1809967 (Refugee)

The case concerned an application for a protection visa by Iraqi nationals. The applicants claimed to fear persecution in Iraq due to their religious and ethnic background, as well as threats stemming from an incident involving Shia militia and the applicant's brother. The primary dispute revolved around whether the applicants met the criteria for a protection visa, either as refugees or through complementary protection.

The court was required to determine whether the applicants had a well-founded fear of persecution for one or more of the five prescribed reasons under the Migration Act 1958. If this criterion was not met, the court also had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of their removal to Iraq, the applicants faced a real risk of suffering significant harm. This included assessing whether relocation within Iraq would be reasonable and whether effective protection measures were available.

The court found that while the applicants' fear of persecution was well-founded, it did not necessarily relate to all areas of Iraq. However, applying the principles of complementary protection, the court determined that there were substantial grounds for believing that the applicants, including their youngest child born in Australia, faced a real risk of significant harm if removed to Iraq. This conclusion was based on detailed, consistent, and credible evidence, particularly concerning the targeted risk faced by the family unit and the unreasonableness of relocating with ethnically mixed children to areas without existing support networks.

The Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy the complementary protection criterion under s.36(2)(aa) of the Migration Act.