1724829 (Refugee)

1724829 (Refugee) [2021] AATA 4522 (1 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724829
COUNTRY OF REFERENCE:                   Iraq
MEMBER:K. Chapman
DATE:1 October 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 October 2021 at 6:39pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion, imputed political opinion and returned failed asylum seeker – original claims as stateless Faili Kurd disavowed – Arab Iraqi citizen and Shia Muslim lived in Iran from early age – some family members also Iranian citizens living in Iran – fear of harm from Sunni militias and Iraqi authorities – credibility – vague claims and evasive and unreliable evidence – claim never to have travelled to Iraq contradicted by information from sister – departed Iran on valid Iraqi passport – no harm to relatives in Iraq, including father, a prominent Shia cleric, and brother, who returned from another country – permanent resident wife and Australian-born children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 September 2017 to refuse to grant the applicant a Subclass 790 protection visa under s.65 of the Migration Act 1958 (‘the Act’).
BACKGROUND
The Tribunal has obtained the following background information from the visa application, evidence presented to the delegate by the applicant, the decision of the delegate (provided to the applicant by the Tribunal pursuant to s.424A of the Act) and the applicant’s evidence submitted to the Tribunal (including his evidence at hearing).
The applicant, who originally claimed to be Stateless but now acknowledges he is a citizen of Iraq, applied for the visa on 18 September 2015. He was born in Iran to an Iraqi father and an Iraqi mother (whose grandfather was an Iranian). The applicant’s father is an Iraqi citizen, now residing in Basra, Southern Iraq. The applicant’s mother is a dual Iraqi and Iranian citizen, now residing in Iran. His parents are separated. The applicant has [number of] siblings, who reside at various locations in Iraq, Iran, [Country 1] and Australia. They are all Iraqi citizens and some hold dual citizenship, including for Iran.
The applicant arrived in Australia by boat as an Unauthorised Maritime Arrival (UMA) in November 2010. He obtained an unsuccessful Refugee Status Assessment (RSA) on 31 March 2011. On 17 May 2012, the applicant obtained an Independent Merits Review (IMR) assessment that Australia owed him protection obligations, on the basis of him being a Stateless Faili Kurd in Iran (of note, the applicant confirmed to the Tribunal that he is not Kurdish). Subsequently, the applicant was permitted to apply onshore for the Subclass 790 Safe Haven Enterprise Visa (SHEV), doing so on 18 September 2015. The refusal decision regarding the applicant’s Subclass 790 visa application is the subject of the present application for review.
The applicant’s initial written claims concern him purportedly being Stateless and unable to return to either Iran or Iraq. It was contended that the applicant would face discrimination in Iran as an Arab refugee and other more specific claims were also made pertaining to him fearing harm in Iran. Additionally, the applicant (with the help of a prior representative), claimed that the Iraqi authorities will persecute him because he is Stateless and therefore he has no documentation or right of return to Iraq; he fears ISIS (Daesh) and other Sunni militias in Iraq because he was born as a Shia Muslim; he is not practising the Muslim faith and will be perceived as someone who has renounced Islam and is an apostate; the Iraqi authorities will impute to him a political opinion that is opposed to their regime because he is an apostate who is not a practising Muslim; the Iraqi authorities will impute to him a pro-Iranian political opinion because of his background having an Iranian citizen mother and having lived in Iran throughout his life; and if he returns to Iraq he will be part of the social group of failed asylum seekers returning from a Western country and he will be perceived by both Shia and Sunni militias as having Western opinions.
The delegate refused to grant the Subclass 790 visa on the basis that the applicant was found to be an Iraqi citizen, who could return to Basra in Southern Iraq where his father and other family members reside. Of note, the delegate relied upon evidence from the applicant’s sister, [Ms A] who resides in Australia, suggesting that the applicant and his siblings all held Iraqi citizenship and had travelled between Iran and Iraq (this information was raised with the applicant pursuant to s.424A of the Act by the Tribunal).
On 9 August 2021, the Tribunal wrote to the applicant pursuant to the provisions of s.424A of the Act providing him with a copy of the delegate’s Subclass 790 visa refusal decision and raising certain information provided by his sister, [Ms A], to the Department concerning his Iraqi nationality. The applicant was invited to comment on, or respond to, this information in writing. The applicant did not provide a response in writing to this invitation from the Tribunal.
The applicant appeared before the Tribunal by video on 1 September 2021. The review hearing was altered from an in person hearing due to the prevailing Queensland Government COVID-19 restrictions at that time. The applicant informed the Tribunal he was comfortable proceeding with the hearing by video means. The review hearing was conducted using the assistance of an interpreter in the Arabic and English languages. The applicant confirmed that he understood the interpreter and there were no other witnesses to be called. Of note, the applicant provided much of his evidence at hearing using the English language to a high standard.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of Reference
The applicant initially claimed to be Stateless and submitted claims regarding fearing harm in his country of habitual residence, Iran. However, with the effluxion of time, the applicant conceded that he is a citizen of Iraq. Indeed, the applicant confirmed to the Tribunal at hearing that he is a citizen of Iraq (noting that on occasion he still referred to being Stateless, a matter referred to in greater detail below). Additionally, the applicant advised that both of his parents and all of his siblings hold Iraqi citizenship, with his mother and several siblings also holding Iranian citizenship. However, the applicant maintained that he is not a citizen of Iran himself, although he expressed some uncertainty as to whether he could make application for such citizenship.
