1727662 (Refugee)

1727662 (Refugee) [2021] AATA 5313 (1 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1727662
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Roslyn Smidt
DATE:1 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 1 December 2021 at 1:21 PM

CATCHWORDS
REFUGEE – protection visa – Iraq – political opinion, religion and member of particular social group – educated, secular Shia government official with Baath Party background – work-related conflicts with Islamic parties, armed militias and business owners – threats and attacks – home impounded as guarantee for scholarship costs – wife and daughters’ fear of harm as women – credibility – vague, inconsistent and unpersuasive claims and evidence – country information – status of former low-level party members, public officials, returnees and women – general security – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
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 2 November 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
The applicants, who are citizens of Iraq, applied for the visas on 5 April 2016. The delegate refused to grant the visas on the basis that the delegate found the applicant’s claims regarding past harm lacking in credibility and his fears of future harm were not well-founded.
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.
BACKGROUND
[The first applicant] (the applicant) is a [Age]-year-old man of Shia religion from Nasiriyah in Iraq. He resided in [District 1] in Nasiriyah from 1990 until June 2006 after which he lived in [District 2] in Nasiriyah until his departure for Australia. He has degrees in [Subject], in particular relating to [product] production. He completed a Masters degree in [Subject] at [University 1] between September 2008 and June 2011. He worked for government departments in Iraq from 1999 until his departure for Australia in March 2015. From 1999 he was employed as an [Occupation]. In April 2004 he was promoted to the position of Chief of [Occupation] in the quality control department. He held that position until his departure in March 2015.
The applicant applied for a student visa in Iraq on 8 September 2014. The visa was granted on 17 February 2015. His wife and children were granted dependent visas on the same day. The applicant arrived in Australia [in] March 2015. His wife and children arrived [in] June 2015.
The applicant’s study was sponsored by the Higher Committee for Education Development in Iraq. His student visa was valid until 15 September 2019. He applied for protection on 5 April 2016. He travelled to [Country] for a week in October 2017.
The applicant’s wife and four children were included in the application as members of the applicant’s family unit. His wife and two older children, [Age]-year-old [Child 1] and [Age]‑year‑old [Child 2], later made their own claims for protection. Claims have also been made on behalf of [Child 3] ([Age] years old) and [Child 4] ([Age] years old).
SUMMARY OF CLAIMS
The applicant claims to fear harm on his return to Iraq because of his association with the Baath Party, because of his refusal to approve substandard [products] while working for [Employer] in Iraq, because he is an educated, secular Shia official with a Baath Party family background, who is likely to work as an academic if he returns to Iraq and would therefore be at risk of harm from Islamic extremists. He also claimed that he would be at risk of harm because he failed to return to Iraq after the period permitted on his scholarship and because of the general situation in Nasiriyah.
The applicant’s wife fears that she and her family would be at risk of harm on return to Iraq because of the applicant’s association with the Baath Party, the problems the applicant faced prior to leaving Iraq and the problems relating to crime and violence in Nasiriyah. She also fears that she and her daughter would be at risk of harm because they are women.
The applicant’s son [Child 1] fears that he and his family would be at risk of harm on return to Iraq because of the applicant’s association with the Baath Party, the problems the applicant faced prior to leaving Iraq, problems relating to crime and violence in Nasiriyah and because he has lived in Australia for many years.
The applicant’s daughter [Child 2] fears she will be at risk of harm if she returns to Iraq because she is a woman and for reasons related to the threats the applicant received prior to leaving Iraq.
CLAIMS AND EVIDENCE
Submissions to the Department
According to the application form completed by the applicant he and his family lived at the same address in Nasiriyah until June 2006 when they moved to another address in Nasiriyah where they remained until their departure for Australia. The applicant was employed at [Employer], which was a government department from 1999, as an [Occupation] until April 2004, after which he held the position of Chief [Occupation] in the quality control department.
In a statement dated April 2016 the applicant said that his father had been a deputy officer in the Iraqi Army and a member of the Baath Party prior to 2003. Because of this he was granted [an official designation] which conferred a number of privileges. Copies of identity cards issued in March 2000 and February 2003 appear to confirm this.
The applicant said that after the fall of the Baath Party power shifted to Islamic parties and their armed militias and it was difficult for him to survive and carry out his work. After 2004 he was responsible for ensuring [products] met appropriate standards. Substandard [product] was destroyed or used [for another purpose] which resulted in large losses for the businesses involved, many of which had connections to the new regime. The applicant faced many threats and problems when he refused to approve [samples].
[In] June 2013 someone shot at the applicant when he inspected a [facility] in [District 3]. He believes this was an attempt to kill him. Nobody was injured and the perpetrators escaped. He reported the incident to the police and local officials and provided the numberplate of the car, but nothing was done. He asked to be relieved of his duties, but nothing changed. He asked for three’ months leave but he was granted only one. After he returned to work the threats intensified. He was told to obey instructions from [providers] or resign. He moved his family to his wife’s family home for safety and he lived at his office. No details of these threats were provided.
[In] July 2014 the applicant travelled to [Location 1] [facility] about [Distance] kilometres from Nasiriyah to investigate a complaint. He stopped production at the [facility] immediately. The management of the [facility] made implied threats and a staff member tried to attack him but was stopped by others. The applicant submitted a report to his superiors, but they asked him to be flexible to avoid losses for the [facility] and to avoid being harmed. He submitted his resignation, but he was asked to wait until a replacement could be found. He remained at his job but refused to accept corruption. Because of this, he was under lethal threat.
[In] December 2014 the applicant was travelling to his brother’s house in Najaf, where he intended to leave his family as it was not safe in Nasiriyah, when a car tried to collide with him. He recognised one the occupants as a worker from the [Location 1] [facility]. He managed to avoid the collision by turning down a side street, but his car fell into a creek. He, his wife and his daughter [Child 4] sustained injuries and were taken to hospital. His wife and daughter were quickly released, but he remained for a week. In support of this claim he provided a copy of a letter from the Iraqi Ministry of Health to the Scholarship Department dated [Date] December 2014 which states that according to information in a letter from the police dated [Date] December 2014 the applicant had faced an assassination attempt by an armed group and had been hospitalised for two weeks.
After this incident the applicant decided to quit his job. Fortunately, he had a scholarship to study in Australia. He left the country in March 2015.
According to the delegate’s decision the applicant repeated or confirmed the substance of his written claims during an interview to discuss his claims. In addition, he claimed for the first time that the threats and attacks which he experienced in 2013 and 2014 were linked to both his refusal to approve substandard products and his association with the Baath Party and that he was under significant pressure from his superiors and [producers] to pass substandard [products]. He continued to work at the same job until his departure for Australia.
In a submission dated April 2016 the applicant’s representative stated that the applicant was at risk of harm from extremists, his sectarian enemies, and because he is an educated, secular Shia who formerly belonged to the Baath Party and has a Baath Party family background. According to the submission the Iraqi Minister for Human Rights in Iraq is against returning refugee applicants, as the government cannot offer them protection.
The submission notes that the UN and international human rights groups such as Human Rights Watch and Amnesty International continue to decry the high level of violence in Iraq. It notes that a UNHCR document Position on Returns to Iraq issued on 27 October 2014 urges states not to forcibly return persons originating from Iraq until tangible improvement in the security and human rights situation have occurred, and it also refers to travel advice from the Australian government which indicates that Iraq is a dangerous country.
The delegate found much of the applicant’s evidence regarding the problems he faced in Iraq to lack credibility and after reviewing evidence on the current situation refused his application on 2 November 2017. A copy of this decision was provided to the Tribunal.
Submissions to the Tribunal
On 25 August 2021 the applicant provided a translation of a message from his father which states that Islamic groups had launched an assassination campaign against Baath Party leaders accusing them of being behind the demonstrations in Nasiriyah. He claimed that he had been attacked by an armed group after someone identified him as a Baath Party member. He escaped after being rescued by police and moved to a different place.
In a statement dated 16 March 202the applicant repeated the substance of his earlier claims and maintained that he had provided an honest account of his problems in Iraq. He said the high rate of unemployment in Iraq had caused him to continue to work for [Employer] even when it became dangerous to do so. He also said that he was afraid to return to Nasiriyah because of widespread violence and lack of security caused by the presence of many armed militias in the area which cause problems for everyone in the area, including Shias. He said that he believed he was entitled to protection because he is or was unemployed, sick, hungry and had no home.
In a submission provided in March 2021 the applicant’s representative said that the applicant feared that he would be kidnapped, killed or tortured due to his work as [an Occupation], his affiliation with the Baath Party and his Shia religion. He referred to country information which he said supported the applicant’s claims and provided links to 16 reports and articles. Some deal with the recent demonstrations in Iraq. Some report on the situation in Basra or Baghdad and appear to have little relevance to the applicants.
The applicant attended a hearing of the Tribunal on 24 March 2021.
The applicant said that his father had served in the military for over 25 years and held the rank of [Rank] at the time of the US invasion in 2003. He joined the Baath Party many years ago probably in the 1980s and was a high-ranking member in 2003. He has not been employed in any capacity since the overthrow of the Baath Party regime 2003, but he receives a government pension.
The applicant said that his father had been at constant risk of being harmed or killed after 2003 because of his position in the Baath Party. He remained in virtual hiding until about 2010 when the government removed some of the discriminatory measures against former Party members. I advised the applicant that while I was aware that members of the Baath Party had faced problems after 2003, I found it unlikely that his father would have remained in hiding until 2010. The applicant said that while low-ranking members of the party were not at risk, his father had held a high position and there was a lot of sectarian violence between 2003 and 2010. He added that despite some changes, members of the Baath Party in Nasiriyah remained at risk of serious harm until today.
The applicant said that he had joined the Baath Party in 1990 and remained a member until 2003. I observed that he had continued to work for the government after the change of regime and appeared have been promoted in 2004 which suggested that he had not experienced significant problems. He said that this was because he was a low‑ranking member of the party. He added that he, his father, his siblings and his wife and children moved constantly and lived mostly in rural areas for many years to avoid problems. I observed that he had continued to work at the same department throughout the period in question which suggested that he was not in hiding. He said that he and his family had avoided going out in public or going to places where there were likely to be problems. He said that he continued to be at risk of harm because there were many armed men in Nasiriyah and if anyone was associated with a Baath Party family they would be exterminated.
The applicant said that someone attempted to kill him in June 2013 because of his association with the Baath Party. I observed that his previous evidence had suggested that this was related to his work, not his association with the Baath Party. He said that he was attacked partly because of his membership of the Baath Party. I advised him that I had difficulty accepting that someone would attempt to kill him because of his association with the Baath Party some 10 years after the party was overthrown. He said most people in similar employment were not in danger, but his past membership of the Baath Party meant that he was. He said had always sought to avoid problems by maintaining a low profile, but in 2013 he began to receive threatening texts which mentioned his membership of the party.
The applicant said that he first refused to approve a shipment in about October 2012 and began to receive abusive texts in early 2013 which mentioned his membership of the Baath Party and his refusal to approve [shipments]. I asked if the messages contained specific threats. He said that the language of the texts was abusive and this was enough to make him fearful. I advised him that while I accepted this, it appeared that they did not contain any specific threat of harm. He said that every time he refused to approve a [product] he received a death threat. He said that he first received a death threat about two or three months after the first abusive text. He claimed that he received these threats daily and they also demanded that he leave his job. He did not know who had sent them, but he suspected they came from [facility] owners. He had a good relationship with his manager and colleagues and reported the texts to them, but he was advised to ignore them.
Later in the hearing the applicant said that had he received about 15 or 20 threatening texts and some telephone calls at his home and office before leaving Iraq. They told him leave his job or he and his family would be harmed. He stopped answering calls unless he recognised the number of the caller. In addition, he received threats from some of his colleagues. When asked for details of these threats he said that some of his colleagues had advised him that he might be in danger because of his past membership of the Baath Party. He said that none of his colleagues received threats because he was the only one responsible for making decisions regarding the quality of the shipments of [products].

I asked the applicant what he had done to protect himself from these threats. He said that he had been living on the outskirts of Nasiriyah when the problems began, but after he reported the problems to his manager he was provided with a room in a government‑owned [facility] and he stayed there for a few months in 2013 and 2014. His wife and children were living in a rented house in a rural area on the outskirts of the city where they were safe.
The applicant again claimed that someone attempted to kill him in June 2013 when he was visiting a [facility] in [District 3] which is about [Distance] kilometres from Nasiriyah. He and his driver were in an open loading dock collecting samples when shots were fired from a car which then left the scene. He did not know who fired the shots, but he was confident that he was the target. He had previously refused to approve shipments from the [facility] and he suspected that this might have been the motivation for the attack. Nobody was injured, but his car was damaged. Someone standing nearby gave him the numberplate of the car and he reported the incident to the police. There was correspondence between his office and the police, and the [facility] was investigated, but there is no central register of numberplates so the car could not be located and the case was dropped. His manager recommended that he work exclusively at [a certain location] following this incident to avoid further harm.
I asked the applicant if there had been any other incidents prior to the incident on 27 July 2014 mentioned in his earlier statement. He said that he was beaten by staff the [Location 2] [facility] in about September or October 2013 and by staff at the Thi Qar [facility] in about February 2014 because he refused to approve their products. He said that the staff at the Thi Qar [facility] called him a dirty Baathi. He did not know how they knew he had belonged to the party. I advised him that I had difficulty understanding there were no consequences for those involved in assaulting him. He said that the owner had blamed the staff and dismissed some of them. The [facilities] were fined for producing substandard [product], but they continued to operate. He or other staff from his department continued to visit them daily to take samples.
I observed that the applicant’s claim that he had been attacked while visiting [facilities] in September 2013 and February 2014 appeared to be at odds with the evidence that his manager had told him to work only at the [designated location] after June 2013. He said that he was responsible for the Nasiriyah area and he could not work only in the [designated location]. He went to collect samples from [facilities] about three times a week. I observed that it seemed that this job could have been handled by more junior staff members. He said that he took his job seriously and preferred to do as much sample collecting as possible.
I noted that the applicant had not mentioned being attacked in September 2013 and February 2014 in his previous statement. He said that he had mentioned similar incidents and he did not want his statement to be too long.
The hearing was adjourned and recommenced on 24 April 2021. I noted that the applicant had previously claimed that he was attacked at a [facility] in July 2014. He said that many soldiers from southern Iraq were killed in ISIS attacks in Takrit in 2014 and because of this there was a backlash against former Baath Party members in Nasiriyah and many people were killed. I observed that Takrit was a long way from Nasiriyah and it was not my understanding that attacks in Takrit in 2014 had a significant impact on what happened in Nasiriyah that year. He said that he would provide additional information on this issue.
The applicant confirmed that he had been attacked at [Location 1] [facility] in July 2014 when responding to a complaint from a local person. He reported the incident to his superiors who told him to be flexible. I noted that he had previously stated that he attempted to resign from his job at that time. He said that this was not correct, but he ceased to be in charge of the [designated location] following that incident and was one of four [in his line of work] in the [workplace].
I noted that the applicant had previously spoken about an incident in December 2014 and asked if he had experienced any problems between the attack in July 2014 and this incident. He said that there were two incidents during that period. In August 2014 he went to a [facility] in [Location 3] about [Distance] kilometres from Nasiriyah to investigate a complaint. When he decided that the complaint was justified, the manager insulted him and referred to his membership of the Baath Party. He was also physically attacked, but colleagues who had accompanied him restrained the attackers. He was not seriously injured. He wrote a report for his manager. He said that no action was taken against his attackers because the [facility] was privately owned and there was nothing his superiors could do. He also said that the [facility] owner was warned that his supplies would be affected if there was a recurrence of the problem. I observed that he appeared to have been assaulted and asked why the incident had not been reported to the police. He said that [facility] owners bribed the police and nothing happened.
The next incident occurred in mid-September 2014. He was on his way to a doctor in downtown Nasiriyah when some people verbally abused him and attacked him because he and his father had been members of the Baath Party. He said that he was greatly affected by this attack because it occurred in a public street. I observed that he had not mentioned this incident in his previous statements. He said that he had not mentioned all of the incidents which occurred because he did not want to write a long statement so he concentrated on the main incidents which were the shooting in July 2014 and the incident in December 2014.
