1727969 (Refugee)

Case

[2021] AATA 1021

23 March 2021


1727969 (Refugee) [2021] AATA 1021 (23 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1727969

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Luke Hardy

DATE:23 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 23 March 2021 at 2:53pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Chaldean Christian – militia kidnappings and attacks – constitutional religious discrimination – state protection – fear of killing – physical assault – denial of access to places of worship – third country protection – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

  2. The applicant, [named], is a Chaldean Christian citizen of Iraq. He was residing in Lebanon when he was sponsored for a subclass 300 prospective spouse visa in 2017. He arrived in Australia [in] April 2017. His sponsor later withdrew sponsorship and he then lodged a protection visa application on 28 June 2017. The delegate refused to grant the visa on 25 October 2017. [The applicant] then sought merits review.

  3. [The applicant] appeared before the Tribunal on 23 March 2021 to give oral evidence and present arguments. He was accompanied by a friend who intended to give evidence as a witness, but all present agreed or accepted that his testimony would be unnecessary, mainly since he had only known [the applicant] since the latter’s arrival in Australia, and since [the applicant’s] religion was not in question. The hearing was facilitated by an interpreter in the Arabic-English medium. [The applicant’s] registered migration agent attended the hearing.

  4. For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision record, which contains a summary of evidence provided at interview along with identified issues that the delegate considered relevant.

    CRITERIA FOR A PROTECTION VISA

  5. 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.

  6. 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.

  7. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

  8. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

  9. 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

  10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

  11. The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. 

  12. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

    Claims

  13. [The applicant] is a Chaldean Christian from Dahuk, a town near the city of Mosul in northern Iraq. He is therefore a member of a Christian minority from an area that suffered bombing by Al Qaeda and later fell under the widely-reported tyranny of ISIS. His family (two parents, [and specified family members]) fled the area, and Iraq itself in 2002 when he was [age] years old, just ahead of the US-led invasion of Iraq. His family sought refuge in Syria which itself became extensively occupied by ISIS in years that followed. [The applicant] has not returned to Iraq since he was [that age], and his home region is widely reported to have been devastated. In 2015, as battles to eradicate ISIS were stepped up, [the applicant] and his family then sought refuge in Lebanon where his family remains on a temporary basis. According to his evidence, his family only enjoys temporary residence in Lebanon and is not protected there from refoulement to Iraq.

  14. Relevant to this, I have had regard to independent country information:

    ISIS’s campaign of destruction of minority cultural and religious heritage also affected Chaldean sites and properties. The main Chaldean Catholic church in the al-Shurta neighbourhood of Mosul was captured by ISIS forces on 30 June 2014 and used as a base. ISIS also marked Christian homes in Mosul with the Arabic letter N (for ‘Nazarene’) and designated them the property of the Islamic State, looting them of their contents.

    Many of those Chaldean families displaced by the ISIS advance are now living in Basra or Iraqi Kurdistan, where they, like other displaced minorities, face difficulties in finding employment and restrictions on their political activities. In Baghdad, Chaldean Christians face ongoing discrimination, harassment by militia members, kidnappings and attacks. Many who have left Baghdad have reported their houses being illegally taken over and the property titles changed in their absence. As a result, the Chaldean community in Baghdad continues to dwindle.[1]

    [1] “Iraq: Chaldeans,” in the Minority Rights Group’s World Directory of Minorities and Indigenous Peoples, November 2017,

  15. [The applicant] claims that the “ongoing discrimination, harassment by militia members, kidnappings and attacks” on Chaldean Christians has not stopped since 2017. He claims that he cannot avail himself of protection in Iraq because of pervasive discrimination against Christians in the country, notwithstanding that ISIS and Al Qaeda have both been pushed back by state and “allied” forces. He claims, and I accept, that he has no immediate, or living or known extended family in Iraq, let alone in his region of origin.

  16. [The applicant’s] claims appear generally supported by independent reporting:

    In Iraq, discrimination is written directly into the constitution. Drafted two years after the 2003 U.S. invasion, the document declares Islam the country’s official religion and forbids any law that “contradicts the established provisions of Islam.” This shapes life in mundane yet meaningful ways. ID cards designate citizens as Muslim, Christian, Mandaean, Yazidi. Non-Muslim men cannot marry Muslim women. Children of mixed parentage are automatically classified as Muslims if one of their parents is Muslim, even if they are born of rape. For many Christians living in northern Iraq, discrimination is a part of life: Many non-Christians won’t hire Christians at their businesses. Families closely monitor their daughters out of fear that they’ll be targeted for sexual violence.

    Faced with these daily indignities—as well as Iraq’s precarious political and economic environment—large numbers of Christians and other minorities have decided to flee. But opportunities to come to the U.S. are even rarer now than they were when Catrin Almako moved her family to Detroit. The Trump administration’s commitment to supporting Christians in the Middle East has corresponded with a sharp drop in the number of Christian refugees admitted to the U.S. Under Obama, advocates howled that Democrats were refusing to take in persecuted Christians, but the number of Christians admitted from Iraq has dropped by 98 percent over the past two years. According to data from the U.S. State Department and the charity World Relief, only 23 Iraqi Christians were admitted to the United States in 2018, compared with nearly 2,000 in 2016. Families still in Iraq now look to Europe and Australia instead.[2]

    [2] “The Impossible Future of Christians in the Middle East,” The Atlantic,  23 May 2019,

  17. In 2019, the BBC reported as follows:

    The persecution of Christians in parts of the world is at near "genocide" levels, according to a report ordered by [British] Foreign Secretary Jeremy Hunt ...

    The interim report said the main impact of "genocidal acts against Christians is exodus" and that Christianity faced being "wiped out" from parts of the Middle East.

    It warned the religion "is at risk of disappearing" in some parts of the world, pointing to figures which claimed Christians in Palestine represent less than 1.5% of the population, while in Iraq they had fallen from 1.5 million before 2003 to less than 120,000.

  18. A recent development is the state visit to Iraq conducted by the Catholic Pope, Francis. At the hearing, [the applicant] described the papal visit as more of an act of hope against a grim reality than of any recognition of improvement in the lives of Iraq’s Christians. His testimony in this particular matter is generally supported by independent media and human rights observers.[3]

    [3] “The symbolic power of the papal visit to Iraq,” The Washington Post, 8 March 2021,  

  19. In [the applicant’s] case, he has no immediate, or living or known extended family in Iraq; he has no parish and no congregation such as might provide him with some kind of social network. He has his vernacular Arabic, which likely identifies him with the region of his birth, but that region is devastated, and the Christian culture there has been decimated, not least by ISIS when it ruled there. [The applicant] claims that he would have to face discrimination and exploitation on a daily basis for the rest of his life irrespective of where he might locate or relocate in Iraq. He claims the authorities will not protect him because Islam is constitutionally protected as the state religion. He told me his father had to flee Iraq with his family after trying to report a thief to the police only to face death threats from cronies of said thief, who was a Muslim. He said that it is impossible or at least useless for a Christian complainant to try and engage help from the police or other authorities in Iraq in cases where the accused is, or are, Muslim.

    Findings in relation to s.36(2)(a) of the Act

  20. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant's claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. . I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]  

    [4] MIMA v Rajalingam (1999) 93 FCR 220.

    [5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

  21. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either "well-founded" or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to "significant harm". It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]

    [6] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [7] Sun v MIBP [2016] FCAFC 52 at [69].

  22. I accept that [the applicant] is a Chaldean Christian from Dahuk near Mosul who has no living family or know community in Iraq. I accept that he has not lived in Iraq since he was [age] years old. Unlike the delegate, I am of the view that this long absence from Iraq is more of a significant disadvantage to [the applicant] than advantage. I give some weight to all these factors in assessing [the applicant’s] case.

  23. As discussed, independent evidence supports [the applicant’s] claims regarding the potential prevalence, commonness and frequency of acts of discrimination capable of amounting cumulatively to persecution, solely for the reason of “religion.” I am prepared to accept that for reasons of being a Chaldean Christian, [the applicant] is vulnerable to religious discrimination and persecution, including prejudiced, diminished access to earning a livelihood, physical assault, denial of access to places of worship at least by non-state actors, interference with the right to assemble, diminished freedom of movement, day-to-day open vilification, lack of access to effective state protection, and susceptibility to kidnapping and extortion.

  24. As discussed, I am not satisfied that relocation in Iraq would be either safe or practicable.

  25. On the evidence before me, I am satisfied that [the applicant] faces a real chance of being persecuted in Iraq in the reasonably foreseeable future for reasons of “religion”: ref. s.5J(1)(a) of the Act.

  26. For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    S.36(3)

  27. Although [the applicant] has enjoyed lengthy periods of temporary refuge in Syria and Lebanon, along with other members of his family, I am satisfied that he cannot re-enter either of those countries from Australia. On the evidence before me I am satisfied that he cannot avail himself of the protection of a third country. Accordingly, he is not caught by s.36(3) of the Act.

    DECISION

  28. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Luke Hardy
    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.


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