1718712 (Refugee)

1718712 (Refugee) [2021] AATA 5041 (8 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1718712

COUNTRY OF REFERENCE: Iraq
MEMBER:Scott Clarey
DATE:8 December 2021
PLACE OF DECISION: Melbourne
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 8 December 2021 at 3:43pm
CATCHWORDS
REFUGEE – protection visa – Iraq – political opinion – opposition to militia groups – particular social group – people who actively oppose militia activity – religion – mixed marriage – fear of killing – refusal to join militia group – bomb attack on home – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
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 dependants.

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 31 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant ([name]) who claims to be a citizen of Iraq, applied for the visa on 19 May 2016. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. On 21 August 2017, [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.
[The applicant] appeared before the Tribunal on 25 November 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Arabic and English languages. [The applicant’s] representative attended the hearing via telephone link as he was interstate and unable to attend in person.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Iraq, there is a real risk he will suffer significant harm.
Identity
On the basis of the copy of [the applicant’s] passport provided to the Department, I accept that he is a citizen of Iraq and that his identity is as he claims it to be. I accept that Iraq is [the applicant’s] country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
Relevant background
[The applicant] is [an age]-year-old man born in Baghdad, Iraq on [date]. In his protection visa application he claimed to be an Arab Iraqi of the Shia Islamic faith. At the hearing, [the applicant] stated that he had [number] siblings ([specified]). According to [the applicant], all of his siblings now live outside of Iraq. [One sibling] lives in [Country 1] and [the others] live in [Country 2] with their mother. [The applicant] said that his father’s whereabouts is unknown. [The applicant] finished high school in Iraq and completed a bachelor’s degree in [subject 1] there in [year]. In [year] he began working at [Agency 1] as [an occupation 1], where he worked for several years before transferring to another government department in a similar job. He first arrived in Australia [in] February 2015, having departed Iraq legally, entering Australia on a student visa to study a [qualification 1] on an Iraqi government scholarship.
Claims from the protection visa application
[The applicant] set out his claims for protection in a statement attached to his protection visa application form as follows:
I, [name], an Iraqi national, was born in Iraq on [date], belonging to Arab ethnicity and Shi’a faith of Islam. Both of my parents are Iraqis; my father of Shi’a faith and my mother was Sunni. My father was working [for a named employer] in Baghdad while my mother was [worked for a different employer]. I have [number] siblings and I’m the youngest one.
I arrived in Australia holding a student visa and I fear to go back to my home country due to significant and serious harm I will be subjected to for the reasons explained below:
I was raised up in a very difficult situation; when I was a little kid I witnessed the Iraqi-Iranian war as well as the gulf war. Our financial situation deteriorated since my father has retired because of the discrimination he had been facing during Saddam’s regime. The main reason behind this discrimination was because he was refusing to be a member of Al-Baath party.
After my father’s retirement, he decided to start a [business] and he established a company for [specified services]. Saddam’s government has confiscated his company and they arrested him. A few friends of him have contacted the authorities and they got him released as there was no even one legal reason to arrest him and put him in a jail.
After having finished my high school, I was qualified to enter [a named] University, [name] college, [in a specified] department.
While I was studying at the primary school, there were religious classes conducted in most of the mosques in Iraq and these types of classes were called “the faith campaign” which was instructed and supported by Saddam.
I saw a lot of people attending the classes. They used to teach Quran, Islam rules and prophet stories…etc.
I never liked the idea of going to a mosque except one time when I went with my brother to [a named] mosque that was the closest to our home where I went to pray there. I was not aware that Islam has a number of sects and has different faiths as well.
My father was a religious Shi’a and my mother was Sunni but I personally did not realize any distinction.
I used to have a lot of friends that I knew them through school or we share the same neighborhood and our ages were relatively the same. [Friend A] was my close friend. We were from different faiths; he was Christian, Assyrian.
Due to sectarian conflicts and bad of security and safety situation in Iraq after 2003, a large number of families starts to escape to other places within Iraq or even to another country in order to seek safety. [Friend A] moved to another place in 2006 but we still in contact to date. I met a lot of new friends after [Friend A] either through the University or through our suburb. I always managed to keep a distance between me and all of those new friends as I could trust no one at that time.
One of the friends I met after 2003 is [Friend B]. [He] was a very polite person and had no connection to any of religious parties or political groups. Sometimes [Friend B] showed hatred and used to criticize religious groups, how they got their power and how they harmed him. They kidnapped him and later was found murdered. I started suffering and was not able to express my views against the radical groups who harmed my friends and yet would harm me.
I worked in 2002 [at Employer 1]. After Saddam’s government fall, I worked as [occupation 2] in [Employer 2]. In 2006, I worked in a [product 1] shop in [Location 1]. Furthermore, I worked as a seller in [a product 2] shop in 2011 that specialized in [product 2].
I could not get employment despite the fact that I was well educated, but my applications got declined as I was involved in any political party. However, my first official job was in 2012 when I worked at [Agency 1] as [an occupation 1]. At the end of 2014, I moved to the [Centre 1] which is located close to my house.
After 2003, a numerous number of religious and political groups have appeared in Iraq and all those groups have ambiguous goals where all these groups have used the religion as a cover to hide their selfishness and criminal plans. Political and religious groups have used that cover to convince people that will defend them and get them back all their rights. However, I had a different view and I never agreed with those groups especially the religious extremist ones.
A conflict had taken place between those groups that were mainly represented by Al Qaida and then Jaish Al Mahdi. In my area, which is mainly composed of Shia rather than Sunni and hence, Jaish Al-Mahdi had the control after they won the fight with Al Qaida.
When Jaish Al-Mahdi had the full control of our area, they started forcibly collecting money from shops and people. At that time, I was working at [Location 1] and they used to come to collect money from us. One day I had an argument with one of the group called [Leader A] as I did not agree with him in collecting money from people, attacking American army, or having a conflict with other armed groups in residential areas.
Upon expressing my views, they threatened my life and I was subjected to their pressure. They decided to harm me; therefore, I left my job and stayed home in hiding. It was either you express your view and get seriously harmed, or you get your liberty denied and that you keep silent and in hiding.
However, in a couple months, they approached me at home and asked me to carry a gun and stand in the street as a security man since our area was planned to be taken by Al Qaida as they said. I refused to join them as they are all criminals and I had nothing to do with guns and arming others.
As I refused their proposal, they become seriously dangerous and threatened my life again. I planned to leave my house and go somewhere else safer. My [named relative] took me by his car to his area for safety.
end 2007, [Leader A] which is one of Gaish Al Mahdi leaders and his group raided my house looking for me. My dad had an argument with them and they insulted him and they promised him to kill me no matter where I was.
After hat threat, I had to find another place for safety; my brother in law took me to my uncle’s apartment which was [a named location]. I stayed at my uncle’s apartment for a few months. The apartment was so small and I had to sleep in the living room. Fortunately, this situation did not last for too long since the prime minister (03/2008) Noori Al-Malki has started a campaign against them and he called it Sawlat Al Fursan in which he has arrested most of Gaish Al Mahdi leaders and the rest of them have escaped the country.
In April of the same year, I was able to get back to my house after Gaish Al Mahdi including [Leader A] have fled from most of the areas in Baghdad especially our area. I thought it was too safe to express my views and criticize their acts which I considered as non-Islamic. I was able to speak to people in the area.
At the end of 2010 I got employed at [Agency 1] but because of my opinion towards religion and politics, I was subjected to a harm from other employees because of my opinion and my speech against the religious and political groups. I was mistreated, insulted and threatened. I was called apostate and infidel.
High position staff significantly harmed to me, I had no choice rather than moving to another place. Therefore, I moved to [Centre 1] which was close to my house hoping I would get rid of the pressure and the harm I was subjected to.
Unfortunately, [Centre 1] was controlled by Asaaib Ahl Alhaq and most of the employees were following the militia’s agenda and that was represented by insulting other employees who disagree with them especially of Sunni faith of Islam.
As my perspective about those groups was unfavorable to them, I became targeted; I was offended along with the Sunni employees. These abuses have reached their peak when I was invited to undertake a training preparation course provided by [an international agency].
After June 2014, the Jihad was declared by Supreme Shi’a scholar Sistani. They encouraged people to fight against ISIS. Militias started reforming their cells and members. It was a holly order for people who can carry guns to join; otherwise, they would be subjected to harm.
I went with my father to a meeting with a person called [Leader B] who invited us to attend that meeting. We did not know that he was a leader in Asaaib Ahl Alhaq. He started praising Asaaib Ahl Alhaq and inviting people to join them. I could not stay silent as I had an adverse view. I spoke and expressed my opinion; I warned them from a new sectarian war if they do so and discourage all guys from doing it.
I further said that instead of getting untrained young people in the war, I suggested asking assistance from the international community who have special forces. The response of [Leader B] was too short to shut me up with anger glaze. He said, “It is so shame that you [have the same name]”. I felt I was in trouble and if it was not a meeting, I would have a bullet in my head, therefore, I left the place immediately.
After one month, I received a threat from Asaaib Ahl Alhaq and upon that I put a claim against them at [a named] police station. My claim was pointless as there was no authority above Asaaib Ahl Alhaq and no one could get my rights back from them or would protect me.
As I was in process to come to study in Australia, I took a leave from my workplace for a month to be away from their eyes and to finish my application in order to come to Australia while I was living at my uncle’s house in [Town 1].
In 01/2016, my family found a threating letter hung on our front door and that was from Asaaib Ahal Al Haq asking my family to leave the place. My family decided to move to my relative’s house in [Town 1] as a way to escape the danger temporarily. After a couple months, they managed to ask people to talk with the leader in Asaaib Ahal Al Haq [Leader B] about the reason of threat, when he told my family to move back to their house and he told them. they do not have to be worried about anything as everything is related to your son [the applicant] and we will do what is required when he comes back to the country.
Since my arrival, I have been enjoying my liberty and practicing my human rights with no fear; while my country has been through serious violence and attacks against people with an adverse political opinion. I fear to go back to Iraq and that I have no access to a third country. Therefore, I seek the Australian protection.
I note that [the applicant’s] representative forwarded a submission to the Tribunal dated 18 November 2021 that included a legal submission (dated 17 November 2021), an updated statement from [the applicant] (dated 17 November 2021), and a series of documents relating to a claimed bombing incident in 2018 at [the applicant’s] family home in Iraq. At the Tribunal’s request, [the applicant’s] representative provided further documents related to this incident including the original police report in Arabic (previously only the officially translated document had been submitted). I note that these submissions contain significant new information that was not before the Department at the time of their decision, including information related to the 2018 bombing incident that had not yet occurred at the time the delegate’s decision was made in 2017.
Evidence from the Tribunal hearing on 25 November 2021
At the hearing, [the applicant] stated that he was born in Baghdad, the youngest of [number] siblings. He said that his family was not religious, his father was nominally a Shia and his mother nominally Sunni, but due to the Baathist regime he was born under the family nominally followed the Sunni faith. [The applicant] said that his issues with a local militia group in Baghdad began in 2006, and took place in the context of the post conflict environment following the Iraq war of 2003. [The applicant] said that there were various militia groups vying for power and control over territory in Baghdad during this time and the relative power and control of these groups surged and waned in relation to the level of US military activity in various neighbourhoods at the time. He said that the specific militia group known as Jaysh aI-Mahdi (or the Mahdi Army), had control of the area in which he lived in Baghdad.
In 2006 [the applicant] said that he was working in a [product 1] store when a group of militia men affiliated with Jaysh aI-Mahdi came into the store demanding money to be donated to their cause. [The applicant] said that when he refused the request he was accused of being an atheist, threatened, before the men left after stealing some of the store’s stock. Given the notoriety of these militia groups, and their unchecked activity in the area, [the applicant] said that he was frightened by this incident. He said that the militia group subsequently confronted [the applicant] and his father. He said that the militia told his father that [the applicant] would be killed if he refused their request to join their group. He said the period following this incident coincided with increased US military activity in the area, and the militia’s attention was diverted elsewhere as they withdrew from that area of Baghdad.
[The applicant] said that he commenced his [subject 1] degree at university around this point and was able to study in relative peace and freedom. He subsequently finished his degree and started working with [Agency 1] as [an occupation 1] in [year]. He said that his problems with the militia resurfaced in 2014 when a threatening letter was posted by them on the front door of his family’s home. [The applicant] said that the letter specifically accused him of being an atheist, threatened him, and told him he must leave the area. When asked why the militia had specifically threatened him in 2014 several years since the last claim threats, [the applicant] said that at that time a ISIS affiliated militia named Asa’ib Ahl al-Haq (AAH) had moved back into the area after the withdrawal of US government troops and gained primacy there. He said he was known to the militia from his previous run-ins with them in 2007 and because of his outspoken ‘anti-militia’ views. He said that one of his work colleagues was married to a man who was a high-ranking member of the AAH and he suspects that this colleague may have informed on him. He said that the militia group subsequently confronted [the applicant] and his father and tried to compel him to join the group, as at this time they were actively recruiting to grow their ranks, especially in light of casualties that had been sustained in violent conflict with other militia and the US-led forces. [The applicant] said he vocally refused to join the group and went into hiding at his auntie’s house. He said that the militia subsequently told his father that [the applicant] would be killed if he refused the request to join their group. He said around this time he enrolled in and was accepted to study a [qualification 1] at [a named] University [in Australia] on Iraqi government scholarship related to his employment at [Agency 1]. [The applicant] said that he and his father had tried to request help from the police, but the police were powerless because the militia held so much influence in the area. [The applicant] said that by this stage he already had plans in train to leave Iraq and study in Australia, which he did in February 2015.
In 2016 [the applicant] said that his parents received a threatening letter from AAH due to [the applicant’s] history with them and his previous outspoken refusal to join their ranks. He said that his parents were so spooked by this threat that they were forced to flee their home out of fears of reprisals from the group. [The applicant] said it was at this point, when he heard his parents were still receiving threats related to him from the militia in 2016, that he decided to lodge an application for a protection visa in Australia, which he did in May 2016. He said that other family members including [one sibling] were also targeted by the militia, and [they] relocated to [Country 2] because of the threat. He also said his [sibling] moved to [Country 1] in part because [of] feared reprisals from the group.

In 2018 [the applicant] said that he was having ongoing difficulties with the Iraqi consulate regarding the ongoing scholarship funding for his [qualification 1] in Australia. He had several disputes about the funding with the Iraqi officials, and the funding at one point had been stopped and his studies disrupted. Although he had subsequently completed his [qualification 1], he was unable to graduate because the funding from the Iraqi government to the University had ceased. [The applicant] said that he had difficulty finding out why this was the case and how he could get the funding restored. [The applicant] said that in 2018 his parents were suffering separate, serious health conditions; his father had [specified conditions], and his mother had suffered a stroke, was very unwell and being cared for at home by his [sibling]. [The applicant] made the decision to return to Iraq in November 2018 to assist his [sibling] to deal with his parents’ health issues and to get to the bottom of the scholarship funding issue that he had been unable to progress by the Iraqi consulate in Australia. He said that it was his understanding that at that time the threats he faced from the militia had abated.
[The applicant] said that while he was in Iraq in 2018, he was asleep at his family home on the night of [a date in] November when a home-made explosive device detonated on the doorstep of the house. He said the bomb was a deliberate attempt by AAH to send him a message and the size of the blast could have easily killed him and/or his mother, both of whom were asleep inside at the time of the blast ([the applicant’s] father was in hospital at the time). [The applicant] said there was significant damage to the house from the explosion including extensive broken glass. When asked how the militia knew he had returned to Iraq at that time, [the applicant] said that he did not know but he had been out and about visiting his father in hospital, and following up with the [a named authority] regarding the scholarship. [The applicant] said that he called his friend who was a police officer and asked for his advice. [The applicant] said that he was very shaken by these events and decided shortly thereafter to leave Iraq and return to Australia. I note that [the applicant] has submitted to the Tribunal evidence of this bombing incident in the form of a police report (and a translation of it from an accredited translation service), including photos of the damage to the family home purportedly caused by the explosive device.
When I asked [the applicant] what harm he feared if he were to return to Iraq in the foreseeable future, he stated that he feared being tortured or killed by the militia for the various reasons that he had previously outlined. He stated that the bomb blast at his house was evidence of the seriousness of their intent and the fact that the threat he faced was ongoing and high level. When asked if he would be able to relocate within Iraq, to avoid the claimed threats he faced, [the applicant] said this would not be possible because the militia’s power and control was pervasive throughout the country. When I questioned [the applicant] about this, and about the localised nature of militia activities in Iraq, he said that the particular militias in question had links throughout the country and ‘have their people everywhere’.
When asked if there were any other fears that he held, [the applicant] said he was now married to a Christian [Ethnicity 1] woman (who had met in Australia and married in May 2018), who was currently pregnant with his child. [The applicant] intimated that he held concerns over the interfaith/interracial aspect of his relationship, and how that would be perceived in Iraq.
RELEVANT LAW
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Findings and reasons
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of Iraq, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Does the applicant face a well-founded fear of persecution in the future?
I accept that [the applicant] was born and raised in Baghdad to a (nominally Shia) father and a Sunni mother, although the family was not overtly religious. I accept that the family livid under the shadow of the Baathist regime and nominally followed the official Sunni faith throughout his childhood. I accept that [the applicant] came to the adverse attention of Shia militia groups in Baghdad (namely those overseen and operated by Jaysh al-Mahdi and AAH) during several run-ins with members of these groups between 2006 and 2014. I accept that [the applicant] has openly and repeatedly expressed outspoken ‘anti-militia’ views against the groups’ activities and has openly rebuffed attempts by them to recruit him into their ranks. I accept that particular Shia militia groups in Baghdad believe that [the applicant] holds ‘anti-militia’ political opinions (actual or imputed) and that he has been targeted by them because of his objections to their activities and his refusal to be recruited by them. I accept that [the applicant] (and members of his family) have been threatened by members of AAH and Jaysh al-Mahdi due to [the applicant’s] ‘anti-militia’ views, including through threatening letters. I accept that, based on [the applicant’s] oral evidence and a translated police report submitted to the Tribunal (as detailed above), that [the applicant] was the target of a home-made explosive device that detonated outside of his family home while he and his mother were sleeping inside.
Are the applicant’s fears of harm well founded?
Given these findings about [the applicant’s] past experiences in Iraq and current profile, I have considered whether [the applicant] faces a well-founded fear of persecution from Shia militia for a refugee reason as set out in s 5J(1)(a) if he returns to Iraq in the foreseeable future.
In considering this question, I have had regard to various sources of country information concerning the security situation in Iraq, including information relating to the activities and influence of Shia militia. This includes information from DFAT’s country information report on Iraq, information from the US Department of State, Amnesty International, the International Crisis Group, the UK Home Office and the UNHCR. I have given consideration to the fluid security and political situation in Iraq, including the power and influence of various Shia militia groups (including AAH and Jaysh al-Mahdi) in order to determine if [the applicant’s] fears of serious harm from particular Shia militia, due to his previous outspoken views against them and his refusal to be recruited to their ranks, are well-founded.
I note that various sources of country information suggest that Shia militias have increased their activity, control and influence in Iraq as a result of their involvement in the defeat of ISIS. According to Brookings Doha Centre,[1] many of these militias have engaged in violence (including human rights abuses), have pursued their own independent political and strategic objectives through their own preferred (and often violent) means, and have refused to yield to Iraqi government control or oversight.
[1] Ranj Alaaldin, ‘Containing Shiite Militias: The Battle for Stability in Iraq’, Brookings Doha Center Policy Brief December 2017; and Ranj Alaaldin, ‘Fragility and Resilience in Iraq’, Istituto Affari Internazionali (IAI), November 2017 >
In its country information report on Iraq, DFAT states that the security environment in the country is further complicated by increasing tensions between the US and Iran (and the latter’s increasing covert activities in Iraq, including support of Shia militia), noting Shia militia aligned to Iran in the Popular Mobilisation Forces (PMF) want to expel US forces from Iraq and as a result have launched attacks against the International Zone in Baghdad and other locations in Iraq, ‘relatively frequently’.[2] DFAT described the PMF as follows:
The Popular Mobilisation Forces (PMF) are a state-sponsored umbrella military organisation composed of approximately 60 militia groups operating nationwide. The PMF was formally established based on a 2014 fatwa (Islamic declaration) by Iraq’s Grand Ayatollah to assist in the conflict against Da’esh, and they played an important role in the eventual military victory. Most PMF units are Shi’a Arab and operate across Iraq, while Sunni Arab, Yazidi, Christian and other minority PMF units generally operate within or near their home regions. International observers place the numbers of those involved in the PMF at between 130,000 to 150,000 fighters, although precise figures are unclear. In the lower ranks, many of those involved in the PMF are reportedly motivated by financial considerations rather than ideology. In-country sources report that many PMF members ‘moonlight’ from other jobs including in the police.[3]
[2] DFAT Country Information Report Iraq, 17 August 2020 at 2.55.
[3] Ibid at 5.8.
I note also that in a 2019 report, the UNHCR described the PMF as follows:
The PMF represent dozens of highly heterogeneous armed groups with varying ideologies and allegiances. In 2016, the government institutionalized the PMF as “an independent military formation as part of the Iraqi armed forces and linked to the Commander-in-Chief”. In March 2018, the Government issued a decree which put the PMF on a par with members of military forces under Ministry of Défense control, including in terms of salary. The PMF fall administratively under the state-run PMF Commission; however, the level of integration of the PMF’s various components varies significantly and as a result they exist both as part of and outside the formal security apparatus. Following the May 2018 parliamentary elections, some PMF groups have become part of the government, while some also operate both in the formal and informal economic sector. It has been reported that different PMF factions are increasingly engaged in a competition over power and resources. Some PMF groups have been held responsible for a range of human rights abuses against alleged ISIS suspects, as well as the targeting of critics and those perceived to be contravening strict Islamic rules.[4]
[4] UNHCR, United Nations High Commission for Refugees (UNHCR), International Protection Considerations with Regard to People Feeling the Republic of Iraq’, 3 May 2019, pp 14, 15 [footnotes omitted].
I note that in its country information report, DFAT refers to the AAH as an Iran-aligned PMF group.[5] Country information indicates that the AAH is an Iranian backed Shia militia and political entity operating primarily in Iraq (but also in Syria and Lebanon). It is overtly anti-American and sectarian in its ideology.[6] The group was established in 2004 as an elite militia within the Mahdi Army. In mid-2006 the AAH split from the Mahdi Army and continued fighting, following a ceasefire announced by al-Sadr in 2007.[7] The AAH was initially involved in sectarian killings, kidnappings and other human rights abuses,[8] with its main targets Coalition forces, Iraqi officials and Iraqi security forces.[9] AAH’s ideology emphasises its reverence for the Iranian Shia political system, and the group ultimately seeks to impose strict Shia Islamic governance in Iraq.[10] It is considered one of the most powerful Shia militia in Iraq and seeks to promote Iran’s political and religious influence in Iraq, maintain Shia control over Iraq, and oust any remaining western vestiges from the country.
[5] DFAT Country Information Report Iraq, 17 August 2020 at 3.142.
[6] Counter Extremism Project, ‘Asaid Ahl al-Haq’, Asaib Ahl al-Haq | Counter Extremism Project.
[7] Johnson, J 2009, ‘Threats in Southern Iraq Ahead of a US Withdrawal’, Small Wars Journal, n.d. p.7, smallwarsjournal.com/blog/journal/docs-temp/302-johnson.pdf
[8] Amnesty International 2011, Annual Report 2011 – Iraq, May, Roggio, B 2008, ‘New Special Groups splinter emerges on Iraqi scene’, Long War Journal, 20 August,
[9] Roggio, B 2008, ‘New Special Groups splinter emerges on Iraqi scene’, Long War Journal, 20 August,
[10] Wyer, S 2012, ‘The Resurgence of Asa’ib Ahl Al-Haq’, Middle East Security Report 7, Institute for the Study of War, December, pp.9-10,
Various reports indicate that since the US withdrew its forces from Iraq in December 2011, the AAH’s political activity expanded significantly. In 2017 it became a member of the Fatah (Fatah al Mubin) coalition in the Iraqi government and won several seats in the Iraqi Parliament. The Fatah coalition consists primarily of PMF militias supported by Iran.[11] However the AAH’s involvement in politics has not stopped it carrying out sectarian violence and targeted attacks. Despite reports of sectarian atrocities and war crimes, AAH and other PMF militias were formally recognised by the Iraqi Parliament in November 2016. Further, AAH has continued to expand its influence in Iraq during the fight against ISIS, and thereafter.[12]
[11] Stanford University, Center for International and Security Cooperation (CISAC), ‘Asa’ib Ahl al-Haq’, last modified July 2018,
[12] Counter Extremism Project, ‘Asaid Ahl al-Haq’, Asaib Ahl al-Haq | Counter Extremism Project.
I note that in January 2020, the US State Department designated the AAH as a Foreign Terrorist Organisation.[13] In the media release announcing the decision, the State Department said that the AAH had claimed responsibility for more than 6,000 attacks against US and Coalition forces since its creation in 2006, including carrying out highly sophisticated operations.[14]
[13] Michael Knights, The Washington Institute for Near East Policy, ‘Profile: Asaid Ahl al-Haq, April 27, 2021, US Department of State, Media Note, State Department Terrorist Designations of Asa’ib Ahl al-Haq and Its Leaders, Qays and Laith al-Khazali’, January 3, 2020, State Department Terrorist Designations of Asa’ib Ahl al-Haq and Its Leaders, Qays and Laith al-Khazali - United States Department of State.
DFAT reports that many groups who make up the PMF have committed human rights abuses including extrajudicial killings and enforced disappearances,[15] and that there have been consistent reports that PMF groups regularly abuse and torture individuals, during arrest, pre-trial detention and after conviction.[16]
[15] DFAT Country Information Report Iraq, 17 August 2020 at 4.1 and 4.7.
[16] Ibid at 4.18.
In terms of the PMF’s level of control over the general population, DFAT stated:
According to in-country sources, individual PMF elements exercise close control over many neighbourhoods, particularly in Shi’a areas. PMF groups effectively run these areas, providing a range of services that would normally be fulfilled by the state (particularly welfare and security). The manner in which PMF groups conduct themselves at the neighbourhood level depends upon the individual group. While, for example, some socially-conservative Shi’a PMF groups will punish anybody involved in the alcohol or drug trades, other groups reportedly run private nightclubs in which both alcohol and drugs are readily available. Many PMF groups have reportedly taken advantage of their freedom of action to establish local crime rings and mafia-like protection rackets. Human rights organisations report that some PMF groups engage in killing, kidnapping and extortion throughout the country, particularly in ethnically and religiously mixed governorates... In-country sources report those who fall foul of a PMF group in their local area have little chance of gaining recourse or justice through official means.[17]
[17] Ibid at 5.11.
Other sources of country information confirm that serious human rights abuses were committed by the Iraqi Security Forces (ISF), which include Shia PMF militia elements.[18] The US Department of State country report on human rights practices in Iraq refers to numerous reports that several government and non-government actors, including militias, engaged in arbitrary or unlawful killings. The report stated:
Human rights organizations reported that Iran-aligned Popular Mobilization Forces (PMF) militia groups engaged in killing, kidnapping, and extortion throughout the country, particularly in ethnically and religiously mixed provinces.[19]
[18] US Department of State, 2020 Country Reports on Human Rights Practices: Iraq, March 30, 2021, sections 1.c, 1.d and 1 g; EASO Country of Origin Information Report – ‘Iraq Actors of Protection’ European Asylum Office (EASO), 4 December 2018 p 34.
[19] US Department of State, 2020 Country Reports on Human Rights Practices: Iraq, March 30, 2021.

