1717958 (Refugee)

Case [2020] AATA 2439

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

  1. 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).

  2. 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

  3. 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.

  4. 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…

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AGLC
1717958 (Refugee) [2020] AATA 2439
Case
[2020] AATA 2439
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, who had previously lived in Iraq, claimed to have renounced his Muslim faith and identified as an atheist. He also alleged past threats and abduction by militia members, and expressed concerns about his safety if returned to Iraq due to his religious beliefs and criticisms of political and religious figures. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, or alternatively, whether he was entitled to complementary protection under section 36(2)(aa).

The Tribunal's reasoning focused on the applicant's claim of being an atheist and the associated risks in Iraq. It considered extensive country information regarding the treatment of atheists and critics of religious and political figures in Iraq, including reports of societal intolerance, potential prosecution for "desecration of religions," and risks from armed groups and vigilantes. The Tribunal also examined the applicant's social media activity and his explanations for his public expressions of atheism, despite the general tendency for atheists in Iraq to keep their views secret. The Tribunal found the applicant's evidence to be detailed and consistent, and accepted that he had renounced his Muslim faith and was an atheist.

Applying the legal principles concerning well-founded fear of persecution, the Tribunal concluded that the applicant had a well-founded fear of persecution for reasons of religion, specifically for being an atheist. The Tribunal found that the real chance of persecution related to all areas of Iraq and that effective protection measures were not available. Furthermore, the Tribunal determined that the applicant could not reasonably be expected to modify his behaviour to avoid persecution, as doing so would conflict with a characteristic fundamental to his identity. Consequently, the Tribunal found that the applicant was a refugee within the meaning of section 36(2)(a) of the *Migration Act 1958* (Cth).

As the Tribunal had determined that the applicant satisfied the refugee criterion under section 36(2)(a), it was not required to consider the complementary protection criterion under section 36(2)(aa). The Tribunal's decision was to remit the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 ReportThe 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 Criterion103. 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 Protection104. 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).DECISION106. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Michael HawkinsMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.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.