Following careful consideration, the Tribunal finds that the applicant is a citizen of Iraq. On balance, the Tribunal finds that the applicant is not presently a citizen of Iran. However, the Tribunal notes that as several members of the applicant’s family hold Iranian citizenship, he could explore the possibility of applying for Iranian citizenship, although currently the outcome of such an application is unclear.
Accordingly, the Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country than Iraq. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Issues
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) 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.
Documentary evidence before the Tribunal
The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:
a.the applicant’s protection visa application forms lodged on 18 September 2015;
b.written submissions;
c.Iranian identity documents including Foreign National Identity Cards (‘Green’ and ‘White’ cards) issued to the applicant by the Bureau for Aliens and Foreign Immigrants Affairs, Ministry of the Interior of the Islamic Republic of Iran;
d.documents pertaining to a common children custody petition verdict made [in] November 2004 by the Public Court of [specified district] in the Islamic Republic of Iran;
e.the Departmental delegate’s visa refusal decision dated 18 September 2017 (a copy provided to the applicant pursuant to s.424A of the Act by the Tribunal);
f.the application for review submitted on 12 October 2017; and
g.Departmental administrative and Movement records.
Section 424A Invitation
On 9 August 2021, the Tribunal wrote to the applicant, pursuant to s.424A of the Act, inviting him to comment on, or respond to, the following information:
·The delegate’s decision to refuse your protection visa application (copy enclosed), in Departmental File [Number], might tend to suggest that you do not satisfy the refugee or complementary protection criteria and therefore are not entitled to a protection visa; and
·Information in Department File [Number] indicates that your sister, [Ms A], was interviewed by a Department Officer in Brisbane on 12 September 2013 and advised that she and all of her siblings are Iraqi citizens, you have returned to Iraq on a number of occasions and you have family members and family friends residing in Iraq. Further, your sister indicated in her own visa application documentation that she is an Iraqi citizen since birth and so are both of her parents and all of her siblings, including yourself. Additionally, your sister presented an Iraqi Passport in connection with her own visa application.
The Tribunal’s invitation outlined that the above information is relevant to the review because it might tend to undermine the applicant’s credibility and the genuineness of his claims for protection. Further, it outlined that this information is also relevant to the review as it might tend to suggest that the applicant is a citizen of Iraq. The invitation also noted that additionally, this information is relevant to the review as it might tend to suggest that the applicant does not satisfy the refugee or complementary protection criteria and if the Tribunal relied upon this information in making its decision, it may affirm the decision under review as the applicant would not satisfy the requirements of s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958.
As previously indicated, the applicant did not provide a written response to the above invitation. However, the Tribunal canvassed the invitation with the applicant at the review hearing, including reading its contents to him. The applicant provided verbal responses to the invitation that have been duly considered by the Tribunal.
Disavowed and redundant claims for protection
At the review hearing, the Tribunal discussed with the applicant all of the written claims made on his behalf. Of note, some of these claims were raised in written submissions by a former representative acting for the applicant. Further, some of the applicants claims pertain to Iran and some to Iraq. During the review hearing, the applicant expressly disavowed several of the written claims for protection made on his behalf. At times, he informed the Tribunal that his prior representative included some claims even though they were untrue.
It is convenient for the Tribunal to record its findings that the following claims are baseless and are not accepted, having been disavowed by the applicant:
a.the applicant is Stateless;
b.the applicant is a Stateless Faili Kurd residing in Iran;
c.the Iraqi authorities will persecute the applicant because he is Stateless and therefore has no documentation or right of return to Iraq;
d.the applicant is not practising the Muslim faith and will be perceived as someone who has renounced Islam and is an apostate; and
e.the Iraqi authorities will impute to the applicant a political opinion that is opposed to their regime because he is an apostate who is not a practising Muslim.
Rather, the applicant confirmed verbally to the Tribunal that he is an Arab Iraqi citizen who grew up in Iran, he is not Kurdish, he is a Shia Muslim who maintains his religion and he has never been involved in politics. Accordingly, the Tribunal does not further refer to the disavowed and redundant claims in this decision record. For completeness, the Tribunal records that some of these claims have been concocted by a prior representative, in an attempt to bolster the applicant’s attempt to obtain protection in Australia.
Additionally, the Tribunal notes that the applicant maintained he feared discrimination and harm in Iran, primarily on the basis of being a Stateless habitual resident in that country. Of note, the Tribunal does not accept that the applicant is Stateless for reasons previously outlined. Furthermore, the Tribunal has found the applicant is not an Iranian citizen, and it is also satisfied that he does not presently have a right of return to that country. Accordingly, given that the applicant’s return to Iran is not in contemplation, it is unnecessary for the Tribunal to explore his claims pertaining to Iran in greater detail. Rather, the Tribunal finds that the applicant’s claims pertaining to Iran pose no impediment to him returning to his country of nationality, Iraq. In sum, the applicant’s claims pertaining to Iran are redundant, primarily in light of his concession that he holds Iraqi citizenship.
Evidence pertaining to the applicant’s extant claims for protection
The applicant confirmed to the Tribunal at hearing that he maintains the following claims for protection and no others:
a.he fears ISIS (Daesh) and other Sunni militias in Iraq because he was born as a Shia Muslim;
b.the Iraqi authorities will impute to him a pro-Iranian political opinion because of his background having an Iranian citizen mother and having lived in Iran throughout his life; and
c.if he returns to Iraq he will be part of the social group of failed asylum seekers returning from a Western country and he will be perceived by both Shia and Sunni militias as having Western opinions.
The applicant presented defensively at the review hearing. On several occasions he displayed an evasive demeanour when responding to the questions of the Tribunal. On balance, the Tribunal formed the view that the applicant was an unreliable witness and not truthful in respect of several portions of his evidence. These matters are outlined in further detail below.
During the review hearing, the Tribunal outlined the legal requirements for protection. The Tribunal canvassed the applicant’s background and family composition with him. When initially asked by the Tribunal how his family members were doing, the applicant did not raise any difficulties with their present circumstances. He stated his siblings are ‘ok’. The applicant’s father, a Shia Muslim religious cleric, currently resides in Basra. He is quite prominent according to the applicant. Also, some uncles of the applicant reside in Basra. Further, the applicant has an adult brother named [Mr B] who presently resides in Basra. The applicant informed the Tribunal that ‘most of his family’ resides in Iraq and he is ‘pretty sure’ they are in Basra. Of note, he referred to [Mr B] returning ‘home’ to Basra after residing in [Country 1] for some years.
According to the applicant, his mother and his maternal grandfather reside in Iran. He has two siblings also residing in Iran. These four individuals all hold Iranian citizenship, with his mother and these siblings also holding Iraqi citizenship. The applicant additionally has a brother residing in [Country 1] and a sister residing in Australia. His sister, [Ms A], migrated to Australia utilising the partner visa pathway. The applicant is married to an Australian permanent resident and has two children born in Australia. His wife was also born in Iraq, migrated to Iran as a child and then came to Australia by boat. The applicant indicated he met his wife in Australia.

When asked by the Tribunal if he has ever been to Iraq, the applicant doggedly maintained that he had not. When asked by the Tribunal to recall how he travelled to Australia, the applicant explained that he departed Imam Khomeini Airport in Tehran in 2010 using an Iraqi passport. He initially told the Tribunal that the passport was genuine, in his own name with his correct birthdate and that he departed the Airport with no problems using it. The Tribunal canvassed the acquisition of this passport with the applicant and he provided vague evidence, in a defensive fashion, regarding this topic. The applicant advised that he purchased the passport in Iran through a people smuggler. His account lacked detail. The applicant indicated he was supposed to supply fingerprints for the passport but did not do so. He wondered how the smuggler obtained the passport for him.
The applicant advised he flew from Iran to [Country 2], then claimed to have used a false [Country 3] passport to fly from there to [Country 4]. This false [Country 3] was apparently collected by the people smuggler. From [Country 4], the applicant travelled by boat to the vicinity of Christmas Island. The applicant told the Tribunal that he discarded his Iraqi passport into the ocean upon instructions of the people smuggler on the voyage from [Country 4] to Australia in 2010. The Tribunal notes that he provided other identity documents from Iran to the Department upon arrival in Australia.
The Tribunal raised with the applicant the information contained in the invitation pursuant to s.424A of the Act, inviting his comment. The applicant responded that he does know what his sister said, it is his case, so the Tribunal should ask him. He claimed to be Stateless at one point in time, then specifically confirmed that he is now an Iraqi citizen. Upon the Tribunal canvassing his citizenship further with him, the applicant defensively explained that he has never been to Iraq and his Iraqi passport was ‘made up’. He indicated he was not accepted in Iran or Iraq when he was growing up, although now he accepts that he is an Iraqi citizen. The Tribunal notes that the manner in which he provided his evidence regarding the acquisition and legitimacy of his Iraqi passport was evasive and contained a paucity of detail.
The Tribunal enquired further as to the applicant’s citizenship and ability to obtain a new Iraqi passport. The applicant provided various descriptions of the discarded Iraqi passport. He advised it was ‘genuine but made up’. He answered ‘yes and no’ when asked if it was a proper passport. The applicant also maintained his sister was confused when she told the Department Officer that the applicant had travelled to Iraq before. He emphatically insisted that he had never been to Iraq before. The applicant’s evidence concerning his discarded passport was vague and evasively delivered. That concerning his sister’s account of him travelling to Iraq contained scant detail, other than denial of its veracity. The content of the applicant’s evidence on these topics, in combination with the manner of its delivery, leads the Tribunal to form the view he was untruthful regarding the genuineness of his discarded Iraqi passport and his lack of travel to Iraq.
