1816669 (Refugee)

1816669 (Refugee) [2019] AATA 795 (10 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816669
COUNTRY OF REFERENCE:                 Iraq
MEMBER:Nicole Burns
DATE:10 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
·that the first named applicant and the second named applicant satisfy s.36(2)(a) of the Migration Act.

Statement made on 10 April 2019 at 3:23pm
CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Shia Muslim – political opinion – anti-Sadr militia – religious extremists – Dawa party – social group – educated women – occupation – real chance of persecution – relocation in home country not reasonable – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth) 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 Immigration on 22 May 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants are a married couple from Iraq who arrived in Australia [in] February 2016 as the holder of student visas: the first named applicant (hereafter the applicant) as the dependent spouse attached to her husband’s (the second named applicant) student visa. They applied for a Protection visa on 5 May 2016. The delegate refused to grant the visas on 22 May 2018, not satisfied that the applicants were persons to whom Australia owed protection.
The applicants attended a hearing before the Tribunal on 12 November 2018 to give evidence and make submissions in support of the review application. The Tribunal was assisted by an interpreter in the Arabic and English languages. The applicants were represented in their review application by their registered migration agent, who attended the Tribunal hearing.
REVIEW ISSUES
The issue in this case is whether any of the applicants meet one or more of the alternative criteria in s.36(2)(a), (aa), (b) or (c); that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. A summary of the relevant law is attached at Attachment A.
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has had regard to policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
For the following reasons, the Tribunal has concluded that the matter under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
The applicants travelled to Australia on Iraqi passports and claim to be Iraqi nationals. On this basis, and given the delegate had no concerns about their claimed nationality, the Tribunal accepts the applicants are nationals of Iraq and has assessed their protection claims accordingly.
Protection claims and evidence
The second named applicant first came to Australia in 2013 on a student visa on an Iraqi government scholarship. He is currently completing a [course] at [University 1]. He worked as a lecturer in [a specific subject] at [University 2] in Iraq prior to coming to Australia. He married the applicant in Iraq and they came to Australia together in February 2016. The applicant qualified as an [Occupation 1] in Iraq and worked as an [Occupation 1] there. The applicant is pregnant with their [child], due in June 2019.
The applicant claims to fear serious harm from Shia militia groups – in particular the Sadr militia – in Iraq because they believe she has access to [details] of a [construction] project completed in Karbala in 2015. The second named applicant claims to fear serious harm on return to Iraq from Shia militia as a moderate Shia and academic and supporter of Mahmoud Al-Sarkhi, a Shia cleric in Iraq who opposes sectarianism and Iranian influence there.
The applicant set out her claims initially in a detailed written statement that accompanied her visa application. Material provided in support of the visa application included:
·A translated copy of her Iraqi [specified] card, issued [in] December 2015.
·A letter from [Ms A], clinical psychologist [in] August 2017 who outlines the applicant’s physical and mental health history and current presentation in the context of alleged problems (including threats) experienced in Iraq.
·An updated letter from [Ms A], clinical psychologist dated [in] March 2018.
·A letter dated [in] October 2017 from the applicant’s then employer in Australia, confirming her employment as an [Occupation 1].
·A letter from the manager, [name], dated [in] April 2018 confirming that the applicant worked as a [Occupation 2] from July 2011 to June 2015.
·Academic records dated [in] January 2016 and a letter of completion dated [in] May 2016 from [University 3] showing the applicant completed a [specific course].
·A copy of the applicant’s curriculum vitae.
·An email from a staff member of [a specific department], Australia to the applicant dated [in] November 2016 advising that her visa does not meet the eligibility criteria to undertake an overseas qualifications assessment.
On review the applicants provided separate written statements to the Tribunal. In her statement the applicant addressed some of the specific concerns raised by the delegate in the decision, including the fact that she did not leave Iraq immediately after her student visa was granted (addressed below, elsewhere in the decision record). The second named applicant set out his separate claims for protection in his written statement (addressed further below) and explained he did not raise these claims with the delegate on advice from his then migration agent.
