1810829 (Refugee)

1810829 (Refugee) [2021] AATA 4673 (21 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810829
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Nicole Burns
DATE:21 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 21 September 2021 at 3:19pm

CATCHWORDS
REFUGEE – protection visa – Iraq – imputed political opinion – anti-militia – pro-Iraqi government – pro-western – fear of harm from Shia militia – Asa’ib Ahl al-Haq (AAH) – particular social group – family’s occupation and applicant’s work for company with contracts with international companies – perceived as a wealthy person – threats from militia after member arrested – attempted kidnapping, assault and extortion of father or brother – wife and children killed in bomb blast – remaining family members internally displaced – mental health and treatment – credible witness and detailed and consistent claims and evidence – complementary protection – lack of effective state protection – not reasonable to relocate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(c), (4), 5K, 5LA, 36(2)(a), (aa), (2B), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
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 9 April 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a [Age]-year-old man from Basra, Southern Iraq. He came to Australia from [Country 1] – where he was studying – [in] June 2017 as the holder of a visitor visa and Iraqi passport. He applied for the visa on 10 July 2017 claiming persecution from Shia militia in Iraq for several reasons, including his past work for an oil company, work as [an Occupation 1] and coming from a well-known family of [people working in Occupation 1]. The delegate refused to grant the visa on 9 April 2018.
On 27 August 2021 the applicant gave oral evidence to the Tribunal about the issues in his case via video conference. The Tribunal was assisted by an interpreter in the Arabic and English languages.
The applicant was represented in his review application by his registered migration agent, who attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets one or more of the alternative criteria in s.36(2)(a), (aa), (b) or (c); that is, whether he is 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 of such a person.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Receiving country and relevant background
The applicant travelled to Australia on an Iraqi passport and claims to be an Iraqi national. On this basis, and given the delegate had no concerns about his claimed nationality, the Tribunal accepts the applicant is a national of Iraq and has assessed his protection claims against Iraq as his receiving country.
According to information before the Department and Tribunal, the applicant is a Shia Muslim from Basra, southern Iraq. He worked as [an Occupation 1] in Iraq, for an oil company, and at times helped out his brother at his [store]. He married in [Year 1] and had two children subsequently, a [child] born in [Year 2] and a [child] born in [Year 3]. The applicant commenced studies in [Country 1] in early 2016, undertaking [Qualification 1]. He visited Iraq twice from [Country 1]: in August 2016 and April 2017. His wife and children were killed in a bomb blast in Basra [in] June 2017 whilst the applicant was in [Country 1]. He came to Australia shortly after, and has not returned to Iraq since.
The applicant’s parents, brother and [sisters] live in Iraq. His parents, brother (and his brother’s family) and [unmarried] sisters presently reside in Erbil, Kurdistan region of Iraq, whilst his [married] sisters live in Basra with their respective families. One of the applicant’s sisters lives in Australia, having moved here several years ago.
Claims and evidence
The applicant claims, primarily, to fear serious harm from Shia militias in Iraq because he was [an Occupation 1], his father and brother were [in the same occupation], and he faced threats and extortion attempts as a result. He claims that his wife and children died as the result of a targeted bombing by militia. More recently, he claims to fear returning to Iraq as a member of the family unit of his father and brother who, due to threats and harassment from militia members, have relocated to Erbil, Kurdistan region, given they consider Basra to be unsafe.
The applicant set out his claims initially in a statutory declaration dated 10 July 2017 provided to the Department. In summary he claimed to have been of adverse interest to militias overseen and operated by Jaysh al Mahdi and Asa’ib Ahl al-Haq (AAH) who were opposed to [Occupation 1] – which he was, as was his father (who was [details deleted]). Members of these militias visited the applicant’s home to enquire about him in June 2016, whilst he was studying overseas. His wife also received a threatening phone call in April 2017 from men who asked for USD35,000, claiming they believed the applicant was working in [Country 1] and was wealthy. They threatened to kidnap or kill his children if she did not pay. After this threat the applicant’s wife and children moved to his family’s home and the applicant returned to Iraq for a month, returning to [Country 1] in May 2017. [In] June 2017 his wife and children were killed in a [bomb blast]. The applicant provided copies of their death certificates to the Department.
The delegate accepted the applicant’s claims in large part, including about the death of his wife and children, but did not accept the bombing which resulted in their deaths was targeted, instead finding it was caused by the generalised and sectarian violence in Iraq. The delegate accepted the applicant worked in the past as [an Occupation 1] but found he did not face a real chance of serious harm on that basis given he had ceased being [an Occupation 1] in 2010 or 2012. The delegate was also not satisfied the applicant faced a well-founded fear of persecution based on his past work at the [oil] company and/or at his brother’s [business] given the passage of time.
On review the applicant provided to the Tribunal a statutory declaration dated 16 December 2019. In it he states that he relies on his earlier claims and provided the following additional information about his brother’s situation who remained in Iraq:
·On [Date 1] September 2019 his brother, [Mr A], was targeted by [Mr B] and his group who belong to the Asa’ib Ahl al-Haq group (AAH). They requested his brother pay USD35,000 to them, noting the applicant is in Australia.
·The applicant’s brother was targeted because the applicant was well known in Basra as a rich person and because his brother owned [a] store there.
·Currently AAH members were targeted by protesters in Iraq, blamed for murders in the south. In response, the AAH threatened to increase their revenge attacks against people; two weeks ago, the AAH killed 30 people in Dhi Qar Governorate; and some demonstrators in Baghdad have been stabbed by AAH members.
·On [Date 2] September 2019 the applicant’s brother told police about the threats he received on [Date 1] September 2019 from AAH members and their extortion demands.
·The applicant’s brother’s family moved to a farm in [Town 1], and were trying to leave Iraq.
·Basra is lawless. His family has witnessed a lot of kidnappings for financial gains, by militia.
In a further statutory declaration dated 26 March 2021 (provided when requesting priority processing by the Tribunal) the applicant gave an update about his family members’ circumstances in Iraq, summarised as follows:
·The police in Iraq arrested [Mr B] after the applicant’s brother threatened that he would make a formal complaint to the Integrity commission in Iraq (if they did not act).
·Afterwards members of [Mr B]’s tribe started threatening the applicant’s brother and his family. [Mr B’s] tribe and the AAH informed a distant relative of these threats because his family had already moved to [Town 1].
·To try and release the pressure, police told [Mr B]’s tribe the matter had been assigned to the Iraqi federal police not the local police because his family were not the only ones subject to extortion by [Mr B] and AAH members.
·It is known that AAH and/or the [B] tribe are stronger than the government, and that militias have a lot of criminal members who belong to certain tribes and are supported by these tribes.
·Lately the applicant’s father was beaten badly by men who attempted to kidnap him near his [shop] when he came from [Town 1] to Basra to renew his [shop] licence. Luckily police patrolling nearby stopped the kidnapping. He was taken to hospital.
·Afterwards the applicant’s father took his family away from [Town 1] to live in Erbil, a northern Kurdistan area.
The applicant provided to the Tribunal a translated copy of a letter from the Ministry of Immigration and Displacement dated 15 January 2021 which certifies that the applicant’s father and his family had been registered in their records after being displaced from Basra governorate to Erbil city in Kurdistan province.
As evidence of his claims to have been [an Occupation 1] in Iraq (along with his father and brother) the applicant provided translated copies of his and his father’s Iraqi [ccupational] licences and identity documents/cards as well as links to [social media] showing his father and brother [at work]. These include [an incident] by his father where he allegedly glorified Saddam Hussein’s rule and another showing his father at a protest against current militia rule in Iraq [in 2016].
Also submitted was a translated article dated [January] 2021 about the attack on the applicant’s father in Basra who was referred to as a ‘Basri [occupation]’.
Additionally the applicant provided a copy of an SBS Arabic article [details deleted].
At hearing the applicant described his background, reasons for leaving Iraq and fears upon returning there now. The Tribunal found him to be a credible witness whose detailed oral evidence was consistent with his written and oral evidence before the Department, and written statutory declarations provided to the Tribunal. He has provided copies of his wife and children’s death certificates, which state the cause of death was due to ‘terrorism explosion’. He has also provided a letter[1] from his treating psychiatrist who he has been seeing in Australia regularly since he arrived, who has attempted to help him process the trauma and grief of losing his family. The account of what the applicant has told his psychiatrist over the years about his circumstances and relevant events in Iraq as set out in that letter is consistent with the applicant’s evidence before the Tribunal.
[1] Dated 17 May 2021.
For these reasons the Tribunal accepts the applicant’s core claims about his past experiences and profile in Iraq, summarised as follows:
a.The applicant is from Basra, southern Iraq. His family – who are Shia Muslims - consist of his parents, brother and [sisters]. His father was a well-known [Occupation 1] in Basra. In Iraq the applicant worked in various jobs, including: as [an Occupation 1] over several years, [detail deleted]; as [a senior employee] for [an oil company] from the end of 2012/early 2013 until he travelled to [Country 1] to study in early 2016; and at times at his brother’s [shop] in Basra.
b.In 2016 the applicant went to [Country 1] to study [Qualification 1], leaving his wife and young children in their family home in Basra. He visited them for around a month in August 2016 and again in April 2017.
c.[In] June 2017 the applicant’s wife and children were killed in a bomb blast in Basra. The applicant believes this was a targeted attack because militia – he referred to the AAH specifically at hearing (and in his statutory declarations provided to the Department and Tribunal) – had threatened him via his family members in Iraq whilst he was in [Country 1] on two occasions previously, as follows:
·In July 2016 two men wearing AAH uniform visited the applicant’s house in Iraq and asked his brother-in-law (who was visiting at the time) where the applicant was and threatened to kill him if they saw him. They called the applicant an ‘infidel’ [based on his work], which they disapproved of.
·In April 2017 the applicant’s wife received a telephone call from someone who asked if the applicant had returned from [Country 1], whether he was working there, and threatened they would kill someone in her family if she did not give them 40 million Iraqi Dinar within a week. They accused the applicant of making money in [Country 1], whilst they were stuck in Iraq fighting ISIS, and losing family members as a result.
d.Shortly after receiving this phone call the applicant’s wife and children moved to her parents’ house, and thereafter moved between her parents’ house, the applicant’s parents’ house, and their own house in Basra. The applicant’s wife reported the threat and extortion demand to the police but they told her they could not do anything because the AAH were too strong.
e.The applicant’s brother – who went to the police to get a report about the bombing that killed the applicant’s wife and children – was told by the police that they could not do anything because the militia were too strong: they had even attacked police stations.
f.Not long after the applicant received the news about the death of his wife and children, he came to Australia on a visitor visa that had been granted prior to their deaths, where his sister resides.
At hearing the applicant provided further detail about the problems his father and brother, who remained in Iraq, have experienced from Shia militia – specifically members of the AAH and [B] tribe – since he left (and after his interview with the delegate) which has resulted in them fleeing from Basra to Erbil, Kurdistan and registering with the UNHCR in order to try and leave Iraq. The applicant’s oral evidence about these matters was credible, consistent with his detailed written claims to the Tribunal and supported by various documents, including news articles about the attack on his father early this year and a letter from the relevant authorities in Kurdistan registering them as internally displaced persons (IDPS), as noted. Accordingly, the Tribunal accepts the applicant’s claims about what has happened to his father and brother in Iraq more recently, summarised as follows:
a.On [Date 1] September 2019 two persons from the AAH, including its deputy, [Mr B], visited the applicant’s brother at his store that sold [products] in Basra, assaulted him, and demanded he given them 40 million Dinar (USD35,000) within seven days. Five days later, the applicant’s brother received a telephone call from one of the men asking if he had prepared the money. When he told him he could not, the caller asked why not, noting he has a brother in Australia (the applicant).
b.On [Date 2] September 2019 the applicant’s brother reported this incident to the police station in Basra. The police there said they could not do anything given the AAH were very strong in Basra, and particularly given [Mr B] was involved. The police advised his brother to escape the area.
c.The next day, on [Date 3] September 2019 the applicant’s brother visited the military intelligence department, reported the attack and extortion threats by AAH members, and warned that he would take the matter to the police/military[2] integrity commission if they did not act. Following this, [Mr B] was arrested by military intelligence and detained. The applicant told the Tribunal he thinks the military intelligence took this action because his brother was a very well-known [Occupation 1] (and [Occupation 2]) who often appeared on TV and they were concerned about reputational damage.
d.The applicant’s brother and his parents moved to [Town 1], southeast Iraq, located around [number]km away from Basra, where they stayed with the applicant’s paternal uncle on his farm until early 2021.
e.After [Mr B] was arrested, some of his fellow militia went to the applicant’s family home in Basra and started shooting in the air and threatening to kill any family member if they found them. (The applicant’s brother had already moved himself and other family members to [Town 1].)
f.[In] January 2021 the applicant’s father returned to Basra to renew his [shop]’s lease agreement. He was attacked by two men who approached him on a motorcycle just outside the shop, who he thinks tried to kidnap him but were thwarted by the presence of a police patrol car nearby. He was taken to hospital and treated for a bleeding nose and injured back before returning to [Town 1]. Not long after, he relocated his family (that is, his wife, [unmarried] daughters and the applicant’s brother and his family) to Erbil, and they were granted permission to stay there by the local government as displaced persons. His brother has registered with UNHCR and is currently waitlisted to have his case considered.
g.Two days after [Date] January 2021, the applicant’s father and brother reported the incident to the Basra police, and gave a statement. His father said he suspected the men were AAH members as they had threatened the applicant previously. However, the police were reluctant to take on the case, given the AAH are powerful, and part of the government.
[2] At hearing the applicant said he was not sure whether the integrity commission related to the police or military in Iraq, or both.

The Tribunal notes it could not locate any country information specifically about [Mr B], and it is unclear on the evidence before it how senior a figure he was in the AAH. Nonetheless, having found the applicant a credible witness, it is willing to accept his claims in this regard, and considers that [Mr B] may have been a local AAH leader, and it is possible news of his arrest and detention was not reported (or if so, not easily located).
At hearing the applicant said he believes his brother was targeted by AAH members not only because he was [an Occupation 1] and owned [a] shop, but because he was an [Occupation 2] and often appeared on TV interviews. The applicant explained that the AAH are a Shia militia – who are made up of [B] tribe members (among others) who were persecuted during Saddam’s regime and since have become a very large militia who have infiltrated the government. As AAH members do not approve of any kind of art or music, they have targeted musicians, artists, and journalists, with many being kidnapped, and some killed.
The applicant said he is afraid the AAH will harm him if he returns to Iraq given what has happened to his father and brother, noting when AAH members asked his brother for USD35,000 in September 2019, they did not believe he was unable to pay because the applicant was in Australia (among other reasons). He is also afraid because he was a [Occupation 1] in Iraq, and comes from a family of well-known [people employed in Occupation 1], noting that [people in Occupation 1] are considered infidels by such militia and are at risk. His work for [an oil company] from late 2012 to early 2016 may also add to his risk profile. The applicant said he was never threatened or experienced problems from militia personally as a result of working for that company, but noted the company had contracts with others such as the Americans and British, and militia had threatened other colleagues/personnel as a result.
Well-founded fear of persecution in the future
Given these findings about the applicant and relevant family members’ past experiences in Iraq and current profile, the Tribunal has considered whether the applicant faces a well-founded fear of persecution from Shia militia for a refugee reason as set out in s.5J(1)(a) if he returns to Iraq in the foreseeable future.
It is submitted the applicant faces a well-founded fear of persecution from Shia militia on return to Iraq based on his membership of the following particular social groups:
·being [an Occupation 1] in Iraq;
·being the son of [an Occupation 1];
·being perceived as a wealthy person; and
·as a former employee of [an oil company], which has contracts with international companies.
For the reasons that follow the Tribunal accepts the applicant’s brother and father face a real chance of serious harm from Shia militia on imputed (anti-militia, pro-Iraqi government, and pro-western) political opinion grounds in Iraq. It follows that the Tribunal finds the applicant faces a real chance of serious harm on return to Iraq as a member of the particular social group consisting of their family, as per s.5K of the Act.
The Tribunal accepts that the applicant’s brother, who is [an Occupation 1], an [Occupation 2], and owned [a] store in Basra, has been threatened, assaulted, and subject to extortion attempts by members of the AAH militia group in the past. It accepts as a result of him reporting some of these incidents to military intelligence, one of AAH’s local leaders – [Mr B] – has been arrested and detained and his fellow militia members have threatened the applicant’s brother and his family with death if they can locate them, including by visiting their family home in Basra and firing bullets in the air (after they had moved to [Town 1] in late 2019, fearful of staying in Basra). The Tribunal also accepts that the applicant’s father was assaulted by two men on a motorbike in early 2021 who attempted to kidnap him, and that the applicant’s brother, father and other family members subsequently moved from [Town 1] to Erbil, Kurdistan region. The Tribunal accepts that [Mr B] blames the applicant’s brother for his arrest and detention and wants revenge: it appears this dispute between the applicant’s brother and [Mr B], a local leader of a large and powerful Shia militia group in southern Iraq is therefore personal.
The Tribunal has considered the current status (and influence) of Shia militia such as the AAH and the broader security situation in southern Iraq (and elsewhere) in order to determine if the applicant’s fears of serious harm from various Shia militia elements due to being a member of a family of well-known [people employed in Occupation 1] and more recently related to persons specifically targeted by AAH militia (his father and brother) are well-founded. In doing so it has also considered the applicant and his representative’s submissions (and country information referenced) on this matter, as well as what it accepts of the applicant’s past experiences, current profile and that of his father and brother as set out above.
Country information indicates that Shia militias have increased their presence and influence in Iraq as a result of their involvement in the defeat of ISIS in Mosul and other parts of Iraq. According to Brookings Doha Centre,[3] many of these militias have engaged in destructive behaviour, including human rights abuses, refusal to submit to government or civilian oversight and promotion of sectarian discourse.
[3] Ranj Alaaldin, ‘Containing Shiite Militias: The Battle for Stability in Iraq’, Brookings Doha Center Policy Brief December 2017; and Ranj Alaaldin, ‘Fragility and Resilience in Iraq’, Istituto Affari Internazionali (IAI), November 2017 >
DFAT states that the security environment is further complicated by increasing tension between the US and Iran (and their actions in Iraq), noting Shia militias aligned to Iran in the Popular Mobilisation Forces (PMF) want to expel US forces from Iraq and as a result have launched attacks against the International Zone in Baghdad and other locations in Iraq, ‘relatively frequently’.[4] DFAT describes the PMF as follows:
The Popular Mobilisation Forces (PMF) are a state-sponsored umbrella military organisation composed of approximately 60 militia groups operating nationwide. The PMF was formally established based on a 2014 fatwa (Islamic declaration) by Iraq’s Grand Ayatollah to assist in the conflict against Da’esh, and they played an important role in the eventual military victory. Most PMF units are Shi’a Arab and operate across Iraq, while Sunni Arab, Yazidi, Christian and other minority PMF units generally operate within or near their home regions. International observers place the numbers of those involved in the PMF at between 130,000 to 150,000 fighters, although precise figures are unclear. In the lower ranks, many of those involved in the PMF are reportedly motivated by financial considerations rather than ideology. In-country sources report that many PMF members ‘moonlight’ from other jobs including in the police.[5]
[4] DFAT Country Information Report Iraq, 17 August 2020 at 2.55.
[5] Ibid at 5.8.
UNHCR, in a May 2019 report about international protection needs of those fleeing Iraq, describes the PMF as follows:
The PMF represent dozens of highly heterogeneous armed groups with varying ideologies and allegiances. In 2016, the government institutionalized the PMF as “an independent military formation as part of the Iraqi armed forces and linked to the Commander-in-Chief”. In March 2018, the Government issued a decree which put the PMF on a par with members of military forces under Ministry of Défense control, including in terms of salary. The PMF fall administratively under the state-run PMF Commission; however, the level of integration of the PMF’s various components varies significantly and as a result they exist both as part of and outside the formal security apparatus. Following the May 2018 parliamentary elections, some PMF groups have become part of the government, while some also operate both in the formal and informal economic sector. It has been reported that different PMF factions are increasingly engaged in a competition over power and resources. Some PMF groups have been held responsible for a range of human rights abuses against alleged ISIS suspects, as well as the targeting of critics and those perceived to be contravening strict Islamic rules.[6]
[6] UNHCR, United Nations High Commission for Refugees (UNHCR), International Protection Considerations with Regard to People Feeling the Republic of Iraq’, 3 May 2019, pp14, 15 [footnotes omitted].
DFAT refers to the Asa’ib Ahl al-Haq (AAH) as an Iran-aligned PMF group[7]. Country information indicates that the AAH is an Iranian backed Shia militia and political party operating primarily in Iraq (but also in Syria and Lebanon). It is demonstrably anti-American and sectarian in its ideology[8]. The group was established in 2004 as an elite militia within the Mahdi Army. In mid-2006 the AAH split from the Mahdi Army and continued fighting, following a ceasefire announced by al-Sadr in 2007.[9] The AAH was initially involved in sectarian killings, kidnappings and other human rights abuses[10], with its main targets Coalition forces, Iraqi officials and Iraqi security forces.[11] AAH’s ideology emphasises its reverence for the Iranian Shia political system, and the group ultimately seeks to impose strict Shia Islamic governance in Iraq.[12] It is considered one of the most powerful Shia militia in Iraq and seeks to promote Iran’s political and religious influence in Iraq, maintain Shia control over Iraq, and oust any remaining western vestiges from the country.
[7] DFAT Country Information Report Iraq, 17 August 2020 at 3.142.
[8] Counter Extremism Project, ‘Asaid Ahl al-Haq’, Asaib Ahl al-Haq | Counter Extremism Project.
[9] Johnson, J 2009, ‘Threats in Southern Iraq Ahead of a U.S. Withdrawal’, Small Wars Journal, n.d. p.7, smallwarsjournal.com/blog/journal/docs-temp/302-johnson.pdf.
[10] Amnesty International 2011, Annual Report 2011 – Iraq, May, Roggio, B 2008, ‘New Special Groups splinter emerges on Iraqi scene’, Long War Journal, 20 August,
[11] Roggio, B 2008, ‘New Special Groups splinter emerges on Iraqi scene’, Long War Journal, 20 August,
[12] Wyer, S 2012, ‘The Resurgence of Asa’ib Ahl Al-Haq’, Middle East Security Report 7, Institute for the Study of War, December, pp.9-10,
Reports indicate that since the US withdrew its forces from Iraq in December 2011, the AAH expanded significantly into politics. In 2017 it became a member of the Fatah (Fatah al Mubin) coalition in the Iraqi government and won several seats in the Iraqi Parliament. The Fatah coalition consists primarily of PMF militias supported by Iran.[13] However the AAH’s involvement in politics has not stopped it carrying out sectarian violence and targeted attacks. Despite reports of sectarian atrocities and war crimes, AAH and other PMF militias were formally recognised by the Iraqi Parliament in November 2016. Further, AAH has continued to expand its influence in Iraq during the fight against ISIS, and thereafter.[14]
[13] Standford University, Center for International and Security Cooperation (CISAC), ‘Asa’ib Ahl al-Haq’, last modified July 2018,
[14] Counter Extremism Project, ‘Asaid Ahl al-Haq’, Asaib Ahl al-Haq | Counter Extremism Project.
The US State Department designated the AAH as a Foreign Terrorist Organisation in January 2020.[15] In the media release announcing the US Secretary of State’s intent to designate the AAH as such, it is stated that the AAH has claimed responsibility for more than 6,000 attacks against US and Coalition forces since its creation in 2006, including carrying out highly sophisticated operations.[16]
[15] Michael Knights, The Washington Institute for Near East Policy, ‘Profile: Asaid Ahl al-Haq, April 27, 2021, U.S Department of State, Media Note, State Department Terrorist Designations of Asa’ib Ahl al-Haq and Its Leaders, Qays and Laith al-Khazali’, January 3, 2020, State Department Terrorist Designations of Asa’ib Ahl al-Haq and Its Leaders, Qays and Laith al-Khazali - United States Department of State.
DFAT report that many groups who make up the Popular Mobilisation Forces (PMF or Al-Hashd Al-Sha’abi) have committed human rights abuses including extrajudicial killings and enforced disappearances,[17] and that there have been consistent reports government forces from a range of agencies and PMF groups regularly abuse and torture individuals – particularly Sunni Arabs – during arrest, pre-trial detention and after conviction.[18]
[17] DFAT Country Information Report Iraq, 17 August 2020 at 4.1 and 4.7.
[18] Ibid at 4.18.
In terms of the PMF’s level of control over the general population, DFAT state as follows:
According to in-country sources, individual PMF elements exercise close control over many neighbourhoods, particularly in Shi’a areas. PMF groups effectively run these areas, providing a range of services that would normally be fulfilled by the state (particularly welfare and security). The manner in which PMF groups conduct themselves at the neighbourhood level depends upon the individual group. While, for example, some socially-conservative Shi’a PMF groups will punish anybody involved in the alcohol or drug trades, other groups reportedly run private nightclubs in which both alcohol and drugs are readily available. Many PMF groups have reportedly taken advantage of their freedom of action to establish local crime rings and mafia-like protection rackets. Human rights organisations report that some PMF groups engage in killing, kidnapping and extortion throughout the country, particularly in ethnically and religiously mixed governorates... In-country sources report those who fall foul of a PMF group in their local area have little chance of gaining recourse or justice through official means.[19]
[19] Ibid at 5.11.
DFAT states that large scale protests in Iraq in October-December 2019 (referred to as the Tishreen Uprising) were met with regular violence by various parts of the security forces, including masked men who were widely assumed to be from Iraq’s many militias.[20]
[20] Ibid at 3.88.
Other sources confirm human rights abuses committed by the Iraqi Security Forces (ISF), which include Shia PMF militias.[21] The most recent US Department of State country report on human rights practices in Iraq in 2020 (published in March 2021) refers to numerous reports that several government and non-government actors, including militias, engaged in arbitrary or unlawful killings and states as follows:
Human rights organizations reported that Iran-aligned Popular Mobilization Forces (PMF) militia groups engaged in killing, kidnapping, and extortion throughout the country, particularly in ethnically and religiously mixed provinces.[22]
[21] U.S Department of State, 2020 Country Reports on Human Rights Practices: Iraq, March 30, 2021, sections 1.c, 1.d and 1 g; EASO Country of Origin Information Report – Iraq Actors of Protection’ European Asylum Office (EASO), 4 December 2018 p34.
[22] U.S Department of State, 2020 Country Reports on Human Rights Practices: Iraq, March 30, 2021.
In southern Iraq, where the applicant (and his brother and father) come from, country information indicates that these areas largely escaped IS-related violence that affected the other areas of Iraq, and it is more secure than other parts of the country. Nonetheless, isolated IS attacks have occurred in those provinces in recent years,[23] and the security void that resulted from the redeployment of security forces to fight IS in central and northern Iraq left southern Iraq open to tribal clashes, criminal violence and political violence and extortion.[24]
[23] 'Civilian killed in bomb explosion near Iraq's Karbala', Xinhua, 28 July 2019; 'Car bomb blast kills Iraqi citizen, wounds 3 others in Karbala', Ebraheem, M, Iraqi News, 28 July 2019; 'Iraq: Bomb explosion kills one, wounds two others near Karbala July 27', GardaWorld, 27 July 2019; 'ISHM 215: July 25 - August 1, 2019', Education for Peace in Iraq Center (EPIC), 1 August 2019; 'Weekly Iraq .Xplored report 03 August 2019', GardaWorld, 3 April 2019; 'Islamic State’s Offensive Could Be Winding Down', Wing, J, Musings on Iraq, 5 August 2019; 'Bus Bomb Kills 12 Iraqis Near Major Pilgrimage Site', Rubin, A J and Hassan, F, The New York Times, 21 September 2019; and 'ISIL claims bus bombing in Iraq's Karbala that killed 12', Aljazeera, 22 September 2019.
[24] UNHCR op cit, p20; 'EASO Country of Origin Information Report - Iraq Security situation', European Asylum Support Office (EASO), 12 March 2019, p164; 'Tribal feuds spread fear in Iraq's Basra', Agence France-Presse (AFP), 19 January 2018; ‘Basra’s Neglected Future’, Schweitzer, M, Education for Peace in Iraq Centre (EPIC), 27 September 2017; and 'Tribal clashes, political void threaten oil installations in Iraq's south', Mohammed, A and Rasheed, A, Reuters, 11 September 2017.
UNHCR, in its May 2019 report, states the following about the security situation in southern Iraq, commenting on the security vacuum there:
In late 2014, significant numbers of ISF members were deployed from the South to other parts of the country to fight ISIS. Since then, criminal gangs, militias and tribes are reported to have exploited the ensuing security vacuum. Armed robberies, kidnappings for ransom or intimidation, drug trafficking, extortion and payment of protection fees, as well as tribal feuds are reported to be a common occurrence. Feuds between tribes often involve gun violence and even the use of heavy weapons, resulting in casualties among bystanders. The use of small IEDs as an intimidation tactic mostly by tribes has also been reported. According to 2018 survey findings, many civilians in Basra had experienced violence in the previous year, and a majority, particularly women, considered themselves as “likely” or “somewhat likely” to become victims of violence in the near future.[25]
[25] UNHCR op cit.
In the same report, UNHCR comments about the 2018 protests over corruption, government neglect, unemployment and poor services, which erupted in Basra and in other southern cities, with some protests turning violent and leading to deaths and injuries among protesters and security forces. Protest organisers also reported that they decided to suspend further protests after receiving death threats from militias.[26]
[26] UNHCR op cit, p20, 21.
In recent analysis of the October-December 2019 protests (the Tishreen uprising), the International Crisis Group (ICG) states that the presence of the paramilitaries linked to the PMF who had merged with state security institutions following the war with ISIS ‘helped precipitate the brutal response to protests, while shielding the perpetrators from accountability, as no one could be sure who was swinging the club or who had given the order.’[27]
[27] International Crisis Group, Report No. 223/Middle East & North America, ‘Iraq’s Tishreen Uprising: From Barricades to Ballot Box’, 26 July 2021, Executive Summary, Iraq’s Tishreen Uprising: From Barricades to Ballot Box | Crisis Group.
In the same report the ICG discusses the changing nature of the security landscape in Iraq, which the uprising had exposed, stating as follows:
…the Tishreen uprising exposed an unusual, though not unprecedented, intra-Shiite rift. Whereas earlier post-2003 violence in Iraq had primarily pitted Sunnis against Shiites, Arabs against Kurds or the state against insurgents, these confrontations arrayed a Shiite Islamist-led state apparatus against the predominantly Shiite population in Baghdad and the south. It also involved Shiite political parties, paramilitaries and other armed groups that have long been at odds, especially the followers of Muqtada al-Sadr and others under the banner of the Hashd, some elements of which enjoy material support from Iran.[28]
[28] International Crisis Group, Report No. 223/Middle East & North America, ‘Iraq’s Tishreen Uprising: From Barricades to Ballot Box’, 26 July 2021.

Other sources indicate that the main trend in recent violence in Baghdad (and other parts of Southern Iraq) has been political violence between Shia Muslims, and personal, targeted or criminal violence. The latter activities primarily involve the use of intimidation and violence against civilians to make money, drive away civilians who are considered to be outsiders or who the perpetrators want to remove (i.e. political opponents or people of a different sect or ethnicity, or because of the person’s lifestyle or prior involvement in activities or armed conflict). PMF militias in Baghdad are frequently accused by Sunnis and minorities of violence, and Shias have also been targets of extortion and killing. As PMF militias have strong links to criminal gangs, distinguishing between the two is not always clear.[29]
[29] Country Guidance: Iraq – Guidance note and common analysis’ European Asylum Support Office (EASO), January 2021, p 68.
In this context of a fractured political landscape, longstanding sectarian divides (and more recently intra-sectarian divides) and long‑term problems facing Iraq posed by militias motivated by sectarian and political loyalties, it is not far-fetched that the applicant may be at risk of harm from Shia militia who have threatened him in the past, and who have threatened and attacked his brother and father more recently, particularly given in his brother’s case it appears to be personal. Whilst the applicant himself is Shia (as are his brother and father), this does not mean he cannot be targeted by Shia militia, particularly noting intra-Shia rifts and indications that some militias are seeking to impose their ideological views on what they consider is appropriate behaviour in Iraq, and reports that Shias have also been targets of extortion and killing. More broadly, whilst country information indicates that anti-Shia violence has reduced following the defeat of ISIS in Iraq, isolated incidents continue to occur, there is a security vacuum, and Shia militia (including those backed by Iran such as the AAH) have increased their influence and presence as a result, particularly in southern Iraq and Baghdad. Such groups also receive financial and other support from the government (and others, including Iran). There are also reports that, although diminished, ISIS remains a threat, and there is a proliferation of armed actors challenging the state’s monopoly on legitimate violence.
In this context and given the Tribunal accepts the applicant’s brother and father are of ongoing adverse interest to Shia militia elements in southern Iraq, the Tribunal accepts that should the applicant return to his home in Basra (southern Iraq), now or in the foreseeable future, there is a real chance he will face ‘serious harm’ from Shia militia such as members of the AAH, as required by s.5J(4)(b) of the Act, in that it involves threat to his life or liberty or significant physical harassment or ill-treatment. The Tribunal considers that the applicant’s (and his brother and father’s) imputed (anti-militia, pro-Iraqi government, and pro-western) political opinion is the essential and significant reason for the persecution they fear, as required by s.5J(4)(a), and that the persecution which they fear involves systematic and discriminatory conduct, as required by s.5J(4)(c), in that it is deliberate or intentional and involves selective harassment for reason of their imputed political opinion: that is, as persons perceived to be acting contrary to their agenda.[30] The Tribunal is satisfied, based on these findings, that the applicant faces a well founded fear of persecution based on being a member of the particular social group consisting of his brother and father’s family as per s.5K of the Act.
[30] UK Home Office, Country Policy and Information Note, Iraq: Perceived collaborators, February 2019 at 1.2.2.
The Tribunal considers the applicant’s brother’s risk is elevated to some degree as [an Occupation 1] and a highly educated [Occupation 2], as is the risk to the applicant as a former [Occupation 1] who has been in Australia for over four years and worked for an oil company in the past which had contracts with western countries. Country information indicates that Shia militias have a history of human rights abuses against groups and individuals seen as opposing them, holding views they do not approve of, or engaging in behaviour viewed as un-Islamic. For instance (in addition to examples provided above):
a.Freedom House reported in 2021 that in Iraq educators have long faced the threat of violence or other repercussions for teaching subjects or discussing topics that powerful state or non-state actors find objectionable.[31]
b.UNHCR’s May 2019 report states that persons considered to be contravening strict interpretations of Islamic rules in terms of dress, social behaviour and occupations, including atheists and secular-minded individuals, women and members of religious minority groups, are reported to face abduction, harassment and physical attack by various extremist armed groups and vigilantes.[32]
c.There are reports indicating that violence against things or persons considered haram (forbidden) by conservative Islamic groups also occurs in the south, particularly in the Basra Governorate.[33]
d.DFAT states that although there is a reported reduced threat following the rise of IS as focus was directed elsewhere, translators and others working with the international community remain vulnerable to targeted harassment and violence and still face strong societal hostility, particularly in Shia areas of Iraq.[34] DFAT assesses that Iraqis working with the international community are likely to face strong societal hostility, particularly in Shia areas, that may include violence or the threat of violence.[35]
e.During increased US-Iran tensions in January 2020, Shia militia leaders vowed to target and kill Iraqi citizens who cooperated with foreign forces, describing them as enemies who will be ‘eliminated’.[36]
f.Other reports refer to Iraqis who have previously worked with American and British forces in Iraq being under greater threat.[37]
[31] Freedom House, ‘Freedom in the World 2021 – Iraq’, 3 March 2021.
[32] UNHCR United Nations High Commission for Refugees (UNHCR), International Protection Considerations with Regard to People Feeling the Republic of Iraq’, 3 May 2019, pp79-80; ‘Militia groups are forcing Baghdad’s liquor sellers to close up shop’, Rudaw, 20 December 2020.
[33] Office of the Commission General for Refugees and Stateless Persons (Belgium), ‘COI Focus – Iraq: Security Situation in Central and Southern Iraq’, 20 March 2020, p 94.
[34] DFAT Country Information Report Iraq, 17 August 2020 at 3.74.
[35] DFAT Country Information Report Iraq, 17 August 2020 at 3.76.
[36] Ibid at 3.74.
[37] Nafiseh Kohnavard, BBC News, ‘Iraqi interpreters ‘stalked by death squads’ for helping the British’, 30 December 2020.
The Tribunal has gone on to consider if effective protection measures are available to the applicant’s brother and father (and by extension the applicant) in southern Iraq as required by s.5LA of the Act. The harm that they fear is from Shia militia such as the AAH, who are part of the PMF. UNHCR (and others) state that although the PMF falls administratively under the state-run PMF Commission, the level of integration of the PMF’s various components varies significantly and as a result they exist both as part of and outside the formal security apparatus.[38] According to the Washington Institute, the AAH is partly funded by the Iraqi state and the chain of command nominally runs through the Popular Mobilisation Commission of the Prime Minister’s office and up to the Prime Minister; however, in practice, AAH PMF brigades frequently disobey the Iraqi government chain of command while legally remaining organs of the state.[39]
[38] UNHCR op cit, p 14.
[39] Michael Knights, The Washington Institute for Near East Policy, ‘Profile: Asaib Ahl al-Haq’, 27 April 2021, Profile: Asaib Ahl al-Haq | The Washington Institute.
According to the US Department of State in its 2020 report on Iraq, federal civilian authorities in Iraq do not maintain effective control over some elements of the security forces, particularly certain Iran-aligned PMF units.[40] As noted, DFAT reported in August 2020 that individual PMF elements exercise close control over many neighbourhoods in Iraq, particularly in Shia areas.[41] It reports further that numerous incidents of human rights abuses committed by the PMF have gone unprosecuted.[42] Iranian-aligned militias are reported to have threatened, kidnapped, tortured and assassinated many perceived critics.[43] As noted, the ISF and PMF militias were also responsible for the use of excessive force against participants in the anti-government protests that began in October 2019 and continued into late 2020.[44]
[40] U.S Department of State, 2020 Country Reports on Human Rights Practices: Iraq, March 30, 2021, Executive summary.
[41] DFAT Country Information Report Iraq, 17 August 2020.
[42] Ibid at 5.11.
[43] Freedom House, ‘Freedom in the World 2021 – Iraq’, 3 March 2021.
[44] Human Rights Watch World Report 2021, Human Rights Watch, 13 January 2021, p 345; DFAT Country Information Report Iraq, 17 August 2020 at 5.10, 5.11.
More broadly, DFAT advises that the ability of the authorities in Iraq to provide state protection varies according to geographic location, with several parts of the country not under the effective control of the state. They report that all state protection institutions are significantly subject to and affected by corruption, particularly the police; state protection bodies are heavily politicalised; and that human rights groups have consistently raised concerns that impunity for abuses committed by security authority and other official bodies remains the norm.[45]
[45] DFAT Country Information Report Iraq, 17 August 2020 at 5.1.
In terms of the police, DFAT reports that they are under-resourced and under-paid; as a result many supplement their income though corruption or moonlight in other occupations including as PMF members; and there are deficits in training and resources limiting their ability to carry out normal policing functions beyond staffing checkpoints and directing traffic[46]. In terms of the criminal justice system, international observers report that it is weak, and judges, lawyers and their family’s members frequently face abuse, death threats and attacks in relation to their work from sectarian, tribal, extremist and criminal elements, which can act to impair judicial independence.[47]
[46] Ibid at 5.13.
[47] Ibid at 5.19 – 5.24.
The US Department of State reports that:
During the year the security situation remained unstable in many areas due to intermittent attacks by ISIS and its affiliated cells; sporadic fighting between the Iraqi Security Forces (ISF) and ISIS strongholds in remote areas; the presence of militias not fully under the control of the government, including certain PMF units; and sectarian, ethnic, and financially motivated violence….
Impunity effectively existed for government officials and security force personnel, including the Iraqi Security Forces, Federal Police, Popular Mobilization Forces, and certain units of Kurdistan Regional Government Asayish internal security services.[48]
[48] US Department of State, 2020 Country Reports on Human Rights Practices: Iraq, March 2021,
>
UNHCR reports that both state and non-state actors commit human rights violations and abuses with impunity,[49] and Iraq’s criminal justice system is reported to be weak and does not meet international and domestic legal obligations in relation to arrest and detention, due process and fair trial standards.[50] In terms of the capacity and effectiveness of the Iraqi state to protect its citizens, it states:
The ISF, including the local police, continue to be themselves a target of attacks by ISIS, weakening their ability to provide protection to civilians. The rule of law is reported to be compromised by the actual and perceived corruption in law enforcement agencies and the judiciary. In addition to prevailing nepotism, the independence of the judiciary is reportedly also undermined by political pressure from the executive branch and political parties, as well as threats, intimidation and attacks against judges, prosecutors, lawyers and, in some cases, their family members. Due to a lack of trust in the effectiveness of the formal justice system, many Iraqis are reported to turn to tribal conflict resolution mechanisms. Access to justice for women and persons of diverse sexual orientations and/or gender identities is reported to be hampered by patriarchal gender norms that continue to persist among members of law enforcement agencies and the judiciary.[51]
[49] UNHCR op cit, p41.
[50] UNHCR op cit, p42.
[51] UNHCR op cit, p43 (footnotes omitted).
Such country information indicates, among other things, that Shia militias have a presence in Baghdad and throughout southern Iraq and the Iraqi government is currently unable to control their activities or provide effective protection to the applicant or his family members if the militias were to target them. DFAT noted that the central government lacks capacity to maintain consistent control over the PMF and there have been credible allegations that militias committed human rights abuses and engaged in violence and criminal acts.
Based on such country information, the Tribunal is not satisfied that the state, party or organisation is willing and able to offer protection, noting in particular concerns about the police force’s lack of capacity, and the prevalence of human rights abuses committed by ISF and others including the PMF, which include the AAH, and lack of control over militias and lack of an impartial judiciary. The Tribunal is not satisfied that effective protection measures as per s.5LA are available to the applicant and/or his family in southern Iraq provided by the state, party or organisation.
The Tribunal has gone on to consider whether the real chance of persecution relates to all areas of Iraq as required by s.5J(1)(c). The Tribunal has found the applicant’s brother and father would face a real chance of serious harm from Shia militia in southern Iraq where they continue to exert control and influence, as well as in Baghdad, and by implication the applicant.
The applicant’s brother and father have moved to Erbil, Kurdistan region, to avoid the harm they fear from Shia militia elements in southern Iraq and the applicant did not given any indication that militia have been able to locate them there. DFAT state that the constitution allows the Kurdistan Regional Government (KRG) the right to maintain internal security forces; that the two main Kurdish political parties both maintain an independent security apparatus, controlling separate internal, military and intelligence services nominally under the control of the KRG Ministry of Interior; that Asayish is the KRG’s primary security and intelligence agency; the Peshmerga is the KRG’s primary military force with primary responsibility for security in that region and is generally viewed as a highly competent military force; and the Iraqi army is forbidden by law to enter the KRG.[52]
[52] DFAT Country Information Report Iraq, 17 August 2020 at 5.15 - 5.18
Based on this country information, the Tribunal is not satisfied the real chance of persecution relates to all areas of Iraq. In the applicant’s case he could move there to avoid harm by Shia militia personally and because he is a member of the particular social group of his father and brother’s family, as his father and brother have done. There are, potentially, administrative obstacles in doing so and other considerations pertinent in the applicant’s case including the trauma and related mental health problems he experienced as a result of the loss of his wife and children, which in the Tribunal’s view, makes relocation unreasonable. However, these matters are discussed separately in respect of the Tribunal’s complementary protection provisions assessment, below.
For these reasons, the Tribunal is not satisfied the real chance of persecution in the applicant’s case relates to all areas of Iraq as required by s.5J(1)(c). Consequently, the Tribunal is not satisfied the applicant faces a well-founded fear of persecution as required under s.5J of the Act.
Complementary protection assessment
Given this finding, the Tribunal has gone on to consider whether, if the applicant were to return to southern Iraq, there is a real risk that he will suffer significant harm for the reasons given, including from Shia militia (and/or others) due to being a member the particular social group consisting of his brother and father’s family, who face persecution from Shia elements due to their imputed political opinion. The Tribunal notes in this regard that the threshold of the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Relying on the same reasoning as above (and taking into account relevant country information cited and discussed above (earlier)), the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to southern Iraqi governorates,[53] there is a real risk that he will suffer significant harm at the hands of Shia militia groups. The Tribunal is satisfied that the harm involves severe physical or mental pain or suffering or both, which is intentionally inflicted on the applicant. The Tribunal is satisfied that the harm also involves an act that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is therefore satisfied that the treatment that the applicant will be subjected to amounts to cruel or inhuman treatment or punishment, or degrading treatment or punishment, as defined in the Act.
[53] Southern Iraq refers to the governorates of Babil, Karbala, Najaf, Wasit, Dhi Qar, Missan, Muthanna, Qadisiyah and Basra.
Also relying on earlier reasoning (and country information) about the lack of effective state protection from the harm the applicant (and his family members) fears from Shia militia in southern Iraq, the Tribunal is not satisfied that the general measure of state protection in Iraq is sufficient in the applicant’s case to remove the real risk of significant harm from Shia militia. In reaching this conclusion, the Tribunal notes that in order to satisfy s.36(2B)(b) of the Act, court authority requires that the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one: see MIAC v MZYYL.[54] The Tribunal also notes that the Department’s Complementary Protection Guidelines relevantly state:
The fact that a receiving state has generally functioning laws and standard protections in place that are available to the general community is one element that may be taken into account in determining whether a person faces a real and personal risk of significant harm. Nevertheless, an individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place.[55]
[54] (2012) 207 FCR 211 at [40].
[55] Department of Immigration and Border Protection, PAM3 ‘Complementary Protection Guidelines’, section 38 as re-issued 21 May 2015.
The Tribunal finds that, for the purposes of s.36(2B)(b) of the Act, the applicant could not obtain from an authority in Iraq protection such that there would not be a real risk that he will suffer significant harm.
The Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to southern Iraq (and Baghdad where Shia militias continue to have influence), there is a real risk that he will suffer significant harm from Shia militia.

The Tribunal has considered if it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm as required by s.36(2B)(a).
For the reasons that follow, including country information about the situation in Sunni areas and difficulties faced by outsiders who live in Kurdistan, and the applicant’s personal circumstances, the Tribunal finds that it is not reasonable for him to relocate to an area of Iraq where there would not be a real risk of significant harm.
In its August 2020 report, DFAT states that successful relocation in Iraq will typically depend upon the availability and access to social networks, consisting of a person’s family, extended family or tribe; that relocating beyond the reach of existing support networks is a difficult proposition; and that in ‘a time of a global recession caused by COVID-19, worsened by the dependence of the Iraqi economy upon oil, the capacity of someone to subsist in a different region of Iraq may further be diminished’[56].
[56] DFAT Country Information Report Iraq, 17 August 2020 at 5.37.
UNHCR in its May 2019 report states that an individual’s ties ‘to an ethnic and/or religious community and existing tribal and family links in the area of relocation are crucial when assessing the availability of an IFA/IRA [internal flight or relocation alternative]’. UNHCR also stated that ‘an IFA/IRA to an area with a predominantly different ethnic or religious demography may also not be possible due to latent or overt tensions between groups.’ This was seen as being ‘particularly the case for Sunnis in predominantly Shi’ite areas, and vice versa.’ In addition, it was advised that ‘[m]embers of religious or ethnic minority groups should not be expected to relocate to an area with no presence of members of the same community that would allow for a certain level of support.’[57]
[57] UNHCR op cit, p120.
UNCHR also considers that relocation is not available in areas formerly controlled by ISIS or otherwise affected by conflict in light of continued human rights violations and abuses by state and non-state actors, continued ISIS presence and ongoing anti-ISIS military operations in these areas. UNHCR further considers that an IFA/IRA is not available in the disputed areas due to these areas’ sensitive security, political and demographic dynamics and the risk of further destabilising the situation through population movements, including in the Districts of Kirkuk, Khanaqin (Diyala Governorate) and Tuz Khurmatu (Salah Al-Din Governorate).[58]
[58] UNHCR op cit, p116.
Regarding relocating to the KRI, DFAT states that it may be difficult for non-Kurds who do not speak Kurdish to relocate there and that opportunities to make a living may be limited given hundreds of thousands of IDPs are unable to find work and public sector jobs reserved for Kurds.[59] In its May 2019 advisory, the UNHCR expressed the view that ‘given the current humanitarian situation’ in the KRI, ‘an IFA/IRA is generally not available’ in that region.[60]
[59] DFAT Country Information Report Iraq, 17 August 2020 at 5.34.
[60] UNHCR op cit, p126.
On the basis of such country information, the Tribunal is not satisfied that relocating to a predominantly Sunni area in Iraq’s north would be safe or reasonable in the applicant’s case; he is Shia and has no family or community ties in such an area, particularly given the history of sectarian violence and the continued presence of ISIS combatants in some Sunni areas.
With respect to internal relocation to the Kurdistan Region, the presence of the applicant’s brother, and parents may help in this regard, however, the Tribunal notes they themselves have moved there with limited networks and support. The applicant has not indicated that he has ever lived in Kurdistan and it may be difficult to obtain the required permission for him to do so.
The Tribunal considers there are other reasons why relocation away from southern Iraq would not be reasonable in the applicant’s case, particularly given he would be returning to a country where his wife and young children were killed, with associated ongoing trauma and grief, away from his usual family and support networks. In his letter to the Tribunal the applicant’s treating psychiatrist describes the devastating impact the loss of the applicant’s wife and children has had on the applicant, leading to a diagnosis of Anxiety and Depression (mixed) for which he is prescribed antidepressants. At hearing it was clear the applicant remains traumatised by these events, which is entirely understandable.
For these reasons, considered cumulatively, the Tribunal is not satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm as required by s.36(2B)(a).
The Tribunal is satisfied that the significant harm the applicant faces is faced by him personally and not faced by the population of the country generally, as required by s.36(2B)(c) of the Act.
Therefore, the Tribunal finds that the applicant is not precluded from protection by the operation of s.36(2B)(a), (b) and (c) of the Act.
The Tribunal is satisfied that the applicant does not have a legally enforceable right to enter and reside in any country other than his country of nationality: Iraq. The Tribunal finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Nicole Burns
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.
…

[2021] AATA 4673

21 September 2021

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