1809967 (Refugee)

[2021] AATA 4144

1809967 (Refugee) [2021] AATA 4144 (17 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809967

COUNTRY OF REFERENCE:                   Iraq

MEMBER:K. Chapman

DATE:17 October 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.

Statement made on 17 October 2021 at 6:59pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion and imputed political opinion – Sunni Muslim fearing harm from Shia militia – death of worker with militia links under brother’s supervision – worker’s family’s demand for compensation – brother kidnapped and tortured and applicant and father threatened – some money paid and attempt at mediation – relocations from Shia to mixed to Sunni neighbourhood – ethnically mixed marriage with Arab husband and Kurdish wife – delay in departing to care for elderly father and for medical treatment – brother now in third country – country information – fear of persecution well-founded, but does not relate to all areas of country – complementary protection – targeted risk not faced by population generally – not reasonable to relocate with ethnically mixed children to areas without existing support networks – detailed, consistent and credible evidence – members of family unit – no jurisdiction for child born after delegate’s decision – decision under review remitted

LEGISLATION  

Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1)(c), 36(2)(a), (aa), (c), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

MIAC v MZYYL (2012) 207 FCR 211

MIAC v SZQRB (2013) 210 FCR 505

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIEA v Wu Shan Liang (1996) 185 CLR 259

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicants, who claim to be citizens of Iraq, applied for the visas on 19 May 2016. [The first named applicant] made claims for protection concerning his family being targeted by Shia militia, on account of his brother’s workplace being the site of an industrial accident causing the death of a worker with militia links. The first named applicant is an Arab Sunni Muslim. [The second named applicant] (the wife of the first named applicant) also claims to fear being targeted by Shia militia due to the industrial accident. Additionally, she claims to fear discrimination on the basis of being a Kurdish Sunni Muslim. Further, the Tribunal notes that their claims for protection were more expansive by the time of the review hearing. For completeness, the Tribunal notes the other applicants are the minor children of the first and second named applicants. The delegate did not accept the claims for protection on the basis of credibility findings.

3. On 10 April 2018, the applicants applied for review of the decision to refuse the visas, providing a copy of that decision to the Tribunal. For completeness, the Tribunal records that [the fourth child of the first and second named applicants] was born after the primary decision was made but prior to completion of this review. Accordingly, by operation of law, the Tribunal has no jurisdiction with respect to this child.

4. The first and second named applicants appeared by video before the Tribunal on 18 August 2021 to give evidence and present arguments. They were represented by their solicitor. The review hearing was altered from an in person hearing due to the prevailing Queensland Government COVID-19 restrictions at that time. The applicants informed the Tribunal they were comfortable proceeding with the hearing by video means. The review hearing was conducted using the assistance of an interpreter in the Arabic and English languages. The applicants confirmed they understood the interpreter and there were no other witnesses to be called.

5. The applicants requested, and were granted, time following the hearing to provide further documentary material. The applicants, through their representative, requested an extension of time to submit their material. An extension of time was duly granted. Final submissions were received on 1 September 2021. All submitted material has been carefully considered by the Tribunal.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

13. According to the protection visa application, the applicants claim to be citizens of Iraq. Given the personal details provided in that visa application, the Tribunal is satisfied the applicants are indeed Iraqi nationals. Iraq is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.

14. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Issues

15. The issue in this review is whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Iraq, there is a real risk they will suffer significant harm.

    Documentary evidence before the Tribunal

16. The Tribunal has its own file, and the Department file, relating to the applicants before it. Information including, but not limited to, the following is contained in those files:

    a.the applicants’ protection visa application forms lodged on 19 May 2016;

    b.statements from the first named applicant;

    c.media articles and social media items concerning Iraq;

    d.written submissions (including post-hearing);

    e.documents pertaining to health and legal matters in Iraq;

    f.documents verifying the first named applicant was [a student] in Australia who departed Iraq as a scholarship holder;

    g.the Departmental delegate’s visa refusal decision dated 22 March 2018 (a copy of which was provided to the Tribunal by the applicants);

    h.the application for review submitted on 10 April 2018; and

    i.Departmental administrative and Movement records.

    Claims for protection

17. The first named applicant (hereafter ‘the applicant’) made claims for protection with the Department which may be summarised as follows (noting that information additional to the initial specified claims was raised during the review process):

    a.he is an Arab Sunni Muslim having a brother, [Mr A], who was targeted by Shia militia in Baghdad due to an industrial accident causing death to an employee with militia links. The militia members blamed the applicant’s brother for the death of the worker as the supervisor. The applicant’s brother was also beaten and tortured by Shia militia, following which the applicant and his family were threatened by militia members. The applicant and his family were forced to relocate within Baghdad to attempt to avoid the militia members. This was unsuccessful according to the applicant. Ultimately, the applicant’s brother departed Iraq to study for an extended period in [Country 1] to escape the militia. The second named applicant also claimed to fear the militia members due to the industrial accident. Additionally, she claimed to fear discrimination on the basis of being a Kurdish Sunni Muslim; 

    b.he is an educated [Occupation 1] in Australia holding an Iraqi Government scholarship and fears harm if returned to Iraq on the basis that he has studied in a Western country and has sought asylum; and

    c.his wife is ethnically Kurdish, and their children ethnically mixed Arab and Kurdish, which creates difficulties in relocating.   

    Evidence at the review hearing

18. The applicant provided detailed evidence at the review hearing, in a generally credible fashion. His verbal evidence was generally consistent with his written claims for protection and contained significant additional information. According to the applicant, the main reason for his fear of returning to Iraq is being harmed by a Shia militia group known as Asa’ib Ahl al-Haq. That militia is led by Qais al-Khazali and broke away from the Shia Jaish Al-Mahdi militia (‘Mahdi Army’).

19. The applicant advised that his brother, [Mr A], worked in Baghdad as an [Occupation 2]. [Mr A] is a Sunni Muslim. The applicant is also a Sunni Muslim and tertiary educated. The applicant outlined that after the United States military entered Iraq, there was a rise in sectarian violence. Prior to this, the applicant and his family lived peacefully in a Shia neighbourhood in Baghdad. The applicant explained that particularly following the bombing of the Shia Mosque of the Two Imams, the Jaish Al-Mahdi became very powerful in Baghdad and began targeting Sunni Iraqis. 

20. In 2006, the applicant’s brother [Mr A] was working for a company based in [Country 2] that provided [services ] in Iraq. The applicant indicated that his family came under pressure from the Jaish Al-Mahdi due to [Mr A] taking this employment and also because they are Sunni Muslims. That year, [Mr A] was kidnapped with a friend whilst walking in Baghdad.

21. The Tribunal canvassed the topic of this kidnapping at length with the applicant. He explained that his brother was kidnapped in the afternoon with his best friend [Mr B], who is a Shiite. When [Mr A] did not return home from work, the applicant and his family tried to locate him without success.  They went to the Iraqi Police Service but received no meaningful assistance. The applicant outlined that in 2006 in Baghdad the situation was very tense between Shia and Sunni. The applicant came to learn that [Mr B]’s family had connections to the Jaish Al-Mahdi and he was released shortly after his capture. Unfortunately, [Mr A] was known to be a Sunni Muslim and was tortured overnight. He was beaten and received cigarette burns to his body. The applicant and his family knew that [Mr A] had disappeared and were very upset. They did not expect to see him alive again. The applicant’s father suffered a stroke due to the stress of this event.

22. The following morning [Mr A] returned to the applicant and his family. He was very injured. Upon gathering his strength, [Mr A] warned the family that they must move out of their Shia neighbourhood in Baghdad, as the Jaish Al-Mahdi want their house. The message was reinforced by [Mr B]’s father who called the applicant’s father. The applicant and his family were scared so they destroyed most of their documentation and photographs showing their Sunni identity and connections. They relocated at short notice to a mixed neighbourhood in Baghdad. The Tribunal notes that it had the benefit of a clear video link to observe the applicant provide his evidence at hearing regarding the kidnapping of [Mr A]. The Tribunal observed the applicant to provide this evidence in a convincing fashion, having regard to his demeanour, depth of detail and consistency. Accordingly, the Tribunal is satisfied with the truthfulness of the applicant’s evidence regarding the kidnapping of his brother [Mr A] by the Jaish Al-Mahdi in 2006.

23. In 2007, according to the applicant, the Jaish Al-Mahdi moved into the area where the applicant had relocated and targeted Sunni Muslim residents. His cousin was killed by Jaish Al-Mahdi in this violence according to the applicant. Further, his mother damaged her hearing when a mortar attack struck near their residence. Following this, the applicant and his family relocated again, to an exclusively Sunni neighbourhood in Baghdad (the precise location was provided by the applicant), in an effort to avoid the Jaish Al-Mahdi.

24. By 2010, the applicant’s brother [Mr A] was working as [an Occupation 2] with [Employer 1]. In this employment [Mr A] would task workers to perform [a job task] for [Employer 1]. As [an Occupation 2], [Mr A] would regularly travel to different work sites in Baghdad. He was required to travel into a variety of neighbourhoods with differing religious affiliations. Many of the workers came from the Sadr City and Al-Shu’ala districts of Baghdad. In 2010, a worker under the supervision of [Mr A] entered a [location] to perform [a job task]. Regrettably, this worker was killed in a workplace accident whilst conducting these duties. According to the applicant, this worker came from the Al-Shu’ala district of Baghdad and had links to the Asa’ib Ahl al-Haq militia (the Shia militia that broke away from Jaish Al-Mahdi).

25. The family of the deceased worker subsequently demanded payment of a large sum from [Mr A] as compensation for his passing. The applicant explained that the Shia militia adopt the tribal perspective of those from the South of Iraq, whereby compensation is demanded for the death of a relative. The applicant noted that he and [Mr A], being Sunni and from Baghdad, adopt the perspective whereby such a death is attributable to fate.

26. The applicant advised that he and his family resided in one apartment complex in the Sunni neighbourhood of Baghdad. One evening, a group from the Asa’ib Ahl al-Haq militia accosted the applicant’s father in the apartment complex and demanded payment to the family of the deceased worker. An argument ensued and threats to kill [Mr A] and the applicant were made. The applicant advised that his father was not harmed because he was too old. Following this incident in 2010, the applicant canvassed study options in [Country 3] but ultimately did not pursue them, as his father demanded he remain in Baghdad to help him in his old age as the applicant’s sister had married. The applicant acceded to this request of his father, particularly as he had never fully recovered from the stroke suffered in 2006.

27. The applicant explained that negotiations between his family and that of the deceased worker continued throughout 2011 and 2012. [Mr A] continued to be blamed for the death and compensation was vigorously demanded. In September 2013, the applicant’s father passed away. Following this, the family of the deceased worker interrupted the condolence period and continued to press for the payment of compensation or retribution would be taken. Around two weeks after the passing of their father, [Mr A] called the applicant to advise that four men using two motorbikes were surveilling their apartment complex. Shortly thereafter, the applicant received a knock at his door. He could see through the view hole that four men in masks waited in the hallway. The second named applicant was also at home and pregnant at the time. The men knocked vigorously and the applicant and his wife kept quiet. They were terrified. The applicant opined that the men probably didn’t shoot into the door because they were in an apartment complex with multiple residents. The masked men left the apartment and the applicant made contact with the Police to report the incident. Their response to him was that this was a tribal matter and they would not be involved. The second named applicant and the mother of the applicant were present when the discussion with Police took place at their apartment.

28. The Tribunal took evidence from the second named applicant separately to her husband. She recounted the details of the harassment from the masked men in a clear and consistent fashion. The second named applicant also advised that she suffered a miscarriage due to the stress of that incident. The Tribunal notes that it had the benefit of a clear video link to observe the second named applicant provide her evidence at hearing regarding the visit from the masked men. The Tribunal observed her to provide this evidence in a convincing fashion, having regard to her demeanour, depth of detail and consistency. Accordingly, the Tribunal is satisfied with the truthfulness of the second named applicant’s evidence regarding this matter. For completeness, the Tribunal also records its satisfaction with the veracity of the applicant’s evidence regarding the visit from the masked men.

29. The applicant detailed his attempt to have distant Sunni tribal relatives intervene in the dispute, however this was unsuccessful. The applicant also paid a portion of the sum demanded by the relatives of the deceased worker and attempted to have an agreement certified by the Courts, however only full payment was acceptable to them. The applicant confirmed this family was linked to the Asa’ib Ahl al-Haq militia and that he and [Mr A] continued to receive threats from them.

1. Ultimately, the applicant and his brother [Mr A] could not afford to pay sufficient compensation to the family of the deceased worker. Fearing for their lives they planned to escape Iraq. [Mr A] departed for long term studies in [Country 1], where he presently remains. The applicant, by this time working as [an Occupation 1] and in the employ of [Employer 2], used his knowledge to successfully apply for a Student visa to come to Australia [for study] and obtain a scholarship from the Iraqi Government. The Tribunal notes, as recorded in the delegate’s visa refusal decision, that the applicant applied for the Student visa [in] January 2015 and it was granted [in] January 2015. The applicant arrived in Australia [in] May 2015, with his wife and eldest child arriving [in] August 2015.

2. The Tribunal canvassed with the applicant how he would obtain an Iraqi Government scholarship if the Asa’ib Ahl al-Haq militia have strong links to Government and were threatening him. The applicant responded that they are most strong in the security and intelligence portfolios and not so much in the education portfolio, as generally their members are uneducated. The applicant also outlined that he suffered from a [medical] condition requiring [treatment] prior to his departure. The Tribunal notes that the applicant submitted [evidence] and its veracity is accepted. For completeness, the Tribunal also notes a discrepancy arose in the evidence between the applicant and his wife regarding the cause of this [medical] complaint. On balance, the Tribunal accepts the injury is genuine, but does not accept it was caused by any violence inflicted by militia.

3. Having regard globally to the evidence submitted by the applicant and the second named applicant, the Tribunal is satisfied that they received threats of death from Asa’ib Ahl al-Haq militia members due to the industrial accident at the work site of [Mr A]. This is because the applicant and his wife in general provided a detailed and consistent account of the threats received from the family aligned with Asa’ib Ahl al-Haq. Furthermore, the consistency of the particulars of this claim have been maintained for several years from the time of application for protection.

4. The Tribunal canvassed with the applicant why he could not relocate from Baghdad to avoid the Asa’ib Ahl al-Haq militia. He outlined that being an Arab in an ethnically mixed marriage he could not relocate to Kurdish Northern Iraq, nor the Sunni West. He added that the Asa’ib Ahl al-Haq militia had grown in influence across Iraq since the defeat of Daesh, but still maintained Daesh had a presence that would also put them at risk in Sunni areas, as they are not radical themselves. The second named applicant also gave evidence that Shia militia would target her due to her Kurdish background and their Sunni religion. Prior to the conclusion of the review hearing, the applicants confirmed they had no further reasons to fear returning to Iraq. In particular, the applicant informed the Tribunal that it is the fear of harm by Asa’ib Ahl al-Haq that is the reason they cannot return to their country of nationality. 

   Analysis  

5. That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.

6. The Tribunal does accept the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

7. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:

   First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

8. The Tribunal has very carefully considered the claims of the applicants, individually and cumulatively, and the evidence before it. On balance, the Tribunal is satisfied that the applicant and the second named applicant provided credible evidence regarding their central claims for protection. Accordingly, the Tribunal is satisfied that the applicant’s brother [Mr A] was kidnapped and tortured by Jaish Al-Mahdi members, on account of his Sunni religion and their desire to acquire Shia residences in the mixed neighbourhood of Baghdad where the applicant resided in 2006. Furthermore, the Tribunal accepts that the applicant relocated within Baghdad to another mixed neighbourhood but was again pushed out of that area, due to generalised violence committed by Shia militia, and sought safety in a Sunni dominated neighbourhood. Additionally, the Tribunal accepts that the applicant received threats of death from members of the Asa’ib Ahl al-Haq militia due to the industrial accident, that caused the death of a worker linked to this militia, at a work site supervised by [Mr A] in Baghdad in 2010. The Tribunal is also satisfied that it is plausible these threats of death extend to the second named applicant and all of their children, given the desire for revenge of the family of the deceased worker. For completeness, the Tribunal accepts that the applicant delayed his departure from Iraq to receive [treatment] for his [medical] complaint and this does not detract from the veracity of his claims for protection.

9. Open source country information indicates the Asa’ib Ahl al-Haq militia is an Iranian backed perpetrator of violent attacks in Iraq, being designated by the United States as a Foreign Terrorist Organisation in January 2020.[1] The origins of Asa’ib Ahl al-Haq are found within the Jaish Al-Mahdi, however by 2004 the former was beginning to operate independently and in 2006 it formally split away under the leadership of Qais al-Khazali.[2] Asa’ib Ahl al-Haq is a Shia group receiving support from Iran and Hezbollah, with the catalyst for its independence being the Jaish Al-Mahdi ceasefire with Multi-National Forces in Iraq, directed by the leader of that group Muqtada al Sadr.[3]

   [1] State Department Terrorist Designations of Asa’ib Ahl al-Haq and Its Leaders Qays and Laith al-Khazali, 3 January 2020, US State Department, accessed 15 October 2021.

   [2] Mapping Militant Organizations - Asa’ib Ahl al-Haq, 24 March 2017, Stanford University, accessed 16 October 2021.

   [3] New Special Groups splinter emerges on Iraqi Scene, 20 August 2008, B. Roggio,  accessed 15 October 2021. 

10. According to DFAT country information, Asa’ib Ahl al-Haq is part of the Popular Mobilisation Forces (PMF) and is aligned with Iran.[4] DFAT also indicates the PMF were formed in 2014 under the sponsorship of the Iraqi Government to combat Da’esh, they are mostly Shia Arab organisations, there is only notional control by the Iraqi Government with many taking direction from Iran, they often are suspected of human rights abuses, some are involved in organised crime, and there is little opportunity to obtain official ‘recourse or justice’ for those ‘who fall foul’ of them in a local area.[5] Asa’ib Ahl al-Haq has strongholds in certain Shia areas of Baghdad, along with Central and Southern Iraq, although it has conducted operations in other areas of the country and also in Syria.[6] In addition to conducting attacks on opponents, primarily United States military forces, by 2021 it held fifteen seats in the Iraqi Parliament and demonstrated a growing willingness to operate independently of Iran in furtherance of its own aims.[7]

    Real chance of persecution for reasons of political opinion and membership of a particular social group

    [4] DFAT Country Information Report Iraq, 17 August 2020, paragraph 3.142.

    [5] DFAT Country Information Report Iraq, 17 August 2020, paragraphs 5.8-5.11.

    [6] Middle East Security Report 7 – The Resurgence of Asa’ib Ahl al-Haq, December 2012, S. Wyer,  accessed 16 October 2021. 

    [7] Iran’s Resistance Axis Rattled by Divisions: Asa’ib Ahl al-Haq’s Leader Rejects the Ceasefire in Iraq, J.L. Weiss, 12 February 2021, accessed 16 October 2021. 

11. On balance, the Tribunal finds that all of the applicants, and the youngest child born in Australia, have a well-founded fear of persecution in Iraq. This is because they are imputed with an anti-Shia militia political opinion on account of the dispute arising from the industrial death at the worksite supervised by [Mr A] in Baghdad in 2010. The Tribunal has duly considered that the criterion in s.5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted.

12. The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. Following careful consideration, the Tribunal finds that if the applicants return to Iraq now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that they would be physically injured or even killed by members of the Asa’ib Ahl al-Haq militia due to their imputed anti-Shia militia political opinion, arising from the industrial death at the workplace supervised by the applicant’s brother [Mr A]. Accordingly, the Tribunal finds that each of the applicants face a real chance of serious harm if they return to Iraq as a member of the particular social group comprising their family, in accordance with s.5K of the Act. For completeness, the Tribunal finds that it is not satisfied the applicants face a real chance of harm from the Jaish Al-Mahdi militia, with a nexus to the 2006 kidnapping of [Mr A], as the lengthy passage of time from that incident renders future harm from this remote, insubstantial and only a far-fetched possibility.

    Does the real chance of persecution extend to all areas of Iraq?

13. Having carefully considered the above pertinent evidence submitted by the applicants, relevant DFAT country information, and the open source country information pertaining to Asa’ib Ahl al-Haq militia, the Tribunal finds that the real chance of the applicants being persecuted for reasons of their imputed political opinion and membership of the particular social group comprising their family, does not extend to the whole of Iraq as required by s.5J(1)(c) of the Act. This is because the strongholds of the Asa’ib Ahl al-Haq militia are located in certain Shia areas of Baghdad, along with Central and Southern Iraq. Furthermore, DFAT country information indicates that in the Kurdistan Region of Iraq, in the North of the country, the Kurdistan Regional Government operates its own internal security and military forces, with the Peshmerga considered to be ‘a highly competent military force’.[8] Accordingly, the Tribunal is not satisfied that the real chance of the applicants facing harm from the Asa’ib Ahl al-Haq militia extends outside of greater Baghdad, or its Shia strongholds in Central and Southern Iraq. Accordingly, as this particular claim for protection does not relate to all areas of Iraq, the Tribunal has determined that it is unnecessary to make further findings regarding it for the purpose of the refugee criterion. 

    Real chance of persecution for reasons of being an educated [Occupation 1] returning from a Western country and for having an ethnically mixed marriage with children

    [8] DFAT Country Report Iraq, 17 August 2020 at paragraphs 5.15 to 5.18. 

14. Following careful consideration, the Tribunal does not accept that there is a real chance the applicants would face serious harm on account of their claims concerning the applicant being an educated [Occupation 1] returning from a Western country after claiming asylum (or being the holder of an Iraqi Government scholarship who has studied in a Western country), or due to having an ethnically mixed (Arab/Kurdish Sunni) marriage with children. The Tribunal forms these conclusions based upon the following considerations. The applicants themselves did not press these claims in any degree of detail during the review process. Additionally, the DFAT country information also tends not to support the claim regarding [Occupation 1] and study in a Western country.[9] The claim pertaining to an ethnically mixed marriage with children, of itself, is similarly unsupported by the DFAT country information, given the parties share the same Sunni religion.[10] However, the Tribunal notes that the ethnically mixed marriage and parentage of the children is relevant to the topic of relocation within Iraq, as will be outlined in further detail.

    Finding on refugee criterion

    [9] DFAT Country Report Iraq, 17 August 2020 at paragraphs 5.43 to 5.46.

    [10] DFAT Country Report Iraq,17 August 2020 at paragraphs 3.44 to 3.45.

15. For the reasons outlined above, the Tribunal is not satisfied that the applicants face a well-founded fear of persecution in Iraq in accordance with s.5J of the Act. It follows that the applicants do not satisfy the requirements of s.36(2)(a) of the Act and they are not owed protection obligations as persons who are refugees. The Tribunal so finds.

    Complementary protection

16. The Tribunal must also consider whether, if the applicants return to their home region in Iraq, there is a real risk that they will suffer significant harm on account of their imputed anti-Shia militia political opinion arising from their membership of the particular social group comprising their family, resulting from the dispute concerning the industrial death at the worksite supervised by [Mr A] in Baghdad in 2010. The Tribunal notes that, with regard to the complementary protection criterion, the Courts have held the concept of ‘real risk’ in s.36(2)(aa) to be equivalent to ‘real chance’ in the refugee criterion at s.36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.

17. It is not in dispute that Baghdad is the home region of the applicants in Iraq, given the evidence concerning their residential history. The Tribunal notes the industrial death occurred in 2010 in Baghdad and the applicant received direct threats on his life in that city, along with his brother [Mr A]. Furthermore, the second named applicant was present when masked men came to threaten the family in Baghdad. For reasons previously outlined, the Tribunal accepts the veracity of the evidence given by the applicant and the second named applicant concerning this topic. Although some time has elapsed since these direct threats were made, given their very targeted nature against the applicants, the Tribunal finds there is a real risk (not being a remote or insubstantial one) that they would be physically injured or even killed by members of the Asa’ib Ahl al-Haq militia as previously outlined. In the view of the Tribunal, this is particularly so if the applicants return to the vicinity of Baghdad, being the location of the industrial death and a city where this militia is strong.

18. Given that the real risk of significant harm towards the applicants from members of the Asa’ib Ahl al-Haq militia is very targeted, the Tribunal is satisfied this risk is faced by the applicants personally and not faced by the population of the country generally. It follows that s.36(2B)(c) of the Act does not preclude the applicants from availing themselves of complementary protection. The Tribunal so finds.

19. The pertinent country information detailed above demonstrates the Asa’ib Ahl al-Haq militia is part of the PMF and has deep links within the Iraqi Government and Iraqi Security Forces. Indeed, DFAT country information specifically indicates, ‘those who fall foul of a PMF group in their local area have little chance of gaining recourse or justice through official means’ and furthermore that Iraqi Police Service members are recruited locally and may be ‘beholden to local PMF leaders’.[11] As previously outlined, Asa’ib Ahl al-Haq has strongholds in certain Shia portions of Baghdad, Central and Southern Iraq, however its operations have extended to other parts of the country and even Syria. Following careful consideration of the evidence, and in particular the relevant country information, the Tribunal is not satisfied that the applicants could obtain effective protection from an Iraqi authority against the Asa’ib Ahl al-Haq militia in the areas in which they conduct operations. Such areas include both the Shia and Sunni neighbourhoods within the greater Baghdad region, and the Shia dominated areas of Central and Southern Iraq. The Tribunal so finds. 

    [11] DFAT Country Report Iraq, 17 August 2020 at paragraphs 5.11 & 5.14.

20. Of note, the Tribunal has paid due regard to Judicial authority indicating that the concept of effective protection requires a reduction in the risk of significant harm to something less than a real risk: see MIAC v MZYYL (2012) 207 FCR 211 at [40]. Having regard to the relevant country information, the Tribunal is not satisfied that effective protection by Iraqi authorities in the greater Baghdad region, and the Shia dominated areas of Central and Southern Iraq, is available to reduce the risk of significant harm to the applicants to less than a real risk. Accordingly, s.36(2B)(b) of the Act does not preclude the applicants from availing themselves of complementary protection. The Tribunal so finds.

1. The Tribunal has considered whether it would be reasonable for the applicants to relocate to an area of Iraq where there would not be a real risk that they will suffer significant harm. As indicated by the relevant country information, Asa’ib Ahl al-Haq has strongholds in certain Shia portions of Baghdad, Central and Southern Iraq. Furthermore, it conducts operations throughout the greater Baghdad area. Accordingly, as previously outlined, the Tribunal finds the real risk of harm to the applicants extends to those areas. Following careful consideration, the Tribunal is not satisfied that it would be reasonable for the applicants to relocate within Iraq outside of the aforementioned areas. This is for the following reasons.

2. DFAT country information indicates that relocation to areas of Iraq formerly controlled by Da’esh (in the West and North West of the country), ‘may be very difficult in light of continued human rights violations and abuses by state and non-state actors, continued Da’esh presence and ongoing counter-Da’esh military operations’, with access to Kurdistan Regional Government controlled territory also being problematic due to security measures impacting road access.[12]   Furthermore, DFAT outlines that relocation to the Kurdistan Region of Iraq is likely to be difficult for non-Kurdish speakers and non-Kurds.[13] Additionally, the DFAT country information indicates that relocation to an area of Iraq for persons without existing support networks is difficult.[14] The Tribunal also notes that the applicant is an Arab Sunni and the second named applicant is a Kurdish Sunni. Their children are ethnically mixed. In the view of the Tribunal, this is suggestive of the applicants facing even more difficulties in relation to relocation, in a country where ethnic and tribal links influence the ability to successfully relocate. On balance, the Tribunal is not satisfied that it would be reasonable for the applicants as a family unit to relocate to an area of Iraq where there would not be a real risk that they will suffer significant harm. Accordingly, the Tribunal finds that s.36(2B)(a) of the Act does not preclude the applicants from availing themselves of complementary protection.

   Finding on complementary protection

   [12] DFAT Country Report Iraq, 17 August 2020 at paragraph 5.32.

   [13] DFAT Country Report Iraq, 17 August 2020 at paragraph 5.34.

   [14] DFAT Country Report Iraq, 17 August 2020 at paragraph 5.37.

3. For the reasons outlined above, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iraq, there is a real risk that the applicants (and their youngest child born in Australia) will suffer significant harm. It follows that the applicants each satisfy the complementary protection criterion contained in s.36(2)(aa) of the Act. The Tribunal so finds.

   DECISION

4. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.

   K. Chapman
   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.

   …

   5H    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.

   …