1813142 (Refugee)

1813142 (Refugee) [2022] AATA 3424 (15 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Penny Dimopoulos (MARN: 0636233)
CASE NUMBER: 1813142

COUNTRY OF REFERENCE: Iraq
MEMBER:Nicole Burns
DATE:15 July 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 July 2022 at 4:35pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Chaldean Christian – particular social group – imputed political opinion – business serving alcohol – Kurdistan Region of Iraq – attacks by Muslim extremists – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994, Schedule 2
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 dependant.
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 18 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is from the Kurdistan region of Iraq (KRI). He came to Australia [in] September 2015 holding a student visa. He identified himself as an Iraqi citizen and provided copies of his Iraqi passport, citizenship certificate and identity card to the Department, who accepted his claimed identity and nationality. Accordingly, the Tribunal accepts the applicant is a national of Iraq and that Iraq is his ‘receiving country’ for the purposes of assessing his protection claims.
The applicant applied for the protection visa on 19 November 2015, claiming he cannot return to Iraq for several reasons including being a Chaldean Christian whose family owned a [business] serving liquor which enraged Muslim extremists in his hometown of Erbil, KRI’s capital. The delegate was not satisfied that Australia had protection obligations in relation to the applicant and refused to grant him the visa on 18 April 2018.
The issue in this case is whether the applicant meet any of the alternative criteria in s 36(2)(a),(aa), (b) or (c) of the Act, 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. A summary of the relevant law appears at Attachment A and extracts of the legislation are at Attachment B.
The applicant appeared before the Tribunal on 11 May 2022 where he gave evidence and presented arguments about the issues in his case. The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
In assessing the applicant’s claims, the Tribunal has had regard to the Department of Immigration (the Department) Policy Guidelines (Refugee and humanitarian – Complementary Protection Guidelines and Refugee and humanitarian – Refugee Law Guidelines) and the country information assessment 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. DFAT’s most recent country information report on Iraq was published on 17 August 2020.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF Claims and evidence
Relevant background
The applicant is [an age]-year-old man from Erbil, KRI. He came to Australia [in] September 2015 holding a student visa and enrolled to study a [course] at [University 1], on an Iraqi government scholarship. However, at hearing, he said he never received any financial support from the Iraqi government to study: it was just a way to get him out of the country. He stopped studying in Australia after nine months, obtaining a [qualification]. In Iraq he had obtained a [Discipline 1] degree and also undertook studies in [specified subjects] in [Country 1] in around 2012/2013, supported by his then employer. He worked in various positions in Iraq including as [an Occupation 1] for [Agency 1] of the Kurdistan Regional Government (KRG). Presently in Australia he owns and operates a shop.
At hearing, the applicant said his father died in February this year. His mother – who is [retired] – currently lives in the family home with [a relative] in the KRI. He has [specified family members, of whom some] fled Iraq in late 2014 when the Islamic State came. One resides in [Country 2] and the other lives in [Country 3], after being granted asylum in those countries. According to the applicant, they have not visited Iraq since.
Claims, evidence and findings
The applicant set out his protection claims (and relevant background) initially in a typed statement of claims dated 15 October 2015 that he provided to the Department. In summary, he claimed as follows:
·He left Iraq for [Country 4] [in] September 2015. In Iraq he lived in a predominantly Sunni majority, Christian northern Iraqi city of Erbil (capital of Kurdistan) with his parents, siblings, grandparents and uncles.
·In [specified year] his grandfather opened a [business] in [a named] district, central Erbil.
·His family experienced difficulties during Saddam Hussein’s regime and in 1989 his grandfather was the victim of a drive-by shooting (earlier he had received threats from Muslim fundamentalists to close down his [business]).
·Afterwards the applicant’s father and [uncle] reopened the [business]. After the fall of Saddam Hussein’s regime in April 2003 it was relatively stable in Kurdistan.
·On 15 October 2003 the applicant got a job as [an Occupation 2] in [Agency 1] of Kurdistan Regional government, Erbil, and started studies in [specified subjects] at [University 2].
