1808191 (Refugee) - [2022] AATA 2049

1808191 (Refugee) [2022] AATA 2049 (19 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1808191
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Shahyar Roushan
DATE:19 May 2022
PLACE OF DECISION:  Sydney
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 Migration 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 named applicant.

Statement made on 19 May 2022 at 5:56pm
CATCHWORDS
REFUGEE – protection visa – Iraq – imputed political opinion – critical of Iraqi government – anti-corruption – particular social group – academics in Iraq – journalists or employees of media organisations in Iraq – persons with disabilities in Iraq – fear of harm from extremist groups and security forces – threats, deaths of brother and colleagues and arson attack on workplace – relocations and living in hiding – continuing involvement in relevant activities in Australia – mental health – members of family unit – child’s genetic condition, intellectual and physical disabilities and treatment –risk to daughter of gender-based violence or sexual abuse – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(4)(b), (c), 36(2)(a), (b)(i), (ii), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZBBP v MIMIA [2005] FMCA 5
SZBQJ v MIMIA [2005] FCA 143
SZTEQ v MIBP (2015) 229 FCR 497
VBAO v MIMIA (2006) 233 CLR 1
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 dependants.
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 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 EVIDENCE
Protection 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.
[In] 2007, his colleague, [Mr B], was assassinated due to his work in the media. [Later in] 2007, whilst working in [Province 1], armed groups broke into [the premises of Employer 5] and [caused severe damage]. The applicant received threats from armed groups on numerous occasions, including on his mobile phone. Due to these incidents, [the Police] asked him to carry weapons to defend himself. He declined and instead took precautions and remained in hiding, isolating from the community and his family.
[In] 2008, he was on his way to attend the police station to report the phone threats, when he received a threatening phone call, advising him that the police could not protect him and reporting won’t help him. He was told to leave [Province 1] in 72 hours with his family, otherwise he will be murdered like his colleague, [Mr B].
[Later in] 2008, the applicant returned to Baghdad where he went into hiding in the [Suburb 1] area. Due to his fear, he ‘did not leave a trace’ and did not let anyone know his address. He only travelled to [Employer 2] and [Employer 5] for work assisted by the guards at [Employer 5].
[In] 2010, his friend and colleague, [Mr C], was attacked by a group of terrorists, resulting in the death of [Mr C]’s son, [Mr D]. Due to this incident, he decided to relocate to [location] with his family and went into hiding. He feared for the safety of his wife and son because of his employment, so he decided to move his son from a public school to a private school, which provided better protection. His wife also took long leaves of absence from her [employer].
In 2011, the applicant travelled with his wife to [Country 2] to seek [medical] treatment. The applicant wife subsequently gave birth to the applicant daughter, who was diagnosed with [Genetic Condition 1]. In 2013 and 2014, the applicant visited [Country 3] with his daughter for medical checks and follow-up appointments.
[In] 2015, the applicant received a letter containing death threats from unknown persons. The letter stated that he must leave his work, otherwise he and his family will be killed. He believes the letter was sent by members of Da’esh. He called the police who advised him to leave the region instantly to ensure the safety of his family. He left [home] to reside with his brother in [Suburb 2], Baghdad. Soon after, his wife obtained a Student visa and the family travelled to Australia in order for his wife to complete her [studies].
Supporting documents
In support of his application, the applicant submitted copies of identity documents, educational qualifications, work references, character references and numerous photographs. He also submitted the following supporting documents.
a.Copy and translation of a death certificate in relation to the applicant’s brother, [Mr A], dated [2005].
b.Copy and translation of a letter issued by Ministry of Displaced and Migrants Directorate, dated [2006], stating that the applicant is a displaced person and residing in [Province 1].
c.Copy and translation of a letter issued by Commander of the Institutions Protection, dated [2007].
d.Copy and translation of letter by [Mr C] to [named] Police Centre, dated [2011], regarding the murder of his son.
e.Copy and translation of a letter, dated [2015], issued by [Judge E], the Supreme Judicial Council, in relation to an attestation made by the applicant regarding an incident [in] 2015.
f.Copy and translation of a letter issued by the Supreme Judicial Council addressed to [a] Hospital in relation to the death of [Mr D], dated [2010].
g.Copy and translation of the applicant’s ‘Weapon Holding Card’ issued by [Province 1] Police Command [in] 2008.
The interview
The applicant attended an interview with the Department on 30 May 2017. The interview was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s then representative attended the interview by telephone. Where relevant, the applicant’s oral evidence to the Department is referred to below.
The delegate’s decision
On 19 March 2018, a delegate of the Minister refused the Protection visa application. The delegate accepted that the applicant worked in the media industry and that he may have been threatened in the past because of this work. The delegate also accepted that people working in [media organisations] in Iraq may have been targeted during that period as claimed by the applicant. However, the delegate did not accept that the applicant’s colleagues were killed because of their association with the media industry or that there was any threat of harm to the applicant due to his work as an academic. In addition, the delegate did not accept that the murder of the applicant’s brother was for any reason related to the applicant or that the applicant was threatened with death in 2015. The delegate also relied on the applicant’s travels to [Country 3] and [Country 2] and his delay in applying for a Protection visa to draw adverse credibility findings. The delegate was not satisfied that the applicant’s claims give rise to a real chance or a real risk that the applicant will suffer serious or significant harm if he were to be removed to Iraq.
Review application
On 26 March 2018, the applicant applied for a review of the delegate’s decision. He was represented in relation to the application initially by [Mr F] and subsequently by [Mr G].
Pre-hearing Submissions
On 29 November 2019, the applicant’s representative made submissions to the Tribunal, stating that the applicant has experienced a major deterioration of his mental health due to his visa refusal and lengthy processing times. The representative submitted the following supporting information.
·A letter dated 15 November 2019 by [Ms H], Manager [Organisation 1]. [Ms H] essentially outlined the applicant’s observed symptoms and stated that the lengthy processing time has had an adverse impact on the applicant’s mental health and well-being and has further exacerbated his longstanding PTSD. She noted that the applicant has been referred to a Psychiatrist, [Dr I].
·A letter dated 7 September 2019 by [Dr J], stating that the applicant has been attending his practice for the last two years and has been diagnosed with diabetes, severe anxiety, depression and post-traumatic stress disorder. The applicant has also been referred to a psychologist.
On 27 September 2021, the applicant’s representative made further submissions, stating that the applicant daughter requires a high standard of care which cannot be met by her parents as the applicant’s PTSD continues to worsen as a direct consequence of the application processing time, diminishing the applicant’s capacity to care for his disabled daughter. In support of his submission, [Mr G] submitted the following documents.
·A report dated 17 December 2020 by Orthoptist [Ms K] providing her findings in relation to the applicant daughter’s Low Vision Assessment.
·An individual plan dated 23 July 2021 by the Department of Communities, stating that the applicant daughter has a diagnosis of intellectual disability and [Genetic Condition 1]. The plan outlines the applicant daughter’s current health circumstances and treatment, including ongoing speech therapy, physiotherapy, occupational therapy and group therapy sessions.
·A service plan dated 2 July 2020 by [Speech Pathology Provider 1] outlining long term goals for the applicant daughter.
·A letter dated 24 September 2021 by [Dr J] confirming the applicant daughter’s diagnosis of [Genetic Condition 1].
·A letter dated 22 June 2020 by NDIS, advising that the applicant daughter’s request to access the National Disability Insurance Scheme has been refused as she does not meet eligibility requirements.
On 18 October 2021, the applicant’s representative submitted the following additional evidence in relation to the applicant:
·Letter dated 3 June 2020 by [Dr I], Consultant Psychiatrist, stating that the applicant has high levels of anxiety due to the ongoing uncertainty relating to his immigration status. [Dr I] also stated that the applicant has development symptoms of high generalised anxiety with episodes of panic as a result he is unable to feel safe or secure and has enormous anxiety as a result of his concerns for the welfare of his disabled daughter. [Dr I] stated that this directly affects his daily functioning ‘as he seeks to withdraw socially and remain within the house’.
·A letter dated 14 October 2021 by [Ms L], Trauma Counsellor, stating that the applicant has been attending counselling since September 2019 and that there has been no improvement in his symptoms. [Ms L] stated that the applicant continues to present with high levels of anxiety and stress due to the uncertainty associated with his immigration status.
On 25 March 2022, [Mr G] made further submissions in support of the review application. It was submitted that the applicant fears harm in Iraq due to his occupation as [an Occupation 1], his work as a university professor, his perceived wealth as a professional, and as a person who has lived and studied for a significant period in Australia. He also holds fears on behalf of his disabled daughter and the likely treatment she will face in Iraq.
[Mr G] submitted that the delegate had failed to consider all the relevant documents, including the letter containing the death threat received by the applicant in [2015] and the letter dated [2015] issued by [Judge E] of the Supreme Judicial Council, in relation to an attestation made by the applicant regarding the death threat. [Mr G] contented that the delegate failed to consider documents and reports provided by the applicant detailing the [Province 1 workplace] incident.
[Mr G] further submitted that the applicant was employed at [Employer 5], which was a [foreign funded media organisation] set up after the fall of Saddam Hussein. In [2003], the organisation was described as [pro-American]. [Mr G] listed a number of recent news articles relating to the targeting of journalists in Iraq and submitted that it is clear that the applicant’s colleagues were targeted because of their profile as journalists or academics. These colleagues included Professor Alaa Mashthob and Professor Ahmed Al-Sharifi, as well as Ahmed Abdul Samad (prominent journalist), Mr Safaa Ghali (cameraman), Amjad Al-Dahamat (civil activist), Ahmed Hassan (reporter) and Ahmed Muhana al-Lami (cameraman).
[Mr G] stated that the applicant’s position as a professor at [Employer 2] significantly raises his profile in Iraq and that there was no basis for the delegate to conclude that the applicants claim that he was targeted six months prior to his departure from Iraq to be highly implausible. This is supported by the orders made by the Iraqi Ministry of Interior allowing professors in Iraq to carry a firearm with them at all times to defend themselves. It was submitted that the applicant continues to work in the field of media, volunteering for [Organisation 2] and his son’s [school].
With regard to the applicant daughter, [Mr G] submitted that that the applicant has grave fears for his daughter’s well-being due to her intellectual disability if she were to return to Iraq. The applicant daughter does not speak Arabic and will be unable to access any relevant treatment as Iraq’s health system is fractured. [Mr G] referred to documents previously submitted, and the information contained in the current DFAT’s Country Report regarding health care and the treatment of persons with disabilities in Iraq, contending that the applicant daughter’s future in Iraq is likely to be very bleak. Not only she will not have access to adequate care, it’s very likely that she will also encounter constant harassment and bullying at school and at the hands of the general public.
The hearing
The applicant appeared before the Tribunal on 4 April 2022 via video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. [Mr G] also attended the Tribunal hearing by video. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
Post-hearing submissions
On 11 April 2022, the Tribunal received further documents from [Mr G], including evidence of reports/publications the applicant has submitted as an academic in Iraq in the form of citations; evidence of the work he undertook as [an Occupation 1] in Iraq in the form of [links]; evidence of the applicant’s activity on [social media], where he has posted political views and opinions critical of the Iraqi government and its policies, and corruption. [Mr G] also forwarded evidence in relation to the extent of the applicant daughter’s disabilities.
In a covering submission, [Mr G] stated that the applicant’s fears largely arise from a combination his occupation as [an Occupation 1], particularly with the foreign owned [Employer 4] and [Employer 5], his work as a professor at [Employer 2], his perceived wealth as a professional and a person who has lived and studied for a significant period in Australia, and fears over issues that will confront his daughter, related to the latter’s mental health.
It was submitted that, despite the risk of harm he would encounter in Iraq, the applicant would continue his work as [an Occupation 1] and academic should he return there. The applicant fears harm from Shi’a Militia groups and the Iraqi Security Forces (ISF), whom he considers the most likely perpetrators of harm against him. These groups are now more powerful and can act with impunity in Iraq as described in the country information discussed in our pre-hearing submission. These groups are motivated to harm the applicant due to his profile as [an Occupation 1], academic and Western collaborator who speaks out against human rights abuses committed by these groups. [Mr G] referred to a number of news articles and relevant reports in support of his submissions.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law

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 themselves 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.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.
Similarly, there are ample sources suggesting that journalists and persons involved in the media in Iraq through employment, including cameramen, photojournalists and reporters, are also routinely targeted and murdered for a variety of reasons by different groups and militia groups.[3] The Tribunal accepts that Shi'a militias, particularly certain factions of Popular Mobilization Forces (PMF) have played a prominent role in recent years in targeting journalists for reporting on a wide variety of matters, such as provincial events, protest activities, corruption, and abuses by security forces.[4]
[3] See ‘Gunmen kill 2 journalists covering Iraq protests’, Arab News 11 January 2020, Gunmen kill 2 journalists covering Iraq protests | Arab News; ‘Iraqi journalist in critical condition after assassination attempt in Diwaniyah’, Rudaw, 10 May 2021, Iraqi journalist in critical condition after... | Rudaw.net; ‘Unknown gunmen abduct Iraqi journalist Tawfiq al-Tamimi in Baghdad’, Committee to Protect Journalists, 17 March 2020, Unknown gunmen abduct Iraqi journalist Tawfiq al-Tamimi in Baghdad - Committee to Protect Journalists (cpj.org); and ‘Prominent journalist Ahmed Abdul Samad and cameraman Safaa Ghali assassinated’, GCHR Iraq, 11 January 2020, Prominent journalist Ahmed Abdul Samad and cameraman Safaa Ghali assassinated (gc4hr.org).
[4] A Thousand Hezbollahs: Iraq’s Emerging Militia State, New Lines Institute, 4 May 2021, A Thousand Hezbollahs: Iraq’s Emerging Militia State - New Lines Institute; Louisa Loveluck and Mustafa Salim, Iraqi military admits to ‘excessive force’ in crackdown against protesters, Washington Post, 7 October 2019, Iraqi military admits to ‘excessive force’ in crackdown against protesters - The Washington Post; Crispin Smith, Hamdi Malik and Michael Knights, Team of Legal Gladiators? Iraqi Militias’ Tortured Relationship with Law Just Security 12 April 2021, Threats against Iraqi journalist after political corruption revelations, Reporters Without Borders, 29 May 2019, Threats against Iraqi journalist after political corruption revelations | RSF; Militias threaten journalists covering protests in Iraq, Reporters Without Borders, 22 November 2019; Human Rights Watch, ‘We Might Call You in at Any Time’: Free Speech Under Threat in Iraq, 15 June 2020, ‘We Might Call You in at Any Time’: Free Speech Under Threat in Iraq | HRW; John Beck, Is Iraq the most dangerous country for journalists?, Aljazeera, 1 November 2017, Arwa Ibrahim and Azhar Al-Rubaie, Iraqi journalists fear for lives after Basra reporters killed, Aljazeera, 12 January 2020, Iraqi journalists fear for lives after Basra reporters killed | Freedom of the Press News | Al Jazeera.
On the basis of the evidence before it, the Tribunal finds that there is a real chance that the applicant would face threats to his life or liberty, significant physical harassment and significant ill-treatment if he were to return to Iraq. The Tribunal is satisfied that such treatment would amount to serious harm under s.5J(4)(b) of the Act. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s.5J(4)(c). The Tribunal finds that State protection against the harm he fears is not available to the applicant in Iraq. The Tribunal is satisfied that the real chance of persecution relates to all areas of Iraq. The Tribunal is satisfied that the essential and significant reasons for the applicant’s fear of persecution are his imputed political opinion and his membership of the particular social groups of academics in Iraq and/or journalists or employees of media organisations in Iraq.
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution. He is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The applicant daughter
On the basis of the medical evidence submitted, the Tribunal accepts that the applicant daughter, who is [age] years old, has a diagnosis of intellectual disability and [Genetic Condition 1]. As a result, she has ‘delays’ across areas of communication, self-care, social skills, fine motor and gross motor.[5] The applicant daughter also has an eye disorder and is dependent in her activities of daily living, including toileting. With regard to communication, it is reported that she is ‘minimally verbal’ and is currently learning to use a communication device.[6]
[5] See Individual Plan for [the fourth applicant], Government of WA, Department of Communities, Disability Services, dated 22 July 2021.
[6] See letter from [Ms M], Speech Pathologist at [Speech Pathology Provider 1], dated 5 April 2022.
The most recent DFAT Country Information Report in relation to Iraq provides the following relevant information in relation to Persons with Disabilities (PWDs).
3.143 Iraq is a State Party to CRPD (see Human Rights Framework). Article 32 of the Constitution commits the State to caring for the ‘handicapped’ and those with special needs, and to ensuring their rehabilitation to reintegrate them into society. The Ministry of Labour and Social Affairs leads the Independent Commission for the Care of People with Disabilities, while the [Kurdistan Regional Government] Ministry of Labour and Social Affairs leads a similar commission in the [Kurdistan Region of Iraq].
3.144    Iraq has one of the world’s highest rates of PWDs. While the WHO estimates 10 per cent of persons worldwide have a disability, disability advocates estimate that anywhere up to one-third of Iraqis have some form of physical or psychological disability…
3.146    Despite the constitutional and legal protections, and the high rate of Iraqis either with a disability or with a personal connection to a PWD, in-country sources report there is little understanding or awareness at either an official or societal level of the challenges and needs faced by PWDs. Negative attitudes and accessibility challenges continue to limit the extent to which PWDs are able to participate in the workplace and in general society. Stigma, distance and access reportedly prevent many PWDs from registering for benefits.
3.147    Discrimination against PWDs is reportedly highly prevalent in educational settings. A 1950s law still on the books reportedly requires deaf children to leave school after the fourth grade, while other laws and practices prevent those with other forms of disability from accessing education at all levels. In one case, a primary school principal reportedly refused to enrol a child with disabilities because the child ‘would frighten the others’. Other constraints to education include a lack of appropriate learning materials in schools and a shortage of teachers qualified to work with children with developmental or intellectual disabilities.
3.148    Women with disabilities face particular stigma, with their disability widely perceived as them ‘bringing shame on their family’. Many are not permitted to leave the house or to be seen by outsiders. Women with intellectual disabilities or mental health issues are at extremely high risk of gender-based violence or sexual abuse. The families of women with physical disabilities reportedly refuse to allow them to be seen by male technicians at factories producing prosthetics, thus preventing them from accessing equipment that would enable them more freedom of movement. The equipment available to those with physical disabilities (such as wheelchairs, crutches and sticks) is reportedly of a very low standard and limited shelf life.
3.149    Disability advocates allege the process by which authorities decide which PWDs should receive the limited assistance available is highly politicised… (emphasis added)
DFAT assessed that PWDs in all parts of Iraq face a moderate risk of official discrimination, particularly in educational settings. They are also unlikely to receive sufficient support from government to enable them to participate fully in society. DFAT further assessed that PWDs face a high risk of societal discrimination that may include violence or sexual abuse, particularly women with intellectual disabilities or mental health issues.
Having considered this information, the Tribunal is of the view that applicant daughter’s extensive disabilities, her gender and her age place her at a particularly vulnerable position. The Tribunal finds that, if the applicant daughter were to return to Iraq, there is a real chance that she will be subjected to a high level of discrimination in the community and in educational settings. The Tribunal also finds that as a female with an intellectual disability there is a real chance that she will be subjected to gender-based violence or sexual abuse. The Tribunal is of the view that, due to her vulnerability, the likely psychological pressure brought to bear upon the applicant daughter through any abuse or discrimination cannot and should not be discounted.[7] As noted by the Full Federal Court in SZTEQ v MIBP (2015) 229 FCR 497, an evaluation of ‘serious harm’ will be a question of fact and degree, often complicated and quite specific to the individual concerned.[8]
[7] See, for example, SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005); SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005); and VBAO v MIMIA (2006) 233 CLR 1.
[8] See also SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005); SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005); and VBAO v MIMIA (2006) 233 CLR 1.
Having regard to the particular circumstances of the applicant daughter and after weighing the totality of the evidence before it, the Tribunal finds that the treatment she is likely to face in Iraq amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). The Tribunal finds that the real chance of persecution relates to all areas of Iraq and that State protection is not available to the applicant daughter. The Tribunal is further satisfied that PWDs in Iraq constitute a particular social group within the meaning of the Act. The Tribunal finds that the essential and significant reason for the persecution feared is the applicant daughter’s membership of the particular social group of PWDs in Iraq.
For the reasons given above, the Tribunal is satisfied that the applicant daughter has a well-founded fear of persecution. She is a person in respect of whom Australia has protection obligations under s.36(2)(a).
The applicant wife and the applicant son (the second and third named applicants)
The applicant wife and the applicant son have not made any specific claims for protection. They were included in the application as members of the same family unit as the applicant.
For the reasons given above the Tribunal is satisfied that the first named and the fourth named applicants are persons in respect of whom Australia has protection obligations and satisfy the criterion set out in s 36(2)(a).
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 Roushan
Senior Member

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.
…
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 family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…