Background
Background to the litigation
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND The applicants are husband, wife and their two children. They are citizens of Iraq. The first named applicant (the applicant) arrived in Australia [in] March 2015 as a holder of a Student visa (Subclass 574) as a dependant of the second named applicant (the applicant wife). He applied for a Protection visa on 10 March 2016 and included the third named applicant (the applicant son) and the fourth named applicant (the applicant daughter) in the application as members of the same family unit. The applicant’s children did not make their own separate claims for protection at that time. On 24 May 2017, the applicant wife was added to the application as a member of the same family unit and did not make her own separate claims for protection. CLAIMS AND EVIDENCEProtection visa application According to his Protection visa application form, the applicant is a [age]-year-old Shi’a Muslim and a national of Iraq. He was born in Baghdad. Other than residing in [Province 1] from 2006 to 2008, he resided with his family in Baghdad until his departure from Iraq. The applicant’s parents are deceased. He has [a sibling] who lives in [Country 1] and [other siblings] residing in Iraq. After finishing high school, the applicant obtained a bachelor’s degree and a masters degree in [field]. He then completed a PhD in the same [field]. He subsequently worked as [an Occupation 1] for a number of [media organisations]. In 2006, he was employed as a professor at [Employer 1] in Iraq and held teaching positions [at Employer 2] and [Employer 3]. He continues to be an employee of [Employer 1], but he is placed on extended leave due to his travel to Australia.Claims for protection In a statement dated 15 February 2016 and attached to his Protection visa application, the applicant made the following claims for protection. He has been threatened with death and members of his family, as well as his close friends have been harmed and killed. He fears returning to Iraq because he will be subjected to discrimination, humiliation, and harm due to his profile and work in [media organisations]. After the fall of Saddam Hussein, he worked for media organisation, including [Employer 4] for many years as [an Occupation 1], covering Iraqi news stories relating to the US military and military operations of the Coalition forces in Iraq. In addition, [Employer 4] covered news stories relating to the activities of terrorist groups, such as Al-Qaeda and other armed insurgent groups targeting Coalition forces and Iraqi citizens. Due to the nature of his work, he faced many challenges and difficulties. He was subjected to threats by ‘terrorist groups’, who threatened him more than once with ‘wasting his blood’ and accused him of working with foreigners.
Evidence
Evidence Before The Court
On 24 May 2017, the applicant wife was added to the application as a member of the same family unit and did not make her own separate claims for protection. CLAIMS AND EVIDENCEProtection visa application According to his Protection visa application form, the applicant is a [age]-year-old Shi’a Muslim and a national of Iraq. He was born in Baghdad. Other than residing in [Province 1] from 2006 to 2008, he resided with his family in Baghdad until his departure from Iraq. The applicant’s parents are deceased. He has [a sibling] who lives in [Country 1] and [other siblings] residing in Iraq. After finishing high school, the applicant obtained a bachelor’s degree and a masters degree in [field]. He then completed a PhD in the same [field]. He subsequently worked as [an Occupation 1] for a number of [media organisations]. In 2006, he was employed as a professor at [Employer 1] in Iraq and held teaching positions [at Employer 2] and [Employer 3]. He continues to be an employee of [Employer 1], but he is placed on extended leave due to his travel to Australia.Claims for protection In a statement dated 15 February 2016 and attached to his Protection visa application, the applicant made the following claims for protection. He has been threatened with death and members of his family, as well as his close friends have been harmed and killed. He fears returning to Iraq because he will be subjected to discrimination, humiliation, and harm due to his profile and work in [media organisations]. After the fall of Saddam Hussein, he worked for media organisation, including [Employer 4] for many years as [an Occupation 1], covering Iraqi news stories relating to the US military and military operations of the Coalition forces in Iraq. In addition, [Employer 4] covered news stories relating to the activities of terrorist groups, such as Al-Qaeda and other armed insurgent groups targeting Coalition forces and Iraqi citizens. Due to the nature of his work, he faced many challenges and difficulties. He was subjected to threats by ‘terrorist groups’, who threatened him more than once with ‘wasting his blood’ and accused him of working with foreigners. His older brother, [Mr A], was shot and killed [in] 2005. He believes he (the applicant) was in fact the intended target. This incident forced him to flee his home and live at [Location 1] away from his family. [Location 1] had fortified security due to the presence of the Coalition forces and foreign security companies. His wife, his infant son and his mother, who was paralysed at that time, were also forced to relocate. His house was subjected to vandalism, destruction and many of his belongings were seized. After he began working as a college lecturer in [Employer 2], he was targeted due to his employment. As a result, the [employer] offered him a gun and ‘identity permit’ to defend himself. He declined the offer as it was against his views. [In] 2006, he decided to leave Baghdad to go to [Province 1] with his family after he was threatened with murder, arson and kidnapping. In [Province 1], he worked as a lecturer at [Employer 3], as well as in ‘the media industry’ at [Employer 5]. At around that time, the security situation in Iraq further deteriorated as armed insurgent groups launched attacks on Iraqi and the Coalition security forces and those perceived to be associated with them, including the media.
Decision
Reasons for decision
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are members of the same family unit as the applicant and his daughter for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the other family members’ application. It follows that the second and third named applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.DECISION The Tribunal remits the matter for reconsideration with the following directions:(i) that the first and the fourth named applicants satisfy s 36(2)(a) of the Act; and(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and the fourth named applicants.Shahyar RoushanSenior Member5 (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.…ATTACHMENT - Extract from Migration Act 19585H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor 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 familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…
Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Analysis, findings and reasons For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.The applicant The Tribunal found the applicant to be a credible and reliable witness. His evidence to the Tribunal was entirely consistent with the written and oral evidence he had previously provided to the Department and his claims were supported by numerous documents and information from independent sources. The Tribunal had no reason to doubt the authenticity of the documents submitted by the applicant in support of his application. The Tribunal accepts that the applicant was continuously employed as [an Occupation 1] by a number of different media organisations and outlets from 1995 until his departure from Iraq. The Tribunal accepts that he was also employed by [Employer 1], working as a respected academic and a university professor in Iraq from 2006 onwards. The Tribunal accepts that the applicant continues to be on leave without pay from [Employer 1]. The Tribunal further accepts that the applicant continues to be active in the field media in Australia. The Tribunal finds that if the applicant were to be removed to Iraq, he would return to his position as a university professor and seek employment with medial organisations in that country. The Tribunal also finds that the applicant has expressed views critical of Iraqi government, including in relation to prevalence of corruption, on his [social media] page. The Tribunal is satisfied that the applicant’s conduct in Australia has not been for the purpose of strengthening his claim to be a refugee. The sources consulted by the Tribunal clearly indicate that academics in Iraq, regardless of their field of teaching or research, have been the subject of threats assassination, and kidnapping over the course of a number of years.[1] Whilst it appears that this targeting and the attacks peaked during the period when Da’esh was highly active and in control of large parts of Iraq, they have continued to occur at the hands of different actors following Da’esh’s defeat.[2] [1] See the website of Scholars at Risk Network for a comprehensive chronicle of these incidents in Iraq over a number of years: Region: Iraq | Scholars at Risk.[2] See, for example,‘Unidentified gunmen assassinate a professor in Misan’, Shafaq News, 17 December 2020, Unidentified gunmen assassinate a professor in Misan (shafaq.com); ‘Baghdad journalism professor shot dead by unknown gunmen’, Kurdistan 24, 28 January 2020, Baghdad journalism professor shot dead by unknown gunmen (kurdistan24.net); ‘Series of assassinations feared after professor killed’, Aljazeera Iraq, 17 December 2020, Iraq: ‘Series of assassinations’ feared after professor killed | Human Rights News | Al Jazeera.