·In February 2009 the applicant, along with [two brothers] ([named]), opened ‘[Business 1], in [District 1], a Christian district of Erbil. He then started to receive death threats from Muslim extremists. [Mr A] (a member of a powerful Islamic party) threatened them many times because they sold alcohol and spread immorality.
·In September 2012 the applicant went to [Country 1] to study at [a named] University, obtaining a [specified qualification]. He returned to Kurdistan [in] June 2013.
·On 7 August 2014 ISIS militants gave Christians in the neighbouring city of Mosul to the next day to convert to Islam, flee or die: this resulted in a mass exodus of Christians to Erbil, with many refugees in [District 1]. Militants branded homes belonging to Christians with red paint and the letter ‘N’ for Nasrani.[1]
·In late 2014 the applicant’s [siblings], [named], went to [Country 3] and [Country 2] with their [families], and left the applicant in charge of [Business 1].
·A party was held at [Business 1] [in] December 2014, with around [number] Christian guests. At the party, two uninvited guests came, and when the applicant tried to prevent them from entering, they abused him – calling him an infidel – and beat him severely. Local police came and arrested the two men. However, the next morning, the applicant received a threatening phone call from an unknown person, warning that they would finish him off if he tried to press criminal charges. These men were released from prison hours later.
·In May 2015 two members of a radical Islamic party came to [Business 1] with two armed bodyguards, a lawyer, an accountant, and a local city council employee, with an ‘offer’ to buy the [business], which they planned to demolish and build a mosque. The applicant refused.
·On 7 May 2015 the applicant approached the head of the Department at [Agency 1] where he worked, [Mr B], for advice. Four days later, [Mr B] told the applicant he would get him a government scholarship abroad, as he believed that he was a legitimate target for Islamists. The applicant accepted the offer and left Iraq [in] September 2015, arriving in Melbourne [in] September 2015 where he was enrolled in a [course] at [University 1].
·On 19 September 2015 two veiled armed terrorists broke into the applicant’s family’s house in Erbil; abused and insulted his father, mother and [a family member]; tied up his father and beat him severely; threatened to kill to him in order get his signature on a document to sign over ownership to them of [Business 1]; and threatened to kill his father and their family if they told the police. They also said to advise the applicant to never return, or his life would be in danger.
·The applicant’s funds to study in Australia were recently cut.
[1] The Arabic term for Christian.
Material the applicant provided to the Department in support of his protection visa application included a copy of his birth certificate, and baptism and confirmation certificates from the Chaldean Archdiocese of Erbil. On this basis, the delegate accepted the applicant was a Chaldean Christian, as does the Tribunal.
In their decision record, the delegate expressed doubts about the applicant’s claims to have partly owned [Business 1] in Erbil in the past (and related problems) because of his failure to provide any documentary evidence of such, and because he was studying in [Country 1] around the time he claimed to have been working at [Business 1]. Before the Tribunal, the applicant explained that he (and his two brothers) purchased the [business] in early 2009 and remain owners, even though he has been out of Iraq since September 2015 (and his brothers since 2014). These days managers and staff look after [Business 1], as has been the case in the past when he went to [Country 1] to study: from September 2012 to June 2013. The applicant explained further that from around 1999 to before he left Iraq in September 2015, his primary employment was with [Agency 1], with [Business 1] being a family business, largely managed by his brothers before they left Iraq in 2014 and others thereafter. The Tribunal found the applicant a credible witness and his description of his work and business arrangements in Iraq plausible.
As evidence of his part ownership of [Business 1], the applicant provided to the Tribunal a translated copy of a document issued by the Iraqi Kurdistan Regional government, [a specified ministry and section], which lists him as a share owner (along with his brothers, ‘[named]’) of the [business premises], signed [in] April 2014. At hearing, when asked why he did not provide this document to the Department earlier, the applicant said he thought he had given this document (among others) to his then representative, whom he described as ‘disorganised’. Given the Tribunal found the applicant credible, it accepts his explanation in this respect.