I asked the applicant about the incident in December 2014. He said that he could not recall the exact date but he thought it was in mid-December or on 22 December. Some militias came to the street where he lived while he was at work and attacked and killed someone because he had been in the Baath Party. His wife heard shooting and called him. He returned to his home and took his wife and children to his father’s house on the outskirts of the city. He did not know the man who was killed or which militia was responsible for the attack. I observed that he did not appear to have mentioned this incident previously. He said he had not mentioned it because he was not directly threatened.
The applicant said that a few days after the incident in his street, he was travelling from his father’s house to his brother’s house with his wife and his daughter. He was 30 or 40 kilometres from his home when a car came up beside him and one of the occupants rolled down a window and pointed a machine gun at him. He immediately swerved to get away and ran into a dry ditch or riverbed. He lost consciousness at that time and does not know what the car that had caused the incident did after he swerved. Local people called an ambulance and he and his family were taken to hospital. The police came to the hospital and took a report, but as nobody had taken the number plate they could not do anything further. His wife and daughter were released within about 24 hours, but he was in hospital for a week. He wrote a report on the incident for his employer as this was standard procedure.
The applicant said that he thought he recognised one of the people in the car as someone from the [Location 1] [facility]. I observed that the incident at the [facility] had occurred some six months earlier about [Distance] kilometres from Nasiriyah and asked if he thought that people from the [facility] had happened to see him by chance or had been following him. He said that he believed the [facility] owner might have wanted to retaliate because they had received a large fine. He said that it took some time for the fine to be imposed.
I noted that the applicant had provided a letter from the Health Department in Thi Qar Province to [University 2] which stated that he had been the victim of an assassination attempt in December 2014. I asked how the Health Department knew that there had been an attempt on his life and why they had written to [University 2] about this. He said that the police had provided a report to the hospital and he had asked the Ministry of Health to provide the letter because he needed evidence to explain why he was late lodging his scholarship application. I asked when he had lodged his application. He said that it was lodged in July 2014, but the process was lengthy and he needed to provide many documents. I noted that the letter said that he had been hospitalised for two weeks which was at odds with his claim that he was in hospital for a week. He said that he was under pressure and he could not remember exact details. I advised him that I had some concerns about the authenticity of the letter. He said that the letter was an official document and its authenticity could be checked.
The applicant said that he continued to work in the same position after the events in December 2014. He said that he had to continue to work to support his family and because he would have lost his scholarship to Australia if he had left his job.
I asked the applicant if he had experienced any problems between the December 2014 incident and his departure from Iraq. He said that he had not experienced any problems personally, but because of the devastation caused by ISIS in Iraq anyone perceived to have links to the Baath Party was at risk of harm. After some discussion it was established that he feared that he would be at risk of harm because former members of the Baath Party had been targeted following ISIS massacres of soldiers from southern Iraq and because the Baath Party was seen as being behind the violent demonstrations in 2019 and 2020.
I advised the applicant that I was not aware of any evidence which suggested that there had been an outbreak of violence against former low-level Baath Party members in Nasiriyah because of massacres in northern Iraq in 2014. He said that these problems were mentioned in reports which were available on the internet. I observed that even if I accept that this had occurred, he did not appear to have experienced any significant problems because in 2014 or 2015 because of this. He said that his father had been an important member of the party and added that it was a dangerous time and he had been under enormous pressure. He said that there had been two attempts on his life and his family had to move many times. He was also attacked and humiliated on the street. He said that he did not fear the government. However, he feared that he would be targeted by local people and militias.
I advised the applicant it was my understanding that when ISIS took over territory in the north of the country many of the security forces which had previously been deployed in the south had been moved north and the strength of Shia militia groups in the south had increased. I also understood that some of these militias had been involved in criminal violence and abuses against local populations. However, I had great difficulty understanding how the problems he claimed to have faced in the past were linked to these developments. He said that it was not possible to know exactly whether there was a link between the militias and the [facility] owners who had threatened him, but based on his knowledge of the local situation he believed that this was the case. He suggested that the militias and the [facility] owners might have been linked by matters of financial benefit or political influence. He added that the current situation in Iraq was not good. There were many demonstrations and protests, and the situation was volatile.
During the hearing on 3 May 2021, I advised the applicant that I had been unable to locate any information which suggested that former Baath Party members had been targeted for either of the reasons claimed in the previous hearing. I advised him that with regard to the recent demonstrations it was my understanding that they began as protests against the government because of lack of services and employment and to some extent were also protests against the presence of some militias in the city, but it was not my understanding that former the Baath Party had been accused of involvement. The applicant maintained that his claims were true. He said that a senior official from the former Baathist government had published a statement blessing ISIS’s occupation of the north.
On 24 April 2021 the applicant confirmed that he had obtained a government scholarship to study in Australia with support from his employer. He said that scholarship holders usually received support from the government for three or four years. In his case the support ceased in 2019 after three years. He applied for an extension, but his application was refused and he was told that he should return to Iraq. He had not completed his PHD at that time so he remained in Australia to complete his degree and worked to support himself.
The applicant said that under that terms of his scholarship, he would be obliged to pay the Iraq government $300,000 if he did not complete his studies. I asked if he would face any other problems because he did not return when the scholarship ceased. He said that his life and the lives of his family would be at risk. I asked again if he would experience any problems specifically related to his failure to return at the end of his scholarship. He said that he would face financial problems because he had lost his job and he would have an enormous debt.
On 3 May 2021 I advised the applicant that it was my understanding that all holders of government scholarships were required to leave a guarantee to cover these costs if they failed to return as required. He said that he had used his home as a guarantee and it had been impounded to cover the amount he owed. I observed that it appeared that this was a requirement for all scholarship holders, and that while I appreciated that it might result in him facing some hardship on return to Iraq it did not appear to be relevant to his claim for protection. The applicant said that he had been compelled to seek protection in Australia because of his fears.
On 3 May 2021 I advised the applicant that it was my understanding that he feared returning to Iraq because of his past membership of the Baath Party, because of his stand against suppliers of [products] who provided substandard products and because he is well-educated and secular. I asked if he feared harm for any other reason if he returned to Iraq. He did not add any additional reasons.
I advised the applicant that advice from DFAT suggested that past membership of the Baath Party was not likely to be a problem in Iraq today and I was unaware of any independent evidence which suggested that Baath Party members were currently targeted by militias or anyone else for the reasons he had claimed. He said that his father had recently been threatened and there were many examples of problems faced by former members of the Baath Party in Nasiriyah on the internet. I advised him that I would be happy to consider any additional evidence he could provide regarding the current situation for former Baath Party members and I would give him time following the hearing to provide further evidence. He said that his family and contacts in Iraq had told him that former Baath Party members were being killed and kidnapped in Nasiriyah and that this was the best evidence regarding the current situation.
I advised the applicant that as discussed earlier I had some concerns about some of his claims regarding the problems he had faced because of his role investigating the quality of [products] in Dhi Qar, but even if I accepted that he had experienced these problems in the past it was over five years since they occurred, and according to his evidence he would not be returning to the same job if he went back to Iraq so it appeared that he would not be at risk of experiencing similar problems in the future. The applicant said that he had left his job in the hope that the Australian government would allow him to stay on humanitarian grounds. He added that there was currently an unemployment rate of about 50% in Iraq and he would not be able to support his family unless he remained in Australia. I advised him that while these concerns where understandable, they did not appear to be relevant to his protection application. I invited him to comment on my suggestion that he would not be at risk of harm on return to Iraq because of his past work at the department responsible for the production of [product]. He said that his life had been threatened twice and he believed the people who had been fined large sums of money because he had refused to approve their products for sale where behind these threats.
I observed that the applicant did not appear to have experienced problems in the past because of his status as an educated, secular man and asked him who he believed would harm him for this reason if he returned to Iraq. He said that people who he had worked with previously could be jealous because he now had a PHD. In addition, Iraq was a tribal society and many educated people had been killed.
Evidence from the applicant’s wife
The applicant’s wife gave evidence at the hearing on 3 May 2021. I asked if she could provide any information regarding the problems faced by her husband in Iraq. She said that he had been threatened by known and unknown people because of his membership of the Baath Party, but she did not know everything because he had not told her about all of his problems. I advised her that I was aware that former Baath Party members had experienced some problems following the overthrow of Saddam Hussein in 2003, but her husband had not lost his job and did not appear to have experienced significant problems. I also advised her that advice from DFAT indicated that former Baath Party members were not likely to face problems in Iraq today. She said that the current government might not cause problems for Baath Party members, but militias sometimes targeted them. I advised her that I was not aware of any evidence that this continued to be a problem, but I had agreed to give the applicant additional time to provide further information on the issue.
When asked if she could provide more information on the specific problems faced by her husband, she said that he had arrived home extremely distressed after being bashed, and in December 2014 they had been chased by armed people. She was in the back seat with her daughter and did not see what happened, but they ended up in a ditch. She did not know who the people who caused the crash were, but she suspected the attack was related to the applicant’s involvement with the Baath Party. She said that her husband had also received a number of threats from people who said they wanted to cleanse the country of people associated with Saddam Hussein, but he did not tell her much about these problems. He also faced problems at work, but she did not know much about them.
The applicant’s wife said that her son would not have survived if he had remained in Iraq. When her children where young she had been able to keep them in the house, but her son is now an adult and he will go out and he will be at risk from the people who had threatened her husband and others. She was also afraid for daughter. In Australia her daughter could return from work at 10 pm in an Uber, but this would not be possible in Iraq where there is no law or safety and crimes such as kidnapping are common. She feared her family would be victims of these crimes because her husband had been in the Baath Party and because they would not be protected by the government. Sometimes members of militias dressed as members of the police or army and came to people’s homes and harmed them. This had never happened to her; it happened to others. She also said that she and her family had been forced to live in a shed which was not fit for human habitation before they left Iraq.

I advised the applicant’s wife that I was aware that there had been violence associated with militias and protests in Nasiriyah in recent times, but it was not my understanding that ordinary citizens were generally at risk of harm because of this. The applicant’s wife said that there were many problems in Nasiriyah. She added that women face many problems and she feared for her daughter and all her children. I asked for more information on why women were at risk of harm. She said that women were more likely to be targeted for kidnapping and other crimes. I advised her that I was aware that many women faced problems in Iraq. However, it was my understanding that this often took the form of domestic violence and it was women alone or women from poorer backgrounds who were most likely to face problems. I observed that in my opinion the evidence did not appear to suggest that middle class women with supportive families faced a real chance of experiencing serious harm because of their gender. She said that she did not fear members of her family, but she feared the broader society in Iraq.
Evidence from the applicant’s son [Child 1]
In a statement dated 16 March 2021 the applicant’s son said that he could recall his father being threatened and harassed in Iraq because he worked in a sensitive position at [a government department]. These threats came from powerful people in the same Ministry who wanted to take his position or to bribe him to pass their unqualified associates. He said that about 10 years ago (in about 2011) he saw or heard a message from someone telling his father he could not escape. His father told him not to worry, but he was fearful because his father did not have any connections who could protect him. He said that his father had attempted to resign many times but his resignation was always rejected. He said that his father downgraded himself to protect his family from the harm from corrupt individuals. The applicant’s son also said that he had been in Australia since he was [Age] years old and he could not imagine returning to Iraq.
The applicant’s son provided oral evidence at the hearing on 3 May 2021. He said that he was only about [Age] years old when the Baath Party was overthrown, but he had seen many problems and he understood that the everyone involved with the previous regime had experienced problems. He could recall listening to at least one threatening call on his father’s phone at some time, but he was not sure what the threats were about. He was also aware of tensions in the home because of problems which his father had faced at work but he was not sure of the nature of these problems. He said that the presence of militias in Nasiriyah had created problems such as kidnapping and other crimes which affected everyone in the area. He said that he knew of young people who were killed fighting ISIS or kidnapped in Nasiriyah. He added that he had spent his formative years in Australia and he found it impossible to see a future for himself in Iraq.
I advised the applicant’s son that it was not my understanding that members of the Baath Party were generally at risk of harm in Iraq today. I also informed him of my understanding of the nature of the militia presence, crime and violence in Nasiriyah and advised him that it was not my understanding that ordinary civilians would be at risk of harm because of these problems.
The applicant’s son responded that there had always been problems in Iraq and there always would be. He spoke about attitudes towards gays and other social problems in Iraq which resulted in people being labelled in ways that caused them to be at risk of harm. I asked if he would be labelled in some way which would cause him problems in Iraq. He said that everyone was labelled sooner or later and he would probably be labelled a Baathist and he would also probably face problems because of the time he had spent in Australia. I advised him that it was my understanding that it was not uncommon for Iraqis to travel abroad for work or study and that advice from DFAT indicated that people returning from abroad were not generally at risk of harm because of this. He said that after six years in Australia he mostly spoke English and he was very accustomed to Australian ways and likely to be labelled a traitor. He added that his youngest sister did not speak any Arabic.
Evidence from the applicant’s daughter [Child 2]
The applicant’s daughter provided a statement dated 16 March 2021. She spoke about her desire to remain in Australia where she had made friends and built a life for herself. She said that she felt that she belonged in Australia, not Iraq. She remembered her mother crying because of the threats her father had received. She was very young at the time and did not remember the details but recalled that they were a daily occurrence and the entire family was fearful. She said that her mother had sometimes hidden her father’s phone so the children could not read the messages.
[Child 2] also said that she was afraid to return to Iraq because she was a woman and Iraq was unsafe for women. She said that women could not drive because of harassment and that she would not be able to walk alone or go out with her friends as she could in Australia. She said that women are abused every day in Iraq and they have no protection.
Submissions from the applicants’ representative
On 17 March 2021 the applicant’s representative provided a 10-page submission which states that the applicant’s claims should be accepted and that his fears are well‑founded. It makes general submissions on legal issues such as the real chance test and refoulment. It states that there is ongoing violence in Iraq and notes some examples of recent incidents. It also provides a number of links to reports and media articles on Iraq. Some appear to relate to the general situation, and some report on particular incidents.
The applicant’s representative made a number of oral submissions at the hearing on 3 May 2021. He said that I appeared to be suggesting that the applicants were fearful mainly because of the applicant’s association with the Baath Party but this was not the core of their case. However, he also submitted that most of the current movements in Iraq are seen as being backed by Baathists and that most AAT decisions have accepted that Baathists in Nasiriyah were at risk of harm.
The applicant’s representative said that the applicant would work at a university if he returned to Iraq and that this would place him in grave danger because many academics had been killed and they continued to be at risk of harm. I observed that this appeared to contradict the applicant’s evidence which suggested that he would be unemployed if he returned to Iraq. I asked the applicant to comment. He said that he was very well‑educated and he would be able to find work at a university if he returned to Iraq.
The applicant’s representative said that the applicant could have returned to a prestigious job as a professor in Iraq, but because of his fears he had remained in Australia and as a result his original debt of $300,000 is now $600,000. I noted that the applicant had previously said that he owed $300,000 and asked him to comment on his representative’s statement. His response was somewhat unclear. He said that he currently owed the government $300,000 and they were holding his house as security for that debt. His representative added that this amount would be doubled if he did not return and did not pay the current debt.
The applicant’s representative said that he had country information and Tribunal decisions which supported the applicant’s claims, but he could only submit them if I could provide him with copies. I scanned the material he wished to submit. Much of it appeared to be dated or of limited relevance. I advised the applicant’s representative that I would be happy to consider any evidence he wished to provide if he submitted it in an appropriate manner and explained its relevance to the applicants’ claims.
The applicant’s representative referred to a decision by a different Tribunal which he said supported the claim that women in Iraq were at risk of serious harm. I observed that as he would be aware, each case is considered independently on its merits and again advised him that I would be happy to consider any relevant evidence provided in an appropriate manner. Following the hearing I reviewed the decision he had referred to (1011455). It relates to a single mother and her young daughter who would be returning to Iraq with little or no family support. The decision states that while the country information fell short of indicating that the mere fact that the applicant was a girl established a real chance that she would be persecuted for a reason in the Refugees Convention, in the particular circumstances of the case it accepted that she faced a real chance of falling victim to sexual violence at the hands of local criminals.
The applicant’s representative said that the applicants should not be returned to Iraq because UNHCR advised that nobody should be returned to Iraq. I advised that him that it was not my understanding that current UNHCR advice stated that nobody should be returned to Iraq. He maintained that it did.
The applicant’s representative said that he was an expert witness in relation to Iraq because he had held senior positions in Iraq in the past and had also worked in senior positions for the UN. I advised him that while he no doubt had considerable knowledge of the history of Iraq, his current role was as representative for the applicants, and I would be considering his clients’ claims and his submissions in the context of available independent country information.
In a submission dated 18 May 2021 the applicant’s representative said that the applicant had difficulty providing evidence during the hearing because I expressed doubts about his claim before putting any questions to him or listening to his responses. I appreciate that the hearing process can be stressful and challenging for applicants who may perceive that they have not been listened to or have been unfairly challenged. However, I did not prejudge the applicant’s claims. My questioning and any expressions of concern were based on information provided prior to or during the hearing and my understanding of the available country information. I provided the applicant with an opportunity to respond and to provide any additional information or evidence he wished during and after the hearing.
The applicant’s representative submitted that I had advised the applicant that I would rely only on independent evidence and that I would ignore any evidence which he (the applicant) had gathered from the news, social media or directly from people in Iraq. He submitted that it would be impossible for the applicant to collect all the relevant written information and specify the source and date of the information as he was not in the centre of Iraqi media research. I did not tell the applicant I would ignore any evidence he provided. I advised him of what appeared to be problems with some of his evidence, such as the letter from his father, but I also told him that I would consider any evidence that he wished to provide and gave him time to do so.
The submission argues that Baathists continue to be at risk of harm in Iraq. It provides a brief overview of the history of Nasiriyah dating back to 1917 and notes that the Baath Party was established in the city in 1947. It submits that the Baath Party remains a major threat to the current government of Iraq, and party members continue to face strong pressure from the coalition and the ruling Islamists and face intimidation, kidnapping and imprisonment. It states that the government has issued many laws aimed at prosecuting and incriminating Baathists and notes that the Deputy Speaker of the Iraqi parliament referred to criminal Baathists in about February 2021. It submitted that other Tribunal decisions have accepted that Baathists are at risk of harm in Nasiriya.
The submission states that the recent demonstrations in Nasiriyah were a struggle between innocent demonstrators who want to establish a true democracy in Iraq free of foreign interference. It notes that the demonstrators in the city were calling for democracy and protesting issues related to corruption, food and employment and also targeted Islamist parties or militias, and adds that the demonstrators resemble secular, anti‑Islamist movements and suspected Baathists.
The submission states that the applicant had provided a detailed account of the difficulties he experienced in Iraq because of his role in assessing the quality of [product] produced or sold in Dhi Qar Province. It submits that the applicant’s claims were corroborated by the evidence given by his wife and son at the hearing and should be accepted as credible.
The submission states that the applicant’s wife and [Age]-year-old daughter would be at risk of harm including discrimination, hardship, intimidation and even sexual assault in Iraq because of their status as members of a particular social group of women. It again refers to RRT decision 1011455.
The submission states that if the applicant returns to Iraq and becomes part of the teaching staff at a university he would be at risk of serious harm. It notes that academic staff were killed, kidnapped and faced other forms of harm in the years following the toppling of the Baath Party regime and states that this situation has not changed. It states that most of the students at university in Iraq are members of armed militias and expect to be passed without doing that work and academics who refuse to accommodate their demands are at risk of harm. In support of this claim the applicant’s representative referred to a 2014 UNESCO report entitled Iraq: Threatened teachers fleeing the country, which provides examples of problems faced by academic staff. The submission states that the representative had provided evidence regarding problems faced by academics to differently constituted Tribunals in the past. It notes that the relevant Ministry had issued a letter in 2019 granting permission to academics to arm themselves. In support of this claim the applicant’s representative provided a copy of a letter from the Ministry of Interior to the police in January 2019 regarding new rules for issuing licences for carrying weapons to a range of groups including academics. The letter provides no information on the nature of these rules or the reason they were issued.
The submission states the applicant had a contract with the Iraqi government which required him to return to Iraq and work for the government for at least four years or pay the equivalent of AUS$300,000. He said that according to the applicant and his colleagues this amount had recently been doubled. It states that the Iraqi Cultural Attache had become aware that the applicant and others applied for refugee status in Australia and had forwarded this information to the authorities in Iraq which resulted in the cancellation of the student entitlement of those involved. It is unclear how the Cultural Attache obtained this information but the submission appears to suggest that they accessed the Department of Home Affairs Visa Entitlement Verification Online system (VEVO) which allows visa holders, employers, education providers and other registered organisations to check visa conditions. Information on protection visa applications is not available on VEVO.
On 21 May 2021 the applicant provided a copy of a letter from the Ministry for Higher Education and Scientific research which states that the applicant had applied to extend the period of his scholarship [in] February 2019 but this had been refused and he should comply with the relevant declaration.
Finally, the submission states that the applicant has given up a lot and incurred many penalties by deciding to stay in Australia which is a strong indication that he genuinely fears returning to Iraq. It notes that there while there are rumours that some Iraqis have returned to Iraq, everyone is in a different situation and that this should not be taken to mean that the applicant is not genuinely fearful of harm.
The applicant’s representative also provided the title pages of five Tribunal decisions relating to Iraqi applications for protection, one dated 2011, two dated 2015, one dated 2016 and one dated 2018. Apart from some handwritten comments which are difficult to understand there is no indication of how these decisions are relevant to the applicants’ case. He also provided a complete copy of the Tribunal decision referred to above. It deals with a single mother and young child without male protection and with little or no family support.
The applicant’s representative also provided over 250 pages of country information. No submissions were provided detailing how this information related to the applicants’ situation. Much of it was dated and of limited relevance to the applicants’ circumstances. The following list is in chronological order:
·     October 2011. An article entitled The Latest Wave of Arrests: Baathists and Terrorists Are Two Different Things, which indicates that hundreds of people had been arrested across Iraq. Most them were described as Baathists and faced vague accusations about plans to subvert the political process in Iraq after the US withdrawal.
·     December 2011. An article Further Destruction of Iraq’s Higher Education: Blazing Fires, Forged Degrees and Silencer Guns.
·     2012. UNHCR Guidelines which state that claims by asylum seekers from Iraq should be considered on their individual merits taking into account up-to-date and relevant country of origin information. It does not state that no Iraqi should be returned to Iraq and provides information on groups which might have need for protection in 2012.
·     February 2012. An NPR article entitled In Iraq’s ‘Dire’ Economy, which states that the dire economic problems facing Iraq create potential for destabilisation.
·     March 2013. A 45 report from the International Centre for Transitional Justice entitled A Bitter Legacy: Lessons of De-Baathification in Iraq, which reviews the steps taken to remove Baath Party members and influence from the Iraqi public service and armed forces. It states that the vast majority of those associated with the party in 2003 were ordinary members or sympathisers and only those from the highest levels of the party or administration lost their jobs and that some former members were reinstated or became eligible for pensions in 2008. It does not deal with violence against former members of the party by militias or the general public.
·     October 2013. An Al Jazeera article entitled Destruction of Iraq’s intellectuals, which reports that recent violence, staff resignations and problems with students had seen the disintegration of Iraq’s academic institutions.
·     March 2015. An article entitled The Law of the Street Rules in Militia‑Controlled Iraq which reports on killings and the introduction of strict Islamic codes by militias in Baghdad and the south of Iraq.
·     April 2017. An article in al-Monitor which reports that Shiite militias within Iraq’s Popular Mobilization Units (PMU) were attempting to establish separate PMU universities, which some see as an attempt to boost Iranian influence in Iraq.
·     March 2018. An article entitled Iraq orders seizure of Baathist-remnant assets, which states that the assets of more than 4,200 Baathist-regime had been listed for confiscation.
·     October 2019. An UNAMI report on the demonstrations in Iraq in October 2019.
·     January 2020. UK Home Office Country Policy and Information Note Iraq: Baathists. It states that, in general, a person will not be at risk of serious harm or persecution by the state because of their previous involvement with the Baath Party.
·     May 2020. A lengthy report from MADRE dated May 2020, which reviews problems related to sexual violence including honour killings, forced marriage, trafficking and prostitution and the Iraqi government’s failure to take steps to implement commitments it has made in relation to women’s rights. It also provides an overview of the demonstrations in Baghdad and southern Iraq which began in October 2019 which is broadly similar to the account set out above.
·     November 2020. A an Al Arabiya article entitled Three killed in Iraq as followers of Shiite cleric Muqtada al-Sadr storm protest camp.
·     February 2021. A translation of what appears to be an article relating to be a demand from the first Deputy Speaker of the Iraqi House of Representatives to activate or reactivate laws relating to former Baath Party members including measures such as suspending their pensions and banning them from participating in elections.

On 29 June 2021 the applicants’ representative submitted that a recent decision (1932265) of a differently constituted Tribunal relating to the cancellation of a resident return visa addressed many of the issues which the applicants had raised in relation the situation of women in Iraq. In particular, he noted that the Tribunal had found that “Gender-based violence is common in Iraq, and human rights observers report that domestic violence remains a pervasive problem throughout Iraqi society.”
COUNTRY INFORMATION
The following overview is intended to provide a context for the applicants’ claims. Unless stated otherwise, it is based on information from DFAT Country Information Report Iraq dated 17 August 2020. I have also reviewed DFAT Country Information Reports dated 29 November 2013, 13 February 2015, 26 June 2016 and 9 October 2018.
In my consideration of the applicants’ claims I have also had regard to the country information which they have provided. Some of it is dated or of limited relevance. Much of it is broadly similar to the assessment set out below.
Post 2003 developments
The Iraq government was installed following the 2003 invasion and its successors have struggled to enforce order in the country. Sunni insurgents have targeted civilians and security forces. In 2006–2007 sectarian violence saw Shia militant groups conduct a campaign of kidnappings and killings against Sunni rivals. Some Shia militia groups sought to impose their views on appropriate behaviour in southern cities, sometimes violently. The security situation improved in 2008, and insurgents and militias were pushed out of many areas in which they previously operated. Reports suggest that Shia militias were largely dormant from late 2011 until late 2013.
Continuing sectarian tensions fuelled the rise of ISIS who committed many acts of violence, including the massacre of over 1,000 soldiers and cadets at a military camp in Takrit in June 2014. The massacre sparked outrage across Iraq and was partly responsible for the mobilisation of Shiite militias in the fight against ISIS. The government accused some former Baath Party members of playing a role in this event. It appears that Shia militias involved in combatting ISIS shared the view that ISIS and the Baath Party were linked and committed abuses against Sunni civilians in areas recaptured from ISIS. A number of people were arrested and executed for their involvement in the killings after Iraqi forces retook Takrit in early April 2015.[1]
[1] Camp Speicher massacre - Wikipedia; Iraq hangs 36 men for Camp Speicher massacre - BBC News; Five years on, still no justice for Iraq’s Camp Speicher victims | ISIL/ISIS | Al Jazeera; Iraq hangs 36 over 2014 ISIS massacre of soldiers in Tikrit - CBS News; 8 HRW, ‘Militia abuses following Iraq’s recapture of Tikrit’, p22, 4 September 2015
The rise of ISIS resulted in a resurgence in activity by Shia militias in southern Iraq who joined with government forces to combat ISIS forces who had occupied much of northern Iraq by 2014. Following three years of conflict which involved government forces and mostly Shia militias, ISIS was removed from all of this territory by December 2017. Shia militias returning to the south following this once again played a significant role in many areas. The behaviour of militias varied considerably, with some providing welfare and security services, some seeking to enforce what they saw as moral behaviour and a significant number becoming involved in criminal activities. The government has attempted to control the militias by incorporating them into the security forces, but with mixed results. success.[2] The security situation in Iraq remains highly unstable but reports from DFAT and other international observers indicate that the south of the country has had a low incidence of terrorist or sectarian attacks, although crime and tribal feuds and conflict between Shia militia groups continue to be a problem, and as discussed below since about 2018 or 2019 there has been violence associated with demonstrations in a number of cities.[3]
[2] See also Lewis, J, Ali, A & Kagan, K 2013, Iraq’s Sectarian Crisis Reignites as Shi’a Militias Execute Civilians and Remobilize, Institute for the Study of War, 31 May; Katzman, K 2015, Iraq: Politics, Governance, and Human Rights, 22 June, Al-Kadhimi, M 2015, ‘Why Iraq needs to depoliticize their Popular Mobilization Units’, Al Monitor, 10 July < Habib, M 2015, ‘Are Shiite Militias Growing More Powerful Than Iraqi Army?’
[3] 'COI Focus - Iraq: Security Situation in Central and Southern Iraq', Office of the Commission General for Refugees and Stateless Persons (Belgium), 20 March 2020, p.89, 20200619134831 and 'Country Guidance: Iraq - Guidance note and common analysis', European Asylum Support Office (EASO). 30 June 2019, pp.109‑10
The situation in Nasiriyah
Nasiriyah is the capital of the Dhi Qar Governorate. The population is predominantly Shia. Reports from DFAT and others stated that there has been a low level of insurgent and sectarian violence in southern Shia dominated Iraq since about 2008. However, other problems continue.

100. Shia militias have had a presence in southern Iraq since 2003. Their strength and influence have varied over time but grew significantly following 2014 due to their involvement in combatting of Islamic State (ISIS) and the recognition of that role by the Iraqi government. In 2018 DFAT observed that violence between opposing Shia militia occurred in southern Iraq. This violence was often linked to criminal activities, including robbery and kidnapping. This mostly impacted on those actively involved in militia groups rather than ordinary citizens. Crime is also a significant problem throughout Iraq including in the south.
101. Large anti-government protests fuelled by high levels of unemployment, poverty, poor public services, power cuts and anger at the influence of Iran and the presence of Iran‑backed militias broke out across the south in 2018.[4] The height of the demonstrations occurred between about October 2019 and April 2020 when they largely ended due to the COVID‑19 pandemic.
[4] See also 'Iraq: The Protest movement and the treatment of protestors and activists', European Asylum Support Office (EASO), 15 October 2020, 20201016085915
102. Initially most of the demonstrators were young men, but in October 2019 a large number of women, older people, school children, students, teachers and other professionals joined or declared strikes. According to reports, most ofthe protesters did not belong to any particular political party or group and did not subscribe to any particular view or ideology, although they sometimes had support from some militias such as followers of Muqtada al-Sadr. Most demonstrations were peaceful, but some demonstrators committed acts of violence. The protests were met with violence from security forces and some militias resulting in a large death toll and the abduction or arrest of a large number demonstrators in late 2019 and the first half of 2020. According to reports many detainees were ill‑treated or tortured and there were concerted efforts to deter people from participating in the demonstrations. It was not always clear who was carrying out these campaigns.
103. In October 2019 the government formed a committee which issued a report that acknowledged excessive use of force on the part of security forces and action was taken against some of the perpetrators of violence. The central government also met or attempted to meet some of the demands of the protestors. However, according to human rights groups and others, most issues were not adequately addressed.
104. Nasiriyah is one of the cities most affected by these developments. Demonstrators in the city forced Iran-backed parties and militias to close their offices and occupied a central square for a prolonged period. The violence in the city resulted in hundreds of deaths. As with other cities, demonstrations appear to have largely ceased in mid-2020.
105. In August 2020 DFAT assessed that protesters and demonstrators faced a high risk of arrest or violence from both state authorities and militia groups, particularly if they held leadership positions.
106. In October 2020 the European Asylum Support Office concluded that while violence was taking place in the Governorate of Dhi Qar, it was at such a low level that in general there was no real risk for a civilian to be personally affected by reason of indiscriminate violence.[5]
[5] EASO Iraq Security situation Country of Origin Information Report October 2020
107. According to recent reports there have been some recent demonstrations in Nasiriyah. A large protest by people demanding jobs occurred on 11 July 2021. On 13 August 2021 people demanding the release of an activist protested in the city, and hundreds of people demonstrated in October 2021 to commemorate the protest held in October 2019. The limited information located did not suggest that these were violent events. A recent report states that a positive development following the demonstrations is the success of a (very) small number of representatives from the civil society movement fed up with the corruption had entered parliament.[6]
[6] Iraq: Protest reported in Nasiriyah late Aug. 13 (garda.com); Iraq: Hundreds of anti-govt protesters rally in Nasiriyah to mark 2nd anniv of 'October protests' - YouTube; Iraq's protest movement seeks to find voice in parliament (france24.com)
Membership of the Baath Party
108. Prior to the US invasion in 2003 membership of the Baath Party was a precondition for employment with the Iraqi government. A “deBaathification” process instituted in 2003 led to the dismissal of thousands of people from the public service and military. Significant changes in 2008 meant that some lower-level Baathists could return to government jobs and most of those dismissed were able to access their pensions. In November 2013 DFAT noted that most Iraqis agreed that given the pressures that forced millions of Iraqis to join the party, sanctions should not apply to former Baathists as individuals. However, some Baath Party members faced discrimination in applying for jobs in the public sector or academic institutions, in particular those involving senior positions, and Baath Party membership continued to be exploited for partisan political purposes.
109. By late 2020 most senior Baathists were dead, in prison or had left Iraq, and there was a broad societal agreement as millions of Iraqis were forced to join the party for work prior to 2003 that sanctions should not apply to most individuals. The passage of time and more recent developments have also reduced the level hostility against Baathists. Nevertheless, there are reports that imputed association with the Baath Party has been used as a threat against Sunni government workers when issues such as competition for a promotion arise in the Shia majority south. According to DFAT, former Baathists whose involvement with the party did not extend beyond mere membership of the party are unlikely to face significant official or societal discrimination.
Government officials, academics, professionals and secular Muslims
110. The public sector is the largest employer in Iraq, employing about 40 per cent of the active workforce. Government officials were amongst the targets of violence throughout the country during the early years, mostly from Sunni insurgents, at least in part because of their association with foreign forces in the country. Since 2013 DFAT has advised that the level of such attacks in the south has been low. DFAT’s 2013 report stated that academics and other professionals were not generally in danger in Iraq because of their employment, although some have been attacked for reasons such as their political activities or perceived wealth. None of the more recent reports suggest that academics or other professionals are generally at risk of harm because of their employment or status. DFAT’s 2018 report states that in their assessment, students or academics do not risk official or societal discrimination on the basis of their employment or education either in Iraq or abroad. There is no mention of any problems for academics or professionals in DFAT’s 2020 report.
Government scholarships
111. The Iraqi government provides scholarships for study abroad to a range of qualified applicants. How these applications are processed is not entirely clear. According to advice from DFAT in 2017 applicants are required to go back to work at the Ministry which sponsored their application once their overseas study has been completed. They are generally required to work for double the length of their overseas studies. Those who fail their course return to the Ministry and are not offered another scholarship. In addition, they have to repay the tuition fees and other expenses covered by their scholarship. To ensure these debts are paid, students are required to have a guarantee before travelling overseas. This can be real estate or a list of names of three civil servants who will be required to pay the debt over time.[7]
[7] ‘Students and academics in Iraq', Department of Foreign Affairs and Trade, 08 February 2017, CXC9040661505
Women in Iraq
112. The Iraqi Constitution guarantees equality before the law without discrimination based on gender. There is quota of at least 25 per cent of seats for women in the Iraqi parliament. Women in Iraq can and do obtain a high level of education and can and do work outside the home, although only a minority of women do so. A lack of action in regard to promised reforms, years of repression due to a strong conservative culture and armed conflicts, violence and a lack of security and stability have constrained most Iraqi women to traditional family roles, limiting their access to employment and education. Only 14 per cent of women are working or actively seeking work compared to 73 per cent of men, and 21 per cent of active females are unemployed compared to 11 per cent of active males. Unemployment rates are higher for young women in urban areas. Women also face discrimination in other areas, for example personal status and inheritance laws favour men.
113. Gender‑based violence is common in Iraq where domestic violence is a pervasive problem throughout society. So-called ‘honour killings’ remain a serious problem and Iraqi girls face a high risk of being forced into early or involuntary marriage. Protection and support for women facing these situations is very limited.
114. Abduction, human trafficking and sexual violence are also a problem for women and girls in vulnerable situations. Among the most vulnerable are those who are heads of household, such as widows and divorced women who tend to be more exposed to poverty and most disadvantaged in terms of access to education, employment and adequate shelter. Displaced women and girls without family or community support are also at particular risk of harm.
115. Iraqi Labour Law (2015) prohibits sexual harassment in the workplace, but there is no law prohibiting sexual harassment more generally. While there are no recent statistics available, a 2015 survey by the Iraqi Women’s Journalists Forum found eight in 10 women reported suffering some form of sexual harassment. Some reports suggest that much of this harassment is verbal, particularly harassment in public. In the past some militias have imposed rules for the manner in which women and girls dress and behave in areas under their control and punished those how fail to comply. No evidence has been provided or located which suggests that this is currently a significant problem in Nasiriyah.
116. There is also some evidence that women are becoming more independent and politically active. Women and girls played a prominent role in the recent demonstrations in southern Iraq, calling for freedom, justice and gender equality. Women who engaged in these activities or posted online comments often faced a hostile response in the form or online comments and threats, but many continued to protest and received support from male protestors. During discussions with UNAMI/OHCHR, men, women and youth frequently expressed a shared commitment to the promotion of women’s rights and empowerment. When Shiite cleric Muqtada al-Sadr issued a code of conduct for protesters in which he cautioned against the mixing of men and women at sit-in areas, women flooded the streets of Baghdad and Nasiriyah to protest, and some men posted supportive social media comments.[8]
[8] See also Human Rights Violations and Abuses in the Context of Demonstrations in Iraq October 2019 to April 2020 United Nations Assistance Mission for Iraq Office of the United Nations High Commissioner for Human Rights August 2020 Baghdad, Iraq and Women protesters in Iraq defy radical cleric, take to street, apnews 14 February 2020 Women protesters in Iraq defy radical cleric, take to street (apnews.com) and Iraqis ridicule Shia leaders call for gender segregation alarabiya.net/features/2020/02/09/Iraqis-ridicule-Shia-leader-s-calls-for-gender-segregation-during-protests
Returnees from western countries
117. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who have returned to Iraq. Iraqis who are granted protection or residency by western countries often return to Iraq some for months, others to establish businesses or take up or resume employment. DFAT reports issued between 2013 and 2018 DFAT have consistently stated that they and other international observers are unaware of any problems faced by students returning after completing their studies in western countries.
CONSIDERATION OF THE APPLICANT’S CLAIMS
Baath Party involvement
118. In essence, the applicant claims that he and his father were Baath Party members until 2003 and they continue to be at risk of harm in Iraq for this reason. He claims that his father held a senior position in the party, that he lost his job in 2003 and remained on the run or in hiding until at least 2010. He claims that he and his family were also in hiding or at least kept a low profile during this time. He claims that he was also a member of the party and that he was threatened and attacked by people in the [product] industry partly because of this. He claims that former members of the Baath Party and their families were targeted in about 2013/14 after members of Shia militias were killed fighting ISIS. Finally, he claims former Baath Party members were seen as being behind the demonstrations which broke out in 2019 and an attempt was made on his father’s life because of this.
119. I accept that the applicant’s father held a relatively senior position in the party and lost his job because of this in 2003. I also accept that he was hiding for a period following the overthrow of the Baathist regime in 2003, although I strongly doubt that he remained in hiding until 2010. According to the country information the situation changed significantly in 2008 when some Baath Party members were reinstated and others gained access to their government pensions. While there continued to be animosity towards some former members of the party following this, particularly as some Sunni members of the party became involved in insurgent or extremist groups, none of the evidence before me suggests that former party members who were not Sunni and not involved in insurgent groups were generally at risk of harm following that time.
120. In any event, there is no suggestion that the applicant’s father remained in hiding after about 2010, and the only harm which the applicant claims his father has experienced since 2003 is the claim that he was attacked by Islamic groups in Nasiriyah in early 2020 during an assassination campaign against Baath Party members who were seen as being behind the demonstrations which began in 2019. I do not accept this claim.

180. While [Child 1] is the only member of his family who claims to fear harm for this reason, for the sake of completeness I have also considered the possibility that other members of the applicant’s family would face problems because of the time they have spend in Australia and the perception that they have become westernised or that they have betrayed their homeland. However, for the reasons set out above, I am not satisfied that the applicant or any member of his family faces a real chance of experiencing serious or significant harm on return to Iraq because they have lived in Australia for some six years and become accustomed to the Australian way of life.
Does [Child 1] meet the refugee definition?

Having considered [Child 1]’s claims, individually and cumulatively, and all the evidence, I find that he does not face a real chance of suffering serious harm amounting to persecution from anyone for any reason, if he returns to Iraq, now or in the reasonably foreseeable future. I am therefore not satisfied that he is a person to whom Australia has protection obligations under s 36(2)(a).
Does [Child 1] satisfy the complementary protection criterion?

182. Having considered [Child 1]’s claims individually and cumulatively, I am not satisfied that there is a real risk that he would suffer significant harm for any reason if he returned to Iraq. I am therefore 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. I am therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONSIDERATION OF [CHILD 2]’S CLAIMS
183. [Child 2] fears that she would be at risk of harm if she returned to Iraq because of her association with her father. As discussed above, I do not accept that the applicant provided an honest or accurate account of the problems he faced in Iraq and I am not satisfied that he faces a real chance of experiencing serious or significant harm on return to Iraq because of his past membership of the Baath Party or his refusal to approve substandard [products]. There is nothing in the evidence which suggests that [Child 2] was threatened or harmed in Iraq because of her association with her father. I am not satisfied she faces a real chance of experiencing serious or significant harm on return to Iraq for any reason linked to her association with her father.
184. In her written statement [Child 2] claimed that women in Iraq was unsafe for women who often face abuse and lack protection. I accept that many women in Iraq face abuse and lack protection. However, as noted above, much of this violence takes place within the home. Family members may also place restrictions on women and girls, including determining who and when they should marry. [Child 2] appears to come from a supportive middle-class family and does not claim to fear domestic violence. There is nothing in the evidence before me which suggests that the applicant or other members in her family would be violent towards her or ill-treat her in other ways because she is a woman or for any other reason. As noted in the country information section above, some women are also at risk of sexual or criminal violence outside the home. However, problems of that kind mostly affect poorer women, displaced women and women in families without male protection. [Child 2] does not belong to any of these categories.
185. [Child 2] also fears that she would not have the same freedoms that she and other women have in Australia. She fears that she would not be able to drive or travel to and from work alone at night or go out with friends without facing harassment. I acknowledge that [Child 2] may need to take more precautions when travelling at night in Nasiriyah than would be necessary in Australia because of the general situation. I also acknowledge that social and cultural norms in Iraq differ from those which apply in Australia and that [Child 2] may not have the opportunity to socialise publicly in the same manner as she would in Australia. However, while it appears that some verbal harassment of women in public is relatively common, particularly if they chose not to wear hijab (head scarf), I am unaware of any evidence which suggests that women face a real chance of experiencing physical harassment for acts such as driving a war or walking alone or meeting friends in public or that that verbal harassment of women who behave in this way is so severe, frequent and widespread that young women who engage in these activities in Nasiriyah face a real chance of experiencing serious or significant harm as a result.[9] Finally, there is nothing in the evidence before me which suggests that [Child 2] would engage in other forms of behaviour on return Iraq which would mean that she would face a real chance of experiencing serious or significant harm because she is a young woman.
[9] See for example a post by a woman who recently studies in Iraq who observed that women who walk alone in Iraqi cities are likely to be verbally harassed, particularly if they were not wearing hijab (head scarf) but would not face physical harassment because this would result in this extreme consequences for the perpetrator Can women go alone in Iraq? Which cities are more dangerous? How do you live in Iraq? - Quora
186. As noted in the country information section above, many women in Iraq face discrimination in areas such as education and employment. I have considered the possibility that [Child 2] would suffer serious or significant harm on return to Iraq for these reasons. However, the evidence does not suggest that a young woman from an educated middle-class family such as [Child 2] would be denied the right to further her education or to earn a livelihood or face other forms of discrimination which would amount to serious or significant harm. I am not satisfied that [Child 2] would suffer discrimination amounting to serious or significant harm on return to Iraq because she is a woman.
187. I have considered the impact of the current situation in Nasiriyah in my assessment of [Child 2]’s claims. I acknowledge that there continue to be outbreaks of violence associated with demonstrations and that crime, tribal disputes and violent acts by some militias are an ongoing problem and that this may mean that [Child 2] would need to take greater precautions when socialising or travelling at night than might be necessary in Australia. However, on the evidence currently before me, I am not satisfied that ordinary citizens including young women in Nasiriyah generally face a real chance of experiencing serious or significant harm as a result of the crime or violence which sometimes occurs there.
188. Finally, I have noted [Child 2]’s representative’s submission that she would face hardship if she returned to Iraq because her status as a young woman. As [Child 2] did not give oral evidence at the hearing it was not possible to ask her for further evidence on the nature of this hardship. However, there is nothing in the evidence before me which suggests that she would face a real chance of experiencing hardship amounting to serious or significant harm if she returned to Iraq now or in the reasonably foreseeable future.
189. After considering all of the evidence, I am not satisfied that [Child 2] faces a real chance of suffering serious or significant harm on return to Iraq because she is a woman or a young woman.
Does [Child 2] meet the refugee definition?
190. Having considered all [Child 2]’s claims, individually and cumulatively, and all the evidence, I find that she does not face a real chance of suffering serious harm amounting to persecution from anyone for any reason, if she returns to Iraq, now or in the reasonably foreseeable future. I am therefore not satisfied that she is a person to whom Australia has protection obligations under s 36(2)(a).
Does [Child 2] satisfy the complementary protection criterion?
191. Having considered [Child 2]’s claims individually and cumulatively, I am not satisfied that there is a real risk that she would suffer significant harm for any reason if she returned to Iraq. I am therefore 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 she will suffer significant harm. I am therefore not satisfied that she is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CLAIMS MADE ON BEHALF OF THE APPLICANT’S YOUNGER CHILDREN
192. The applicant’s wife said that she fears for all of her children if they return to Iraq because of the problems faced by the applicant prior to his departure from Iraq and because of the violence and lack of security in Nasiriyah. I have therefore considered whether her children [Child 3] or [Child 4] would be at risk of serious or significant harm on return to Iraq for these reasons.
193. As discussed above, I do not accept that the applicant provided an honest account of his problems in Iraq and I am not satisfied that he faces a real chance of experiencing serious or significant harm on return to his homeland because of his past membership of the Baath Party or his refusal to approve the sale of substandard gain products or that his wife or older children face a real chance of experiencing serious or significant harm on return to Iraq because of their association with him. For the same reasons, I am not satisfied that [Child 3] or [Child 4] face a real chance of experiencing serious or significant harm on return to Iraq because of their association with the applicant.
194. As also discussed above, while I acknowledge that there continue to be some problems relating to militias, demonstrations and other forms of violence in Nasiriyah, I am not satisfied that the applicant, his wife or their older children face a real chance of experiencing serious or significant harm on return to Iraq for any reason linked to this situation. For the same reasons, I am not satisfied that [Child 3] or [Child 4] face a real chance of experiencing serious or significant harm on return to Iraq because of these problems in Nasiriyah.
195. Finally, I have considered whether [Child 4] would be at risk of serious or significant harm because of her gender. As discussed above, I am not satisfied that the applicant’s wife or older daughter face a real chance of experiencing serious or significant harm on return to Iraq because of their gender. For the same reasons, I am not satisfied that [Child 4] faces a real chance of experiencing serious or significant harm on return to Iraq because of her gender.
Do [Child 3] or [Child 4] meet the refugee definition?
196. Having considered all the claims made on behalf of [Child 3] and [Child 4] individually and cumulatively, and all the evidence, I find that they do not face a real chance of suffering serious harm amounting to persecution from anyone for any reason, if they return to Iraq, now or in the reasonably foreseeable future. I am therefore not satisfied that they are people to whom Australia has protection obligations under s 36(2)(a).
Do [Child 3] or [Child 4] satisfy the complementary protection criterion?
197. Having considered all the claims made on behalf of [Child 3] and [Child 4] individually and cumulatively, and all the evidence, I am not satisfied that there is a real risk that either of them would suffer significant harm for any reason if they returned to Iraq. I am therefore not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Iraq, there is a real risk that they will suffer significant harm. I am therefore not satisfied that they are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSIONS
198. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
199. The Tribunal affirms the decision not to grant the applicants protection visas.
Roslyn Smidt
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 5313

1 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction