, the number of atheists is reported to be on the rise. Although there are no laws prohibiting “atheism”, in some instances, atheists have reportedly been prosecuted for “desecration of religions” and related charges. Moreover, societal tolerance vis-à-vis atheists is reported to be very limited, as evidenced also by the public rhetoric of some politicians and religious leaders. .For fear of rejection, discrimination and violence at the hands of their families, private vigilantes and conservative/hardline religious groups, atheists are reported to often keep their views secret.[39]
[39] Ibid at page 82.
The UNHCR confirmed that they consider “atheists may be in need of international refugee protection on the ground of religion, depending on the individual circumstances of the case.” [40]
[40]Ibid at 82.
An NBC News article in April 2019 titled “Iraq's atheists go underground as Sunni, Shiite hard-liners dominate” reported:
Many of Iraq’s unbelievers have been forced underground as religious hard-liners battle for control of the young democracy, which is struggling to balance the demands of both Sunnis and Shiites, plus smaller ethnic and religious communities…
Darwin, who was raised in a devoutly Shiite family in the southern holy city of Najaf, once shared his thoughts on science and religion via [social media], where he posted under a false identity.
"We used to talk about different issues, and exchange information," he says. But he deleted this page about a year ago.
"I heard militias had started to chase us, and they had the technology and people to track my account," he says.
In a move that struck fear in Iraq’s small community of atheists, police in October arrested Ihsan Mousa, the owner of a bookstore in southern Iraq. They accused him of selling works that encouraged readers to reject Islam, according to local media reports.[41]
[41] Bruton, F.B., Iraq's atheists go underground as Sunni, Shiite hard-liners dominate, 5 April 2019, NBC news, Available at: article published by the Arab Weekly in July 2019 reported that: “Atheists in Iraq are a growing minority no longer on the political sidelines and increasingly under the state’s radar”.[42] The article went on to observe that “The growing prevalence of atheism is not entirely disconnected from the political misdeeds of political and religious figures...” [43] Despite the growing trend of atheism within Iran the article went on to report that “… vocalising belief in atheism or disbelief in Islam can be a death sentence..” and that “Godless” Iraqis who remained inside Iraq “are subjected to violence or death at the hands of militias…”[44]
[42] Tarzi, N., Iraq’s growing community of atheists no longer peripheral, Arab Weekly, 20 Jul 2019, available at: Ibid.
[44] Ibid.
While atheists face a risk of harm at the hands of government agents, the biggest threat is reported to arise from armed groups and religious hard-liners within the community. The Washington Times in August 2017 reported:
Many atheists in the region say their bigger fear is not being punished for their beliefs but that they will become targets of violent sectarian groups seeking political support from the faithful.
“It is a distraction from the fact that Islamists were not able to accomplish anything over the past 13 years,” said Faisal al-Mutar, a U.S.-based Iraqi human rights activist who heads Ideas Beyond Borders, a nonprofit that supports minorities in the Middle East. “So they want to create ‘an enemy’ to keep [the] constituency united against and avoid being held accountable for their mistakes.” Keeping their beliefs secret is the norm for atheists of all backgrounds throughout the region.[45]
[45] EASO, EASO COI Meeting Report = Iraq Practical Cooperation Meeting 25-26 April 2017 Brussels, July 2017 available at: At page 20.
In a report by the European Asylum Support Office published in April 2017:
Iraq, generally speaking, you are considered to be born into a religion and you will die in that religion – it is not just in Islam, but also in most other religions in Iraq, that apostasy is not just frowned upon as an offence, but seen as unnatural…[46]
[46] Mamouri, A., Iraqi atheists demand recognition, guarantee of their rights, Al Monitor, 6 Mar 2014 available at: March 2014 article by Al-Monitor further referred to the “prevailing social view” on atheists in Iraq that “they are morally corrupt, or that they are but agents and operatives of foreign entities, such as Zionists or Masons, among others. This negative perception might be expanded among some to include all those who call for liberalism or secularism, who would be looked at with suspicion and portrayed as members of global Masonic networks that have come to Iraq to destroy its values and social constructs.”[47]
As a result of the general perception against atheism within Iraq, individuals perceived to hold such views are reported to also face risks of harm from members of the general community. As an article published by the Pacific Standard in April 2017 reported:
Because most Middle Eastern rulers incorporate Islam into their policies in one way or another, challenging Islam is seen as challenging authority. But it is not the government that most non-believers say they fear the most; it's their fellow citizens.
As, [a] 30-year-old Iraqi atheist, explains: "In Baghdad, there's no law saying you can't be an atheist. But I'd much rather deal with authorities than with people, because the people could try to kill me for it."[48]
Atheists or non-believers face not only a risk physical violence in Iraq but also a denial of access to basic rights that are currently limited to those who self-identify as followers of certain religions. As was reported in the United States Department of State 2018 Report on International Religious Freedom: Iraq published in June:
New national identity cards do not denote the bearer’s religion, although the online application still requests this information. The only religions that may be listed on the national identity card application are Christian, Sabean-Mandean, Yezidi, Jewish, and Muslim. There is no distinction between Shia and Sunni Muslim, or a designation of Christian denominations. Individuals practicing other faiths may only receive identity cards if they self-identify as Muslim, Yezidi, Sabean-Mandean, Jewish, or Christian. Without an official identity card, one may not register one’s marriage, enroll children in public school, acquire passports, or obtain some government services.[49]
[47] Mamouri, A., Iraqi atheists demand recognition, guarantee of their rights, Al Monitor, 6 Mar 2014 available at: Stuart, H., The Hard Lives Of Non-Believers In The Middle East, Pacific Standard, 14 Jun 2017 available at: justice/the-hard-lives-of-non-believers-in-the-middle-east.
[49] USDOS, 2018 Report on International Religious Freedom: Iraq, 21 June 2019, available at: >
By and large, the applicant’s evidence during the hearing was consistent with his previous claims and was consistent with evidence provided to the Delegate. Notwithstanding this, the Tribunal still had its doubts, but in the face of the complex detail contained in the recounts of the applicant’s circumstances and his explanation of his beliefs, and the various events, the Tribunal is prepared to give the applicant the benefit of those doubts that it has. As previously stated, the Tribunal was impressed by the clarity of the applicant’s evidence, its spontaneity and the sheer detail of his recounting of events and the weight of the evidence in his [social media] postings. The Tribunal accepts that the applicant has renounced his Muslim faith and is an atheist.
In light of the Country Information above, which the Tribunal accepts, and the acceptance of the applicant’s evidence as provided to the Tribunal, the Tribunal accepts the applicant’s claims and the Representative’s submission as to the applicant being an atheist.
The Tribunal also accepts that the applicant’s previous experiences of violence and threats, both personally and demands of his brother, lend probability to the likelihood of future risk of harm at the hands of supporters of Muqtada Al Sadr and his militias and other religious clerics and their militias.
In light of the Country Information provided by the Representative above, and the incidences of violence against protesters and those being atheists, even in the South of Iraq, the Tribunal finds that the real chance of persecution relates to all areas of Iraq and effective protection measures are not available to the applicant in Iraq.
The Tribunal is satisfied that the applicant cannot take steps to modify his behaviour so as to avoid a real chance of persecution in Iraq as a modification would conflict with a characteristic that is fundamental to this identity or conscience. Furthermore, s.5J(3)(c) of the Act confirms that decision-makers should not require an applicant to “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” in order to avoid persecution.
The Tribunal is mindful that the applicant is a scholarship holder and that the Government generally welcome back scholarship holders and provide them with employment. The Tribunal is also mindful that the applicant is estranged from all of his other family members living in Iraq, and even balancing the fact that the applicant was able to travel to Australia, a country quite foreign to him and with a different language wherein he was able to settle with no apparent difficulties, suggesting he is quite resourceful and resilient, it is persuaded by the difficulties referenced in Country Information he will encounter in being relocated back to Iraq and attempting to integrate into a new community.

100. The Tribunal noted the applicant’s attempt to relocate to Erbil, noting particularly the applicant’s statement that a friend of his was resident in Erbil. It noted, however, that the friend was subject to a six monthly renewal of his visa that was related to his working for [Company 1]. The Tribunal notes the applicant’s statement and Country Information that it is not possible to relocate to the KRI without sponsorship.
101. Accordingly, the Tribunal finds that he has a well-founded fear of persecution for reason of his religion, him being an atheist.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
102. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iraq.
Conclusion: Refugee Criterion
103. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for reason of religion. His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.36(2)(a).

Conclusion: Complementary Protection
104. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iraq.
Overall conclusion:
105. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
DECISION
106. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Michael Hawkins
Member

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

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

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

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

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

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 2439

15 April 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction