1807127 (Refugee)

1807127 (Refugee) [2019] AATA 1303 (18 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807127
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Melissa McAdam
DATE:18 January 2019
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 January 2019 at 11:12am

CATCHWORDS
REFUGEE – protection visa – Iraq – Federal Court remittal – particular social group – substantial mental health issues – family enmity with influential family – person with a criminal record – low cognitive capacity – no family support network – access to basic services – capacity to subsist – difficulties of internal relocation for religious and ethnic minorities – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 19 May 2017. The delegate refused to grant the visa and the applicant applied to the Tribunal for review.
The Tribunal (differently constituted) affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
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 themself 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.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.
Protection visa application
The following is a summary of the information the applicant provided in his Protection visa application:
a.The applicant was born in [year] in Sulaymaniyah, Iraq. His ethnicity is Kurdish and religion is Muslim.
b.His parents and two brothers are both Iraqi and Australian citizens.
c.He left Iraq in 1999 and went to [Country 1] with his family. They arrived in Australia as refugees on [humanitarian] visas [in] March 2003.
d.He worked in [Industry 1] for six months in 2006.
e.From [2009] to [2016] he was in jail in Australia because of a [criminal conviction].
f.His father was a fighter for the Peshmerga in northern Iraq.
g.The applicant fears returning to Iraq because of the ongoing violence in that country. He has no support or family in Iraq. He fears being targeted as a person who has lived overseas for many years.
h.He fears the Islamic State of the Levant (ISIL or ISIS or DAESH) because he is Kurdish and his family have links to [Country 2], where his uncle resides. His uncle met [a named former senior official of Country 2].
i.He has [Medical Condition 1] and mental health problems. He will be unable to adjust to life in Iraq.
j.He fears being forced into military conscription and being killed.
Departmental Interview, 30 May 2017
The following is a summary of the information provided by the applicant in his Departmental interview:
a.He arrived in Australia as a refugee with his family in 2003 when he was [age] years old.
b.His parents and younger brothers are in Australia.
c.His father is not working. He looks after the applicant’s mother who is sick. One of his brothers [works in Occupation 1] and the other brother is [studying].
d.In Kurdistan he has a grandmother who is sick. She lives between Sulaymaniyah and Kirkuk. She lives with a sister. He doesn’t know if the sister has any family there.
e.[Some] of the applicant’s uncles and [aunts] live in [Country 2]. One of his uncles met [a named senior official of Country 2]. The applicant’s uncles were all in the Peshmerga. They went to [Country 2] and were in the Kurdish community there. When the war started they were invited to [location] and his uncle [Mr A] was photographed with [the senior official]. The applicant submitted a copy of the photo.
f.He had a poor education but he can read English. He can speak English, Arabic and Kurdish, but not perfectly.
g.He can’t return to Iraq because it is a warzone and he does not feel safe there. He will be like a foreigner there. The government is going to bring back military conscription. He does not know anything about Iraq. He does not know the laws.
h.He made mistakes in Australia and went to prison and he is really sorry for this. He made bad decisions but he wants to start again fresh and make his family proud of him.
i.He will have no food or shelter in Iraq. He does not want to end up in jail in Iraq.
j.The delegate put to the applicant that he spent a significant time in prison and has a police record. The applicant responded that he still hurts in the heart from what happened. He is sorry for what happened but he can’t show remorse because he was innocent. He pleaded not guilty and did not do what he was convicted of.
k.The delegate put to the applicant that prison records show he was involved in violent incidents while in jail. The applicant responded that he had reason for getting involved in fights, he was picked on by other inmates. He never started a fight himself, he just defended himself. He did [a course] while in [jail].
l.He had an accident in the past and then [developed Medical Condition 1]. He took medication. He wants to be a better person. He plans to be a better person. He misses his family. His family visited him regularly when he was in [detention].
m.He is in danger from DAESH because he is Kurdish.
n.He will submit his medical record.
Department Decision
The delegate found that the applicant’s grandmother and other relatives reside in the Kurdistan Region of Iraq (KRI) and that these relatives would be able to assist him to return to the KRI. The delegate noted that the security situation in the KRI was more stable than the rest of Iraq, and that the applicant’s home area, Sulaymaniyah, has been reported as relatively safe and stable for a long period, and unaffected by ISIL since early 2015, with the security forces effective in protecting citizens.
The delegate noted that Sulaymaniyah is facing an economic and humanitarian crisis and that its infrastructure is unsustainable in light of the number of IDPs in its region. However the applicant is a young, fit male with community networks to assist him. The delegate found there was no evidence to indicate the applicant would be targeted by any group as a person who had resided outside of Iraq for a long period.
The delegate further noted that there were no military service requirements in Iraq or the KRI; that Iraqi law recognised convictions imposed by foreign courts; and that a person cannot be tried again for the same crime if their sentence has been served in full.
The delegate acknowledged the applicant will face difficulties accessing medication and psychiatric services in the KRI despite care and facilities being available. The delegate found that if the applicant requests treatment in Iraq then services will be available.
The delegate was not satisfied there was a real chance of persecution for the applicant in Iraq. The delegate was not satisfied there was a real risk of significant harm to the applicant in Iraq.
Tribunal Case Number 1717363
The applicant applied for review of the Delegate’s decision to the Tribunal.
The applicant’s Agent provided a written submission to the Tribunal on 1 October 2017. It contained the following information:
a.An outline of the applicant’s criminal convictions.
b.An outline of the applicant’s family’s experiences in Iraq, prior to their departure.
c.The applicant was [age] years old when he arrived in Australia. He was older than his classmates at school and struggled to learn English. He and his brothers were bullied at school. He got into a fight and was suspended from school. He associated with other teenagers and committed crimes.
d.He claims to fear persecution in Iraq because of his Kurdish ethnicity and his membership of a particular social group - ‘returning refugees who left Iraq’.
e.The applicant has been out of the workforce for almost [number] years because of his prison sentence. It will therefore be very difficult for him to find employment in Iraq and to survive securely.
f.His grandmother is [age] years old and has [a specified medical condition]. His mother’s sister looks after her in Kirkuk. The applicant has no other relatives in Iraq. The Kirkuk region is a disputed area between the KRG and Baghdad.
g.The applicant’s relatives in other countries cannot support him in Iraq.
h.He can speak Arabic and Kurdish but has limited writing skills.
i.A psychologist who examined the applicant stated he exhibits symptoms “which might be indicative of [a specified medical condition] or other [related] disorder”. He requires assessment, medication, ongoing treatment and psychotherapy. A doctor who studied and practiced in Iraq confirms that the treatment options in Iraq do not compare with those in Australia
j.The applicant also has [Body Part 1] pain from injuries received when punched and kicked by SERCO officers when transferred to [Detention Centre 1]. The Commonwealth Ombudsman is investigating this incident.
k.Country information regarding the current situation in Iraq and the KRI (post referendum).
l.A Statutory Declaration from the Applicant’s father regarding the status of his family members overseas, and their inability to support the applicant in Iraq.
m.A psychological report by [Ms B], registered psychologist, dated 2 October 2017.
n.A certificate of appreciation from Australian Border Force, dated [June 2017], to the applicant for his good behaviour at [Detention Centre 1].
o.A letter from [Ms C], [an] Officer at [Detention Centre 1], dated [October] 2017, stating she knows and has worked with the applicant. To her he always displays exceptional respect and has a polite attitude towards staff and other detainees. The applicant is placed in the “privileged compound at the [centre]” because of his good behaviour.
p.A statement from the applicant outlining his early life, including living as a refugee in [Country 1] as a teenager. He fears being deported to Iraq because it is a dangerous country and he will have no shelter there. He fears being kidnapped, tortured and killed by the terrorists, DAESH. He has no prospects of employment. He will not be able to adapt and may end up in jail. He is medically unfit and diagnosed with [Medical Condition 1] after a motor vehicle accident. He developed some psychological problems in jail.
Tribunal hearing, 9 October 2017.
The applicant appeared before the Tribunal (differently constituted) on 9 October 2017 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant fears returning to Iraq as a Kurd because the Iraqi government is against Kurds. He fears Jaysh Al Shaabi. DAESH/ISIL will destroy him. He does not know the language in Iraq very well and he will look like a foreigner there.
b.The Turkish and Iranian governments are attacking the Kurdish area in Iraq.
c.His father was ex-Iraqi army and was also a Peshmerga. He left the army and Peshmerga. His uncles were in Peshmerga too and live in [Country 2]. They were in the local newspaper in a photograph with [a former senior official of Country 2].
d.He will be harmed by Jaysh Al Shaabi, the Iraqi government and the Iranian government, because he is Sunni Muslim. The Iranian and Iraqi governments are supporting Jaysh Al Shaabi who are massing around the borders of Kirkuk and Mosul.
e.He won’t be targeted by other Kurds.
f.His grandmother, aunt and her children live in Iraq. His aunt is a single mother.
g.He speaks broken Kurdish and broken Arabic.
h.He had done work in [a number of different occupations]. He has qualifications in [Occupation 2] and [Occupation 3]. He got these from a [company]. He has [two further qualifications] in [other fields].
i.There is no job for him in Iraq. The economy is very bad. He does not know if his cousins work in Iraq.
j.The Tribunal put to the applicant that country information indicated mental health care in Iraq had improved markedly in recent years. The applicant disagreed. He does not open up to anyone. People in Iraq will treat him differently and stay away from him and bully him because they think his illness is from Shaitan (Satan).
Federal Circuit Court
The Tribunal, differently constituted, affirmed the delegate’s decision.
The applicant appealed to the Federal Circuit Court.
The Court remitted the matter by consent noting that the Tribunal “fell into jurisdictional error by not considering the applicant’s claim he would be prevented from accessing mental health services or excluded from society on the basis of being a mentally ill person and/or [criminal] offender”.
Current Constituted Matter
Pre-Hearing Submission
On 25 October 2018 the applicant provided a written submission to the Tribunal. It contained the following documents:
i.The Agent’s submission
ii.A Statutory Declaration from the applicant, dated 23 October 2018
iii.Psychiatric report by [Dr D], dated 19 October 2018
iv.IHMS report, dated 21 September 2016
v.IHMS report, dated 10 October 2016
vi.IHMS report, dated 9 August 2017
vii.IHMS report, dated 23 November 2017
viii.Letter of support from the Applicant's parents, [Mr E] and [Ms F]
ix.Letter of support from the Applicant's brother, [Mr G]
x.Letter of support from the Applicant's brother, [Mr H].
The applicant’s Agent’s submission contains the following relevant excerpts:
The Applicant suffers from a range of medical conditions. The report by [Dr D] dated 19 October 2018 highlights that the Applicant's medical needs are complex and a thorough medical examination is required before any diagnosis and treatment can be determined. [Dr D] states that the Applicant has anxiety disorder and "experiences [specified symptoms]". In addition, the report notes that " [the applicant]'s history is also suggestive that he suffers from [Medical Condition 1].”
[Dr D] also observed that there are concerns regarding the Applicant's cognitive capacity and that "throughout both interviews [the applicant] came across as having at most a low-average IQ, as demonstrated by his inability to recall details, dates, times and his difficulty with any abstract thought. This is best, validly assessed by full formal neuropsychological testing". [Dr D] notes that the cause of the Applicant's cognitive difficulties is unclear without further testing and information of the Applicant's past medical history.
At page 7 of her report, [Dr D] highlights that the Applicant's treatment requires:
a.   Full evaluation of his cognitive capacities, Including a full assessment by a neuropsychologist;
b.   Ongoing treatment for his anxiety disorder, including medication and cognitive behavioural therapy. Also, any cognitive behaviour therapy would need to be modified to suit his cognitive deficits;
c.   Further evaluation of the nature of his [specified symptoms] at night time; and
d.   Assessment by a neurologist of the Applicant's presumed [Medical Condition 1] and a review of [Medication 1] as the preferred medication.
Also, in the International Health and Medical Service (IHMS) report dated 23 November 2017, the psychiatrist states that the Applicant would be at "substantial risk if returned to Iraq where he has not lived since childhood and he would not have access to services". The psychiatrist also stated that the Applicant "needs review by a specialist ABI rehabilitation service, including neurologist and neuropsychologist, after an EEG and MRI". To our understanding, the Department of Home Affairs has not facilitated this medical examination.
In light of these circumstances, it is evident that the Applicant has complex medical needs. The country information regarding Iraq demonstrates that the country is in disarray due to the volatile security situation and medical facilities are completely lacking or inadequate to deal with the Applicant's medical requirements. Access to any type of mental health support is very limited. In 2013, there were only four psychiatrists per one million residents. Also, In January 2017, there were only 80 clinical psychologists in all of Iraq. There are only four government mental health hospitals in the Kurdistan Region, despite between 15 and 20 percent of people in Iraq and the Kurdistan Region facing mental health issues. The estimated population of Iraq is around 39 million, including 5.7 million in Iraqi Kurdistan, which demonstrates that mental healthcare in Iraq, including the Kurdistan Region, is woefully inadequate. In addition to the Applicant's mental health needs, he also requires support regarding his [Medical Condition 1], cognitive issues and chronic [Body Part 1] injury. The World Health Organisation reports that healthcare services "have deteriorated and the sector has faced continuous shortages in drugs and other supplies. Moreover, the current ongoing conflict and poor security situation has further damaged the country's health infrastructure. Many health professionals have fled for safety to neighboring countries and abroad and the population's access to basic health services has become increasingly impaired".
Whilst international NGOs and UN agencies attempt to fill the gap in medical services in Iraq, their assistance is unpredictable due to their reliance on donor funding. In addition, due to the sheer number of persons requiring mental health support, humanitarian agencies are unable to meet this need. Humanitarian organisations do not provide indefinite support to civilians and often close their programs despite there still being a strong demand for their services. For example, Medecins Sans Frontieres closed its program supporting the Sulaymaniyah Emergency Hospital in November 2017. Therefore Iraqis cannot rely on humanitarian organisations for continued medical support and treatment.
In light of the Applicant's medical condition, including his mental health illnesses, he would not be able to access medical treatment in Iraq, and the serious harm that he would suffer would amount to persecution and/or satisfy the complementary protection requirements under the Migration Act. We note that the Applicant's risk of harm in Iraq regarding his medical condition should also be considered in light of his cumulative profile. The Applicant provides evidence of these matters in his Statutory Declaration dated 23 October 2018. The Applicant has lived outside Iraq for over 20 years, including 15 years in a Western country, and does not have a support network In Iraq. In addition, the Applicant cannot speak Kurdish or Arabic fluently and has limited education and work experience. Further, he has been convicted of criminal offences and does not have any Iraqi identity documents. All these factors will negatively impact on the Applicant's ability to subsist in Iraq and prevent him from being able to support himself. Therefore, it is very unlikely that the Applicant will be able to access medical treatment as he will be homeless and destitute.

The applicant’s Statutory Declaration contains the following excerpts:
I am [age] years old and I am Kurdish. I was born in Sulaymaniyah, Iraq.
I am Sunni Muslim, however I do not practise Islam.
My parents and two younger brothers live in [Australian City 1]. They became Australian citizens in 2005. [However], I did not submit my citizenship application as I was still young and did not realise the importance of doing this. I have so much regret that I did not apply for Australian citizenship.
I am dating an Australian citizen called [Ms I]. [Ms I] has [number] children and they live in [Australian City 2]. We have been together for around six months and hope to get married soon.
I completed primary school in Iraq and only completed year [level] in Australia. I can read in English, but I struggle to write in English. I feel most comfortable speaking in English as I have lived in Australia for around 15 years, but l am not fluent in English.
I can only speak basic Kurdish. Even though my parents speak Kurdish fluently, my brothers and I do not speak Kurdish fluently because we have not lived in a Kurdish-speaking area for almost 20 years. Also, I can only speak broken Arabic which I learnt when I lived in [Country 1] for around three years before I came to Australia.
My health
I was seriously injured in a car accident in [City 1] in 2007. I was in hospital for some time because I had a head Injury. I have felt different since this accident and I find it difficult to focus and understand things. I know something Is wrong with me, but I don't know what it is.
I struggle to remember things that happened a long time ago. My memory comes and goes - sometimes I can remember a lot and other times I can't remember anything. I don't know why my memory is so bad. I do not know whether my injuries from the car accident in 2007 have affected my memory because I can't recall what my memory was like before this time.
I have anxiety and get panic attacks. I cannot predict when I will get these attacks. I am taking medication for my anxiety, but it only gives me temporary relief from my anxiety and wears off after a few hours. I often feel depressed and hopeless about my situation. Life is very difficult at times. I do not have regular access to a counsellor or doctor for my mental health issues.
I also have [Medical Condition 1] and I am taking medication for this. I sometimes have [specified symptoms related to this condition].
In September 2016, I was attacked by five Serco officers when I was transferred from [Detention Centre 2] to [Detention Centre 1]. I was badly beaten up and kicked. I was also hit in the head and still suffer from an ongoing [Body Part 1] injury.
My life in Iraq
I don't remember much about Iraq. I can sometimes remember bits and pieces about my time in Iraq and see flashes of my family and places we went in Iraq.
I was hit by a motor bike when I was around [age] years old. I do not remember anything about this accident. My mother told me that my [Body Part 2] was deformed from this accident. I still have a few [scars] from this accident. My mother told me that I was in hospital after this accident, but I am not sure for how long.
My youngest brother, [Mr H], was born with serious [medical conditions]. There were chemical bombings in Iraq that targeted Kurds and this is how my brother was exposed to chemicals before he was born. I was very young when this happened and don't know much about this. I know that this made it difficult for my family to live safely in Iraq and for [Mr H] to get the medical treatment he needs.
I remember leaving our home with my family to go to a camp in Iraq. I can't remember when this happened. We fled because there was war and I remember bombs and sirens. I can't remember how long we stayed at this camp. When we came back to our home, all our possessions had been destroyed or removed. I don't know who did this.
I remember that my father went away for a long period of time when we were in Iraq. I am not sure how long he went away. I just remember that I really missed him when he went away and it was hard for me. The next time that I saw him was in [Country 1].
I remember that my uncle (father's brother) used to beat me up because he would get angry at me about small things such as closing the door loudly. This used to really hurt me and I was badly bruised; one time I was bleeding from my nose and mouth. My mum knew that my uncle did this, but I don't think that my father knew because he was not around. Once my mother tried to intervene when my uncle was beating me, and he beat my mum in front of me.
I remember leaving Iraq with my mother and my two brothers. I was around [age] years old at this time. When we left Iraq, no one told me why we were leaving. When I asked my mother, she said that we were going to see my father as he had been away from home for a long time - I can't remember for how long. My parents never explained to me why we left Iraq - all I knew was that it was not safe for us there.
Last week, my father and brother told me one of the reasons why our family left Iraq. My father told me that a man who worked for him and his wife were killed because they got married. My father was a witness for the couple at their wedding. The woman's family did not approve of her marriage and they killed the woman and her husband. I don't know this family, but my father told me that this family is a big, powerful family in Iraq. This family also wanted to hurt my father because he encouraged the couple to get married - this is why my father had to flee from our home. My father told me that the powerful family were also looking for my mother, my brothers and me which is why we all had to leave Iraq. This was the first time that I found out about this reason for us leaving Iraq. I still do not know all the details as I only found out recently.
I also know that my father used to be a Peshmerga fighter and this was one of the reasons that it was difficult for him to live in Iraq, but I do not know much about this.
My time in [Country 1]
When I arrived in [Country 1] with my mother and two brothers, I saw my father and we all lived together. I remember being happy in [Country 1] because my whole family was together and my father was at home.
I was not allowed to go to school in [Country 1] because I was not a [Country 1] citizen. My brothers did not go to school either. We used to play at home and sometimes I would go to a butcher to help out. I would put meat into bags for customers. I was not paid for this work.
I left [Country 1] when I was around [age] years old. My parents told me that we were leaving [Country 1] because we were going to Australia as it was safer for us and we could go to school there.
My fears of returning to Iraq
I cannot go back to Iraq because I do not know what is there and don't feel safe. All my immediate family - my mother, father and two brothers - live in Australia. They are Australian citizens and Australia is their home. Australia is also my home - it is the only place where I know I can survive.
Kurdish people are not treated well in Iraq. The government targets Kurdish people in Iraq and it is not safe for them. This happened to my family in the past and I am scared that it will happen to me. Also, as my father was a former Peshmerga fighter, I may be targeted by Iraqi authorities and seriously harmed.
I would also be targeted by the powerful family in Iraq who wanted to hurt my father and my family in the past. Even though I do not know them, they will easily be able to identify me as my father's son because news will travel fast through the Kurdish community if I am forced to return to Iraq. I have no one to protect me in Iraq, so they would easily be able to find me and seriously hurt me and even kill me.
I also know that there is constant fighting in Iraq. It is all over the news. I don't know who is fighting who, but I know there is war there and it is not safe. I know that ISIS is in Iraq and there are other groups fighting as well. There is nowhere in Iraq where I could live safely.
The authorities in Iraq would not help me and would try to hurt me because I am Kurdish. Also, the Kurdistan authorities cannot protect me from the Iraqi government. All government authorities are corrupt and they would not protect me from the powerful family who would hurt me to take revenge on my father. There is fighting everywhere in the country and the government authorities cannot do anything to stop this and protect people.
Also, as I do not have any Iraqi identity documents, I would not be able to return to Kurdistan. Without any identity documents, it would be very difficult for me to live safely anywhere in Iraq.
I would not have a place to stay in Iraq or a support network that could look after me and help me if I was forced to returned to Iraq. Although my grandmother (mother's mother) and auntie (mother's sister) live in Kirkuk, Iraq, they could not help me. I am not in contact with them - I have not spoken to them in over 10 years. My mother still speaks to them. My grandmother is very sick and is [age] years old. My grandmother is in and out of hospital and my mother is very worried that she will die soon. My grandmother could not help me if I was forced to return to Iraq.
My auntie is [age] years old. She is a widow and she lives with her daughter who is married and has a [age]-year-old. My mother told me that my auntie is very sick. I cannot remember the last time I spoke with my auntie or cousin, it was over 10 years ago before I went to prison. I could not ask my auntie and her daughter for help if I was forced to return to Iraq because I hardly know them. My mother told me that my auntie and her daughter are struggling financially and do not have enough money to support themselves. My auntie and her daughter do not work, only her daughter's husband works. I do not know what he does for a living but he does not earn very much - my mother told me that he does not get paid very often, only every few months. It would not be possible for them to help me if I was in Iraq because they do not even have enough money to look after themselves. Sometimes my brother, [Mr G], sends $[amount] to my auntie to help her and her daughter, but he cannot do this often as he is financially supporting my parents and my brother.
My grandmother, auntie and her daughter do not know that I have been convicted of offences in Australia. I don't think they know that I was in jail. If they found out about this, they would never speak to me and would not want to know me; they may even stop speaking to my mother.
My grandmother, auntie and her daughter also do not know that I have mental health illnesses and need medication and support for this. People in Iraq think that persons who have mental health illnesses are crazy and they are treated very badly in Iraq. My grandmother, auntie and her daughter would not speak to me if they found out about my illnesses.
I feel like I am not from Iraq because I left Iraq almost 20 years ago and have lived most of my life outside Iraq. I would not know how to live in Iraq. I have a different way of thinking as I have not lived In Iraq for a very long time - I don't know the culture there.
I have heard that when people live overseas for a long time and then return to Iraq, they are treated badly by the community there. I would be seen as a foreigner and they would see me as different and not as someone from Iraq. I will also stand out because of the way I dress - I dress like a Westerner and would not fit in.
I also cannot speak Arabic or Kurdish fluently so it would be very difficult for me to survive and find a job to support myself. Also, because of my limited education, it would be very difficult for me to find a job in Iraq. I have been in detention and prison for around 10 years - it will be very difficult for me to find a job with no recent work experience and no contacts in the community.
I am currently taking medication for [Medical Condition 1] and anxiety. I do not know if I can get this medication in Iraq, and even If I could, I would not be able to afford it as I would be unemployed and homeless. If I don't take my medication, I [experience specified symptoms] - it's difficult to describe. [Information deleted].
I would face these difficulties everywhere in Iraq, including Kurdistan. It would be even more difficult for me to live in Iraq outside Kurdistan because I am Kurdish and would be targeted and seriously harmed.
The report from [Dr D] contains the following excerpts:
This report is prepared at the request of [Ms J, Solicitor] at [Organisation 1] and is based upon:
a. Verbal information from [Ms J]
b. Documents that were supplied to me by [Organisation 1], containing IHMS medical reports ranging from 13 September 2016 to February 2018.
c. Two telephone interviews I had with [the applicant]
…I am senior Consultant Psychiatrist. My qualifications are Bachelor of Medicine, Bachelor of Surgery obtained in [year] from [named University]. I am a Fellow of the Royal Australia and New Zealand College of Psychiatrists, I have Masters degrees in [specified disciplines]. I am a Graduate of the [named institute].
I have read and understand the Expert Witness Code of Conduct.
B: Situation of interview
I interviewed [the applicant] by telephone for an hour each on the following dates:
15/10/18
17/10/18
The interview was conducted in English. Though his first language is Kurdish, [the applicant] had a good command of English. He stated he speaks English better than Kurdish.
[The applicant] stated that he understood the purpose of the interview that I was going to write a report about his health.
In both interviews it was apparent that [the applicant] had difficulty with his long term memory, with an inability to recall chronological details, dates or duration of events and illnesses. He had difficulty manipulating any complex information or instructions.
C. History obtained from [the applicant]
Orientation:
[The applicant] knew that he was in [a named] Detention Centre; he was unsure how long he had been there but thought it was about 3 or 4 months.
He knew that the date of my first interview with him was 15th October.
Demographics:
He stated he is [age] years old, and currently in a relationship with his fiancé of 34 months, [Ms I], who he says resides in [City 2]. He stated he does not have any children but that [Ms I] does. He did not know the ages of her children.
Mental Health:
[The applicant] stated "I don't understand myself” and told of how he experiences things that he doesn't understand doesn't know why he feels that way and why he lives with this condition.
[The applicant] described experiencing three main symptom complexes:
-Panic attacks
-[Symptom Complex 1] and
-[Symptom Complex 2],
[Details of the applicant's experiences related to Symptom Complex 2]. [The applicant] says this has not been happening since he has been on medication. He is unable to tell me what medication he is on, or how long he has been taking it.
I asked him more about the panic attacks and he described a choking feeling, a sensation of being unable to breathe, feeling weak, being short of breathe and describing feeling like he is a different person. His heart races and it can happen suddenly when he is just walking along or can happen if he is stressed, but there are no regular precipitants to this. At the time he feels as though he is dying or something dreadful is about to happen. He states the was unable to tell me how long he has been getting these panic attacks but says it has been happening at least since he has been in [Detention Centre 2] and probably [earlier] as well. He knows he started some medication again, he didn't know what it was, apart from it being a small white tablet that he is supposed to take it in the morning but sometimes he misses a day and he says the medication helps for a few hours.
With regards to [Symptom Complex 1], [the applicant described his feelings and sensations] and this may happen 1-2 times a day. This sensation has been going on many years, probably since he was a teenager. [Information deleted].
When asked specifically about being anxious, [the applicant] said "yes, (he) worries about a lot of things, it depends on the situation". He was unable to tell me what he was worrying about but he did bring up that he knew he had a hearing coming and that he would get asked questions and be assessed and get a decision about whether he was going to be allowed to stay in Australia with his family. He was unable to talk about this beyond saying that if he can't stay in Australia, he has nowhere to go. With regard to other anxieties, [the applicant] does not appear to have any phobic anxiety. He has no checking or ritualistic behaviour that would suggest OCD. In asking him about his mood, he says his mood does go up and down, when his mood is low he can't focus and he doesn't know what to do. He says mostly he is not able to sit still and he gets agitated. He says he has taken [Medication 2] in the past. He stopped this unilaterally. He was unclear when he stopped it and he stopped it because he was getting too tired. There does not seem to be any history of manic episodes. [Information deleted].
In general, he says his sleep is good, he sleeps about 7 hours for the past week or so but previously he has had difficulty in sleeping, again he was unable to give me details of what his sleep pattern was like. He says his appetite is ok but he has recently lost about 4kgs in weight He says he has good energy; he likes to keep busy and goes to the gym daily.
Past Psychiatric history
[The applicant] tells me he has had psychiatric assessments in the past. He has been unsure of any diagnosis that he may have had. He initially said that he had been admitted to a psychiatric ward with his mother and then later in the interview denied that this had taken place but he couldn't remember when it was.
He states his past medications have included [Medication 2], [Medication 3] and [Medication 1], but he was unable to recall which medication had been for which condition, how long lied taken them or whether the medication had helped. However he says he still takes [Medication 1] every day and he thinks that while on [Medication 1], he sleeps better, [and doesn’t have specified symptoms].
He does not recall ever having seen a neurologist for investigation of [Medical Condition 1] or other neurological disorders
Drug and alcohol history
[The applicant] says he doesn't drink at all and has never done so but feels like he wants to have a drink on special occasions. He says he likes drinking. [The applicant] later contradicted this part of his story in my second interview with him, when he was telling me about his life after leaving school and the lectures he got from his family about his friendship group at that stage and the fact that he was drinking too much alcohol. [The applicant] says that he has never had any forensic charges relating to drinking. He said he has used marijuana but he hasn't used it every day. He has also tried "bup" (buprenorphine) in the past and says he will never do this again because it caused vomiting and shaking. He says he has tried ice (methamphetamine), it stated he felt good and stress-free and he just wants to forget things he found ice helpful.
Past medical history
[The applicant] does not suffer from any cardiovascular illnesses, any respiratory illnesses apart from asthma for which he uses an inhaler. He has not had diabetes, he does not have any musculoskeletal problems, and he does however take [Medication 1]. He says this was probably for [Medical Condition 1] but he doesn't know when. [The applicant] was able to tell me he had an accident but couldn't tell me the date of the accident when he banged his head on something and everything went wrong and subsequent to that he felt like a different person. He said previously to knocking his head, he could easily do things but afterwards he felt more frustrated, more easily upset, he started taking things that people said the wrong way and his life started going downhill. He then recalled that he was [age]-years-old when he hit his head in the car, that he was unconscious and had to go to hospital and his mum took him to hospital on that occasion and he was told that he had a brain injury. He says he is not ever been able to hold down a job, though he has done short courses along the way in [Occupation 3] and [Occupation 2] and has a certificate in that.
Family history
[The applicant] says his family lived in [City 1]. His father is [age]-years-old and his mother is [age]. His mother is not working. She apparently is not well and his father is her carer. [The applicant] has 2 younger brothers, one who are [age] and [age]. One of his brothers is a [Occupation 1] and the other is [studying] whilst working in [Company 1]. He says there is no family history of mental illness.
Developmental history
[The applicant] said that he started school when he was [age] years old in Iraq. He says he hated school. He said he didn't have much schooling. He says he had previously done year [level] in Iraq and did year [level] in Australia in [Suburb 1].
He came to Australia when he was [age]-years-old. He states he can read but that his spelling is very poor and that he can read short articles in magazines.
He says he hated school even more in Australia, because by his account he was severely bullied.as were his brothers. He said the bullying was about not being able to speak English, the clothes that the family were wearing but he didn't want to make this public and couldn't tell his family and he says his brother was assaulted at school. He said he left school at the age of [age], tried to look for work, had many on and off jobs but spent most of the time "hanging out" on the streets with his gang of friends.
Forensic history
[The applicant] said he didn't know and didn't understand the law. He described trusting everybody, thinking he was helping his friends but that they were just "putting him in the wrong". He couldn't be specific about this and says sometimes he just doesn't even remember. He said he was not proud of his past actions and that he knew he let his family down, let his loved ones down and let his community down. He appeared quite remorseful about this, chastising himself with comments such as he "should have known better" and that he wouldn't let it happen now.
[The applicant] states he "met" his current girlfriend, about nine months ago through a [friend]; that they had a friendship that developed through messages on [social media]. He says all his friends like her, the family like her, that she has stayed with his family and that she has visited him in [detention] and is supportive of him.
D. Mental State Examination
Mental State Examination was limited as it was conducted over the telephone A reasonable rapport was developed,
He appeared to be able to concentrate during the interview but a lot of his answers were extremely vague and his memory, or the details of past events was extremely patchy.
[The applicant] was pleasant and cooperative throughout both interviews. He seemed to be eager to please and had a tendency to agree to any leading questions or change his story in response to suggestions from the interviewer.
I am unable to comment on his appearance or other behaviours during the interview. His mood and affect through the interview were not depressed or elevated. He did become distressed and tearful at the end of the second interview when asked about his hopes and what he wanted for the future. He was unable to formulate an answer to this question
Stream and from of thought; normal stream of thought and did not appear to have fonnal thought disorder
His was unable to describe the content of his thought other than he thinks about things
[The applicant] denied any homicidal or suicidal ideas, he did not have any persecutory ideas or delusions,
[Information deleted].
On cognitive assessment [the applicant] was oriented to time, place and person.
He was able to attend to the interview and concentrate throughout the interview. He was able to recite the months of the year in reverse order and he was able to do serial 7's to the number 65 without mistake
With regard to his language functioning, [the applicant]'s command of the English language was adequate however there were some words that he did not understand and it was not possible to test language functioning further on a telephone.
His short-term memory was 3/3 items at 3 minutes.
[The applicant]'s long-term memory was patchy, he was unable to put clear dates and timelines around events, recall names of therapists that he had seen or medications that he had taken. He was very vague on any details of his personal history and in the absence of collateral history it is not possible to validate the accuracy of his story.
On testing executive functioning, [the applicant] had great difficulty with abstract thinking, his thought processes were very concrete throughout the interview and particularly when formally assessed in "similarities and differences" test. Other tests of higher cognitive functioning were not performed, as this was a telephone interview.
Insight: [The applicant] recognizes that he may have some mental health problems, he knows he has anxiety. He is unsure if he has any other problems. He knows that the medication helps but would prefer to be taking [Medication 4], as [Medication 4] makes him calm and in his own words "I know I wouldn't get addicted to it".
E. Opinion and Diagnoses
[The applicant] fulfills diagnostic criteria for panic disorder. He was able to describe the experience of symptoms, which constitute panic attacks, these are occurring with sufficient frequency.
[The applicant] also experiences [specified symptoms] at night. The exact nature of these is unexplained at the [moment]. Though he has used illicit drugs his usage appears not to have reached a level of addiction or dependence. It is highly unlikely that substance use/misuse would account for these symptoms.
[The applicant]'s history is also suggestive that he suffers from [Medical Condition 1] and that he has [related symptoms]. There is no history from [the applicant] that he has features of [other related symptoms], however his history of [a particular symptom] could be related to [this medical condition].
These above three conditions need ongoing assessment and treatment. Further explanation of the true nature of his symptoms is beyond what I am able to ascertain in these two telephone interviews.
However, more concerning and more pertinent to [the applicant]'s current situation are the concerns about his cognitive capacity. Throughout both interviews [the applicant] came across as having at most a low-average IQ, as demonstrated by his inability to recall details, dates, times and his difficulty with any abstract thought. This is best, validly assessed by full formal neuropsychological testing.
It is unclear how much of his cognitive difficulties are due the effects of the reported head injury. In the absence of collateral history and medical reports pertaining to that time, I am unable to ascertain the relevance of his head injury to his cognitive difficulties. However, of note it is reported that both [the applicant] and his family noticed a change in personality at that time. I am informed he also received some treatment, in a head injury rehabilitation centre. It is possible, also be that [the applicant] was of low intelligence throughout childhood or may have had a learning disability.
He does through his history come across as somebody who is quite suggestible, easily led and influenced by others.
Throughout the interviews, my questioning had to be in simple questions and he was unable to reason through more complex scenarios. Talking with him has the quality of talking to a child who is preteens.
These observations cause concerns about his capacity to represent himself and give instruction at his hearing, though [the applicant] does know the date of the forthcoming tribunal hearing and he knows that the hearing is to decide whether he can stay in Australia,
[The applicant] would be able to provide evidence at the hearing but I would have doubts as to the validity or the accuracy of any material that he presents.
I am unable to form an opinion as to whether his mental ill health has been exacerbated by his time in detention.
However, in the future his ongoing treatment does require the following
(i) Full evaluation of his cognitive capacities and this should include full assessment by a neuropsychologist. When this has been done, it is possible for treating practitioners to have much clearer picture of what [the applicant's] cognitive capacity is and the problems that he experiences, and tailor treatments more accurately to his needs.
(ii) [The applicant] will need ongoing treatment for his anxiety disorder. The treatment for panic disorder is medications and cognitive behavioral therapy. Any cognitive behaviour therapy would need to be modified to suit his cognitive deficits.
(iii) The nature of his [symptoms] at night time needs further evaluation.
(iv) Assessment by neurologist for an up to date and full evaluation of his presumed [Medical Condition 1] and review of [Medication 1] as the preferred medication.
I believe it is inappropriate if these assessments and evaluations have not already been done at an earlier date and so that treatment can be informed and tailored to [the applicant]'s complex needs.

The IHMS report, dated 21 September 2016 contains the following excerpts:
Note added on 5:56 PM : Detainee seen 21/09/16 at 1456 hrs
NCR fully clear, but patient booked in to discuss ABI
Client reports moving from [Country 1] with family to Australia age [age]
Was in an MVA around ; age [age]
Reports no broken bones, but was treated for [specified symptoms] on [Medication 1] for around a year later
Has since been off that medication, gets what sounds like [related symptoms] but [not the original specified symptoms] any more Also reports post accident the following:
-poor concentration, memory
-unable to easily read of finish things
-everything felt hard to do
-could not focus, easily frustrated
-not feeling in control of emotions
Spent [number] years In prison
Has been on [specified medication]: [number] mg nocte, says this helps
Reported [specified symptoms] and
[other various symptoms]. States [Medication 3] has helped reduce distress ; about it but not slopped it fully.
He has been In [Hospital 1] and was also on [Medication 5] for a while
No clear history of negative sx, more ;[symptoms] more in keeping with [ABI]
We talked about his time here, Just settling in. Has been keen to get into good routines again as In prison. We discussed the value of routine, good sleep patterns for his brain and given there is no medicine to alter what happened potentially in the MVA to his cognition, maintaining the above, keeping fit and active are all helpful
Will see if we can get some old discharge information from [Hospital 1] if needed, should he present with concerning sx again.
The IHMS report, dated 10 October 2016 contains the following excerpts:
This consult: 10 October 2016 at 2:00pm Consult 1 at [Detention Centre 1] …
Subjective: Self referral from Client regarding “some personal issues and I feel I’m not coping in this environment”. (introduced myself and clarified my role, which excludes VISA assistance or transfer assistance. I explained that I could not assist him to be with his family but that I could offer techniques and support to cope with being at [Detention Centre 1]. He presented with some sleep disturbance, nightmares, & “flashbacks” to when he was [age], feelings of
worthlessness and excessive negative rumination. He describes occasional panic attacks. His feelings of worthlessness commenced from Serco beating him when handcuffed. The other disclosures are longstanding to childhood. His reported developmental history reveals le family upbringing, however he has significant childhood memories from his homeland that he did not wish to discuss. His family left Iraq for [Country 1] when he was about [age], then he arrived in Australia by plane on humanitarian grounds in 2002. He was involved in MVA about 2005 when he was [age], when he had a brain injury. He consulted a psychiatrist after this for inability to focus and [Medical Condition 1]. Since this time he [suffers from specified symptoms]. His parents, two brothers and social networks are located in [City 1]. He is single with no children. He had one significant partner for two years, prior to eight yews of prison that commenced when he was [age]. Due to lengthy prison sentence, he has never had a full time permanent job. He is ashamed of the prison sentence and declined to discuss it further. He participates well in daily activities including gym, rugby and boot camp. He denies any problem with motivation, level of energy appetite or concentration. He denies suicidal or homicidal ideations, though previously displayed protest behaviour by stating self harm. He avoids socialisation and prefers to be alone. He achieves this by maintaining superficial relations with other detainees. He feels resentful toward Serco officers who hit him from behind while handcuffed during his transfer to [Detention Centre 1] from [Detention Centre 2]. Due to this he has trust issues with Serco officers. He wishes to “turn his life around” by having a job, house and his own family. He is frustrated from achieving this goal due to detention. He expressed motivation for self help techniques with trust issues and frustration of life goals.
Objective: Attended consult on time at IHMS Medical Centre [Detention Centre 1]. He is guarded talking about his past. He maintained good eye contact, willing to engage and rapport improved as the session progressed. He is polite, pleasant, engaging and cooperative. He presented clean and well groomed. He spoke with some agitation appropriate to the topic but without anger or tearfulness. Nor is he overly euphoric. He looks fit and healthy. Affect anxious. He showed no impairment in concentration and his speech had normal rate and volume. His conversation is coherent and logical. He Interacted in an appropriate manner. He is oriented to time, place and person. Interpreter not used his English is good.
Assessment: Possible PTSD from childhood trauma. Adjustment disorder due to prison and subsequent detention. [Specified symptoms manifest] at night [only]. Risk of harm to self or others is low.
Plan: Schedule regular psychological support sessions. Goals agreed with the Client are for self help techniques with trust Issues and frustration of life goals.
… Psychologist, [Detention Centre 1]
The IHMS report, dated 9 August 2017 contains the following excerpts:
Review of this [age] male from Iraq who has been in Australia from about 2003 (family came on Humanitarian visa) - parents and siblings reside In [City 1].
Has been in [Detention Centre 2], then [Detention Centre 1] for about 7 year (transfer to [Detention Centre 1] ?Oct 2016).
Past psychiatric history: ?vague, stales was in [Hospital 1] and was taking [Medication 6]for ?dx
Ex smoker, nil D&A.
Current medication: [Medication 3] [amount]mg nocte (due to Increase to [amount]mg on 18/8)
Saw GP beginning of August with [specified symptoms]. Also states he has recurring dreams and nightmares - these have been going on for a "long time". Feels scared and afraid to talk about it feels confused. Has seen a number of psychologists and psychiatrists who also don't know what is happening. States that he had a MVA in around 2005/6 but cannot recall the circumstances ie, aware that he wasn't driving, but can't remember who was, how many people in the car, were they speeding, D&A involved etc. States he remembers waking up in [Hospital 1] and from then “I was a different person", "I couldn't cope”, but cannot articulate in what way he was "different”. States he cannot remember what he was like or cannot provide a description of what he was like (personality-wise) prior to the accident: Can't recall his life in details prior to the accident ; Unclear how long he was in hospital for, was there LoC, or ICU or rehab required. [The applicant] also alleges that he had [Medical Condition 1] likely post the MVA - was taking [Medication 1] [amount]mg but has not taken this medication for a while and has not had any [recurrence of symptoms].
Since starting [Medication 7], feels better, thoughts are better, not thinking too much, can distract himself from the [symptoms]. Sleeping has improved, where he was waking 3-4 times before, he can mostly sleep through. Appetite has also improved. However, also complaining of some drowsiness upon waking and feeling less energetic. Can still push himself to go to the gym and train.
Family history: Denies any fhx of [Medical Condition 1], confusion or people having similar phenomena as himself. Speaks to family every 2nd day. Personal history (from notes): ?history of childhood trauma when family moved from Iraq to [Country 1] when was [age]yo. May have experienced bullying when in school.
MSE: Casually dressed, good eye contact superficially pleasant engageable not psychomotor retarded or agitated. Affect reactive, looks anxious, not depressed. Speech - coherent, spontaneous, of N rate and volume. ; Not thought disordered. Content. feeling "confused", “not sure what's wrong with me", not depressed nor suicidal. [Information deleted] not acting out or overly distressed (improved with low dose [Medication 7]).
Ax. Inconsistent and unusual history which is not entirely consistent with an organic brain disorder such as an ABI. [The applicant]’s function still appears to be okay (independent with ADLs). May have a past history of trauma/complex PTSD which is manifesting in these unusual symptoms. Could be that he has low education and poor/maladaptive coping skills, so these perceptual abnormalities are his way of dealing with stress. He also has been in the prison system for a long time which might also contribute to these phenomena. Secondary gain/functional symptoms might also be an explanation, though it is difficult to ascertain whether this is conscious or unconscious.
Plan: Continue low dose [Medication 7] and GP's plan for increased dose Will need review as he may complain of increased drowsiness in the morning, I have informed him that this side effect is an unfortunate effect since he has improved sleep.
I would recommend trying to obtain the medical records from this MVA in 2005/2006 and any previous psychiatric admissions for clarity and collateral.
The IHMS report, dated 23 November 2017 contains the following excerpts:
This [age] year old man came to Australia with his family at the age of [age] after being displaced front Iraq to [Country 1] which disrupted his education. He is now facing deportation because he was convicted of [a criminal offence] seven years ago and served a long prison term. Interestingly, although he Is distressed by the prospect of deportation he Is not preoccupied with this and is not presenting with typical stress-related or adjustment problems, but he complains of [specified symptoms]. He also has [symptom]. He says he rarely experiences [specified] symptoms during the day. He also complains of poor memory and concentration, poor impulse control and unstable emotions with episodes of anxiety.
[The applicant] says all these phenomena began after a serious head injury 10 years ago, in which he sustained an ABI with diagnosed cognitive impairment and [Medical Condition 1]. He says he talked his family into taking him home from [Hospital 1] early, before he had completed a 16-week rehabilitation program, because he was emotionally disturbed and lacked insight at the time. Only later has he begun to understand that he had significant disabilities from the ABI. Initially, he was initially prescribed [Medication 1] for [Medical Condition 1] but he stopped taking it (and [Medication 3]) because he thought it was causing his symptoms and he wanted to be ‘normal again'. [The applicant] describes his family struggle to understand and manage his changed behaviour after the ABI. From his account. his mother and brother sound very caring and supportive, but there were language and cultural barriers. The [criminal offence] occurred at that time.
As the years have past since the ABI, [the applicant] believes he has slowly gained insight and some degree of emotional behavioural control, He now accepts the need for medication, but he does not think his current treatment is working as well as previous medications did. He says he regrets his former non-compliance.
Objectively: [The applicant] presents as a lean, muscular young man, with short hair and a baseball cap. His hygiene and grooming are unremarkable. He appeared motivated to participate In the interview and he remained calm, alert and euthymic throughout, with a warm affect. [The applicant] spoke with an Arabic accent and his English vocabulary was simplified, but he communicated clearly. There appeared to be mild slowing and concreteness of thought, and some difficulty comprehending and sequencing events into a coherent narrative without prompting, but there was no formal thought disorder or other acute psychotic features were observed.
Assessment: Based on today's limited interview, it seems to me that [the applicant]'s nocturnal [symptoms] are probably due to [a medical condition], and he may have other [medical conditions] causing [specified symptom]. His history and presentation suggest significant cognitive (mainly executive) impairment and chronic difficulty with behavioural and emotional regulation, which are all common sequelae of ABl. In the first few years after his injury [the applicant] lacked insight and rejected treatment from the services that could have advocated for him, but in recent years he seems to have matured and recognised his disability better. This insight itself actually causes some of the intermittent anxiety. There does not appear to be a significant risk of suicide or violence at present, but [the applicant] would be at some risk if returned to the community without appropriate ABI support and services, and substantial risk if returned to Iraq, where he has not lived since childhood and he would not have access to services.
Plan: Re-start [Medication 1] ([amount] mg bd initially). If he responds well to [Medication 1], try ceasing [Medication 3]
In my opinion, [the applicant] needs a review by a specialist ABI rehabilitation service, including neurologist and neuropsychologist, after an EEG and MRI.
Tribunal Hearing
The applicant appeared before the Tribunal on 29 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s parents and brothers.
The following is a summary of the information provided by the applicant at the hearing:
a.He has no identity documents from Iraq.
b.He no longer has any family in Sulaymaniyah. His aunt and grandmother are in Kirkuk . His brother sends money to his aunt from time to time to help support them.
c.Other Iraqis in Australia know about his criminal convictions here. They would ask his mother where he is and she would tell them he is in jail.
d.His uncles and aunts in other countries, [Country 3] and [Country 2], have not returned to Iraq since they left there.
e.He doesn’t want to return to Iraq because he hasn’t lived there for a long time and doesn’t know anything. He fears harm as a Sunni in Iraq.
f.The Tribunal put to the applicant that the majority of Muslims in Kurdish Iraq are Sunni so why would he fear harm as a Sunni there. He responded he would not know as he has not lived there for a long time.
g.There are a lot of things going on for him.
h.Iraqis think people with mental health issues are possessed.
The following is a summary of the information provided by the applicant’s father at the hearing:
a.The family who threatened him are a tribal family and take such matters very seriously. They blame him for what their daughter did because the boy worked for him and was like his son.
b.The girl’s parents expected her to follow their wishes but she did not. The family blame him and thought he should have stopped the young couple. They thought he helped the boy.
c.He was a witness for the marriage. If a couple want to marry they have to bring two witnesses. The witnesses can be anyone. A marriage is not accepted without witnesses.
d.He wasn’t at the shop when the family came for him. They came to the shop and asked about him. When he later heard this he knew they were after him. He took his wife and children and put them somewhere else and evacuated the shop and house. He then went to [Country 1]. After nine months his family joined him in [Country 1].
e.In their culture when things like that happen they will come to kill the person they think is responsible. If he is not accessible they will look for the son, if the son cannot be found they will go after the brother, it is like this.
f.He did not tell his son about what happened because he was not comfortable speaking about it, and also his son is not well. His son will not be able to look after himself if he is separated from them.
g.The family’s name is [Family K]. They are a well-known influential [family]. The boy who worked for him was in love with a girl from their tribe. The girl disappeared. The family killed her and the boy.
The following is a summary of the submissions made by the applicant’s Agent at the hearing:
a.Without identity documents it will be very difficult for the applicant to re-enter Kurdish Iraq as he will not be able to prove he was born there.
b.The applicant has no support network in Sulaymaniyah.
c.He will not obtain any meaningful support in Iraq from his grandmother and aunt. The government in Baghdad has recently taken over Kirkuk.
d.The applicant’s criminal record is likely to come to light in Iraq. The applicant is very trusting of people and is likely to disclose his convictions. Because of his nature the applicant could be taken advantage of in Iraq.
e.There is a potential for the applicant to be kidnapped as a person returning from a western country.
Post Hearing Submission
On 26 November 2018 the applicant’s Agent provided a written submission to the Tribunal. It contained the following (footnotes omitted):
… the Applicant has a well-founded fear of persecution on return to Iraq for the following reasons which should be considered on an individual and cumulative basis:
a. Kurdish ethnicity;
b. Sunni religion;
c. Membership of a particular social group (MPSG) – Applicant is at risk of a revenge killing from [Family K] due to the Applicant’s father’s involvement with his employee’s marriage to a woman from [Family K];
d. MPSG – person with mental health illness and/or cognitive disability;
e. MPSG – person with a criminal record, including conviction of a [specified] offence;
f. MPSG – person who has lived in a Western country for a significant period of time (15 years), has no support network in Iraq and cannot speak Kurdish or Arabic fluently; and
g. MPSG – person who left Iraq illegally.
The Applicant is at risk of serious harm in Iraq due to his cumulative profile, including that he will be prevented from subsisting in Iraq as he will be denied accommodation, employment and access to basic services including healthcare. We note that as the Applicant has no identity documents, he would not be able to obtain a Civil Status ID (CSID) card which is essential to accessing services such as financial assistance, employment, education, housing and medical treatment. The UK Home Office found that persons who are unable to obtain a CSID and do not have a support network in Iraq are likely to face destitution.
We note that the October 2018 Department of Foreign Affairs and Trade (DFAT) Report on Iraq states that irregular exit from Iraq is unlawful. As the Applicant does not have any Iraqi identity documents, it is very likely that he fled the country unlawfully as a minor. Therefore, the Applicant may be at risk of detention and being charged if he was returned to Iraq.
Also, country information states that UNHCR considers that returnees to Iraq without valid travel documents may be taken into custody and interrogated. As the Applicant does not have Iraqi travel documents, he is at risk of detention and interrogation if he was returned to Iraq. Given the Applicant’s profile, including his mental health illness and cognitive deficiencies, it is very likely that he will face serious harm if he is detained and questioned.
…
Persons with mental health illnesses and disabilities in Iraq
As confirmed in the Applicant’s medical records provided in our October 2018 submissions, the Applicant suffers from a range of medical conditions, including mental health illnesses and cognitive deficiencies. Our October 2018 submissions address that the Applicant is very unlikely to receive the required medical treatment in Iraq due to the complexity of his health needs and lack of available medical resources, and therefore he will suffer serious harm.
In addition, the Applicant is very likely to face serious harm in Iraq on account of the stigma associated with his medical condition. The October 2018 DFAT Report on Iraq states that intellectual disabilities are highly stigmatised and underreported, and that persons who have intellectual disabilities are at risk of official and societal discrimination. Many Iraqis attempt to avoid contact with those suffering from mental health illness. Also, a survey by the Iraqi Ministry of Health and International Medical Corporation found that 60 percent of respondents considered that ‘mental illness is caused by brain disease’, 65 percent declared that psychological problems were borne of ‘personal weakness’, and 80 percent stated that people with mental health problems are largely to blame for their condition. Further, over half the respondents in this survey stated they would feel ashamed if a relative suffered from mental illness. In addition, some Iraqis view mental health illness as ‘God’s punishment’. In 2017, a Médecins Sans Frontières psychologist and mental health manager stated that there was stigma surrounding mental illness in Iraq and that people often did not seek assistance for mental health illness out for fear of how the community might respond.
Further, both the Applicant’s parents instruct that people in Iraq ridicule and hurt people with mental health illnesses and/or disabilities. The Applicant’s mother instructs that persons with disabilities and/or mental health illnesses are not treated with respect and dignity and she has witnessed people throwing stones at people who have mental health illnesses.
The manner in which the Applicant presents and interacts, as was evident during his Tribunal hearing, clearly indicates that he has cognitive deficiencies and/or suffers from mental health illness. Therefore, it is very likely that the Applicant will face harm from the Iraqi community if he is forced to return to Iraq due to his mental health illness and/or cognitive condition. Also, as stated in [Dr D’s] report provided with the October 2018 submissions, the Applicant is suggestible and easily influenced; this will increase the risk of harm that the Applicant faces if he is returned to Iraq, particularly given the societal stigma regarding persons with mental health illness and intellectual disabilities.
Further, the discrimination and harm that the Applicant would face due to his medical condition would prevent him from accessing the treatment he requires and other services to subsist in Iraq. Therefore, it is very likely that the Applicant will face significant barriers to finding accommodation, employment and access to medical treatment in Iraq, and in turn is likely to be destitute and homeless, particularly as he has no support network in Iraq. We submit that the harm the Applicant would face due to his mental health illnesses and/or cognitive deficiencies would amount to serious harm which constitutes persecution. …
Complementary protection
… As stated in the Applicant’s statutory declaration dated 23 October 2018, he is currently taking medication for [Medical Condition 1] and anxiety. The Applicant also described that if he does not take his medication, he [suffers specified symptoms]. Further, without his medication, the Applicant [suffers further specified symptoms]. Therefore, the serious nature of the physical and mental harm that the Applicant would suffer if he does not have access to medical treatment, including his medication, meets the “significant harm” threshold.
Also, the harm that the Applicant would suffer would be intentional because he would be denied medical treatment on the basis of his cumulative profile, including that he suffers from mental health illnesses and/or cognitive disability as well as his criminal record and the nature of his convictions. As demonstrated by the country information above, persons with mental health illnesses and intellectual disabilities are regularly discriminated against in Iraq and it is very likely that the Applicant would be discriminated against if he sought medical treatment for his illnesses. Further, due to the Applicant’s medical condition, he is easily influenced and credulous, which means it is likely that he could disclose his criminal record, including the nature of his convictions, without realising the implications that this could have for his safety and ability to access basic services in Iraq.
From the medical evidence provided in our October 2018 submissions, it is evident that the Applicant needs ongoing medical treatment requiring medication and significant medical expertise. It is very unlikely that the Applicant would be able to access this type of ongoing medical treatment due to the discrimination that he would face on the basis of his cumulative profile, including his mental health illness, intellectual disabilities and criminal record. We note that the Applicant would face a significant risk of harm in relation to the denial of medical treatment throughout Iraq, including areas controlled by the KRG. Therefore, relocation would not reduce the Applicant’s risk of harm. …
Further information from the Applicant’s parents
The Applicant’s parents have provided further information in relation to issues raised by the Member during the hearing which is set out below. Due to the Applicant’s parents living in a different state to the Applicant’s lawyer as well as language barriers, it has not been possible to provide the Applicant’s parents instructions in statutory declarations by the relevant deadline. If the Member requires this information to be provided as sworn evidence, we request that the Tribunal advises the writer and she will arrange this as soon as possible.
Applicant’s family’s time in Iraq
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The Applicant’s father instructs that after he found out that [Family K] were looking for him and his family, he took his family from their home in Sulaymaniyah to Erbil. The Applicant’s father had a close friend who lived in Erbil who agreed to assist their family. The Applicant’s father instructs that he knew this friend from his military service and time in the Peshmerga. After the Applicant’s father took his family, including the Applicant, to Erbil, he fled to [Country 1] with his brother. The Applicant’s father instructs that he lost contact with his friend who lived in Erbil from around 2001.
The Applicant, his mother and two brothers stayed at their family friend's place in Erbil for nine months. The Applicant’s parents instruct that the Applicant’s father sold his business and gave the majority of this money to the Applicant’s mother to look after herself and their three children while they lived in Erbil. The Applicant’s mother instructs that during this time they were in hiding in Erbil and never returned to Sulaymaniyah. The Applicant’s mother did not work and her three children, including the Applicant, did not attend school; they all remained in their friend’s house. The Applicant’s mother instructs that the family they were staying with helped them by going to the shops for them so they did not have to leave the house.
The Applicant’s father instructs that he was worried that [Family K] who was looking for him and his family may find his family in Erbil, but it was safer for them to stay there rather than Sulaymaniyah. This is why his family remained in hiding in Erbil and fled to [Country 1] after nine months.
Applicant’s parents’ siblings
… The Applicant’s father instructs that he has one brother in [Country 2] and one sister in [Country 3] and that neither of his siblings have returned to Iraq since they left the country.
The Applicant’s father’s brother (Applicant’s uncle) lived with the Applicant’s father and his family, including the Applicant, in Sulaymaniyah and became aware when [Family K] started looking for the Applicant’s father and his family. The Applicant’s uncle fled with the Applicant’s father to [Country 1] because they both feared harm from [Family K]. This is one of the reasons why the Applicant’s uncle has not returned to Iraq. The Applicant’s uncle has a [medical] condition which makes it difficult for him to travel and he also has no relatives in Iraq, which are other reasons why he has not returned to Iraq.
The main reason that the Applicant’s father’s sister in [Country 3] has not returned to Iraq is because she does not have family in Iraq. Whilst she is aware of the [Family K] issue, she did not live with the Applicant’s father at the time when the issue arose as she was married, so she did not leave Iraq on account of this issue.
The Applicant’s mother instructs that she has one sister in Iraq and another sister in [Country 3]. The Applicant’s mother is unsure if her sister in [Country 3] has visited Iraq; she may have visited Iraq once to see their mother for around three weeks. The Applicant’s mother instructs that if her sister visited Iraq, she would have remained at home with her sickly mother and not socialised outside the house. Her sister migrated to [Country 3] because she had a husband living there for some time. This sister is not aware of the [Family K] issue as the Applicant’s mother did not tell her at the time it arose as her sister was very young.
Country information

DFAT’s most recent ‘Country Information Report – Iraq’, published in October 2018, states the following:
Recent History
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2.5 In June 2014, the Islamic State of Iraq and the Levant (ISIL), also known as the Islamic State (IS) or Da’esh, launched a successful assault on Mosul, Iraq’s second largest city. ISIL subsequently took control of other areas of Iraq including large parts of Anbar, Salah al-Din, Diyala and Kirkuk provinces. In December 2017, Prime Minister Haider al-Abadi declared final victory over ISIL after Iraqi forces recaptured the last areas still under their control along the border with Syria. ISIL continues to commit small attacks mainly on government forces and security personnel at road checkpoints. The three-year conflict with ISIL significantly damaged Iraq’s economy and displaced more than 3 million Iraqis. ISIL will likely wage a protracted insurgency in Iraq for many years (see Security Situation).
2.6 On 25 September 2017, the Kurdish Regional Government (KRG), which was established under the 2005 constitution (see The Kurdistan Region), held a non-binding referendum on independence for the Kurdistan Region of Iraq as well as disputed territories under KRG control. The referendum passed, leading to federal government demands to Kurdish and other disputed areas’ authorities to annul the results. Federal troops subsequently occupied the city of Kirkuk, taking control of valuable oil fields. Long-term Kurdish President Masoud Barzani resigned ahead of regional parliamentary elections, which occurred on 30 September 2018.
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Health
2.19 The Constitution guarantees the right to health care and states that the government will maintain public health and provide the means of prevention and treatment. Iraq ranked 121st out of 188 countries on the UN Development Programme’s 2016 Human Development Index with an average life expectancy at birth of 67.4 years for males and 71.8 for females.
2.20 Iraq has a mixture of public and private hospitals, and primary health care is provided by both private and public clinics. Health infrastructure has suffered from decades of conflict. Even before the rise of ISIL, many primary health care facilities were under-resourced and many skilled health care workers had moved abroad or to safer areas of Iraq. Health services are limited, particularly in areas affected by conflict, and areas with large numbers of internally displaced people (IDPs). The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) estimates 7.3 million people who need health services lack access to them.
2.21 OCHA’s March 2018 Humanitarian Response Plan estimated that 1.9 million people need food security assistance, and 5.4 million people lack water, sanitation and hygiene.
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The Kurdistan Region
2.28 The KRG is an autonomous regional government recognised under the Iraqi Constitution based in Erbil. The KRG is responsible for the administration of Erbil, Sulaymaniyah and Dahuk provinces.
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2.31 The Kurdistan Region’s draft Constitution prohibits discrimination on the basis of language, age, disability and gender. The Kurdistan Region has its own Independent Human Rights Commission that cooperates, at least partially, with the federal High Commission for Human Rights. The US State Department reports that the Kurdistan Human Rights Commission reports regularly and independently to the Kurdish Regional Government.
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Security
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2.32 Several factors influence the security situation in Iraq, including actions of remaining ISIL fighters (or other extremist fighters that have emerged since ISIL’s defeat) and other armed groups (including the state-sanctioned Popular Mobilisation Forces, and historical intra-Shi’a and intra-Sunni tensions. In the Kurdistan region, the security situation is influenced by tensions between the federal government and KRG, tensions between different Kurdish political blocs, and actions by Turkey and Iran.
2.33 The remaining ISIL and other extremist fighters and the increasing influence of the PMF are the most acute issues influencing the current security situation throughout Iraq. Although ISIL has lost its self-declared ‘caliphate’ in Iraq and Syria, it remains a threat to Iraq. A report submitted to the UN Security Council by the UN Analytical Support and Sanctions Monitoring Team in August 2018 estimated that up to 30,000 ISIL fighters remained active in Iraq and Syria.
2.34 ISIL will likely continue to indiscriminately target Iraqi civilians and commit human rights abuses as a small-scale insurgency. For example, on 15 January 2018, ISIL attacked a market in central Baghdad, killing at least 38 people and injuring 105. In Iraq’s northern region of Kirkuk, 25 people were killed by ISIL in the lead-up to national elections. ISIL claims to have carried out 58 attacks in the region since December 2017. In the Kurdistan Region, ISIL killed 12 members of one family in June 2018. .
2.35 The Iraqi security forces will be focused for some time on consolidating the gains made against ISIL and containing the threat from a likely ISIL insurgency in Iraq. Clashes between ISIL and security forces continue, particularly in Iraq’s eastern desert region. For example, Iraqi security forces reported killing 45 ISIL members in June 2018, and forces of the Global Coalition to defeat ISIL conducted 31 strikes in the week of 2-8 July.
2.36 The numerous Shi’a armed groups in Iraq include Saraya Al-Salam (SAS, also known as the ‘Peace Brigades’, and partly made up of former Mahdi Army fighters), Asaib Ahl al-Haq (AAH), Kataib Hizbullah (KH), and the Badr Corps. SAS and the Badr Corps are the military arms of the Sadrist and Badr political movements respectively. Some Shi’a groups have sponsored the formation of local factional Christian and Sunni militias to divide and weaken these communities. Local and international observers have accused some PMF groups of committing abuses against civilians and engaging in criminal activities. Violence between different Shi’a armed groups is also frequent, but usually low-level.
2.37 The Kurdistan region has experienced lower levels of insecurity than other areas of Iraq. This may reflect the greater capacity of the Kurdish security forces and the lower levels of ethnic and religious diversity in the region. Recent increases in numbers of IDPs entering the region have strained the Kurdish authorities’ ability to guarantee the safety of people fleeing there. Turkey has shelled suspected militants in villages along the border between Turkey and the Kurdistan region, and Turkish forces have crossed the border in pursuit of militants. Turkey also maintains a military training and artillery base at Bashiqa, near Mosul, without the approval of the federal government. The KRG retains control of some disputed areas from which it successfully expelled ISIL. Some violent incidents have occurred between KRG-affiliated forces and Shi’a militia groups.
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Sunnis
3.35 After the removal of Saddam Hussein and the (Sunni-dominated) Ba’ath Party from government, many Sunnis felt marginalised. This was exacerbated by the perception among the majority Shi’a population that the Sunni community was associated with ISIL, and by the government’s inability to assist Sunnis attempting to flee ISIL. While the government has worked hard to protect civilians in the fight against ISIL, it has at times failed to respond firmly to acts of retribution against Sunnis by the Iraqi Security Forces (ISF) or the PMF. These factors have intensified tensions between Sunni and Shi’a communities in Iraq.
3.36 Sunnis, including IDPs, continue to report that PMF groups harass them, accuse them of supporting ISIL and physically harm them. Sunnis report similar behaviour towards them, although to a lesser extent, by the ISF in some areas. The US State Department and international human rights groups report government-aligned forces targeting Sunni males trying to flee ISIL-controlled areas, and preventing Sunnis from leaving
and entering government-controlled areas. PMF-linked militia groups have looted and destroyed Sunni-owned properties following the expulsion of ISIL and, in some areas, prevented displaced Sunnis from returning to their homes. Outside ISIL-controlled areas, Sunnis have faced harassment and discrimination in the form of more intrusive inspections at checkpoints, and the provision of poorer quality services in Sunni areas.
3.37 DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.
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People with Disabilities
3.86 Under Iraqi legislation, five per cent of public sector jobs are reserved for people with disabilities. The requirements of people with disabilities are required to be taken into account in building design. People with disabilities and their carers are entitled to tax concessions and government welfare in the form of cash payments.
3.87 NGOs report that implementation of the above measures is inconsistent and that quotas and government assistance are not always met and are sometimes ignored. Some people may not receive the benefits they are entitled to because of an unwillingness to report their disability. In-country contacts report that war-injuries are less stigmatised while psychological and intellectual disabilities are highly stigmatised and are underreported.
3.88 DFAT assesses that people with a physical disability are at low risk of official or societal discrimination. People with psychological or intellectual disabilities face a low risk of official discrimination and a moderate risk of societal discrimination.
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Iraqi Security Forces (ISF)
5.2 The ISF is responsible for security in Iraq and includes the Iraqi army, the federal police and provincial police forces. …
5.3 Respected NGOs have reported on human rights abuses by the ISF, including targeting of Sunnis. The ISF has failed to act on human rights abuses by other actors, such as the PMF. DFAT assesses that, while the Iraqi government is taking steps in an effort to curb human rights abuses by the ISF, its ability to assert centralised control over the actions of the ISF in the field is limited. The 2017 US State Department Human Rights Report notes the Iraqi government has rarely made public any information about investigations into human rights abuses allegedly committed by the ISF.
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INTERNAL RELOCATION
5.11 Years of conflict, including conflict with ISIL, displaced large numbers of people. The International Organization for Migration estimates 3.5 million people returned to their place of origin between January 2014 and February 2018. The UN Office for the Coordination of Humanitarian Affairs estimates that over 1.6 million people have returned to their homes since April 2017. As of July 2018, approximately two million people remain displaced, and about four million people have returned to their homes, including almost 1.5 million people who have returned to Ninevah. Disproportionately high numbers of IDPs come from minority communities, including Sunnis, Turkmen, Yazidi, Shabak and Christians. Conflict has led to previously religiously mixed areas becoming more homogenous – usually Shi’a or Sunni – thereby limiting internal relocation options. DFAT assesses that, in most cases, internal relocation for religious and ethnic minorities is difficult. Each provincial council has its own policies regarding local entry requirements, including for other Iraqi citizens.
The Kurdistan Region
5.12 Since 2006, many people have found refuge in the Kurdistan Region. DFAT is not aware of any official regulations concerning procedures and practices at checkpoints into the region. Admission into the Kurdistan Region remains at the discretion of the KRG, which has increased restrictions, including requiring individuals wishing to enter to have a sponsor. Local sources say the implementation of this requirement is often inconsistent in practice. Individuals who were previously from the Kurdistan Region or who are ethnically Kurdish should be able to enter the Kurdistan Region with relative administrative ease, however circumstances and experiences may vary on a case-by-case basis. DFAT understands Christians, Yazidis and Shabak have been able to enter the Kurdistan Region with relative ease, but that Arab Sunnis have faced difficulties.
5.13 Upon entry into the Kurdistan Region, people (including foreigners) born in the region or with family ties in the region may obtain Kurdish identity papers, including national identity papers noting residence in the Kurdistan Region. Iraqis from outside the region and other foreigners require a residency card, which is issued after presentation in person at the residency office in the neighbourhood in which they would like to reside. The residency card allows the holder to move around the Kurdistan Region freely and obtain access to services. Officially, non-ethnic Kurds are unable to purchase property. Single people, especially women, are unable for cultural reasons to rent properties on their own. A lack of Kurdish language skills can be an additional barrier to gaining access to employment and services.
5.14 DFAT assesses that internal relocation to the Kurdistan Region is difficult for anyone without a sponsor or existing networks within the region. DFAT assesses that certain individuals such as single women and children, and LGBTI individuals would face similar risks of official and societal discrimination in the Kurdistan Region as they face in other parts of Iraq.
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Treatment Of Returnees
Exit and entry procedures
5.20 On arrival at Baghdad International Airport, all passengers irrespective of nationality have their identity information recorded. This process occurs at all international airports in Iraq, including the Kurdistan Region. Authorities will arrest an Iraqi on return if they had committed a criminal offence and a warrant had been issued for their arrest. Others, even those who had left illegally, would not be subject to arrest on arrival.
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5.22 Iraqis who have lost, or do not have, an Iraqi passport must apply for a laissez passer at an Iraqi embassy or consulate abroad. To issue a laissez passer, the Iraqi post: verifies the identity and nationality of the returnee against source documents in Iraq; confirms the person is returning to Iraq voluntarily; and checks for outstanding criminal actions against Ministry of Interior records in Iraq.
5.23 Upon arrival in Iraq, border officials check the details of the laissez passer and re-confirm that the individual is entering voluntarily. Officials record the details of the laissez passer along with the name and date of birth of the bearer. The border officer will then inform the bearer that the laissez passer is not valid for further travel. According to the UK Home Office, border officials can issue a letter at Baghdad Airport in order to facilitate movement to an individual’s place of origin or relocation within Iraq. Laissez passers are common and individuals who enter on laissez passers are not questioned about how they exited Iraq, nor asked to explain why they do not have other forms of documentation.
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Conditions for returnees
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5.25 Large numbers of Kurds (mainly single males) return voluntarily to the Kurdistan Region, particularly from the UK and European Union countries. The region’s relative security compared to other areas of Iraq has encouraged returns. As with other areas of Iraq, familial connections are important in the Kurdistan Region. Reintegration, and particularly access to employment and housing, is easier for those who have maintained connections in the region.
The UK Home Office ‘Country Policy and Information Note Iraq: Internal relocation, civil documentation and returns’, published in October 2018, states:
4.2 Returns to the Kurdistan Region of Iraq (KRI)
4.2.1 There are international flights to Erbil International Airport (EBL) and Sulamaniyah International Airport (ISU).
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7. Entry to the Kurdistan Region of Iraq (KRI)
7.1 Entry requirements
7.1.1 A letter from the British Embassy in Baghdad, dated 4 December 2014, noted that for those arriving by air at Erbil or Sulamaniyah airports were directed to report to the nearest Asayish office to regularise their stay. The letter noted: ‘It is worth re-iterating the point that admission does remain at the discretion of Kurdish immigration and border officials and that temporary restrictions can be imposed and withdrawn without notice.’
7.1.2 The Danish fact-finding report observed:
‘According to Osama Al Habahbeh [a journalist], after being allowed entry into KRI, all IDPs must go to an interview with the Asayish. This procedure was confirmed and explained by Head of General Security Directorate, Asayish, Esmat Argushi who said that, after being registered at the checkpoint and moving to the city, the IDP must register at the Asayish office in the neighbourhood where they want to live. There is an extra procedure to re-register with the Asayish to check that there are no problems. The IDP will then be issued a new card proving legal registration. According to the source, this ID card will permit the IDP to move around freely within KRI. Renewal of the ID card can take place at any Asayish office. ‘The border crossing points in the initial frontline are controlled by the Peshmerga. Further into the Kurdish controlled areas, at the next checkpoint posted at one of the main roads, the Asayish will register and check the travellers' names and IDs.’
7.1.3 The source also commented on the documents required (by IDPs) to enter the KRI (and Kurdish-controlled areas):
‘Three sources pointed to a variety of documents needed in order for IDPs to gain access to KRI and other Kurdish controlled areas. According to Journalist Osama Al Habahbeh, besides a sponsorship, IDPs who want to enter KRI must also show their Iraqi nationality certificate (in Arabic: 'shahadet al-jensiyya'). Journalist Shalaw Mohammed indicated that formerly, the authorities required seeing the nationality certificate and the food ration card to identify the origin of the person in question, and he or she was also asked to provide a Kurdish sponsor. Qandil stated that, officially, it is not possible to cross a checkpoint without ID documents. As sources of ID, IDPs can present their civil ID, their residence card or their nationality certificate in order to cross a checkpoint.’
7.1.4 The source also noted:
‘Various sources said that IDPs can enter KRI by air. Two of the sources said that Iraqi citizens can enter KRI through the airport without having a sponsor. In addition, IRC said that most IDPs are currently arriving in KRI by plane, and that most of these flights are coming from Baghdad. IOM said that IDPs from Baghdad usually have money to support themselves and would be welcome in KRI, if they arrive by domestic airline, not by car. The international humanitarian organisation further stated that entry through the airports was without problems, but that the IDPs cannot stay indefinitely, and they would have to register by the authorities at the airport. According to UNHCR, short-term residential documents are issued at the airport to those who come by air from abroad or from other places in Iraq and are extended at the place of residence upon issuance of security clearance by Asayish. In this respect, IDPs are able to settle in KRI temporarily. UNHCR and two sources stated different durations of the short-term residence permit. According to two sources, this short-term residence permit is being issued by the Asayish. The international humanitarian organisation explained that a person might be able to get away with not registering upon arrival in the airport, but that person would then not be able to move around freely inside KRI, and an unregistered person would not be able to rent a place to live.’
7.1.5 The source further commented:
‘Various sources stated that Iraqi citizens who originate from KRI will not face problems returning to KRI. Some of these sources, however, said that if an Iraqi citizen does not originate from KRI, the person must travel onwards to the area he or she is originally from when arriving through an airport in KRI.
‘In this respect, Head of the General Security Directorate, Asayish, Esmat Argushi stated that if the person holds a valid passport, the Kurdish authorities will treat the person as an Iraqi citizen, regardless of whether the person is Kurdish or Arabic. Asked if Iraqi citizens from outside KRI can return from abroad on a voluntary basis via airports in KRI, Esmat Argushi replied that forced return does not take place, and no returnees from Baghdad have been seen yet. However, if a person from Baghdad returning to Iraq from abroad tried to enter KRI, he would be returned to Baghdad by the Kurdish authorities. The same goes for a person from Kirkuk. He would be returned to Kirkuk. Similarly, IOM stated that, for a non-Kurdish Iraqi citizen, it is very difficult to enter directly through one of the airports in Sulaimania and Erbil and take residence in KRI.
‘PAO [Pubic Aid Organisation]/KHRW [Kurdish Human Rights Watch] stated that Iraqi citizens who are not citizens of KRI and who return from abroad, need to get a residence permit, or else they have to leave KRI. PAO/KHRW further explained that if IDPs cannot find a sponsor, they have to leave KRI. Journalist Shalaw Mohammed said that a returnee, who has been offered a contract with a company in KRI willing to sponsor him, may be exempted from this rule. In such case, the returnee may be given security clearance and be allowed to live in KRI...
‘Three sources said that ethnic Kurds, including Kurds from Kirkuk who can freely enter KRI, are exempted from the requirement of a sponsor. Human Rights Watch said that it is possible for ethnic Kurds with long residency in Kirkuk to gain access to KRI. With regard to the possibility for Kurds from Kirkuk not only to enter KRI but also to settle, Qandil said that ethnic Kurds have no problem settling in KRI. However, Human Rights Watch found it uncertain if ethnic Kurds from Kirkuk could settle in KRI, and added that there are examples of IDPs who are able to get into Kirkuk but not able to go from Kirkuk to KRI. An international humanitarian organisation said that whether or not ethnic Kurds can gain access to KRI would depend on the political affiliation of the individual person, and that it might still be complicated. Head of General Security Directorate, Asayish, Esmat Argushi, however, said that for ethnic Kurds with long-term residency in Kirkuk, the same procedure for entry into KRI applies as for all other Iraqi citizens.
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7.2 Residency requirements
7.2.1 The Danish fact-finding report observed:
‘As regards Iraqi citizens who want to apply for a residence permit, various sources stated that it requires a sponsorship. Two of these sources said that, when a person arrives in KRI, he can stay for one to two weeks as a tourist. The same sources, respectively, explained the procedure for applying for a residence permit, including presenting a sponsor, as follows:
‘PAO/KHRW said that if a person wishes to stay longer [than two weeks] in KRI, he must have a sponsor, and after finding a sponsor who must be publicly employed, the IDP must find a place to live and get a support letter from the local mukhtar. PAO/KHRW added that the sponsor should also get a support letter from the government agency where he is employed to confirm that he is still employed. Further, PAO/KHRW said that the IDP and the sponsor should then approach the local Asayish office with the support letter from the mukhtar, the support letter from the sponsor’s employer and all relevant ID, including the national ID card and the Public Distribution System card. PAO/KHRW said that if the request is denied, there is nowhere to lodge a complaint about the decision.
‘IOM said that if a person wants to stay in KRI for more than one week, the person must register at the local mukhtar’s office and the closest Asayish centre in the area where he stays within the first week of the stay. IOM added that if the person stays in a hotel for more than a week, without intention of settling in the neighbourhood, it is only necessary to have approval from the Asayish, and there is no need for approaching the mukhtar. According to IOM, here, the individual or the head of the family must present a Kurdish sponsor in person, a place of residence in KRI, registration details of the car and full name. To the knowledge of IOM, the family is given a paper with all names of the family members as well as the car registration number, and the one week residence permit will be extended for shorter periods of time until the security clearance by the Asayish is issued.
‘Three sources stated, however, that practice is inconsistent. Two of these sources explained that it is unclear which criteria must be fulfilled to obtain a residence permit. In line with this, Human Rights Watch said that there are different ways to obtain a permit, also depending on the governorate within KRI. IRC said that, for someone who is not connected, the registration for a residence permit in KRI can take a couple of years... ‘IOM stated that, with regard to processing of applications for residence permits and the duration of renewed residence permits, the procedure is arbitrarily implemented. According to IOM, sometimes, the temporary residence permit is extended for one week or a month or two months or sometimes even three months during the approval process for a permanent residence. To the knowledge of IOM, the decision may depend on the applicant’s background and place of origin.
‘According to PAO/KHRW, there is no fixed practice ensuring that an IDP can have a permanent residence permit after five years; it varies from place to place. Long-term residents, including IDPs who have lived in KRI for many years, are treated more favourably than new IDPs. However, PAO/KHRW said that they still need to renew their residence permit every three or six months or once a year, depending on the governorate they live in, and Kurdish IDPs do not have to renew their residence permits; only Arab IDPs do.
‘According to the international NGO, a permanent residence permit is a permit of one year, and it is renewable. IOM defined a residence permit as a renewable permit with an initial duration of six months.’
7.2.2 The British Embassy in Baghdad, in a letter dated 4 December 2014, noted:
‘A significant change in November is that the previous requirement to have a sponsor who is resident in the Kurdistan Region prior to admission has been removed (allegedly because sponsorships were being openly sold at certain checkpoints) and instead a new procedure is now in operation which requires IDPs to present themselves to the nearest Asayish office for screening and approval. Once approved, IDPs are issued with a residency card that entitles them to move freely within the governorates and rent private houses. Transit opportunities still exist for those who have valid plane tickets. Those arriving by air at Erbil or Sulamaniyah airports, are similarly being directed to report to the nearest Asayish office to regularise their stay. It is worth re-iterating the point that admission does remain at the discretion of Kurdish immigration and border officials and that temporary restrictions can be imposed and withdrawn without notice.’
7.2.3 The Danish fact-finding mission report observed:
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‘IOM stated that Kurds, including Kurds from Kirkuk, are exempted from the sponsorship requirement. …
‘A lawyer working for an international NGO stated that the procedure for entry into Erbil and Dohuk governorates is different from that of entry into Sulaimania Governorate:
‘IDPs wishing to enter Erbil or Dohuk Governorates should present themselves to the checkpoint of entry for approval, and Arab IDPs who are not already in possession of valid residence documents from Erbil Governorate will generally be denied entry at the checkpoint. The lawyer working for an international NGO added that Kurds, Yazidies and Christians are generally permitted entry to Erbil or Dohuk Governorates without pre-existing residence documents. However, during periods of heightened security, these groups may also face increased security restrictions.
‘With regard to IDPs wishing to enter Sulaimania, the lawyer working for an international NGO said that they must approach the checkpoint with the required documents, and permission is given to enter in the form of a tourist visa valid for thirty days. The source added that, after these thirty days, the IDP must register at the Bureau of Displacement and Migration (BoDM) and the local mukhtar as well as find a sponsor, depending on whether or not the sponsorship is being enforced at the given time.
‘The lawyer working for an international NGO further stated that the procedure in all governorates of KRI is very complex, requiring a number of documents that IDPs might have lost....
7.2.4 The source also commented on economic opportunities in the KRI:
‘Three sources said that the number of job opportunities in KRI is very limited for the host community as well as for IDPs. In this respect, ERC stated that, due to the financial crisis in KRI, even people from the host community are losing their jobs. Three sources indicated that the private sector is affected by the crisis, including the construction business and the oil business. Being among these sources, IRC added that many jobs in the oil sector are occupied by foreign labour. ‘When asked in which fields IDPs typically find jobs, three sources said that IDPs who manage to get a job will often find it in low-skilled fields, for instance construction or casual work in agriculture or restaurants. IRC further stated that IDPs with an education may be able to find work with NGOs; however, the number of jobs available in this field is low.
…
‘Different figures were given by three sources on the current unemployment rate in KRI, ranging from 6.5 percent to 35 percent.
‘Three sources pointed to competition for jobs in KRI between host community members, IDPs and Syrian refugees. Three sources said that IDPs are typically willing and able to work for lower salaries than members of the host community. IOM stated that they, as an organisation, are facing difficulties to find employment for Kurdish returnees who went back to KRI from Europe, as many companies downsize their workforce.’
…
7.3.2 The Danish fact-finding mission observed:
‘Various sources said that IDPs are no longer allowed to enter KRI, and that the border is closed. Journalist Shalaw Mohammed further explained that access for IDPs to Kirkuk and KRI stopped in February 2015. According to an example given by Shalaw Mohammed, the reason seems to be that the number of IDPs in some villages exceeded the number of host community inhabitants.
‘Two sources pointed to cases of IDPs who were let through the border control. Qandil said that exemptions were made for some humanitarian cases, IDPs already registered with the Ministry of Migration and Displacement (MoMD), IDPs having a local sponsor, students enrolled at an institution in KRI and single women. UNHCR said that flexibility towards members of the Christian community was seen.
‘Two sources said that many IDPs were waiting at the borders at the checkpoints, for instance on the road from Baghdad to Erbil, and that de facto settlements have been established. Osama Al Habahbeh said that the IDPs are sitting outside the checkpoint waiting to find a sponsor who can guarantee for them. IRC said that the local community, sometimes, provides accommodation for the IDPs.
‘According to Qandil, the procedures at border crossing checkpoints to KRI are inconsistent. Crossing of humanitarian cases is facilitated by UNHCR in coordination with the Asayish, but by the time of the meeting with Qandil, the daily operation of checkpoints was to a great extent dependent on the officers present at a given checkpoint on a given day and time...
‘Journalist Shalaw Mohammed said that for IDPs who wish to enter Kirkuk and KRI through checkpoints at the frontline, the access has currently stopped.
…
7.3.3 The report also observed:
‘UNHCR said that checkpoints are present in all parts of the Kurdish controlled areas, and sometimes temporary checkpoints are set up inside cities without prior notice.
Correspondingly, an international humanitarian organisation said that there are a lot of checkpoints in KRI and other Kurdish controlled areas but not inside Erbil city. According to the international humanitarian organisation, going from one city to another inside the Kurdish controlled areas, people have to pass checkpoints, at least when they leave one city, and when they enter another. IOM explained that, inside KRI, there are fewer checkpoints to pass than when travelling from the Kurdish controlled areas into KRI, and that the checkpoints within KRI are also easier to pass than the checkpoint bordering KRI. Three sources explained that ad hoc checkpoints may be set up within KRI for security reasons and in order to ransack cars when the authorities receive reports on illegal transport of weapons in the area. Various sources said that checkpoints inside KRI are manned by Kurdish authorities, either military forces or security personnel...
‘An international humanitarian organisation said that, in areas controlled by militias, there will be unofficial checkpoints. In line with this, two other sources said that, outside KRI in the contested areas, there are many unofficial checkpoints manned by tribes and armed opposition groups...
‘Different sources mentioned many types of ID documents that can be used for identification at the checkpoints. Head of the General Security Directorate, Asayish, Esmat Argushi explained that, at the checkpoints inside KRI, the procedure begins with a check of the IDP's ID documents to confirm that the IDP in question is an Iraqi citizen. Three sources stated that IDPs can present the nationality certificate in order to cross a checkpoint. One of these sources along with another source also stated that IDPs can present their civil ID. Qandil, however, stated that, without all the following ID documents, an Iraqi national is not able to travel domestically or pass through checkpoints: a civil ID card (in Arabic: 'al-betaqa as-shakhsiyya', also referred to as 'betaqet al-hawwiyya' or just 'al-hawiyya'), a nationality certificate (in Arabic: 'shahadet al-jensiyya') and a residence card (in Arabic: 'betaqet al-‘iqama').
‘Journalist Shalaw Mohammed said that, before the access to KRI stopped, the authorities also required seeing the food ration card (in Arabic: 'betaqet at-tamween') to identify the origin of the person in question. In addition, IOM said that when passing through a checkpoint, a person may be required to present a passport and sometimes a driving license. ‘IOM added that, in some cases, it is only the head of household who must present his or her documents, and that some people show their Kurdistan Democratic Party (KDP) or Patriotic Union of Kurdistan (PUK) membership card to facilitate their way through checkpoints. IOM explained that Kurdistan Democratic Party (KDP) cards might work in Erbil and Dohuk, and Patriotic Union of Kurdistan (PUK) cards might work in Sulaimania.
‘Qandil said that it is sometimes possible for travellers without documents to bribe their way through the checkpoints. Along with UNHCR, Qandil also expressed the view that the required type of ID document depends on ethnicity or religious belief. Qandil explained that the residence card is the most important document for Arabs to cross a checkpoint, whereas Christians, Kurds and Yazidis do not need a residence card to pass through checkpoints. UNHCR further stated that Turkmen and Christian IDPs can use the short-term residency to cross checkpoints.
…
‘According to Head of General Security Directorate, Asayish, Esmat Agurshi, the ID card will permit an IDP to move around freely within KRI. Various sources, however, stated that IDPs face restriction of movement.
‘PAO/KHRW said that if an IDP wishes to move from one part of KRI to another, the person would need the approval from the Asayish office in the place he is leaving as well as the approval of the Asayish office in the place he is moving to. Such approval must be brought to the real estate office. There are no specific criteria for getting such an approval; it depends on the individual officer at the Asayish office. Once an IDP is registered, there should not be need for further approval. However, there is restriction of movement for IDPs. If an IDP is registered in for instance Dohuk, the IDP cannot move to Erbil.
‘An international NGO explained that with few exceptions, IDPs cannot move between governorates. IDPs have to stay where they were first registered as IDPs. They will not be allowed to pass through checkpoints between governorates unless they have good connections. Human Rights Watch said that for IDPs already living in KRI, it does not mean that they can move freely within the region. Their residence is restricted to one governorate, and they require an additional permit to cross into another governorate. ‘A lawyer working for an international NGO stated that when a bombing happens and Sunnis are found to be behind the bombing, then all of a sudden Sunni Arabs are not able to move freely around KRI anymore.
‘According to Qandil, the freedom of movement between the governorates fluctuates depending on the security situation at a given time...
…
‘According to the Baharka IDP camp management, twenty percent of the IDPs were missing some kind of documentation, and IDPs without documents are not only restricted in their freedom of movement but also at risk of being detained. The Baharka IDP camp management added that, when IDPs leave Baharka camp, they have to leave a form of ID with the Asayish. Management of Baharka camp said that, as a consequence, these IDPs typically cannot register with the Ministry of Migration and Displacement (MoMD). They cannot obtain residential documents and without residential documents, they are not able to work legally as employees in KRI or to rent a house. Qandil informed that no IDPs living in camps have residence permits in KRI. In December 201574, UNHCR informed that, in Erbil Governorate, the authorities had just started to issue residencies to IDPs, which means that they will now have freedom of movement.’

A 2011 journal article on Iraq and mental health states:
The stigma attached to mental disorders has remained consistent over time in Iraq. Context analysis reveals:
1) the large degree of stigma leads users to seek care from primary care doctors, internists and neurologists, rather than psychiatrists;
2) most users of the mental health care system are primarily the severely mentally ill;
3) there is great reliance on local religious and cultural healers for assistance; and
4) family and communities, rather than the system of care, often assume responsibility for treating mental illness.
Furthermore, according to Sadik (2010), negative attitudes towards treatment, work, marriage and recovery from mental illness impact the degree of social inclusion, despite the fact that most of the Iraqi public understand the scientific underpinning of mental disorders.[7]
[7] Sonali Sharma, Jack Piachaud, 2011 ‘Iraq and mental health policy: a post invasion analysis’, Intervention Journal, Volume 9, Number 3, Page 332 – 344.
The 2010 article referred to in the above article, states
People who suffer from mental illness, the professionals who treat them, and indeed the actual concept of mental illness are all stigmatised in public perception and often receive very negative publicity….
… two thirds of respondents considered that mental illness was caused by something bad happening …, while less than a third thought mental illness was God’s punishment. Nearly two thirds viewed personal weakness as the cause of mental illness…. Around half of respondents thought people with mental illness should not get married, and that people with mental disorders should not have children while just under half thought one should avoid all contact with people with mental illness.
Just over half thought they could maintain a friendship with someone who had a mental illness, but less than one fifth thought they could marry someone with mental illness. Over half agreed that they would feel ashamed if a family member had a mental illness and over half would be afraid to have a conversation with a mentally ill person. While two thirds respondents thought that people with mental illness should have the same rights as anyone else, around half thought they would be disturbed about working in the same job as someone with a mental illness….
Attitudes towards mental illness in Iraq are very mixed, with large proportions of the population holding stigmatising attitudes towards people with mental illness in relation to treatment, work, marriage and recovery. The majority put the blame on the afflicted individual, avoided contact with them and would not openly discuss their own psychological problems.[8]
[8] Sabah Sadik, Marie Bradley, Saad Al-Hasoon, Rachel Jenkins, 2010, ‘Public perception of mental health in Iraq’, International Journal of Mental Health Systems.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the applicant’s Departmental records and his oral evidence, the Tribunal is satisfied the applicant is a citizen of Iraq. The Tribunal assesses the applicant’s claims against Iraq as his country of nationality and receiving country.
The applicant’s capacity
The applicant’s Agent provided medical evidence of the concerns for the applicant’s mental health. This included a Consultant Psychiatrist’s report and reports from government IHMS staff working in the immigration detention centres. The evidence indicates that the applicant has an acquired brain injury (ABI) with various diagnoses that he also:
·fulfils panic disorder criteria and experiences panic attacks;
·has [specified] symptoms;
·experiences [specified symptoms];
·has a history of [Medical Condition 1] with [associated symptoms];
·has reduced cognitive capacity;
·has a low-average IQ;
·has difficulty with abstract thought;
·is quite suggestible, easily led and influenced;
·is unable to reason through complex scenarios; and
·converses in a way akin to a preteen child.
All treating specialists and consultants strongly recommend a full neuropsychological evaluation for the applicant. This unfortunately has not occurred to date despite the applicant being under governmental care in immigration detention and in prison for the past several years.
At hearing the applicant’s presentation did not suggest there were any inaccuracies in his treating doctors’ expressed assessments. He was easily confused and often unable to comprehend relatively simple questions. At times he did not appear to be giving considered responses, instead readily agreeing with something put to him while looking confused, or else simply stating “I don’t know”. He also appeared somewhat agitated at times by his lack of understanding, as well as by the efforts required of him to concentrate. His responses, when he could made them, were generally very brief and expressed in simple words.
The Tribunal did not get a sense that the applicant was able to provide more than a minimal amount of information and evidence about his situation and his protection claims. The Tribunal formed an impression that the applicant does not have particularly coherent insights regarding his potential future in Iraq beyond a base fear he will not survive there and a primary need to remain in Australia with his family.
When the Tribunal tried to explore with the applicant the cause of his [Body Part 1] injury, the applicant became very distressed at his recall of the incident in which he claims to have been beaten, so that the hearing was briefly adjourned.
While the Tribunal was unable to obtain much information directly from the applicant, a great deal of evidence has been provided on his behalf by his Agent, treating IHMS doctors, Consultant Psychiatrist, and his father. Given the nature of the applicant’s protection claims the Tribunal considers there is sufficient evidence before it to determine his review application.
The applicant’s claims
The applicant claims to fear harm on return to Iraq for the following reasons:
·     As a Sunni
·     As a Kurd
·     As a person with mental illness
·     As a person convicted of a [specified] offence
·     Because his uncle has met with [named former senior official in Country 2]
·     Because he has become unfamiliar with Iraq and the Arabic and Kurdish languages
·     Because of his lack of Iraqi identity documents
·     Because he will be without support and will become destitute and may end up in jail in Iraq
·     Because of his father’s enmity with an influential Kurdish family; and
·     As a person returning from overseas or a ‘western’ country.
The Tribunal accepts the applicant is an Iraqi Sunni Kurd on the basis of the unrefuted available evidence.
On the basis of the applicant’s medical evidence and his presentation the Tribunal also accepts the applicant has an acquired brain injury and significant mental health issues. As raised in the medical reports and in his manner of presentation at his Tribunal hearing the Tribunal also accepts that he seems to have a low IQ and reduced cognitive capacity.
The applicant submitted photographs of his uncle meeting [a named former senior official in Country 2] and the Tribunal accepts this occurred.
There is state evidence on the Department’s file about the applicant’s criminal convictions in Australia and the Tribunal accepts that he has been convicted of [a serious] offence here.
The Tribunal accepts that the applicant’s fluency in Arabic may have substantially diminished through lack of use and exposure to the language. However the Tribunal considers that the applicant’s lack of fluency in the Kurdish language has been exaggerated in his written submission and by his advisors. There were several occasions at hearing when the applicant commenced to interpret in Kurdish on behalf of his parents in the hearing room (on logistical matters) but was quickly stopped by his Agent who prompted that this would be better done by his brother. The Tribunal also notes that the applicant’s formative years were in Iraqi Kurdistan where Kurdish is the principle language, and that Kurdish is the language his parents have communicated in with him. There is no persuasive reason why the applicant would have lost his Kurdish language abilities. The Tribunal therefore does not accept that the applicant speaks only broken Kurdish or that he has lost his ability to communicate in Kurdish to any significant extent.
The applicant has consistently maintained that his only relatives who remain in Iraq are his grandmother and aged aunt and her immediate family. He has also consistently stated that they are now living outside of the KRI, in Kirkuk, and that they have little money. There is no indication that these aspects of the applicant’s evidence are incorrect. The Tribunal accepts that the applicant’s remaining relatives in Iraq consist only of his grandmother, aged aunt and her immediate family, that they live in Kirkuk, and that they are not wealthy. The Tribunal accepts the applicant has no other friend, relative or contact in Iraq.
The applicant and his family arrived in Australia on Australian Travel Documents issued to them in [Country 4]. There are no Iraqi identity documents on the applicant’s files and no reference to him possessing any. In view of the manner in which he and his family left Iraq it is plausible that he does not possess Iraqi identity documents. On the basis of the information before the Tribunal it accepts that the applicant does not possess Iraqi identity documents.
The evidence regarding threats to the applicant’s [family] from [Family K] was provided by the applicant’s father only. During the hearing the applicant’s father spoke clearly, simply and without hesitation about the past incident which resulted in him leaving Iraq for [Country 1]. The Tribunal accepts his evidence that he assisted his young employee to marry a woman without her family’s permission; that the couple were killed by the woman’s family; and that the family also held the applicant’s father responsible so wished to harm him. The Tribunal accepts that he had not previously disclosed this information in any detail to the applicant because of the applicant’s own substantial problems in Australia.
Access to the KRI
The applicant and his family originate from Sulaymaniyah in the Kurdistan Region of Iraq (KRI), so that if the applicant returns to Iraq this would nominally be the place of his return.
The applicant has a few remaining relatives in Kirkuk. However Kirkuk is not part of the KRI. He therefore has no family support or contacts in the KRI itself.
Given the available country information the Tribunal considers that the applicant will have difficulty entering and being allowed to reside in the KRI. The country information highlights the high level of scrutiny of new arrivals to the KRI, as well as some uncertainty as to how entry and residence will be imposed and enforced on a case by case basis. The information also discloses the imperative need for identification papers.
As an ethnic Kurd who originates from Sulaymaniyah the applicant has some chance of encountering more relaxed rules of entry and residence. However without documents and family and contacts still living there his ability to prove the KRI is his place of origin is constrained. In addition it is doubtful that the applicant has the skills and emotional maturity to successfully negotiate entry to the KRI.
Fear of harm in the KRI
If he is able to enter and reside in the KRI the applicant has raised claims to fear harm in the KRI.
The applicant has claimed to fear harm in the KRI as a Sunni Kurd. The Tribunal notes the country information that the majority of people living in the KRI are Sunni Kurds. The Tribunal has not located any information to indicate that there is a chance of harm to Kurds who are Sunni in the KRI simply on the basis they are Sunni and/or Kurd. The Tribunal is not satisfied there is any chance of harm to the applicant in the KRI as a Sunni and/or a Kurd
The applicant has also raised claims relating to his mental health, criminal conviction, and father’s enmity with a local family.
The available country information, including DFAT’s report, states that people with mental illness are highly stigmatised and discriminated against in Iraq. Studies also highlight that many people in Iraq do not want to associate or work with a person with mental illness.
The applicant currently has no home and no work or ready prospects for work in the KRI. Given he has no existing support within the KRI the applicant will by highly vulnerable and exposed to discrimination there. As a result, he will likely have great difficulty finding accommodation and employment in the KRI.
The Tribunal considers that the applicant’s mental health issues and his low cognitive capacity are therefore likely to render him highly vulnerable to stigma and discrimination which would readily lead to his destitution and homelessness.
The Tribunal does not consider that the applicant’s father’s past problems with a powerful Kurdish family represents a direct threat to the applicant’s safety in the KRI. However it accepts that it will add to his problems in seeking help and support within the KRI. Given the importance of background, especially family background, it would conceivably be just a matter of time before the applicant is identified as his father’s son, so that the family’s past local conflicts will attach to the applicant. As someone closely connected to the dishonouring of an influential Kurdish family in the area the applicant can expect some withholding of support for him.
Additionally the applicant’s past conviction for [a serious] offence will further cause others to distance themselves from him. The applicant’s mental health struggles, difficulty with abstract thought processing and comprehension, as well as the spreading of information amongst the Iraqi Kurdish community both here and in Iraq, lead to a real chance that the applicant’s criminal history will be discovered on return to Iraq.
The Tribunal consider that the applicant has a cumulative profile of adverse factors, as a person:
·with substantial mental health issues
·low cognitive capacity
·convicted of a [serious] offence
·who is single; and
·who has a family based enmity with an influential local Kurdish family.
In the Tribunal’s view, in an environment of high and growing unemployment and overcrowding in the KRI, there is a real chance these aspects of the applicant’s profile will result in the withholding of both support and opportunities for employment and accommodation, as well as restrict his access to basic services. The Tribunal is satisfied this will result in significant economic hardship to the applicant that threatens his capacity to subsist. The Tribunal is therefore satisfied there is a real chance of serious harm to the applicant in the KRI.
The adverse aspects of the applicant’s profile, as listed above, each bring the applicant within membership of a particular social groups as defined by the Act. They each have a particular characteristic shared by members of the group which is either innate or immutable, and which is not the fear of persecution.
The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is his membership of each of these particular social groups. Combined, they heighten the chance of the serious harm occurring to a real one.
The Tribunal is satisfied that the harm involves systematic and discriminatory conduct in that it will be done to the applicant selectively and intentionally. The nature of the harm feared by the applicant means that there are no effective protection measures available to him.
Fear of Harm in Greater Iraq (outside the KRI)
If it eventuates that the applicant cannot enter or reside in the KRI he will be forced to live outside that region.
According to DFAT’s latest report, “disproportionately high numbers of IDPs come from minority communities, including Sunnis,…. DFAT assesses that, in most cases, internal relocation for religious and ethnic minorities is difficult.” Reports from the UK Home Office, referred to above, also highlight the dangers for Sunnis to try to live in areas of Iraq where they are a minority and/or have no support.
The above country information indicates the applicant will be at risk of harm as a single male Sunni and a Kurd living outside of his home area without support. The prevalence of Shia militias and paramilitary groups, the ongoing and rebuilding ISIS activity, and the anti-Sunni suspicions in much of Iraq create an environment where there is a real chance the applicant would be seriously harmed in Iraq.
Fear of Harm in Kirkuk
The applicant has relatives in Kirkuk however Kirkuk has recently experienced the Bagdad government’s use of its armed forces to reassert its power and control over the territory. The country information shows Kirkuk to be an unsettled area hosting the second largest population of people needing assistance in Iraq (1.6 million). Shia militias remain present in Kirkuk. Kirkuk has also been subject to attacks by ISIS in 2018 and, as a former ISIS territory, it remains one where ISIS activity is building in its fringes. As such the Tribunal considers there is a real chance of serious harm to the applicant as a young male Sunni and/or Kurd if he tries to access Kirkuk and establish himself there.
Section 36(3)
The is no indication before the Tribunal that the applicant has a right to enter and reside in any third country and the Tribunal accordingly finds he has no such right.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Iraq for reason of his membership of particular social groups. The Tribunal therefore finds that he satisfies s.36(2)(a) of the Migration Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Melissa McAdam
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 1303

18 January 2019

Key Legal Topics

Areas of Law

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