1731457 (Refugee)

[2020] AATA 2361

1731457 (Refugee) [2020] AATA 2361 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731457

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Shahyar Roushan

DATE:18 May 2020

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 18 May 2020 at 11:14am

CATCHWORDS

REFUGEE – Protection Visa – Iraq – Federal Circuit Court remittal– religion –Shi’a Muslim –particular social group – [Occupation 1]– person with chronic and acute mental health conditions – person with no close familial ties– imputed political opinion– risk of harm from Islamic fundamentalists –mental health condition – medical evidence provided – no access to family or social support networks – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 36, 46, 65,45AA, 91, 499, 501

Migration Regulations 1994, r 2.08F, 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 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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

   BACKGROUND

2. The applicant is [an age]-year-old national of Iraq. He is a Shi'a Muslim. He was born in Basra and resided at a single address in the city before coming to Australia.

3. The applicant arrived on Christmas Island [in] December 2010 as an Unauthorised Maritime Arrival. On 15 January 2011 the applicant made a request for a Refugee Status Assessment (RSA).  On 23 May 2011, an RSA officer found the applicant not be a refugee and not to engage Australia’s protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

4. On 15 January 2011, the applicant applied for an Independent Merits Review (IMR) of the RSA’s decision. On 19 December 2012, the IMR found that the applicant meets the criteria for a Protection visa under s.36(2) of the Migration Act and recommended him to be recognised as a person to whom Australia has protection obligations under the Convention.

5. On 20 December 2012 the Minister lifted bar under s.46A(1) to allow the applicant to lodge a protection visa application. The applicant lodged the application on the same date. By operation of r.2.08F and s.45AA, the application was deemed to be an application for a Temporary Protection visa.

6. On 23 July 2013, the applicant’s protection visa application was refused under s.501 of the Act. The applicant applied to the High Court for prerogative relief against the Minister. The application for relief was remitted to the Federal Court of Australia and was subsequently heard by a Full Court. [In] 9 April 2014, the Full Court of the Federal Court of Australia set aside the decision to refuse the applicant’s protection visa and remitted the matter to the Department for reconsideration.

7. On 20 April 2015, a delegate of the Minister refused his protection visa application. The applicant applied for a review of the delegate’s decision and, on 19 October 2015, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.

8. On 28 August 2017, the applicant applied to the Federal Circuit Court for a review of the first Tribunal’s decision and, [In] December 2017, the Federal Circuit Court remitted the matter to the Tribunal by consent. The matter is now before the present Tribunal (the Tribunal) to be determined according to law.

   CLAIMS AND EVIDENCE

   The RSA

9. The applicant first raised his protection claims and provided an account of the reasons leading to his departure from Iraq at an interview with the Department [in] December 2010 (the Entry Interview). Apart from some variations, referred to further below in this decision record, this account was repeated by the applicant in a statutory declaration, dated 15 January 2011, provided in support of his RSA request, as well as in an interview conducted as part of the RSA process.

10. In his statutory declaration of 15 January 2011, the applicant made the following claims.

11. His mother and father divorced before he was born. He is not in contact with his parents, and last saw his father in 2008. He was brought up by and resided with his maternal grandparents in Iraq. His maternal grandfather died in 2009.

12. He worked as [an Occupation 1] at a [Workplace 1] in Basra. [In] October 2010, he received a phone call from an unidentified male who said ‘they’ knew everything about him and asked him to help them with robbing the [Workplace 1]. He hung up, but they kept calling him.

13. [In] October 2010, he was on his way home [when] he was stopped by masked people in a car. He was hit with a gun and lost consciousness. He was taken to a room in an unknown location and tied to a chair. Three armed men came in and told him that they wanted him to work for them. They said they had specifically chosen him because he was the supervisor of the [Occupation 1] at the [Workplace 1]. They threatened that if he did not help them, they would kill him or kill his loved ones. He was beaten and threatened with a gun. After he told them that he would help them, he was given a phone number to call. He was then put into the trunk of the car, blindfolded, and taken to his house.

14. The next day he told the [Workplace 1] manager what had happened, and they reported it to higher management. A [manager] told him that they will deal with the [robbers] and advised him to take a week’s leave. When the applicant arrived home, he received a call from the abductors who said they knew everything and that he was ‘finished’. On the same day, he was sitting outside his house when a car approached him, and the men inside started shooting at him. He managed to escape through the back door and stayed the night at his uncle’s house. He left Iraq [in] October 2010.

15. In refusing the application, the RSA officer accepted that the applicant was targeted and suffered mistreatment at the hands of persons who were breaking the law, and that this was related to his position as [an Occupation 1] who had [access] to the [Workplace 1] facilities. However, the officer found that the applicant’s fear of persecution in Iraq is related to criminal activities and not any Convention reasons.

    Independent Merits Review

16. In his evidence to the IMR, the applicant essentially repeated the claims previously raised. He also made additional claims contained in submissions dated 24 October 2011 and 12 December 2011[1]. In these submissions he claimed that his home had been attacked, and his uncle was killed. He claimed that this was witnessed by his grandmother who suffered a [medical condition] and that other family members are now in hiding. In addition, he claimed that the attackers left a document which contained threats, denouncing him as an adulterer, traitor and a polytheist. He also submitted that he had a well-founded fear of persecution for reasons of:

    ·his imputed religious beliefs, as a Shi’a Muslim who refused to cooperate with an Islamist group, a non-state agent of persecution;

    ·his actual/imputed political opinion, perceived to be hostile to that group’s political goal of the imposition of a religious Islamist regime in Iraq; and

    • his membership of a particular social group as an [Occupation 1] assigned by Iraqi authorities.

    [1] These submissions were not on the Department’s file but were referred to in the IMR’s decision record.

17. In addition, according to the IMR decision record, the applicant submitted a response to the RSA’s decision, dated 15 December 2011, in which he provided the following additional details in relation to his claims:

    ·The men who apprehended him on the way back from [attending an activity] said they belonged to an insurgency group, named [Group 1], allied with Al Qaeda, and that he was being followed.

    ·The men said if he did not cooperate with them, he would be killed as a kaffir (non-believer) and his death would be halal (lawful or permissible according to Islam). The men also said he should contact them once everything was ready for their raid.

    ·Although a report was given to the Iraqi police, no protection was provided by the police for him or his family. The Iraqi authorities were and are unable to secure his safety.

    ·After arriving in Australia, he heard that various threats and raids were made against his home and his family. One threatening letter contained a bullet and stated it was time for his death. He tried to contact his family at this time but was unsuccessful.

    ·An arrest warrant had been issued by the [government agency] [in] November 2010 after he left Iraq as he has been accused of defecting.

18. The IMR reviewer found that the applicant meets the criterion for the grant of a protection visa under s.36(2) of the Act. The reviewer was satisfied that there is a real chance the applicant would suffer serious harm in the reasonably foreseeable future if he returned to Iraq and that the harm he feared is for one of the Convention reasons, with the essential and significant reason being his imputed political opinion and/or religious beliefs.

    The second Departmental assessment

19. Following the decision of the Full Court of the Federal Court of Australia, the applicant’s protection claims were reassessed by the Department.

20. In a submission, dated 23 October 2014, the applicant’s then representative made a submission to the Department. It was stated in the submission that the applicant fears persecution from Al Qaeda/Islamic State militia members, Islamic fundamentalist groups, and the Iraqi police on the grounds of his religion, imputed political opinion, and membership of the particular social group of Westernised men who have adopted Western cultural attitudes. The submission also referred to country information relating to the deterioration in human rights protections and security in Iraq since the applicant’s departure in 2010. The representative stated that the changed circumstances in Iraq suggest that the applicant is at greater risk in 2014 than at the time of his departure.

21. In a statutory declaration, declared by on 16 October 2014, the applicant provided the following additional information.

22. The four years he has spent in detention has affected his memory. He has difficulties with recalling exact dates and sequence of events. He is also under medical care and regularly sees a psychologist.

23. After he left Iraq several members of his family have passed away. His maternal uncle [was] killed by in 2011 at his home by the same men who had kidnapped him (the applicant). His maternal grandmother, [died] after she suffered a [medical condition] caused by the shock of his uncle’s murder. His mother died [in] 2013.

24. His uncle [is] currently in hospital, having suffered a [medical condition] because of the distress caused by the death of other family members and the applicant’s detention. He no longer has a place to live in Basra as his grandfather’s house was sold after the deaths of his mother and uncle.

25. He is a Shi’a Muslim and at risk of harm from Islamic fundamentalists. He has read various news reports dated October 2013 to September 2014 in relation to bombings, which show that there are many active Islamic groups in Basra, including Al Qaeda.  He was targeted in 2010 by Al Qaeda and Islamic fundamentalists because they knew he did not agree with their religious and political aims, and they saw him as a supporter of the Iraqi government.

26. A fatwa was issued against him on 2010 and distributed across Iraq, giving all members of fundamentalist groups permission to kill him because he is an infidel. All Islamic groups in Iraq including Al Qaeda and the Islamic State would be aware of the fatwa.

27. The police will arrest him because he left his position at the [Workplace 1] without permission, which is a crime punishable by [years’] imprisonment. A warrant was issued for his arrest in November 2010 and he knows of other [Occupation 1 workers] who were arrested by the police after being attacked by militia groups and running away.

28. His personal information was published on the website of the Department of Immigration and Border Protection in January 2014, showing that he is in immigration detention. Islamic fundamentalist groups would have seen this information and they consider people who seek protection in western states as traitors and infidels. In addition, he will be seen as a traitor because he sought protection in a state which is at war with Islamic fighters.

29. He would also be at risk in Basra because he looks different. He has shaved his beard and moustache and wears modern clothing. The fundamentalists will suspect that he is a spy and will want to kidnap and question him.

30. The applicant submitted the following documents in support of his application:

    ·A copy and translation of a Death Certificate issued by the Republic of Iraq, Ministry of Health, in relation to the applicant’s [uncle]. According to the Certificate, the applicant’s uncle was killed [in] 2011 by ‘fire shots in the [body parts].

    ·A copy and translation of a Death Certificate issued by the Republic of Iraq, Ministry of Health, in relation to the applicant’s [grandmother]. According to the Certificate, the applicant’s grandmother died [in] 2011, following [medical conditions].  

    ·A translated letter titled ‘The Protection Organ’ dated [December] 2008. The letter was issued to the ‘[Workplace 1] and provides a list of [Occupation 1]s joining the service. The applicant’s name appears on the list, indicating that he was assigned to ‘[Workplace 1]’.

    ·A translated letter titled ‘Informative Form related to Ranks and Officers’, in relation to the applicant’s employment as [an Occupation 1].

    ·A translated copy of a fatwa purportedly issued by ‘The Group Struggling for the Cause of Islam’ calling the applicant a ‘traitor’ and ‘an adulterer by the theologians and the fighters for the cause of Islam’. This states that ‘it is permitted to shed his blood and kill him any time’.

    ·A translated copy of an arrest warrant in relation to the applicant. This was issued by [a government agency] at Basra, [in] November 2010.

    • Reports and news articles regarding the situation in Iraq.

    The interview

31. The applicant attended an interview with the Department on 30 October 2014. The interview was conducted with the assistance of an interpreter in the Arabic language. The applicant’s representative was also present. Where relevant, the applicant’s oral evidence to the delegate at the interview is referred to in the Tribunal’s analysis below.

    Post-interview submissions

32. On 11 November 2014, the delegate wrote to the applicant’s representative, outlining the credibility issues identified at the Departmental interview and invited the applicant to respond.

33. On 23 December 2014, the applicant’s representative provided a detailed response to the delegate’s letter, addressing the inconsistencies in the applicant’s evidence as outlined by the delegate in his letter. Amongst other matters, the representative submitted that the applicant has suffered from depression and anxiety for more than three years and was first diagnosed with [Medical condition 1] in mid-2012. His detention has exacerbated his condition resulting in a diagnosis of chronic [Medical condition 1] [in] November 2014. It was submitted that these conditions have impacted on his cognitive abilities, including his capacity to recall events and names. Medical reports were provided to support concerns about the applicant’s deteriorating mental health, concentration, and memory. He also submitted a statutory declaration from the applicant, dated 18 December 2014, and a number of news reports relating to criminal activities and armed robberies in Iraq. One of these reports, [referred] to the arrest of [number of] individuals in connection with a [Workplace 1] robbery in Basra.

34. On 15 January 2015 the applicant’s representative made a further submission to the Department, providing information on the increased control and influence of Islamist militants in Iraq and elsewhere. The representative stated that this information supports the applicant’s account of his attackers, their affiliations and their motives.

    The delegate’s decision

35. The delegate did not accept the applicant’s claims that he was abducted by a group of men for the purpose of committing a [robbery]; that he was threatened or coerced into assisting the group in the committing of a [robbery]; that the group issued a fatwa against him; that his maternal uncle was killed by these men; that he absconded from his duties as [an Occupation 1] and that a warrant for his arrest was issued by the Iraqi authorities. The delegate also found that the applicant would not face persecution for the reason of being a secularised Shi'a Muslim from Basra.

    The review application

    The first Tribunal

36. On 21 August 2015, the applicant’s representative made a submission to the first Tribunal, recounting the applicant’s claims to fear persecution and addressed the delegate’s findings as outlined in the Department’s decision record. The following documents were also attached to the submission:

    ·An ASeTTS Torture and Trauma Assessment Report in relation to the applicant. The applicant was interviewed [in] January 2015 at [a] detention Centre. The report indicates that the applicant was assessed with ‘Hopkins Symptoms Checklists’ and states that he is experiencing active anxiety and depressive symptoms. The report also states that he had started experiencing these symptoms since being in detention in Australia.

    ·A news article titled ‘The Islamic State vs al Qaeda’ dated 2 September 2014 and published by Foreign Policy (previously submitted to the Department).

37. The applicant appeared before the first Tribunal and presented oral evidence at a hearing held on 25 August 2015 (the first hearing). That hearing was conducted with the assistance of an interpreter in the Arabic language. The applicant was represented by his migration agent who was present at the hearing. Where relevant, the applicant’s oral evidence to the first Tribunal is referred to below.

38. On 14 September 2015, the applicant’s representative submitted the following documents to the Tribunal:

    ·A passport-sized photograph of the [applicant].

    ·A certified copy and translation of [a card] issued [in] September 2010, in the applicant’s name. The stated date of expiry is [September] 2010.

    ·A copy of a letter from [Mr A] dated [March] 2009 appointing the applicant to the ‘[Workplace 1]’ on conclusion of training.

    ·A copy of an undated letter relating to the applicant’s medical examination results, issued by the [government agency]. This indicates that the applicant is ‘suitable to work in [a profession]’.

    ·A certified copy of a letter from [Mr B] to ‘Protection Directorate of Basra Province’ dated [December] 2008, containing instructions for a list of [number] candidates. The applicant’s name is included on this list.

39. On 17 September 2015, the first Tribunal wrote to the applicant inviting him to comment or respond to certain adverse information. The information particularised by the first Tribunal referred to the applicant’s ([EMPLOYER 1]) ID card, which expired [in] September 2010. It was put to the applicant that his service with the [EMPLOYER 1] had concluded in September 2010 and therefore he would not have been of interest to Islamist insurgents in October 2010 nor would he have been in a position to desert from the [EMPLOYER 1] as claimed.

1. On 30 September 2015, the applicant’s representative responded to the Tribunal’s invitation by way of a statutory declaration by the applicant, dated 24 September 2015.  In his statutory declaration, the applicant essentially stated that, in line with the existing procedures, he had made a request for his ID card to be renewed. However, they had to await approval from the relevant Ministry before the cards could be reissued. The process was delayed as things take time given the disorganised nature of the Iraqi bureaucracy. He departed Iraq before the new cards were issued.

   The second hearing

2. Following the decision of the Federal Circuit Court to remit the matter, the applicant appointed a new representative, Ms [B], to represent him in connection with his review application.

3. On 11 November 2019, Ms [B] made a submission to the Tribunal, summarising the procedural history of the matter and recounting the applicant’s protection claims. In support of her submission, Ms [B] provided information in relation to the general security situation in Iraq, including travel advice published by DFAT, and links to news articles regarding more recent violent protests in Iraq. She also raised claims on behalf of the applicant in relation to his capacity to subsist if he were to return to Iraq.

4. Ms [B] submitted that if the applicant is returned to Iraq, he would be denied his right to medical care. She stated, with reference to reports by the World Health Organisation, that Iraq’s standard of health care does not comply with international human rights covenants and international standards, and there is no legislative support for people with psychiatric problems, including a suicide intervention strategy. Ms [B] also stated, with reference to two reports, that Iraqi society has a negative perception of people with mental health illnesses. As such, the applicant would be subjected to societal judgment, discrimination and isolation, which will amplify his health issues. In addition, it was submitted that the applicant would have difficulty accessing treatment due to the ‘severely depleted’ stocks of medical equipment and medicines in Iraq, as well as the high financial burden it would have on him.   

5. Ms [B] stated that the applicant would not be able to have access to employment due to a lack of familial or other connections. The submission states that the applicant is no longer in contact with his extended family members in Iraq. Following the death of his grandmother, the family sold her house and split the proceeds, however, the applicant did not receive any proceeds from the sale. Ms [B] stated, with reference to a 2016 DFAT report, that employment opportunities remain limited in South Iraq and that relocation is difficult for those lacking familial, tribal or political networks. Ms [B] provided links to news articles demonstrating high levels of unemployment and poverty, causing civil unrest in Iraq. In addition, Ms [B] submitted that the applicant’s health issues combined with the lack of appropriate medical facilities would greatly impact the applicant’s ability to function and work in Iraq.

6. The following documents were attached to the submission:

   ·Resubmissions of a large number of documents and news articles previously submitted to the Department and to the first Tribunal.

   ·A translated document titled ‘Contract of Real Estate Sales and Purchase’ in relation to a [property]. The document states that the contract for sale was entered into [in] March 2011.

   ·[Medical] reports dated from 14 September 2011 to 11 November 2014, previously submitted to the Department.

   ·A referral letter by [a doctor]. The letter is dated 6 November 2019 and states that the applicant presented with anxiety and depression and that ‘he arrived to Australia as refugee and stayed in detention for 5 years, and been out in community for 5 years with no entitlement to work’.

7. The applicant appeared before the Tribunal on 13 November 2019 to give evidence and present arguments (the second hearing). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Ms [B] attended the Tribunal hearing.

   Post-hearing submissions

8. On 28 November 2019, Ms [B] made a further submission to the Tribunal, reiterating that the applicant belongs to the particular social groups of ‘a person with no close familial ties’ and ‘a person with chronic and acute mental health conditions’. Ms [B] provided links to articles published from 2010 to 2019, on the perception of people with mental health issues in Iraq.

9. The following documents were also attached to the submission:

   ·A psychologist’s report dated 27 November 2019. The report states that a psychological assessment was conducted using the Depression, Anxiety and Stress Scale (DASS) and the Diagnostic and Statistics Manual for Mental Disorders Fourth Edition (DSMIV). The psychologist found that the applicant is suffering from ‘Post-Traumatic Stress Disorder with severe levels of Anxiety and Depression’. The report states that the applicant had no prior psychological issues, and his symptoms appear to be triggered by uncertainty relating to his immigration status and the ongoing financial hardship due to having no right to work. The psychologist concluded that deportation would have ‘significant negative psychological implications’ for the applicant.

   ·A copy and translation of a threat [letter], stating that the applicant has been charged with ‘grave disobedience by the scholars and the Mujahideen in the cause of Islam’, and that his blood shed becomes permissible.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The relevant law

10. 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, the applicant 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.

11. 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 under the Convention.

12. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

13. 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 a protection 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 the applicant 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’).

14. 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 (DFAT), 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.

    Analysis, findings and reasons

15. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Employment and abduction

16. On the basis of the evidence before it, the Tribunal accepts that the applicant was employed by the [EMPLOYER 1] as [an Occupation 1]. The Tribunal, however, has a number of concerns in relation to his claim that he was abducted by members of [Group 1], an Al Qaeda linked group.

17. These concerns are essentially twofold: inconsistencies in the applicant’s evidence with regard to certain aspects of his claims and the absence of any persuasive independent evidence to support the existence of the named group in Iraq or Sunni militant groups committing [robberies] or similar acts in Basra.  

18. The inconsistencies in the applicant’s account regarding the events prior to his departure from Iraq arose in relation to three matters: first, the applicant stated in his entry interview that his abductors gave him 48 hours to decide whether he would cooperate with his abductors. However, in his subsequent evidence in relation to his RSA and IMR, the applicant stated that he agreed to cooperate with his abductors before being released. There was also a minor discrepancy in his evidence in relation to whether the onus was on him to contact his abductors following his release. Secondly, in connection with his IMR, the applicant had claimed that he was threatened with a fatwa on the same day he reported his abduction. This claim was not raised by the applicant in his evidence in relation to his RSA. Thirdly, the applicant’s evidence in relation to the identity of his abductors appears to have changed throughout the process. At his entry interview, the applicant stated that he did not know which ‘terrorist organisation’ was responsible for his abduction. At his RSA interview, he reiterated that he did not know who his abductors were, but he stated that he knew they were linked to Al Qaeda. At his IMR interview, the applicant stated that his abductors told him that they were ‘mujahedeen’, fighting for Islam. He also submitted a document, which he claimed to be a fatwa issued by [Group 1]. In evidence given later in the process, the applicant explained that the document, referencing the name of the group, was sent to him by his family sometime after he had departed Iraq.

19. The Tribunal is mindful of the fact that the applicant has recounted his claims on multiple occasions over the course of a number of years, using interpreters. The Tribunal has also taken into account the evidence submitted in relation to the applicant’s mental health history and his psychological state over a prolonged period of time. The Tribunal has formed the view that the inconsistencies outlined are relatively insignificant and that undue weight should not be placed on the variations in the applicant’s account.

20. The Tribunal considers it plausible that those the applicant claims were responsible for his abduction may have represented themselves as a group of mujahedeen fighting for Islam. This roughly aligns with a translation of [Group 1]. There is no reason to doubt the applicant’s claim that the purported document from the group and bearing its name was sent to him after he came to Australia, which he was then able to submit as part of the evidence in connection with his IMR.

21. The Tribunal, however, has been unable to locate any country information in the sources consulted to support the existence of a group by this name in Basra or in Iraq, nor has the Tribunal been able to find any reliable information in any of the sources consulted to indicate that Sunni groups were undertaking [robberies] in Basra around the time of the applicant’s departure from Iraq. Nevertheless, the information before the Tribunal suggests that local Shi'a criminal or militia groups had been involved in undertaking such robberies in Basra.[2] The Tribunal cannot rule out the possibility of a criminal group representing itself to the applicant as a Sunni group with a generic name to achieve its criminal objectives.

    [2] DFAT, DFAT Country Information Report – Iraq, 13 February 2015.

22. The applicant has persistently referred to the document purportedly sent to him by the group as a fatwa. According to a more recent translation of the document submitted by Ms [B], other than calling the applicant a ‘traitor’ and stating that his blood can be shed because he has been ‘charged’ with ‘grave disobedience’ by scholars and the mujahedeen, it is not at all clear why the document is a fatwa and not merely a note designed to intimidate the applicant. For example, a fatwa is typically issued by a mufti. There is no reference in the document to any particular religious authority or scholar that could have legitimately issued the fatwa. Regardless of the applicant’s characterisation of the document, the Tribunal does not accept that it is a fatwa or that it has the authority claimed by the applicant.

23. Having carefully considered the applicant’s evidence throughout the process, the Tribunal accepts his claims that he was targeted by a criminal group with plans to rob the [Workplace 1] where the applicant worked as [an] [Occupation 1]. The Tribunal accepts that the applicant reported the group and the planned robbery to his superiors, which angered the group and made him a target of their vengeance. The Tribunal is prepared to accept that this vengeance may have been directed towards the applicant’s family following his departure from Iraq. The Tribunal, however, does not accept that the group was a Sunni militant group associated with Al Qaeda, nor does the Tribunal accept that the threatening and the intimidatory note sent to the applicant following his departure was a fatwa as claimed. The Tribunal does not accept that the applicant was targeted because the group considered him to be a supporter of the Iraqi government. The Tribunal finds that the group’s conduct towards the applicant was motivated by criminal opportunism and revenge and not the applicant’s race, religion, imputed political opinion or membership of any particular social group.

24. In any event, as it was put to the applicant at the hearing, the incidents that had led to his departure from Iraq had occurred some 10 years ago and, in view of the group’s apparent motives, the significant passage of time and the applicant’s absence from Iraq, the Tribunal is not satisfied that there is a real chance or a real risk that he would face serious or significant harm at the hands of the group or its members if he were to return to Iraq.

    The arrest warrant

25. The applicant has claimed that a warrant was issued for his arrest in November 2010 because he had left his position with [EMPLOYER 1] without permission. In support of this claim, he submitted a copy of an arrest [warrant]. The warrant, however, features a number of irregularities.

26. The document refers to Article 5 and Article 65 as being the basis of the offences the applicant was purportedly charged with without specifying the relevant law, statute or code containing the two articles. In connection with the IMR, the applicant’s former representative submitted that the Articles referred to in the warrant relate to Iraq’s Penal Code. As subsequently noted by the delegate in his decision record, Articles 5 and 65 of Iraq’s Penal Code of 1969 make no mention of desertion and do not relate to the matters raised in the warrant.

27. As also noted by the delegate in his decision record, it would appear that matters covered by the warrant are regulated by the Internal Security Forces Penal Code of 2008. Article 5 of this Code imposes a salary deduction or a period of imprisonment not exceeding 6 months for those who are absent from duty or take a vacation in excess of 15 days. However, the code consists of 54 Articles only and there is no Article 65.

28. The irregularities in the warrant raise serious concerns in relation to the reliability of the document and the Tribunal is not prepared to place any weight on the purported warrant. The Tribunal has considered whether the applicant would be of interest to the Iraqi authorities for having deserted [EMPLOYER 1] and whether the penalties stipulated in Article 5 of the Internal Security Forces Penal Code of 2008 may be applicable to him. The sources consulted by the Tribunal do not suggest that the applicant would be at risk in this regard. A May 2014 report by a joint Norwegian-Swedish Fact Finding Mission to Iraq, for example, observed that whilst policemen and military personnel used to risk up to six months’ prison for leaving their work without notice, an amnesty in August 2013 cleared them. Initially the amnesty was to last until October 2013, but ‘now it is indefinitely’.[3] The Tribunal, therefore, does not accept that an arrest warrant has been issued in relation to the applicant. The Tribunal does not accept that the Iraqi authorities have any adverse interest in the applicant for having left his employment with the [EMPLOYER 1] without permission. The Tribunal does not accept that that he will be interrogated or mistreated as a consequence of his past employment, his absence from his employment or his absence from Iraq over the past 10 years. There is no persuasive evidence before the Tribunal to suggest and it does not accept the applicant’s claims that he would be imputed with an adverse political opinion or would be perceived to be ‘on the side of’ Iran or other Persian Gulf countries due to his prolonged absence from Iraq. The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will face serious or significant harm at the hands of the Iraqi authorities for any reason related to his past employment or his long absence from Iraq.

    Being westernised

    [3] Landinfo and Migrationsverket, Iraq: Rule of Law in the Security and Legal system, 8 May 2014,

29. The applicant has claimed to be at risk of harm as a failed asylum seeker returning from a western country who has adopted western cultural attitudes, apparent from his appearance, including his shaved face, modern clothing, secular behaviour and conduct, such as drinking alcohol.

30. According to DFAT, the practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq.[4] The sources consulted by the Tribunal indicate that, prior to the fall of the Islamic State, men and women in areas under Islamic State control were forced to adhere to strict, conservative dress codes or risk facing severe punishment. However, following the retreat of IS from areas, people returned to their usual behaviours. [5] Western style clothing is commonplace in Iraq and there ‘is a mix of Western and Eastern influence in the street fashion you see in everyday Iraq’. Furthermore, ‘in most urbanized areas (Erbil, Baghdad, Basra) women wear long pants, shirts with only half sleeves, and dress as they like’.[6]

    [4] DFAT, n2, above.

    [5] ‘Gender and Conflict Analysis in ISIS Affected Communities of Iraq’, Oxfam, 30 May 2017, p.21.

    [6] ‘Iraq Fashion - A History of Iraq Fashion - Iraq Fashion Today’, Iraqi Research Foundation for Analysis and Development, undated,

31. With regard to consumption of alcohol, as it was put to the applicant at the second hearing, whilst many Iraqis drink alcohol, it is the practice of buying and selling alcohol that is widely viewed as immoral and ‘the charge of being an alcohol seller, attaches a stigma to someone, by reason of ethnic or religious identity’.[7] Indeed, alcohol sellers appear to have been targeted by Shi'a militia in Baghdad and Basra. The Tribunal, however, has found no persuasive information to suggest that those who consume alcohol have been subjected to persecution.

    [7] ‘EASO COI Meeting Report – Iraq’, European Asylum Support Office (EASO), 11 July 2017, p.23. See also Ghosh, P, ‘Iraq: The Fundamentalists’ War Against Vice Targets Alcohol And Prostitution’, International Business Times, 22 May 2013, 1274903.

1. The Tribunal, therefore, is not satisfied that there is a real chance or a real risk that the applicant would face serious or significant harm in Iraq as a failed asylum seeker returning from a western country who has adopted western cultural attitudes, apparent from his appearance, including his shaved face, modern clothing, secular behaviour and conduct, such as drinking alcohol.

   Mental health

2. The Tribunal has accepted that the applicant has a long history of psychological illness and mental health issues. The applicant’s poor state of mental health was evident to the Tribunal at the hearing.

3. The most recent DFAT Country Information Report in relation to Iraq states that psychological and intellectual disabilities are highly stigmatised and are underreported in Iraq. DFAT assessed that people with psychological or intellectual disabilities face a moderate risk of societal discrimination. ‘Moderate risk’ is defined by DFAT as the existence of ‘sufficient incidents to suggest a pattern of behaviour’. Other sources also refer to the high level of social stigma attached to mental illness and the heightened social isolation experienced by Iraqis suffering from mental illness.[8]

   [8] Iraq's quiet mental health crisis, Education for Peace in Iraq Center, 5 May 2017,

4. Whilst discrimination - without more - does not necessarily give rise to persecution, in assessing the seriousness of harm, it is necessary to have regard to the cumulative effect of such harm over time, as well as the personal attributes and personal vulnerabilities of the applicant.[9]

   [9] See AGA16 v MIBP [2018] FCA 628, per Moshinsky J. See also SZTEQ v MIBP (2015) 229 FCR 497 at [153], where the Full Federal Court emphasised that an evaluation of ‘serious harm’ will be a question of fact and degree, often complicated and quite specific to the individual concerned.

5. The Tribunal accepts that the applicant has no home, family or a network to return to in Basra. His grandmother and one of his maternal uncles who raised him have passed away and he is estranged from other extended family members. He has been residing in Australia for the past 10 years and continues to live in relative isolation, most likely due to his state of mental health. Having carefully observed the applicant at the hearing and in considering his evidence, he did not impress the Tribunal as a resilient or a resourceful individual.

6. A November 2018 Danish Immigration Service and Landinfo report provided information indicating that failed asylum seekers would face difficulties on return to Iraq if they did not have a network available to support them.[10] A January 2018 Bertelsmann Stiftung report stated that in Iraq ‘an entrenched patronage network has deep roots and encompasses political clientelism, nepotism, and tribal and family ties.’[11] In addition, DFAT referred in its October 2018 report to ‘the influence of patronage and nepotism on many aspects of life’ in that country.[12]

   [10]  'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 5 November 2018, p.39.

   [11]  'BTI 2018 Country Report Iraq', Bertelsmann Stiftung, 22 January 2018, p.15.

   [12] DFAT, n2, above.

7. A November 2014 United Nations Development Programme (UNDP) report also emphasised the importance of an individual’s family network in Iraq, stating that:

   Family relations play a core role in Iraqi society and affect its political, economic, and cultural behaviour. Moreover, an Iraqi family is typically large in number and heavily involved in making crucial decisions concerning its children. It is difficult for an individual to live independently from their family, not only because of social traditions, but also their economic reliance on parents, siblings, and relatives.[13]

   [13]  'Iraq Human Development Report 2014', United Nations Development Programme (UNDP), 8 November 2014, p.67.

8. Furthermore, according to the International Organization for Migration (IOM), it is difficult for single persons of either gender to live alone in Iraq, stating that ‘generally in Iraq it is hard for single men to rent houses alone.’[14] In a September 2016 document, the IOM also stated that:

   It is difficult for a single person to rent an apartment or a house because the Iraqi society does not accept single people living alone or with non-relative families, especially if there are girls in the household. Moreover, small apartments designed for one person are rare and most of the available apartments and houses are for a family of two or more people.[15]

   [14]  'Country Fact Sheet: Iraq-Baghdad (2017)', International Organization for Migration (IOM), 23 August 2017, p.3.

   [15]  'Information on Return and Reintegration in Iraq', International Organization for Migration (IOM), 2 September 2016, p.7.

9. The Tribunal finds that if the applicant were to return to Iraq, there is a real chance that he will be subjected to a high level of stigmatisation, discrimination and isolation as a result of his psychological ailments and mental health issues. The Tribunal finds that the applicant has no home, family or a social network to return to in Basra. In view of the country information before it, the Tribunal finds that these circumstances place the applicant in an exceptionally vulnerable position, including lack of access to appropriate accommodation, and at a greater risk of exposure to regular acts of societal discrimination should he return to Iraq. The Tribunal finds that the cumulative effect of this discrimination, in the particular circumstances of the applicant, is likely to entail severe psychological harm.[16] The Tribunal finds that the harm that would be faced by the applicant in Iraq can be regarded as ‘serious harm’ due to its likely severe impact on him because of his personal circumstances. The Tribunal finds that this amount to persecution within s.91R(1)(b) of the Act.

   [16] See SCAT v MIMIA [2003] FCAFC 80.

10. The Tribunal finds that people with psychological disabilities in Iraq without access to family or social support networks form a particular social group within the meaning of the Convention. The Tribunal accepts that the applicant belongs to such a group. The Tribunal is satisfied that the essential and significant reason for the persecution feared by the applicant is his membership of a particular social group, namely people with psychological disabilities in Iraq without access to family or social support networks. The Tribunal is not satisfied that State protection is available to the applicant in Iraq against the harm he fears. The Tribunal is not satisfied that that the applicant’s mental illness and his lack of access to any form of social support would render internal relocation reasonable in his circumstances. In any event, there is no evidence before the Tribunal to suggest that there is an area in Iraq where the applicant can avoid the type of harm he is fearful of. The Tribunal, therefore, finds that the applicant has a well-founded fear of persecution.

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Shahyar Roushan
    Senior Member