When asked what he feared if having to return to Iraq, the applicant initially indicated that his brother [Mr B] was living there for over a year and people made fun of his accent. The applicant confirmed that his brother was ‘fine’, although he left [Country 1] because he was unhappy. As the Tribunal provided further opportunity for the applicant to detail any fears of returning to Iraq, he advised he feared being attacked by persons who hated Persians, then added his brother had been attacked and lost his job due to his accent. The applicant’s account provided scant detail. The Tribunal raised the inconsistency in the applicant’s earlier evidence regarding his brother being ok and that of the general situation for his family, with his later account of harm suffered by his brother. The applicant was invited to comment and provided a vague response indicating he misunderstood the earlier questions of the Tribunal. The applicant also provided a vague account of his brother initially facing problems at the airport in Iraq, however then being able to travel regularly between that country and Iran. The applicant was unpersuasive regarding this portion of his evidence, given its vagary and inconsistency, in the view of the Tribunal.
When asked by the Tribunal if he feared any other harm in Iraq, the applicant told the Tribunal he sees that country as a gaol, like Australia or Iran are. He added he never thought it would be as bad in Australia. When asked if he had any other claims for protection, the applicant replied ‘not really’. In the view of the Tribunal, these statements regarding Australia, Iran and Iraq as gaol like were vague and not particularised. Accordingly, the Tribunal places no weight upon them.
The Tribunal canvassed the extant claims with the applicant. He maintained that his father won’t help him in Iraq regarding the militias. He provided no greater detail. The applicant also advised that his sister didn’t help him in Australia. He acknowledged that he now knows he acquired Iraqi citizenship automatically. The applicant also referred to his father being arrested in Iran many years prior when he first moved there from Iraq. However, he confirmed that upon his release he was able to travel freely between Iran and Iraq without further incident.
The Tribunal raised with the applicant that given his father is an Iraqi citizen, who is residing in Basra, near other relatives, and that there is evidence from his sister suggesting him having travelled to Southern Iraq, this might tend to suggest that he is an Iraqi citizen and Basra is his home region in Iraq. The applicant was invited to comment and replied that his sister misunderstood the situation, she probably wasn’t sure, she would have guessed this, and they had a tough time in Iran. The applicant reiterated that he has never been to Iraq.
The Tribunal canvassed with the applicant that his former representative raised a claim for protection that he fears Daesh/ISIS and other Sunni militias in Iraq because he was born as a Shia Muslim. The applicant was invited to elaborate and replied that he does fear these militia. He added that ‘right now it might be better’, but back in 2010 it was worse. The applicant also advised that he doesn’t have anyone to help him in Iraq and his father is not a strong person who can protect him.
The Tribunal raised that given this claim was made some years after his arrival in Australia, it might cause difficulties accepting its genuineness, inviting his comment. The applicant responded that this claim was about 2014 but the situation is ‘better now’, but not that good. He recounted a story of a Pakistani working in Iraq who was killed, although not linked to himself. He added that Kurds are not welcome in Southern Iraq. Of note, the applicant confirmed in the review hearing that he is not Kurdish.
The Tribunal raised country information from DFAT[1] with the applicant indicating that Daesh/ISIS conducts activities mostly in the Sunni areas of the country, in the Centre and West. Further, this report indicates Shia are dominate in the South of the country. The Tribunal indicated that this country information might tend to suggest that he is not at risk from Daesh/ISIS or other Sunni militias if he returns to Southern Iraq as a Shia Muslim, inviting his comment. The applicant replied that Daesh comes for the Shia, then he stated that ‘I’m not saying me, but all Shia.’ He added that there is a Sunni and Shia fight, and Daesh/ISIS is trying to reform itself.
[1] DFAT Country Report - Iraq, 17 August 2020, paragraphs 2.11 & 2.56.
The Tribunal raised with the applicant that given he has been able to travel abroad and establish himself in a new country, in addition to his family links in Southern Iraq, this might tend to suggest he has the necessary attributes to live in that region as a Shia Muslim if he returns to Iraq. The applicant was invited to comment and advised the Tribunal that Basra is not a Shia area, most of the Christians live there and the Shia are only in a few areas. The Tribunal raised with the applicant that the DFAT country information indicates that Shia are the majority in Southern Iraq and this appears inconsistent with his evidence, inviting his comment. The applicant informed the Tribunal that he has never been there before, so he is not sure.
The Tribunal canvassed with the applicant that his former representative raised a claim for protection that the Iraqi authorities will impute to him a pro-Iranian political opinion, because of his background having an Iranian citizen mother and having lived in Iran throughout his life. The applicant was invited to elaborate and advised that this is a worry for him because he was born in Iran. He advised there was an eight year war between Iran and Iraq and he is worried about being asked about Iranian politics.
The Tribunal raised that given this claim was made some years after his arrival in Australia, it might cause difficulties accepting its genuineness, inviting his comment. The applicant advised that this claim arose on around the third of fourth interview with his then lawyer who apparently told him ‘to push this a bit further’ and to ‘try to tell them how dangerous your life is in Iran.’ He added that the lawyer was trying to make a bigger case for him, although the claim is one of his concerns.
The Tribunal raised with the applicant that given he stated earlier that he was not involved in political activities in any country, this might cause doubt that the Iraqi authorities will impute to him a pro-Iranian political opinion because of his background having an Iranian citizen mother and having lived in Iran throughout his life. The applicant was invited to comment and replied that this claim was added ‘because the lawyer told him to push this case’, adding ‘I don’t have a political case.’ The applicant also indicated that he thought he was Stateless, but the rest was ‘pushed by the lawyer to make the case greater’. When asked if the claim was true, the applicant responded that it can happen because Arabs and Persians do not have good relations.
The Tribunal canvassed with the applicant that his former representative raised a claim for protection that if he returned to Iraq he will be part of the social group of failed asylum seekers returning from a Western country and he will be perceived by both Shia and Sunni militias as having Western opinions. The applicant was invited to elaborate and advised that this one might happen actually. He explained that every country wants to secure their country and they all will want to know about him, including identifying information such as his bank account details. He indicated that Australia is safer than Iraq as it is more organised. Here you can have a lawyer with an interview recording, but these are not available in Iraq according to the applicant.
The Tribunal raised that given this claim was made some years after his arrival in Australia, it might cause difficulties accepting its genuineness, inviting his comment. The applicant advised that this claim ‘just comes with the help of the lawyer’, citing that he had attended many interviews. He added that it might happen in Iraq or any other country.
The Tribunal raised country information from DFAT[2] with the applicant indicating that persons returning to Iraq from a Western country do not in general face difficulties on that basis, however people who return to an area that is not their original community may face difficulties. The Tribunal raised that given his father and other relatives live in Basra, this country information might tend to suggest that he will not face harm if he returns to that area of Iraq because of being a failed asylum seeker returning from a Western country or being perceived by both Shia and Sunni militias as having Western opinions. The applicant was invited to comment and advised that his brother, [Mr B], has been there for a year, had a lot of difficulties and wants to leave but cannot return to [Country 1] due to COVID-19.
[2] DFAT Country Report - Iraq, 17 August 2020, paragraphs 5.43-5.46.
The Tribunal canvassed further the matter of the applicant’s discarded Iraqi passport and his departure from Iran, raising country information from DFAT[3] pertaining to Iran indicating that:
“Security procedures at Imam Khomeini International Airport in Tehran are robust. They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.”
[3] DFAT Country Report - Iran, 14 April 2020, paragraph 5.45.
The Tribunal raised with the applicant that this country information might tend to suggest that he did not depart Tehran using a false Iraqi passport and it might also undermine his credibility on this topic. The applicant was invited to comment and he replied that the DFAT report is dated 2020 and lots has changed since he departed in 2010. The applicant advised that many Iranians flew straight to [Country 4] and then Iran stopped this. He explained that there is more security there now. The applicant indicated he departed Iran when he was [Age 1] years old around early 2010, against the backdrop of the Iraq war (from 2003). He stated that his sister was right about everything except for his travel to Iraq. When asked by the Tribunal if it was possible that he travelled to Iraq as a child, he responded this was not possible due to the Iraq war at that time. He added that not even a strong person would want to go to Iraq then because of the militia including Jaish Al-Mahdi (a Shia Muslim militia).
Prior to the conclusion of the review hearing the Tribunal invited the applicant to provide any further information he wished. The applicant criticised the Australian Government and advised that his original complaint was against Iran, but now it is against Australia. He lamented the current uncertainty regarding his visa status, given he is [Age 2] years old with a family.
The Tribunal outlined to the applicant that whilst it had not made up its mind on the review, it might have concerns with several matters as raised with him at the hearing. These included, the manner in which he gave parts of his evidence (as outlined above) which tended to undermine his credibility, his claim to be Stateless and that the information provided by his sister in Australia tended to undermine his contention that he had never been to Iraq and was not an Iraqi citizen (notably, the latter is a disavowed contention). The Tribunal invited the applicant to comment and he replied that when he first came to Australia he was [Age 1] years old, he found out later he is an Iraqi citizen, he believed he was Stateless at that time and he is Stateless because he has no documents. Further, the applicant maintained that he had never been to Iraq before. He also added that he had been waiting a long time for his visa. Prior to the review hearing concluding, the applicant confirmed he had no further evidence to provide regarding any of his claims.
Analysis
That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. For the reasons that follow, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution. Further, for reasons expressed below, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm.
Assessment of the Refugee criterion
The Tribunal notes that the applicant confirmed at the review hearing, on several occasions, his specific acceptance of now holding Iraqi citizenship and not being Stateless. However, the Tribunal also notes that, from time to time, the applicant still referred to being Stateless during the hearing. For example, when he indicated he did not hold appropriate documents and also when he referred to his belief of Statelessness at the time he arrived in Australia.
As noted above, the Tribunal finds that the applicant is a citizen of Iraq. This is for the following reasons. The bulk of the applicant’s evidence at hearing was that he now accepts he does hold Iraqi citizenship. He also informed the Tribunal that both of his parents and all siblings hold Iraqi citizenship. Further, the Tribunal places significant weight upon the spontaneous evidence of the applicant’s sister, [Ms A], in 2013 to the Department that the applicant is an Iraqi citizen. Therefore, the Tribunal has no hesitation in finding that the applicant is a citizen of Iraq. Accordingly, the Tribunal is satisfied that the applicant is entitled to all consular services available to Iraqi citizens, including the ability to make application for a valid Iraqi passport in Australia. For reasons previously expressed, the Tribunal accepts that the applicant is not presently a citizen of Iran.
The Tribunal does not accept the applicant’s account that he has never been to Iraq. This is for the following reasons. The Tribunal places high weight upon the evidence to the contrary of [Ms A] provided in 2013, given its spontaneity and specificity. Furthermore, there is no persuasive evidence before the Tribunal to suggest any malice or wrongdoing upon her part or that of the Officer interviewing her at that time. Accordingly, the Tribunal prefers the evidence of [Ms A] to the applicant on this topic.
Additionally, the Tribunal notes that the applicant’s parents and all of his siblings are Iraqi citizens. Also, the applicant’s father and his brother [Mr B] currently reside in Basra and, on the evidence of the applicant at hearing, they have travelled freely between Iraq and Iran. Further, the Tribunal formed the view that the applicant lacked credibility regarding his account of obtaining the discarded Iraqi passport from a people smuggler and observed him to be defensive when denying he has ever been to Iraq.
On balance, when the evidence is considered globally, the Tribunal is satisfied that the applicant has physically been in Iraq before, in the company of relatives residing in the vicinity of Basra. Given that the applicant’s father, uncles and one brother currently reside in Basra, the Tribunal is satisfied that the applicant’s home location in his country of nationality is Basra. Furthermore, the Tribunal is satisfied that the applicant departed Iran using a valid Iraqi passport issued in his own name, being a citizen of Iraq at the time of his departure. This is because the Tribunal does not accept the reliability of the applicant’s evidence on this matter for reasons previously outlined, and also as the DFAT country information[4] tends to suggest that it is difficult to depart Tehran by air using a false passport (even accepting that the applicant departed some years ago). For completeness, the Tribunal records that it accepts the applicant spent much of his early life residing in Iran. However, the Tribunal finds that the applicant’s home location in his country of nationality is Basra in Southern Iraq for the reasons outlined.
[4] DFAT Country Report - Iran, 14 April 2020, paragraph 5.45.

The applicant claims to fear ISIS/Daesh and other Sunni militias in Iraq because he was born as a Shia Muslim. He cited no further particular reason why he would be the target of these Sunni militias, nor instances of threats or harm received from them. Indeed, he told the Tribunal at hearing that Daesh comes for the Shia, then he stated that ‘I’m not saying me, but all Shia.’ The Tribunal has also duly considered the written claims of the applicant, including the submission from his former representative that contains links to various country information regarding militias. However, the Tribunal prefers the country information from DFAT regarding such Sunni militia, given its contemporary nature and official source, affording it higher weight.
With regards to assessing whether the applicant faces a well-founded fear of persecution on account of ISIS/Daesh and other Sunni militias in Iraq, the Tribunal has duly considered that the criterion in s.5J(1)(b) of the Act imposes an objective standard, that there be a real chance the person would be persecuted. The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. Following careful consideration, the Tribunal is not satisfied that if the applicant returns to Iraq now or in the reasonably foreseeable future, there is a real chance that he would face serious harm on account of the activities of ISIS/Daesh and other Sunni militias in Iraq for the following reasons.
The Tribunal has found that the applicant’s home location is Basra, in Southern Iraq. This is a predominately Shia Muslim location and is not an area of prominence for Sunni militia according to the country information from DFAT[5]. Further, on the applicant’s own evidence at hearing, Daesh does not have a particular reason to target him other than being a Shia Muslim. On balance, the Tribunal considers that, at its highest, the chance of the applicant facing harm from ISIS/Daesh and other Sunni militias in Iraq, if he returns to his home region of Basra now or in the reasonably foreseeable future, is remote. The Tribunal so finds. Furthermore, the Tribunal finds that the risk to the applicant from ISIS/Daesh and other Sunni militias in Iraq does not relate to all areas of that country, given the aforementioned DFAT country information. Therefore, the Tribunal does not accept that the applicant satisfies the refugee criterion on the basis of his claim to fear ISIS/Daesh and other Sunni militias in Iraq.
[5] DFAT Country Report - Iraq, 17 August 2020, paragraph 2.11 & 2.56.
For completeness, the Tribunal notes that the applicant advised at hearing that his father, who resides in Basra, cannot protect him from the Jaish Al-Mahdi (a Shia Muslim militia). For the reasons that follow, the Tribunal is not satisfied that if the applicant returns to Basra now or in the reasonably foreseeable future, there is a real chance that he would face serious harm from any Shia Muslim militia. No further particulars were advanced by the applicant in relation to this topic and he cited no particular reason why he would be the target of such Shia militia. Additionally, the applicant provided no specific evidence regarding threats or past harm from any Shia militia towards himself. Whilst the applicant gave vague and generalised evidence at hearing regarding harm faced by his brother [Mr B] in Southern Iraq, the Tribunal does not accept this evidence is truthful given it is inconsistent with his earlier evidence regarding the status of his family members and also as it lacked specificity. On balance, the Tribunal considers that, at its highest, the chance of the applicant facing harm from any Shia militia in Iraq, if he returns to his home region of Basra now or in the reasonably foreseeable future, is remote. The Tribunal so finds. Therefore, the Tribunal does not accept that the applicant satisfies the refugee criterion on the basis of any fear of Shia militias in Iraq.
The applicant claims to fear that the Iraqi authorities will impute to him a pro-Iranian political opinion because of his background having an Iranian citizen mother and having lived in Iran throughout his life. For the following reasons, the Tribunal does not accept that the Iraqi authorities will impute to him a pro-Iranian political opinion because of his background having an Iranian citizen mother and having lived in Iran throughout his life (or for any other reason). The applicant confirmed at hearing that he has never been involved in politics. Further, he resiled somewhat from this claim at hearing by indicating that his former lawyer pushed him to pursue it. The applicant also stated at hearing, ‘I don’t have a political case.’ Whilst the Tribunal notes that the applicant advised ‘Arabs and Persians do not have good relations’, on his own evidence he is of Arab ethnicity which tends to further suggest he will not be imputed with a pro-Iranian political opinion. Whilst he expressed fear of being asked about Iranian politics in Iraq, the applicant provided a paucity of detail in this regard and his lack of interest in any politics makes harm arising from any such conversation remote at best.
Additionally, the applicant’s family members residing in Basra (including his father and brother) are Arab Iraqi citizens. The applicant also referred to his father being gaoled in Iran many years prior after moving there from Iraq, although subsequently he was able to travel freely between the two countries. This further suggests that the Iraqi authorities will not impute the applicant with any pro-Iranian political opinion. Indeed, the applicant’s evidence regarding this claim of imputed pro-Iranian political opinion contained significant vagary.
Whilst the applicant made reference to his brother [Mr B] being subject to harm on account of his accent as referred to above, the Tribunal does not find this evidence credible for reasons previously outlined. Further, the Tribunal is satisfied that the applicant speaks Arabic to a reasonable standard, given that he chose to commence the hearing utilising an Arabic interpreter (not a Farsi interpreter or one of another language) and confirmed that he understood the interpreting service. Therefore, the Tribunal does not accept that the applicant’s Arabic language skills will bring him to the adverse attention of the Iraqi Government or anyone else if he returns to Iraq.
The Tribunal accepts that the applicant’s mother holds Iranian citizenship and resides in Iran. The Tribunal also accepts that the applicant spent the bulk of his formative years residing in Iran. However, it has been more than a decade since the applicant lived in Iran and on his own evidence his mother also holds Iraqi citizenship. Furthermore, the Tribunal finds that the applicant is an Iraqi citizen and he departed Iran using a valid Iraqi passport. These matters in combination tend to suggest that the applicant will not be imputed with a pro-Iranian political opinion by the Iraqi authorities if he returns to his country of nationality, now or in the reasonably foreseeable future.
Having regard to the totality of the evidence, on balance, the Tribunal finds that there is not a real chance that the applicant will face any harm because the Iraqi authorities will impute to him a pro-Iranian political opinion, on account of his background having an Iranian citizen mother and having lived in Iran throughout his life (or for any other reason). Therefore, the Tribunal does not accept that the applicant satisfies the refugee criterion on the basis of that claim.
The applicant claims to fear that if he returns to Iraq, he will be part of the social group of failed asylum seekers returning from a Western country and he will be perceived by both Shia and Sunni militias as having Western opinions. The Tribunal does not accept that there is a real chance the applicant would face serious harm on account of the aforementioned claims for the following reasons. The applicant’s evidence at hearing concerning this topic was vague and he indicated this claim ‘just comes with the help of the lawyer’. Further, the country information from DFAT[6] suggests that persons returning to Iraq from a Western country do not in general face difficulties on that basis.
[6] DFAT Country Report - Iraq, 17 August 2020, paragraphs 5.43-5.46.
Whilst this country information does indicate that people who return to an area that is not their original community may face difficulties, the Tribunal is satisfied that the applicant has sufficient family support in the vicinity of Basra to return to that location. This is because the applicant’s father (a Shia Muslim cleric), brother [Mr B] and some uncles all reside in that location. Due to concerns developed by the Tribunal regarding the applicant’s credibility, it does not accept that he cannot obtain support from his father or his brother [Mr B] if he returns to Basra. Accordingly, the Tribunal is satisfied the applicant has sufficient family support in Basra so that he can integrate into that community and not be at risk of harm due to returning from a Western country or being perceived to hold Western opinions. In combination, the Tribunal is also satisfied that neither Sunni nor Shia militia have a particular interest in the applicant given his evidence regarding them.
Therefore, following careful consideration, on balance the Tribunal finds that there is not a real chance that the applicant will face any harm on the basis that he will be part of the social group of failed asylum seekers returning from a Western country or that he will be perceived by both Shia and Sunni militias as having Western opinions. Accordingly, the Tribunal does not accept that the applicant satisfies the refugee criterion on the basis of these claims.
The Tribunal has paid due regard to the written submissions and documentary evidence submitted in support of the applicant’s claims against the refugee criterion referred to above. The Tribunal accepts the veracity of the submitted Iranian identity documents pertaining to his formative years in Iran. However, for reasons previously expressed, the Tribunal does not accept any of the applicant’s claims for protection regarding Iran, nor does it accept that such claims suggest he satisfies the refugee criterion with respect to his country of nationality, Iraq.
Further, the Tribunal has carefully considered the written submissions and links to country information submitted by the applicant. The Tribunal finds these documents to be dated and lacking specificity regarding the applicant’s circumstances. Indeed, at hearing the applicant disavowed several of the claims made upon his behalf by his former representative. Due to the aforementioned characteristics, and the Tribunal’s preference to rely upon the DFAT country information given its official source, low weight is afforded to this material. Additionally, the Tribunal has carefully considered the written statements of the applicant, however it is not persuaded that this material displaces the reasons stated above for finding that the applicant does not have a well-founded fear of persecution, particularly when considered in conjunction with the DFAT country information. Following careful consideration of the applicant’s global circumstances, the Tribunal finds that he does not have a well-founded fear of persecution in Iraq.
Assessment of the Complementary Protection criterion
Given that the Tribunal has found the applicant does not have a well-founded fear of persecution in Iraq, the Tribunal has carefully assessed whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
Significant harm for these purposes is exhaustively defined in s.36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
For reasons previously expressed, the Tribunal is not satisfied that if the applicant returns to Iraq now or in the reasonably foreseeable future, there is a real chance that he would face serious harm on account of ISIS (Daesh) and other Sunni militias in Iraq because he was born as a Shia Muslim, or that the Iraqi authorities will impute to him a pro-Iranian political opinion because of his background having an Iranian citizen mother and having lived in Iran throughout his life, or that if he returns to Iraq he will be part of the social group of failed asylum seekers returning from a Western country and he will be perceived by both Shia and Sunni militias as having Western opinions. Accordingly, with respect to these matters, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm. For completeness, the Tribunal notes that the applicant’s disavowed and redundant claims do not pose any risk for the applicant in Iraq, with respect to the matters outlined in s.36(2A) when read together with s.5(1) of the Act.
As indicated above, the Tribunal is satisfied that the applicant has sufficient family support to reside in the vicinity of Basra, Southern Iraq. The Tribunal finds that these familial networks, in conjunction with the applicant’s adaptability (displayed by establishing himself in Australia and obtaining employment in this country) ensure that there is no threat to his capacity to subsist in the vicinity of Basra and that none of the considerations in s.36(2A) of the Act are present in his circumstances in that location.
Furthermore, whilst the Tribunal accepts there is a level of generalised violence in Iraq (including in the vicinity of Basra), there is no persuasive evidence before it to indicate that the applicant personally faces a real risk of significant harm on account of such generalised violence in a manner distinct from the Iraqi population generally. Pursuant to s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. On balance, the Tribunal is not satisfied that the applicant is at any risk of harm in Southern Iraq beyond that faced by the population generally.
The Tribunal has also carefully considered the written submissions and links to country information submitted by the former representative in support of the applicant’s claims against the complementary protection criterion. The Tribunal notes that the applicant’s former representative made written submissions referring to the applicant availing himself of complementary protection in both Iran and Iraq. The Tribunal does not accept any of these claims pertaining to Iran for reasons previously expressed, including that the applicant is not presently a citizen of Iran and his return to that country is not in contemplation.
Regarding the claims made with respect to Iraq, they have been asserted by the former representative as arising from the purported security situation and human rights abuses in that country. These claims are generalised in nature and there is a lack of specificity regarding the applicant’s circumstances. Additionally, these claims are dated. Due to the aforementioned characteristics, and the Tribunal’s preference to rely upon the DFAT country information given its official source, low weight is afforded to this material submitted by the applicant. Additionally, the Tribunal has carefully considered the written statements made by the applicant, however it is not persuaded that this material displaces the reasons stated above for finding that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm for any reason. This is particularly so when this material is considered in conjunction with the DFAT country information.
As outlined above, the Tribunal does not accept there is a real chance that the applicant would face serious harm on account of the security situation in Iraq, nor is there any persuasive evidence to suggest he would face serious harm from the Iraqi authorities for any reason (including a breach of human rights), if he returns to Iraq now or in the reasonably foreseeable future.
On balance, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm for any reason. Therefore, the applicant cannot avail himself of the complementary protection provisions. Following careful consideration of the applicant’s global circumstances, the Tribunal finds that the applicant is not a person who satisfies the complementary protection criterion.
CONCLUSION
Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Iraq, there is a real risk that he will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
For completeness, the Tribunal notes that the applicant gave evidence indicating he is married to an Australian permanent resident. He may wish to consider if there are other Australian visa options available to him given this circumstance. That is ultimately a matter for him.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
K. Chapman
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 4522

1 October 2021

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Immigration

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Statutory Interpretation

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