In recent analysis of the October–December 2019 protests, the International Crisis Group (ICG) stated:
…the Tishreen uprising exposed an unusual, though not unprecedented, intra-Shiite rift. Whereas earlier post-2003 violence in Iraq had primarily pitted Sunnis against Shiites, Arabs against Kurds or the state against insurgents, these confrontations arrayed a Shiite Islamist-led state apparatus against the predominantly Shiite population in Baghdad and the south. It also involved Shiite political parties, paramilitaries and other armed groups that have long been at odds, especially the followers of Muqtada al-Sadr and others under the banner of the Hashd, some elements of which enjoy material support from Iran.[20]
[20] International Crisis Group, Report No. 223/Middle East & North America, ‘Iraq’s Tishreen Uprising: From Barricades to Ballot Box’, 26 July 2021.
Other sources indicate that recent violence in Baghdad has been characterised by violent clashes between Shia Muslims, and personal, targeted or criminal violence. The latter activities primarily involve the use of intimidation and violence against civilians to make money, drive away civilians who are considered to be outsiders or who the perpetrators want to remove (i.e. political opponents or people of a different sect or ethnicity, or because of the person’s lifestyle or prior involvement in activities or armed conflict). PMF militias in Baghdad are frequently accused by Sunnis and minorities of violence, and Shias have also been targets of extortion and killing. As PMF militias have strong links to criminal gangs, distinguishing between the two is not always easy.[21]
[21] ‘Country Guidance: Iraq – Guidance note and common analysis’ European Asylum Support Office (EASO), January 2021, p 68.
In this context of a fractured political landscape, longstanding sectarian divides (and more recently intra-sectarian divides) and long‑term problems facing Iraq posed by militias motivated by sectarian and political loyalties, I consider that it is not far-fetched that [the applicant] may be at risk of harm from Shia militia who I accept have threatened him in the past, and who I accept have directly targeted him more recently in 2018 with a homemade explosive device that was detonated at his family’s residence while he was sleeping inside. I note that country information before me suggests that the fact that [the applicant] is Shia himself does not preclude him from being targeted by Shia militia, particularly noting intra-Shia rifts and reports that suggest Shias have also been targets of extortion and killing. More broadly, whilst country information indicates that anti-Shia violence has reduced following the defeat of ISIS in Iraq, isolated incidents continue to occur. There is a security vacuum in various parts of the country, and Shia militia (including those backed by Iran such as the AAH) have increased their influence and presence as a result, particularly in southern Iraq and Baghdad. Such groups also receive financial and other support from the government (and others, including Iran).
In this context, and given I accept that [the applicant] is of ongoing adverse interest to Shia militia elements in Baghdad, I accept that should [the applicant] return to his home in Baghdad, now or in the foreseeable future, there is a real chance he will face serious harm from Shia militia such as members of the AAH, as required by s 5J(4)(b) of the Act, in that it involves threat to his life or liberty or significant physical harassment or ill-treatment. I consider that [the applicant’s] ‘anti-militia’ political opinion (actual or imputed), and/or his membership of a particular social group consisting of people who actively oppose militia activity and/or refuse to be recruited by them, is the essential and significant reason for the persecution he fears, as required by s 5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves selective harassment for reason of his political opinion (actual or imputed), and/or his membership of a particular social group consisting of people who actively oppose militia activity and/or refuse to be recruited by them, that is, as somebody perceived to be acting contrary to their agenda and or critical of their activities.
I am satisfied, based on these findings, that [the applicant] faces a well-founded fear of persecution based on his ‘anti-militia’ political opinion (actual or imputed), and/or his membership of a particular social group consisting of people who actively oppose militia activity and/or refuse to be recruited by them as per s 5K of the Act.
Relocation
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.
I am satisfied that [the applicant], as a citizen of Iraq, has the right to relocate within Iraq. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[22]
[22] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453.
I have considered if [the applicant] faces a real chance of persecution in all areas of Iraq as required by s 5J(1)(c) of the Act. As noted, [the applicant] originates from Baghdad, where he lived prior to coming to Australia in 2014. I have therefore considered whether the real chance of serious harm from the Shia militia and/or their agents as a person who holds ‘anti-militia’ political opinions (actual or imputed) relates to all areas of Iraq.
I note that I have found that [the applicant] would face a real chance of serious harm from Shia militia in Baghdad where they continue to exert control and influence. I note that [the applicant’s] various family members (including at times his mother, [and specified family members]) have thought it necessary to move outside of the Iraq (to [Country 2] and [Country 1]) to avoid the harm they fear from Shia militia elements in Iraq. I note [the applicant’s] fears, voiced at the hearing, that relocation within Iraq is not possible because the militia’s influence and activity extends to all areas of the country and that he would not be safe anywhere in Iraq. I note that there are potentially other obstacles in [the applicant] relocating elsewhere in Iraq, including the fact that he has [an Ethnicity 1] Christian wife who has never been to Iraq and does not speak Arabic, and the fact that they are currently expecting their first child together. These factors may contribute to making relocation an unreasonable prospect in his particular circumstances.
For the reasons given above, I am satisfied the real chance of persecution in [the applicant’s] case relates to all areas of Iraq as required by s 5J(1)(c). Consequently, I am satisfied that [the applicant] faces a well-founded fear of persecution as required under s 5J of the Act.
The availability of effective protection measures
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2) of the Act. I have considered if effective protection measures are available to [the applicant] in Baghdad as required by s 5LA.
It is submitted that effective protection measures are not available in [the applicant’s] case. Due to weak governance and instability with respect to the country’s security situation the authorities are unable to prevent reprisals and human rights abuses from occurring against people targeted by PMF forces including Shia militia.
The DFAT report stated:[23]
[23] DFAT Country Information Report Iraq, 17 August 2020, sections 5.1–5.7, 5.12–5.14, 5.19–5.24.
The ability of authorities to provide state protection varies according to geographic location, with several parts of the country not under the effective control of the state. Human rights groups have consistently raised concerns that impunity for abuses committed by security authorities and other official bodies remains the norm. All state protection institutions are significantly subject to and affected by Corruption, particularly the police. State protection bodies are also heavily politicised, and politically motivated appointments and problematic management have negatively affected their overall performance in many cases. Poorly defined administrative boundaries and disputed territories between central authorities and the KRG have led to confusion and dispute in some instances over the jurisdiction of security forces and the courts. As reported in Protesters and Demonstrators, civilian authorities quickly lost control of the large- scale protests that began in early October 2019, resulting in large numbers of deaths and injuries.
Iraq Security Forces (ISF)
Article 9 (a) of the Constitution states that the Iraqi armed forces (and security services) are to be representative of the component parts of the Iraqi people; are to be subject to civilian control; shall defend Iraq; shall not be used as an instrument to oppress the Iraqi people; shall not interfere in political affairs; and shall have no role in the transfer of authority. Article 9 (c) prohibits military personnel from standing for election for political office or campaigning for candidates.
The Iraq Security Forces (ISF) consist of security forces administratively organised within the Ministries of Interior and Defence, the PMF, and the Counterterrorism Service. The Ministry of Interior is responsible for domestic law enforcement and maintenance of order. It oversees the Federal Police, Provincial Police, Facilities Protection Service, Civil Defence and Department of Border Enforcement. Energy Police, under the Ministry of Oil, are responsible for providing infrastructure protection. Conventional military forces under the Ministry of Defence are responsible for the defence of the country but also carry out counterterrorism and internal security operations in conjunction with the Ministry of Interior. The Counterterrorism Service reports directly to the Prime Minister and oversees the Counterterrorism Command, an organisation that includes three brigades of special operations forces. The NSS intelligence agency also reports directly to the prime minister. The ISF is a congested and contested space with security forces competing for power and relevance leading to a cross over and blurring of roles and responsibilities creating the conditions for corruption and instability.
Human rights groups have regularly issued reports of ISF officers committing human rights abuses, including conducting arbitrary or unlawful detention, enforced disappearances, and abusing and torturing individuals during arrest, pre-trial detention and after conviction (see relevant sections). Officials have undertaken investigations into abuses perpetrated by the ISF, including a ministerial investigation of their actions in relation to the protests that began in October 2019 (see Protesters and Demonstrators). However, the government has not generally punished those responsible for perpetrating or authorising human rights abuses.
In 2017, the Office of the Prime Minister announced the establishment of a committee to investigate allegations of ISF abuse during the operation to retake Mosul from Da’esh, stating that the government had arrested and planned to prosecute several ISF officers. HRW reported in April 2018 that the government had disposed of evidence of a potential war crime committed against members of Da’esh, removing an estimated 80 bodies from a damaged house in Mosul and burning the house. HRW added that at least one of the bodies appeared to have its legs bound, there was no indication that the government was collecting evidence, and government officials refused to tell its researchers where they were taking the bodies. To DFAT’s knowledge, the government has not to date published specific information on judicial proceedings against any members of the security forces in this matter.
The Iraq Armed Forces (IAF) consist of an army, air force, navy and special forces, and has an estimated size of 165,000 total military personnel. Many units of the IAF are geographically-based, with Shi’a units serving in the south and Sunni in the centre (the IAF does not serve in the KRI, see KRG Security Agencies). Global Firepower ranked the IAF 50th out of 138 national militaries considered in its annual review for 2020 (in contrast, the US was ranked 1st and Australia 19th). The IAF was effectively disbanded and rebuilt from scratch following the 2003 US-led invasion, meaning it lost a huge number of personnel with combat experience and military expertise.
In-country sources report that field conditions and morale in the IAF are very poor, particularly for those at lower levels who are unlikely to receive their full salaries due to their superiors taking a cut (at every level). Poor leadership and general morale reportedly contributed to the IAF’s poor performance in the initial stages of the 2014-15 conflict against Da’esh, particularly their routing in Mosul, which left Baghdad exposed. In-country sources report that the IAF lost much credibility among Iraqis during this period, with PMF groups receiving most of the credit for the eventual victory over Da’esh. Approximately 100,000 soldiers deserted during the conflict against Da’esh in 2014-15, although DFAT is not aware of any actions taken against them. The government has reportedly sought to institute an amnesty scheme to encourage deserters to return to the military, although it is unclear how far this has progressed. There are also reportedly plans to recruit a further 100,000 personnel, although in-country sources have raised concerns about the capacity of military academies to train a large number of raw recruits. It is also unclear how such an expansion would be financed given Iraq’s reliance on oil together with the current oil price.
…
Iraqi Police
The Iraqi Police falls under the authority of the Ministry of Interior’s Security Department. It is divided into the Iraqi Police Service (IPS), which is a uniformed organisation administered at the provincial level and tasked with the general maintenance of law and order and with initial incident response; and the Federal Police, which is a paramilitary organisation that responds to domestic incidents such as armed insurgency, large-scale civil disobedience and riots that are beyond the capabilities of the IPS but not severe enough for the IAF. According to in-country sources, the Iraqi Police have an estimated 300,000 members in total. The Federal Police are the better equipped and trained of the two services.
The police have historically been regarded as a secondary service by both the government and population, and have been under-resourced and under-paid. As a result, many police have supplemented their income through Corruption. According to surveys, one-third of Iraqis report having paid a bribe to the police. Many police also ‘moonlight’ in other occupations, including as PMF members. Deficiencies in training and resources mean that in many cases police are unable to carry out normal policing functions beyond staffing checkpoints and directing traffic. Human rights observers report that police frequently physically abuse detainees in police stations, driven in large part by pressure to produce results in the confession- based judicial system.
IPS members are recruited locally and are generally reflective of the demographic of the neighbourhoods that they patrol. Local recruitment, however, can mean police are beholden to local PMF leaders. There is also a significant disconnect between the priorities of national police command and local police forces, many of which reportedly operate as independent fiefdoms. In-country sources report ordinary citizens are unlikely to receive recourse through official means in cases of abuse involving police personnel.
…
Judiciary
Article 19 (1) of the Constitution guarantees the independence of the judiciary, and states there is no higher power above the judiciary than the law. Other constitutional provisions guarantee protection from ex post facto laws (i.e. a law that makes illegal an act that was legal when committed), the principle of no punishment without law, the right to a fair trial, the presumption of innocence, the right to a public trial, the right to personal (as opposed to collective) punishment, the right to counsel, and the right to protection from unjustified restraint (see also Arbitrary Arrest and Detention). Article 19 (5) specifically prohibits double jeopardy, stating that the accused may not be tried for the same crime for a second time after acquittal unless new evidence is produced.
According to Article 89 of the Constitution, the federal judiciary is composed of the Higher Judicial Council, the Federal Supreme Court, the Federal Court of Cassation, the Public Prosecution Department, the Judiciary Oversight Commission and other federal courts. Article 97 states judges may not be removed except in cases specified by law; Article 98 (1) prohibits judges or public prosecutors from combining a judicial position with legislative and executive positions and any other employment; and Article 98 (2) prohibits them from joining any party or political organisation or performing any political activity; while Article 99 restricts the jurisdiction of military courts to crimes of a military nature committed by members of the armed forces and security forces. DFAT is not aware of any reports of civilians being tried in military courts.
International observers report the criminal justice system in Iraq is weak. Trial monitoring by international bodies has revealed consistent failures to respect due process and fair trial standards as required by the Constitution and Iraq’s international human rights obligations, particularly in relation to the ICCPR and CAT (see Human Rights Framework). Lack of resources and training, low forensic capacity, a paucity of reliable or impartial evidence, reliance on confessions that are often gained during lengthy periods of detention without charge, and regular use of Torture, all contribute to the frequent failure of due process and the miscarriage of justice. As noted in Corruption, the judiciary (like other national institutions) is susceptible to corruption and political interference in relation to court verdicts.
Between January 2018 and October 2019, the judicial system processed over 20,000 terrorism cases, overwhelmingly in relation to Da’esh cases. A January 2020 UNAMI report identified significant shortcomings in the judicial system’s management of criminal trials for Da’esh suspects. UNAMI found that defendants were at a significant disadvantage and consistently denied the right to a fair trial. Undermining factors included:
Inadequate legal representation: defence lawyers were almost exclusively appointed at the beginning of trial proceedings (rather than at the pre-trial or investigation phase) and had little or no opportunity to familiarise themselves with the case, confer with their client, access evidence or prepare a defence;
Evidence from anonymous informants: in 70 per cent of terrorism-related cases, the primary form of evidence adduced in trials (besides confessions) was anonymous witness statements and information based on security or intelligence reports. UNAMI did not observe any instance where a defence lawyer even had an opportunity to challenge such evidence;
Admissions of confessions under duress: confessions were obtained in two-thirds of the terrorism- related hearings UNAMI observed. Judges generally failed to question the bona fides of evidence obtained from confessions, including when the defendants claimed that the confession was obtained through torture or ill-treatment (as was the case in 42 per cent of the hearings).
UNAMI also expressed concern that judges in terrorism-related cases regularly ascribed a wide range of conduct as sufficient proof of ‘membership’ or ‘association’ of Da’esh. Evidence of membership or association included providing low-level support to Da’esh members, such as cooking, selling vegetables or having family links to Da’esh members. In two instances, courts gave defendants prison sentences for providing medical assistance to Da’esh fighters. Judges also rarely considered the extent to which a defendant’s association with Da’esh was voluntary or coerced.
Judges, lawyers and their family members frequently face abuse, death threats and attacks in relation to their work from sectarian, tribal, extremist and criminal elements. In April 2018, for example, a group of armed individuals shot and wounded a judge in Maysan Governorate who was reportedly overseeing the investigation of several official corruption complaints, while in the same month an improvised explosive device (IED) killed the vice-president of Diyala Governorate’s Court of Appeals. In July 2018, a group of lawyers in Basra protested the killing of a fellow lawyer who had been defending people involved in demonstrations calling for delivery of essential services. There have also been numerous reports of attacks against lawyers providing support to individuals involved in the protests that commenced in October 2019 (see Protesters and Demonstrators). International observers report that the threat posed by such attacks can act to impair judicial independence.

Based on such available country information before the Tribunal, I am not satisfied that the state, party or any organisation is willing and able to offer protection, noting in particular concerns about the police force’s lack of capacity, and the prevalence of human rights abuses committed by ISF and others including the PMF, which include the AAH, and lack of control over militias and lack of an impartial judiciary. I am not satisfied that effective protection measures as per s 5LA are available to [the applicant] in Baghdad provided by the state or any party or organisation.
Conclusion
Considering [the applicant’s] particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm, from specific Shia militia groups and/or their agents, if he returns to his home in Baghdad, Iraq. I am satisfied that the real chance of serious harm [the applicant] will face if he returns to his home area in Baghdad will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm [the applicant] faces is for reasons relating to his ‘anti-militia’ political opinion (actual or imputed), and/or his membership of a particular social group consisting of people who actively oppose militia activity and/or refuse to be recruited by them that is, as somebody perceived to be acting contrary to their agenda and/or critical of their activities. I am not satisfied that effective protection measures are available to [the applicant]. I am satisfied the real chance of persecution in [the applicant’s] case relates to all areas of Iraq.
For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Scott Clarey
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.
…

[2021] AATA 5041

8 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice