1807127 (Refugee)

This matter concerned an application for a protection visa by a citizen of Iraq. The applicant claimed he feared returning to Iraq due to ongoing violence, lack of family support, potential targeting as a long-term resident abroad, and his Kurdish ethnicity, which he believed placed him in danger from ISIL. He also cited significant mental health issues, including an acquired brain injury, reduced cognitive capacity, and a history of panic disorder, arguing he would be unable to adjust to life in Iraq. The Federal Court remitted the decision for reconsideration.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically considering whether he would suffer significant harm if returned to Iraq. This involved assessing the real risk of harm arising from his particular circumstances, including his mental and cognitive impairments, his lack of a support network in Iraq, his criminal record and associated difficulties, and the general country conditions in Iraq, particularly for religious and ethnic minorities. The court also had to consider the applicant's capacity to subsist and access basic services upon return.

The court considered extensive medical evidence detailing the applicant's significant mental health issues and reduced cognitive capacity, noting he converses in a manner akin to a pre-teen child and is highly suggestible. It also noted the stigmatised public perception of mental illness in Iraq, as evidenced by a 2010 article, suggesting a real risk of mistreatment and lack of adequate care. Despite the delegate's finding that relatives in the Kurdistan Region of Iraq could assist the applicant, the court found this insufficient to mitigate the real risk of significant harm. The court reasoned that the applicant's severe cognitive and mental health impairments, coupled with his lack of any established support network in Iraq and his criminal record, meant he would be unable to navigate the challenges of return, including accessing basic services and avoiding further harm. The court concluded that the applicant faced a real risk of significant harm, not meeting the criteria for a protection visa under s 36(2)(a) but satisfying the complementary protection criterion under s 36(2)(aa).

The Federal Court set aside the decision under review and remitted the application to the Tribunal to be decided according to law, with a direction that the applicant meets the criteria for the grant of a protection visa.