Based on this evidence, as well as the applicant’s detailed oral evidence about his role and involvement with [Business 1] – which he has consistently claimed – the Tribunal accepts he owns a third of [Business 1] in [District 1], Erbil, KRI, along with his two brothers, from 2009 to date. It accepts that staff manage and operate the business whilst he (and his brothers) is overseas.
In his oral evidence to the Tribunal, the applicant described his background, reasons for leaving Iraq and fears upon returning there now. As noted, the Tribunal found him a credible witness whose oral evidence was detailed, context specific, and generally consistent with his written claims before the Department and Tribunal. He did not appear to try and embellish his claims. Additionally, as noted, he has now provided evidence of his part ownership of [Business 1]. Furthermore, the Tribunal notes his claims about being targeted by Islamic groups or individuals because he owned a venue that sold alcohol is consistent with country information that indicates alcohol sellers and/or those in the alcohol trade in Iraq have been targeted.[2]
[2] DFAT Country Information Report, Iraq, 17 August 2020 at 3.51
On this basis, and given the Tribunal accepts the applicant is a Christian who part owns a [business] in the KRI which serves alcohol (among other things), and his work history with the KRG, it accepts his evidence about his past experiences in Iraq, summarised as follows:
a.The applicant grew up in Erbil, KRI, and obtained a [Discipline 1] degree after school. He also obtained qualifications in [specified subjects] in [Country 1], in around 2012/2013.
b.From around 1999 he worked primarily in different support and advisory roles with [Agency 1], including in [a nominated section], which he likened to [its counterpart] in the Australian setting. One of his roles involved undertaking the administration (organising paperwork, services, changing status on documents and so on) for [a specified group] (largely Christians) [within] Erbil, which was significant around the time ISIS arrived in northern Iraq in 2014. After he graduated he became [an Occupation 1] and adviser to various ministers, including the [one specified] in Erbil in 2004.
c.For decades the applicant’s family operated shops and [businesses] in the Erbil area, which resulted in them being threatened and in some cases seriously harmed by Islamic extremists several times. For example:
a.The applicant’s grandfather was shot and killed in front of the family home in 1989 because he was Christian and had a [shop] in Erbil city. He had received threats from Islamic extremists around a month prior to his death.
b.In 1997 his father’s and uncle’s shop were bombed by Islamic extremists, which injured his uncle. The extremists threatened the applicant’s uncle and father with death if they reopened the shop.
c.Three or so years later his father opened another shop in [District 1], where the applicant worked with his brother. Every year as the number of Christians reduced and the number of Muslims grew, they received even more threats.
d.In 2009 the applicant and his two brothers bought and opened a [business] ([named Business 1]) selling Iraqi food, with live music on weekends. They also served alcohol, which was not illegal but was considered immoral by many people.
e.During a party at [Business 1] in December 2014 two conscripts from the Iraqi military tried to enter the party, but the applicant did not let them. They hit him and the applicant reported the assault to the police. After that they called the applicant in the middle of the night telling him to withdraw the complaint otherwise he would be harmed. The applicant withdrew the complaint and did not see them again.
f.Before he left Iraq, the applicant was approached by a member of an Islamic party to sell him [Business 1] in order to build a mosque there. The first time he visited the applicant, the applicant refused. The second time he came with a group of men and title deeds to transfer ownership and the applicant asked for more time. He then got a scholarship to Australia. Sometime after he left Iraq, these men visited the applicant’s father at his house, threatened him, beat him, and forced him to sign the title deed: however, because his father was not the owner, it had no legal effect. The applicant was unsure if they visited his father again.
Are the applicant’s fears of persecution well-founded?
Given these findings about the applicant’s past experiences and profile in Iraq, the Tribunal has considered whether he faces a real chance of serious harm from Muslim extremists as a Christian who owns a [business] that serves liquor on return to Iraq in the foreseeable future. It has considered independent country information about the situation for Christians in the KRI (and those involved in the alcohol trade) in doing so.
In her written submission provided to the Tribunal, the representative argues that the applicant has a well-founded fear of persecution on return to Iraq for several reasons, including due to his:
·Christian religion;
·imputed political opinion; and
·membership of the following particular social groups:
Ø returnee from Australia/Western;
Ø professional and returnee professionals in Iraq;
Ø Christians with an imputed adverse political opinion.
The representative refers to country information from a variety of sources about the poor security situation in Iraq, including in northern Iraq, and ongoing discrimination and mistreatment faced by Christians there to support her contention that the applicant’s fears are well‑founded. Additionally, she refers to other Tribunal decisions with similar fact scenarios, wherein the applicants were found to be owed protection based on their Christian religion in Iraq.
At hearing, the representative argued that the applicant is at a heightened risk of harm because he is easily identifiable as one of the owners of [Business 1] , which is a widely known Christian establishment which serves alcohol, and there is a history of associated incidences. Additionally, the applicant has worked for the KRG and is one of a few Christian [Occupation 1] there. She added further that although ISIS has been defeated, things could change any moment given the instability and history in the area.
At hearing, the applicant said he remains fearful if he has to return to Iraq as a Christian, and because he is known to be the owner of [business] selling liquor (and who faced problems in the past as a result). Also because he worked for the KRG for around 15 years, for different ministers and leaders, primarily for the Kurdistan Democratic Party (KDP). As such, he fears Islamic extremists and certain members of the current KRG, noting that even though the same party is in power in the KRI, alliances have shifted in some ways. He considers his risk profile is increased as a professional, noting there are not many Christian [Occupation 1] in Iraq, and that in the past when he worked for the KRG he helped draft various papers which could be considered to protect Christian interests.
The Tribunal has taken into account these submissions and the applicant’s evidence about his extant fears, as well as the following country information relevant to his claims, to determine if the applicant’s fears if he returns to Iraq in the foreseeable future are well‑founded.
According to the most recent statistics available (published in 2010 by the Iraqi government) 97 percent of Iraq’s population are Muslim, and 3 percent form other religious groups including Christians.[3] Islam is the official religion of Iraq. The Iraqi Constitution provides freedom of religious belief and practice for Muslims, Christians, Yazidis and Sabean Mandeans but not for any other religions or atheists.[4] Chaldeans – the religion the applicant adheres to – make up 80 percent of Christians.[5] Chaldeans, among other religious minority groups, are recognised by the country’s Personal Status law and Chaldeans are thereby registered with the Iraqi government.[6]
[3] UK Home Office, Country Policy and Information Note, Iraq: Religious Minorities, July 2021, at 3.1.1
[4] UK Home Office, ibid at 2.4.2
[5] UK Home Office, ibid at 3.2.3
[6] United States Department of State, ‘2020 Report on International Religious Freedom: Iraq’ (Section 2), 12 May 2021
The Christian population in Iraq has declined significantly since 2003 due to attacks, threats and resultant mass exodus, in particular from Islamic State‑controlled areas. While the Christian population of Iraq was estimated to have numbered between 800,000 and 1.4 million prior to the March 2003 US-led invasion, fewer than 250,000 now remain in the country. According to estimates provided by Christian groups, the number of Christian families leaving Iraq daily range from 10 to 22 in 2018. The majority of the remaining Christians in Iraq – at least 200,000 – live in the Ninewa Plain and the KRI.[7] Some Christians have returned to their home areas since Islamic State was defeated in 2017, however, some have been unable to do so for several reasons including because their homes have been taken over or they face harassment by Popular Mobilisation Forces (PMF) groups and others.[8] In 2014, when Mosul and Ninewa Plains fell to the Islamic State, thousands of Christians fled the region, mostly to the KRI and abroad. Reportedly, around 130,000 fled to the KRI, primarily to Ainkawa, an Assyrian majority suburb of Erbil. According to the United States Commission on International Religious Freedom (USCIRF) 2019 report, only an estimated 30 to 50 percent of the population of Chaldeans, Assyrians and other Christians had returned to their original areas since the defeat of Islamic State.[9]
[7] DFAT Country Information Report, Iraq, 17 August 2020 at 3.46; Mohy Omer, United States Commission on International Religious Freedom (USCIRF), USCIRF Country Update: Iraq, March 2022, p 3; and United States Department of State, 2021 International Religious Freedom Report: Iraq, 2 June 2022, Executive summary, and Section II.
[8] Ali, N, Rudaw, ‘ISIS destroyed thousands of Christian homes, ruined 120 religious sies in Mosul’, 27 November 2018; and Asia News IT, ‘Hundreds of Christian-owned homes taken over in Neneveh Plain’, 16 November 2018.
[9] United States Commission on International Religious Freedom (USCIRF), ‘United States Commission on International Religious Freedom 2020 Annual Report’, p 73, 28 April 2020.

In its May 2019 report titled ‘International Protection Considerations with Regard to People Feeling the Republic of Iraq’, the UNHCR state as follows:
While the Iraqi authorities are reported to generally respect freedom of religion, minorities, many of which do not have strong political or tribal networks, have faced waves of displacement due to conflict and political and religious persecution, most recently at the hands of ISIS. Furthermore, minority groups report legal, political, and economic marginalization. The practice of the Baha’i faith remains prohibited. Minority communities have reported instances of harassment as well as sexual assault from government-affiliated groups in some areas. In the KR-I [Kurdistan Region of Iraq], instances of discrimination by the authorities against members of minority groups and suppression of their political freedom have been reported. In some instances, minority rights groups and activists have reported about threats and politically motivated restrictions on their work by state and non-state actors. In and near formerly ISIS‑held areas, attacks are reported to be carried out against members of minority groups … with attacks reportedly claimed by or attributed to ISIS.
… Over the years, there have been reports of instances of killings and kidnapping for ransom targeting members of religious minorities, including Christians and Sabaean‑Mandaeans, by government-affiliated groups, criminal groups, and armed groups for sectarian or criminal motives (on account of their perceived wealth), or a combination of the two.[10]
[10] UN High Commissioner for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, HCR/PC/IRQ/2019/05_Rev.2, pp 74 & 77, available at: 14 July 2022].
Country information indicates that the situation for Christians in the KRI has been relatively better than in other parts of Iraq. Some sources indicate the situation for Christians in the KRI is very stable, and that they are better protected by legal provisions and enjoy equal business and employment opportunities.[11] There were no documented cases of violence specifically related to religious affiliation in the KRI during 2020[12] and 2021.[13]
[11] Immigration and Refugee Board of Canada (IRB), ‘IRQ200350.E – Iraq: Situation and treatment of Christians, particularly in the north, the Kurdistan region, and Baghdad; government protection and support programs (2017 – September 2020)’, 9 October 2020
[12] United States Department of State, 2020 International Religious Freedom Report: Iraq, 12 May 2021, Section III
[13] United States Department of State, 2021 International Religious Freedom Report: Iraq, 2 June 2022, Executive Summary
Nonetheless, in the KRI there are reports of discrimination – including in relation to land disputes and property issues, movement restrictions and denial of services – but to a lesser degree than other areas.[14] In a report on religious minorities published in July 2021, the UK Home Office noted that while discrimination against and mistreatment of religious minorities does occur within the KRI, there are generally fewer reports than in the rest of Iraq.[15] Nonetheless, the report noted that:
There have been reports of incidents where members of religious minorities have been attacked or kidnapped in both the KRI and Baghdad, as well as others being targeted by criminal gangs, albeit not necessarily always on the basis of their religion. Members of religious minorities may also be threatened and harassed for refusing to wear the hijab or not adhering to Islamic norms regarding public behaviour and moral codes. Religious minorities can also experience discrimination such as negative nepotism, illegal property appropriation, verbal abuse, negative stereotyping, and threats on social media.[16]
[14] European Union Agency for Asylum (EUAA), EUAA Country of Origin Information Report – Iraq Targeting of Individuals, January 2022, p 47.
[15] UK Home Office, ibid at 2.4.8
[16] UK Home Office, ibid at 2.4.15
There are also allegations by Christians in the KRI – particularly Syriac‑Chaldean‑Assyrian Christians – that their land and property has been appropriated by Kurdish residents and the KRG, and the KRI courts rarely uphold legal complaints made by Christians relating to land and property disputes.[17]
[17] United States Commission on International Religious Freedom (USCIRF), ‘United States Commission on International Religious Freedom Annual Report 2022’, 25 April 2022; and Christian Solidarity Worldwide, ‘Assyrian Christians arrested after attempted land grab’, 12 May 2022
In January 2021 the European Asylum Support Office (EASO) published a country guidance note on Iraq stating that:
… Christians in KRI have reported that they were subjected to politically and territorially motivated movement restrictions. Violence against Christians in the KRI has been less common, but Christians in the region have faced discrimination in the form of intimidation and denial of access to services. Christian NGOs have reported that some Muslims threatened and harassed women and girls for refusing to wear the hijab or not adhering to strict interpretations of Islamic norms regarding public behaviour.[18]
[18] European Asylum Support office (EASO), ‘Country Guidance: Iraq – Guidance Note and Common Analysis, p 90, January 2021.
DFAT in their most recent country information report on Iraq note the general decline in tolerance towards ethnic and religious minorities from majority communities in Iraq since 2003 has significantly affected Christians. Local sources report increased harassment and violence in areas where Christians are a minority, including Shi’a areas of Baghdad or in Basra.[19] They report about how Christians suffered greatly during the Da’esh occupation in northern Iraq, with many forcibly converted to Islam, abducted, raped and/or killed. Da’esh also destroyed religious sites.[20]
[19] DFAT, ibid at 3.46
[20] DFAT, ibid at 3.50
DFAT report that Christians (and others) involved in the alcohol selling business regularly receive threats from some PMF groups and individuals opposed to the alcohol trade, despite having permits (to operate liquor stores).[21] DFAT has assessed that Christians involved in the alcohol trade face a high risk of societal violence.[22]
[21] DFAT, ibid at 3.49
[22] DFAT, ibid at 3.51
Reports from other sources confirm that is the case. For instance, reports indicate that although the 2016 law banning alcohol does not appear to be widely enforced in Iraq, and the KRG government has stated that the ban would not be applied or enforced there,[23] alcohol sellers have been targeted. EASO stated in a January 2021 report that alcohol vendors in Iraq ‘may be subject to assassination, death threats or forced out of their community’, and noted that this mostly affected Christians and Yazidis as the main importers and sellers of alcohol.[24] Liquor stores have been subject to firebombing, and people have been shot in liquor stores, mainly in Baghdad, but also in other districts.[25]
[23] US Department of State, ‘International Religious Freedom Report for 2017 – Iraq’, 29 May 2018, Section II.
[24] European Asylum Support office (EASO), ‘Country Guidance: Iraq – Guidance Note and Common Analysis, p. 82, January 2021.
[25] For example see: US Department of State, ‘International Religious Freedom Report for 2017 – Iraq’, 29 May 2018, Section III; Anadolu News Agency, ‘4 Iraqis killed for selling alcohol in Mosul’, 29 November 2017; al-Omran, F, Diyaruna, ‘Pro-Iran groups behind Baghdad liquor store attacks’, 3 December 2020; BasNews, ‘Baghdad: Another Liquor Store Comes Under Bomb Attack’, 14 January 2021; and BasNews, ‘House of Christian family Attacked with Explosive Device in South of Iraq’, 30 November 2021.
Overall, DFAT make the following assessment about the risks Christians face in Iraq:
DFAT assesses Christians belonging to recognised denominations face a low risk of official discrimination. Like other minorities, Christians face a moderate risk of societal discrimination and violence in areas where they are a minority. Those involved in the alcohol trade face a high risk of societal violence. Christians living in areas controlled by PMF groups are likely to keep a low profile to avoid negative attention, including through adopting hijab. Those living in areas where violence continues or who have been displaced face a risk of societal violence similar to that faced by other groups living in those areas or situations.[26]
[26] DFAT, ibid at 3.51
UNHCR in their May 2019 report note risks to individuals in Iraq by various extremist armed groups and vigilantes if they are considered as ‘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’. They are reported to face abduction, harassment and physical attack by such groups.[27]
[27] UNHCR, ibid at pp 79 & 80
More broadly, country information indicates that the security situation in Iraq varies according to location but is highly unstable and fluid. Whilst the KRI is generally regarded as a more benign security environment, its borders are insecure. Violent crime is common, and kidnappings, murders and robberies occur frequently.[28] According to DFAT, human rights observers report security conditions remain fraught in territories claimed by both the central government and KRG.[29]
[28] DFAT, ibid at 2.58
[29] DFAT, ibid at 2.59
Such country information indicates that the situation for Christians throughout Iraq remains poor and precarious. Christians have been targeted by Islamic State and other groups and individuals in the past, resulting in a mass exodus since around 2014 from their communities, largely abroad and to the KRI, where the situation for Christians is better although there are still reports of discrimination and mistreatment. Given such country information about the overall situation for Christians in the KRI, the Tribunal is not satisfied the applicant will face a well‑founded fear of persecution on the basis of his Christian religion alone if he returns to the KRI.
However, taking into account the applicant’s particular circumstances and profile, and country information indicating that those engaged in practices deemed unIslamic – including the sale of alcohol – are targeted for serious harm, the Tribunal considers if he returns to the KRI, he faces a real chance of serious harm from Muslim extremists for the combined reasons of his Christian religion and membership of a particular social group of ‘Christians involved in the alcohol trade’.
The Tribunal accepts the applicant has been threatened and harmed in the past by various individuals and groups who were unhappy about [Business 1], and specifically by Muslims wanting to take over the premises, demolish the [business] and build a mosque there. Whilst this occurred several years ago and the applicant is unsure if these elements still have an ongoing interest in doing so, given he was threatened and harmed in the past, as was his father after he left Iraq, and DFAT’s advice that individuals involved in the alcohol trade face a high risk of societal violence, the Tribunal accepts there remains more than a remote risk of the applicant experiencing serious harm from such elements on return to the KRI in the foreseeable future. This risk would be there even if he does not work at [Business 1], given he is part owner, has been for over 10 years, and this is widely known.
Accordingly, having regard to the country information concerning the situation for Christians in Iraq, including in the KRI, and the applicant’s particular circumstances as a Christian involved in the alcohol (and has experienced problems in the past as a result), the Tribunal accepts that should the applicant return to Erbil, KRI, now or in the foreseeable future, there is a real chance he will face serious harm from Muslim extremists as required by s 5J(4)(b) of the Act in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment. The Tribunal accepts that the treatment constitutes serious harm for the purposes of s 5J(5)(a) of the Act in that it involves a threat to life or liberty, noting the applicant and his father have been threatened and beaten by such elements in the past as Christians involved in the alcohol trade. The Tribunal finds the applicant’s Christian religion and membership of a particular social group of Christians involved in the alcohol trade are the essential and significant reasons for the persecution which the applicant fears, as required by s 5J(4)(a). Additionally, that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his Christian religion and as someone who engages in unIslamic practices: that is, selling liquor.
The Tribunal notes the applicant returned to Iraq for around a month in December 2016, with no apparent issues, which challenges his claims to fear persecution from Muslim extremists (for example) there to some extent. At hearing, he said he went to see his father who was unwell and he stayed in Erbil. Although of some concern, the Tribunal accepts the reasons for his return, and that he kept a relatively low profile and only stayed for a month. This does not necessarily undermine his concerns about what might happen to him on return to Iraq as a Christian who owns a [business] (among other things) from non-state actors over a longer period of time.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable, and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
In this case, the applicant fears various groups or individuals (who could be considered Muslim extremists) who are non-state actors. The Tribunal has therefore considered the effectiveness of state protection measures in the KRI to protect the applicant from such actors.
Country information indicates that under Iraq’s Constitution, the KRI is governed by the autonomous KRG, responsible for the Erbil, Sulaymaniyah and Dahuk governorates. The KRG is permitted to have their own executive, legislative and judicial powers (aside from those exclusive to the federal government) and their own internal security forces (Peshmerga).[30] The Kurdish security forces have full control over the KRI and there are no Iraqi federal security forces operating inside the KRI.[31] The Peshmerga (and militias belonging to the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK)) are responsible for maintaining order in the KRI.[32] Police forces and the Asayish, the KRG’s intelligence agency, also operate in the KRI.[33]
[30] European Asylum Support office (EASO), ‘Country Guidance: Iraq’, Section IV, pp 125 & 126, June 2019
[31] Danish Immigration Services and Landinfo, ‘Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)’, p 12, 5 November 2018.
[32] United States Department of State, ‘Country Reports on Human Rights Practices for 2021 – Iraq’, 12 April 2022, Executive Summary; European Asylum Support Office (EASO), ‘EASO Country of Origin Information Report – Iraq Actors of Protection’, p 73, 4 December 2018.
[33] European Asylum Support Office (EASO), ‘EASO Country of Origin Information Report – Iraq Actors of Protection’, pp 74 & 75, 4 December 2018.
In their May 2019 report, UNHCR indicate that power in the KRI is largely divided between the two dominant parties – the KDP and PUK – and the region’s armed forces (Peshmerga), security, counter terrorism and intelligence agencies are reportedly under their influence and/or the influence of powerful party officials. They report that corruption and nepotism based on family, tribal and party affiliation further compromises effective governance in the KRG, and judicial independence is hampered by increasing political interference. Additionally, the criminal justice system is reportedly weak and does not meet international and domestic legal obligations with respect to arrest, detention and fair trail standards, and perpetrators affiliated with the political or security elite in the KRI often enjoy impunity.[34]
[34] UN High Commissioner for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, HCR/PC/IRQ/2019/05_Rev.2, available at: 14 July 2022], p 45; and Kamal Chomani, The Tahrir Institute for Middle East Policy, ‘Judiciary in Kurdistan Region in Peril’, 1 November 2019
DFAT report that the ability of authorities to provide protection varies according to geographic location; that poorly defined administrative boundaries and disputed territories between central authorities and the KRG have led to confusion and dispute in some instances over the jurisdiction of the security forces and the courts; that in Iraq all state protection institutions are significantly subject to and affected by corruption (particularly the police) and are also heavily politicised.[35]
[35] DFAT, ibid at 5.1
The January 2021 EASO guidance report on Iraq looked at the ability of both the Iraqi State and the KRG to provide protection to individuals and concluded that effective protection was generally not considered for members of minority religions.[36]
[36] European Asylum Support office (EASO), ‘Country Guidance: Iraq – Guidance Note and Common Analysis, January 2021
Given such country information, the Tribunal is not satisfied that the effective protection measures as per s 5LA are available to the applicant in the KRI provided by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Iraq for the purposes of s 5LA(2).
The Tribunal has gone on to consider if the real chance of persecution from Muslim extremists in the KRI relates to all areas of the country. It notes that country information indicates mistreatment and discrimination of Christians happens throughout Iraq, and is in fact worse outside the KRI, as noted earlier. The US Department of State report that restrictions on freedom of religion remained widespread outside the KRI[37]. Further, DFAT do not indicate that the assessment that Christians involved in the alcohol trade face a high risk of societal violence is limited by geography. For these reasons, the Tribunal is not satisfied that there is any part of Iraq in which the applicant would be safe from the persecution that he fears as a Christian involved in the alcohol trade. The Tribunal is satisfied the applicant would face a real chance of persecution in all areas of Iraq and therefore he satisfies s 5J(1)(c).
[37] United States Department of State, 2021 International Religious Freedom Report: Iraq, 2 June 2022, Executive Summary

The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to ‘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’: therefore, s 5J(3) does not apply.
Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s 5J. In considering whether he comes within the definition of a refugee contained in s 5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, the applicant is a refugee.
Given this finding, it has been unnecessary to consider the other claims advanced or that arise on the material before it.
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)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nicole Burns
Member
ATTACHMENT A - 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.
Attachment B - 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.
…

[2022] AATA 3424

15 July 2022

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