The representative submitted a comprehensive written submission[1] to the Tribunal. In it she addressed some concerns raised by the delegate, referenced updated country information about the security situation in Iraq in general and specific country information related to the applicants’ claims. It is submitted that both applicants fear serious harm on return to Iraq at the hands of Shia militia groups: the applicant because she has already been targeted by Shia militia group leader Muqtada al-Sadr and the second named applicant on account of his links to Mahmoud Al-Sarkhi, an anti-government Shia cleric. It is further submitted that the applicant is particularly vulnerable to attack from religious extremists as an educated, professional, modern woman, noting that the June 2017 country information report for Iraq from DFAT finds that women were at a high risk of discrimination and violence. The representative submits as well that as returnees from the west, the applicants are at risk of serious harm from a variety of actors including criminal gangs because of their perceived wealth and from radical Islamic groups who may suspect them of being corrupted by western influence.
[1] Dated 1 November 2018
In her oral evidence to the Tribunal the applicant described her background, reasons for leaving Iraq and fears upon returning there now, summarised as follows.
The applicant said that before she came to Australia in February 2016 she lived at her parents’ house in Karbala (southern Iraq, around 80 kilometres from the capital) and before that she resided at a [location] in Baghdad (from around 2010 to 2015). Her parents and siblings[2] currently live in Karbala where her mother works as a [Occupation 3]. Her father – who is a [Occupation 4] – has been unemployed for the three years prior to the hearing and relies on income from leasing properties he owns.
[2] [Siblings]
The applicant said her father used to work as a [Occupation 4] for [Company 1]. He oversaw [a large project]. The project belonged to a religious charity called Al-Ataba El-Hussianyah (hereafter Al-Ataba). The applicant’s father worked on the project from when it began in 2010 until 2015; by that time the construction had finished followed by two years of maintenance. He stopped working in mid-2015 because the project had finished but also because he had been subject to harassment and threats by various militia elements including Sadr militia – historical enemies of Al-Ataba – that were suspicious that Al-Ataba were using the project to plan something against them.
The applicant said the Sadr militia is Shia, established by Mohammad Sadr’s son (Muqtaba) after the fall of Baghdad with a mission to rid the country of Baath party members. They killed the applicant’s [uncle] during Saddam’s regime in 2007, who they suspected was a Baathist. She said the political party linked to the Sadr militia won the largest number of seats in the national elections in May 2018 which means they have considerable power across Iraq. Also many of their members make up the police and army. Muqtaba is still their leader.
During the time of the Al-Ataba project the applicant said her father – who [undertook various roles] – was approached by members of the Sadr militia and asked what the project was about and if he could provide them with certain information and architectural project plans. Her father declined. Afterwards the applicant’s father received a phone call from a Sadr militia member who said they wanted him to join them and they promised to provide him with protection. Her father declined to join them and refused to release any project information because it was unethical and because he did not trust them. However they kept applying pressure. Her father tried to put them off by saying that he did not have the plans because his company was not responsible for the design plans (for example). However they suspected the applicant held the plans given she had been helping her father with the project, in particular during university holidays, working as an [Occupation 1]. The Sadr militia member approached her father making this accusation in around 2012. To buy time the applicant’s father then promised to give them the plans once the project was over. The applicant said during the project her father took home copies of the plans and other relevant documents at the end of each day: he never left them onsite. The originals stayed with the designers, who had been contracted directly by Al-Ataba.
The applicant said in around 2014 her father told her he had received numerous threats from Sadr militia because he had refused to provide them with project information and/or the design plans, despite their repeated requests. Once when he visited the project office he discovered that the office had been broken into and ransacked: presumably in an attempt to find the documents. The threats became more serious and included threats to kill him and the applicant, who the Sadr militia suspected held the plans as the project’s [Occupation 1]. After this threat the applicant said her father told her not to go to the project office or site and to work from home, which she did from around mid-2012.
The applicant said she started to help her father with the project in around 2011, largely [undertaking various duties]. She used to [undertake various duties] as the project progressed. Her father would then take these reports to Al-Ataba to discuss progress, things that needed to be changed and so on. The applicant was studying [a specific subject] at the [University] [in] Baghdad at this time: she worked on the project on weekends and full time during university holidays. She was paid [an amount of money] per month.
The applicant said she continued to work on the project until 2015 (from home from mid-2012 (only occasionally visiting the office)). She said she was never contacted directly by the Sadr militia: it was done through her father to try and obtain information about the project and what they suspected were bigger plans to attack them by Al-Ataba.
The applicant said her father handed back his copies of the project plans and other documents to Al-Ataba once the project was over. However the Sadr militia did not believe him and have continued – to this day – to believe the applicant (as the [Occupation 1]) possesses them. Even after the applicant left Iraq they have continued to approach the applicant’s father requesting the plans: her father keeps putting them off by telling them that once she comes back she will hand over the plans. Her father told her they will be waiting for her if she returns to Iraq and advised her never to return.
The applicant said she also worked as an [Occupation 1] in Iraq for [Company 2]; part time from 2014 to 2015 and full time from June 2015 until January 2016. In Australia she has worked as a [Occupation 5] for [Company 3], who [undertake projects], from July 2018 for [a number of] months until she took pregnancy leave due to morning sickness. Before that she worked for an [Occupation 1] as a [Occupation 5] on a casual basis, in 2016 and 2017. She looked into registering in order to work as an [Occupation 1] in Australia; however, she is not entitled to given she does not hold citizenship or permanent residency.
In addition to fearing Sadr militia for the reasons set out above, the applicant said she also fears other militia groups in Iraq who are against the education and empowerment of women. When asked if she fears Sunni or Shia militia, the applicant said both because Sunni militia consider the Shia community as their target and Shia militia consider women as their target. For example women in Karbala – which is the religious centre for Shia in southern Iraq – who do not wear the right ‘costume’ are threatened and sometimes killed.
The second named applicant told the Tribunal that in addition to the risk his wife faces from Shia militia in relation to the project she and her father worked on for Al-Ataba, their community in Iraq is very radical and conservative and elements target and reject the idea of equal rights for women. His wife, as a highly educated woman with her own career would be at risk from Sadr militia and other militia.
In her written statement provided to the Tribunal the applicant stated, among other things that since arriving in Australia her father told her that he has continued to receive threats over the phone from Sadr militia, asking where she was. Although she does not hold any sensitive information/plans, the militia believes she does. After she left Iraq when the militia contacted her father he told them they could take the plans from the applicant knowing she was no longer in the country.
Findings about the applicant’s past experiences in Iraq
Initially the Tribunal was concerned about the veracity of the applicant’s claims because while she claims she was at risk of harm from Sadr militia as early as September 2014, she did not leave Iraq until [February] 2016 and her student visa was granted on 18 October 2015. At hearing (and in her written statement to the Tribunal) the applicant explained that she had to wait until she and her husband finalised their marriage in Iraq before she could travel (accompanied) to Australia. Her husband was only able to return to Iraq to finalise their marriage when he did because he was awaiting confirmation of his enrolment from his university in Australia, which he did not want to jeopardise. Although of some concern, the Tribunal is willing to accept the applicant’s explanation for the delay in leaving Iraq as plausible. It does at the very least raise a question as to how strong her subjective fear of harm from the Sadr militia was at the time. Nonetheless the Tribunal also notes the applicant’s claims that her father was managing the ongoing threats from the Sadr militia, which were not given to her directly and escalated over time.
The Tribunal found the applicants’ credible witnesses at hearing whose detailed oral evidence was consistent with their written claims before the Tribunal (and in the applicant’s case, the Department) and supported by documents – for example educational qualifications – where relevant. It therefore accepts the applicant’s core claims summarised as follows:
·The applicant qualified as an [Occupation 1] in Iraq and completed her degree at a university in Baghdad. She also worked in Iraq as an [Occupation 1]: helping her father who was the [Occupation 4] for the [Company 1] on a [construction] project commissioned by Al-Ataba from around 2011 to 2015, and for [Company 2] from 2014 until 2016.
·The applicant’s father experienced increasing pressure, threats and intimidation from members of the Sadr militia in a bid to get him to divulge information and plans about the Al-Ataba project. They suspected the applicant, as the [Occupation 1], held the plans and that her father was delaying when they contacted him about who held the plans. The Sadr militia threatened to harm the applicant – via her father – if she did not hand them over.
·Although the project has finished, members of the Sadr militia continue to contact the applicant’s father to try and obtain the plans. It is not entirely clear why, however, the applicant believes that the militia are ruthless and will not forgive that she and her father failed to hand over the plans, believing them to be against the militia and possibly in support of their historical enemy, Al-Ataba.
Well-founded fear of persecution in the future: first named applicant
Given these findings the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution on return to Iraq from Sadr militia in the foreseeable future.
In considering whether the applicant faces a real chance of serious harm from Sadr militia on return to Iraq the Tribunal notes that there are aspects of this case which cast doubt on that proposition, as discussed at hearing. This includes the fact that the project finished in 2015 which raises the question as to why the Sadr militia would still want the project information and plans. Also, why they would actually harm her (possibly seriously) if their intention is to obtain such information and plans; how plausible it is that they think she continues to hold the plans (when she never did), and not her father; and also the fact that the applicant’s father continues to reside in Karbala despite claiming to continue to receive threats from Sadr militia. On this last point the applicant said that although her father remains in Karbala, he has not worked for three years and stays at different houses and has warned her not to return. In her written statement provided to the Tribunal the applicant explains that since she left Iraq, her father has been moving between various friends and family and is afraid for his life, and hers; he told her it is not safe to return.
With respect to why the Sadr militia would still have an ongoing adverse interest in her, the applicant said that once they target someone, they can be ruthless; they are well known for their violence; and noted that they have killed some prominent girls over the past few months in Iraq. In her written statement provided to the Tribunal the applicant states that the militia do not let things go, and although the project finished in 2015 they will not forgive that she and her father did not provide the project plans, even though she never held them. Further, she states that it is not implausible that the militia would think she held the plans, not her father, given they are uneducated and believe that, as an [Occupation 1], she would hold the plans. Although of some concern, the Tribunal found the applicant a credible witness at hearing and accepts her explanations as to why her father has stayed in her hometown, and finds it plausible that the militia believed she held the plans and are still interested in her.

In her written submission provided to the Tribunal the representative submits that the applicant fears fundamentalist Shia militia with anti-government and anti-western sentiments; that academics, moderate Shias, and those who have a connection to the west are targeted; and that the applicant is vulnerable to attack from religious extremists as an educated professional modern woman. It is further submitted that the applicants are moderate Shias from Karbala and today, despite its recent defeat, ISIS through its so-called sleeper cells and other Sunni extremist followers continues to carry out regular suicide attacks directed at Iraq’s government and its security services as well as the country’s Shia population, whom they regard as heretics. Reference is made to relevant articles to support her contention in this regard, that within this context of lawlessness, impunity and political opportunism by influential militia groups, together with the strength of Shia militia, the applicant’s fears of persecution at the hands of fundamentalist Shia militia with anti-government and anti-western sentiments should be assessed.
Furthermore the representative argues that the applicant’s risk of serious harm arises in light of the volatile security situation in Iraq and high levels of sectarian and political violence the country continues to experience from various militia groups competing for power and influence, together with the inability of the Iraqi authorities to protect its citizens. Her other main points in the submission include as follows:
·Islamic State (IS) invaded Iraq following the applicants’ arrival in Australia, resulting in a dramatic increase in sectarian tension and violence; the conflict has led to mass killing and wounding of civilians and widespread human rights abuses committed by the Iraqi Security Forces (ISF) and armed opposition groups; in particular there continues to be a heightened level of religiously and politically motivated violence perpetrated by both Shia and Sunni extremists.
·IS occupied large areas of northern and western Iraq and established supporter cells in other areas; recently US-led coalition forces and the Iraqi security forces – with massive support from mainly Shia militias – have forced IS to disburse and abandon their strongholds; as a consequence of this ongoing conflict, Iraq has experienced a dramatic increase in sectarian tension, a new surge in violence and a complete breakdown of civil society, all of which continues to exist notwithstanding the proclaimed success of the war against IS.
·The threat from IS has not dissipated following its territorial defeat in Iraq. Instead they are resorting to their historical use of guerrilla tactics and underground terrorism to attack anyone who does not follow their radical religious beliefs; reference is made to a number of articles about targeted attacks.
·Conflict between IS, the Iraqi security forces and militia has created a significant security vacuum in Baghdad and ushered in opportunities for armed militia to take effective control and pursue their political and religious aims. Country information referenced shows (it is submitted) that Shia militia have effective control of Baghdad and southern Iraq, with reports that they have increasingly come to dominate the security scene with increasing sectarian and religious tensions and targeting un-Islamic behaviour.
·Specific articles are referred to which describe the goals of various Shia militia groups including anti-western views and Islamic fundamentalist aims (some with strong links to Iran).
·As a failed state Iraq remains at the mercy of sectarianism and violence.
In her written submission provided to the Tribunal the representative also references the now superseded DFAT report from 26 June 2017. At the hearing the Tribunal provided the representative a copy of the new DFAT country information report on Iraq dated 9 October 2018. In an email to the Tribunal on 14 November 2018 the representative submitted that they continue to rely on the alternative country information provided in their pre-hearing submission. She also submitted that:
·The new DFAT report states that Shia do not face official or societal discrimination though they face a moderate risk of violence during significant religious festivals and pilgrimages.
·The applicants’ understand they may not be targeted simply for being Shia however in combination with other factors, including the applicant being an educated professional and the second named applicant being an academic with links to Al-Sarkhi, the risk is increased.
·DFAT also report that women face a moderate risk of official and societal discrimination in Iraq and ‘moderate’ is defined as ‘sufficient incidents to suggest a pattern of behaviour’. The applicant has provided oral evidence as to how she has been targeted and would continue to be if she returned to Iraq.
The Tribunal has considered independent country information about the security situation in southern Iraq to determine if the applicant’s fears of serious harm from the likes of Sadr militia are well founded, taking into account the applicant and her representative’s submissions (and country information referenced) on this matter.
Country information indicates that Shia militias became involved in the battle to overthrow ISIS and played a significant role in its military defeat. Many of these militias currently belong to the state-sanctioned Popular Mobilisation Forces (PMF) umbrella formed in 2016 to bring militias under centralised control. A November 2018 UK Home Office report, which refers to a March 2016 Congressional Research Service report, stated that estimates of the total Shia militiamen in Iraq number about 110,000-120,000.[3] The report goes on to describe Shia militia and the Popular Mobilisation Units (PMUs) in Iraq as follows:
Organised in the immediate wake of the invasion by the Islamic State, Popular Mobilization Units (PMUs) are primarily Shia militias affiliated to particular ethnic or religious leaders. Most are believed to be heavily subsidised and supported by Iran, and the PMUs have become better trained and equipped during the conflict with the Islamic State. The PMUs have been recognised by the state as legitimate security actors and are under the authority of the Ministry of the Interior.
In combat operations they are nominally under control of IA commanders but have been seen to act largely independently of centralised command. Estimated to number approximately 10,000 militiamen, PMUs have been guaranteed a role in the future security apparatus of the Iraqi state, likely in the form of a regionally-based national guard. With their deployment against Kurdish Peshmerga in October 2017, the PMUs have been further legitimised as a federal security actor of the state, despite calls from the US to disband the organisation in a post-IS security environment.[4]
[3] UK Home Office, Country policy and information note, Iraq: Security and Humanitarian Situation, November 2018, 5.5.1,
[4] DFAT Country Information Report, Iraq, 9 October 2018 at 5.5.2
In the most recent country information report on Iraq DFAT state that anti-Shia violence has reduced in 2018 following the defeat of ISIS however isolated incidents of violence in Shia dominated areas of Iraq, claimed by ISIS, continue to occur. Violence between opposing Shia militias (including those in the PMF) also occurs, more often in Shia areas, such as Baghdad and southern Iraq,[5] which is where the applicant is from. DFAT states that violence between different Shia armed groups is also a serious concern.[6] DFAT states that although ISIS lost its self-declared ‘caliphate’ in Iraq and Syria, it remains a threat to Iraq, with an estimated 30,000 ISIS fighters remaining active in both countries.[7] DFAT assess that ISIS will likely continue to indiscriminately target Iraqi civilians and commit human rights abuses as a small scale insurgency, which they state will likely be for many years.[8]
[5] Ibid at 3.33
[6] Ibid at 2.31
[7] Ibid at 2.33
[8] Ibid at 2.5 and 2.34
In the most recent US State Department human rights report on Iraq for 2018 it is stated that ISIS continued to commit serious abuses and atrocities, including killings and that there were numerous reports that some government forces, including the PMF committed arbitrary or unlawful killings.[9] As well, they reported that ‘individuals, militias, and organized criminal groups carried out abductions and kidnappings for personal gain or for political or sectarian reasons’.[10]
[9] US State Department, Country Report on Human Rights Practices – Iraq 2018, March 2019, Executive summary,
[10] Ibid at s.1b
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[11] 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.
[11] 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 also reports that many groups who make up the Popular Mobilisation Forces (PMF or Al-Hashd Al-Sha’abi) have committed human rights abuses, as follows:
The PMF is a state-sanctioned umbrella organisation comprising over 200 armed groups, mostly Shi’a. The PMF includes small numbers of Sunni tribal fighters and minority groups. Many of these groups have existed for some time and have close links to Iran. In 2016, the Council of Ministers decided to bring the PMF under centralised control as an independent military organisation and this was formalised by the Prime Minister in March 2018. However, the US State Department assesses that the central government lacks capacity to maintain consistent control over the PMF and that PMF groups have committed human rights abuses, including enforced disappearance, extortion, torture and extra-judicial killings. Many PMF groups consist of volunteers who have received limited training. It is not yet clear the extent to which the formal incorporation of the PMF into the ISF will extend the federal government’s actual control over PMF activities.[12]
[12] DFAT Country Information Report, Iraq, 9 October 2018 at 5.4
With respect to the current political situation in Iraq, country information indicates that no party gained a majority in the national elections in May 2018, although the highest number of votes and seats went to the party of Shia cleric, Muqtada al-Sadr, a former anti-US militia leader who ran on an anti-corruption platform in alliance with the Communist Party. Negotiations to form a government continue however recent reports indicate that rivalry between Shia factions is paralysing the government. A December 2018 article by Reuters indicates that Iraq’s return to deadlocked parliamentary politics now involves Shia factions rather than the Sunni-Shia sectarianism that followed the 2003 US-led invasion.[13]
[13] John Davison and Ahmed Rasheed, Reuters, Baghdad, ‘Shi’ite rivalry paralyses Iraq’s government’, 4 December 2018, >
In this context of long standing 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 militias, particularly the Sadr militia who have threatened her (via her father) in the past and continue to do so. More broadly whilst country information indicates that anti-Shia violence has reduced following the defeat of ISIS in Iraq, isolated incidences continue to occur and Shia militias – such as the Sadr militia – have increased their influence and presence as a result. Muqtada al-Sadr gained the highest number of votes and seats to his party in national elections in May 2018.
Such country information indicates that the power and influence of Shia militias has increased significantly in Baghdad and throughout the south of Iraq as a result of their role in the defeat of ISIS and the financial and other support which they have received from the government. There are also indications that some militias are seeking to impose their ideological views and views on appropriate behaviour in Iraq. There are reports that many groups who make up the PMF have committed human rights abuses. In this context and given the Tribunal accepts the applicant is of ongoing adverse interest to Sadr militia elements in Iraq, the Tribunal accepts that should the applicant return to her home in Karbala, now or in the foreseeable future, there is a real chance she will face ‘serious harm’ from the Sadr militia or other militia groups as required by s.5J(4)(b) of the Act in that it involves threat to her life or liberty or significant physical harassment or ill-treatment. The Tribunal considers that the applicant’s imputed (anti-Sadr) political opinion is the essential and significant reason for the persecution which the applicant fears, as required by s.5J(4)(a), and that the persecution which she fears involves systematic and discriminatory conduct, as required by s.5J(4)(c), in that it is deliberate or intentional and involves her selective harassment for reason of her imputed political opinion: that is as someone perceived to be acting contrary to their (that is the Sadr militia) agenda.[14]
[14] UK Home Office, Country Policy and Information Note, Iraq: Perceived collaborators, February 2019 at 1.2.2,
The Tribunal also finds the applicant’s status as a modern, educated and professional woman adds to her risk on return to Iraq by the likes of the Sadr militia. DFAT assesses that women in Iraq face a moderate risk of both official and societal discrimination and violence.[15] In 2016 UNHCR reported (as submitted by the representative) that especially educated and professional women have been targeted by ISIS in Iraq.[16] Although ISIS has faced military defeat in Iraq, they are still present in significant numbers and conduct isolated attacks, as set out above. Given such country information the Tribunal is satisfied that the applicant as a highly educated, professional, modern woman is at greater risk of attack from the likes of Sadr militia or other religious extremists on return to Iraq.
[15] Ibid at 3.70
[16] United Nations High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Iraq, paragraph 14 [footnotes omitted],
The Tribunal has gone on to consider if effective protection measures are available to the applicant in Karbala as required by s.5LA. The harm that the applicant fears from Sadr militia is from non-state actors and the applicant claims that the Iraqi authorities will not protect her from that harm because the Sadr militia have a strong connection to, and capacity to influence, the government.
DFAT advises that years of conflict (including the recent conflict with ISIS) have limited the capacity of state protection mechanisms to deliver services. They report that respected NGOs have reported on human rights abuses by the ISF, who are responsible for security in Iraq and includes the army, federal police and provincial police forces, and that the ISF have failed to act on human rights abuses by other actors, such as the PMF. They also report that the Iraqi government’s ability to assert centralised control over the actions of the ISF in the field is limited. Although there is an estimated 300,000 police members in total in Iraq, DFAT report that anti-government militia, and ISIS in particular, have targeted police and the latter may pose a continuing threat to police and other law enforcement. DFAT also note the pervasive and widespread corruption at many levels, including bribery to reduce or drop charges.[17] With respect to the judiciary in Iraq, DFAT assesses that:
...politics and sectarianism continue to influence judicial appointments and decisions, and removing or diminishing this influence has been a key demand of recent popular protests. Members of the judiciary continue to face significant pressure, including intimidation and violence, particularly in cases involving organised crime, corruption and the activities of militias. Armed groups have targeted judges with violence. Corruption is common and courts lack resources, including forensic capabilities.
...
A lack of government capacity and strong traditions mean tribal culture continues to play an important role in dispute resolution, particularly in the poorer areas of the south and west. Some Iraqi citizens have turned to local militias and religious and tribal groups to dispense justice rather than seeking redress through the official justice system. Women are particularly vulnerable, and DFAT is aware of reports of traditional and religious judicial outcomes in which women are awarded as compensation in disputes. Women often face harsh punishment for transgressing tribal customs[18].
[17] DFAT, Country Information Report Iraq, 9 October 2018 at 5.1-5.7
[18] DFAT Country Information Report, Iraq, 9 October 2018 at 5.9 and 5.10
The most recent US State Department report on human rights practices in Iraq states that during the year ‘civilian authorities did not maintain effective control over some elements of the security forces, particularly certain units of the Popular Mobilization Forces (PMF) that were aligned with Iran’ and that impunity was a problem. They also assess that there have been reports of human rights abuses by some members of the ISF, particularly Iran-aligned elements of the PMF and while the government investigated allegations of abuse by the ISF, it rarely made the results public or punished those responsible.[19]
[19] US State Department, Country Report on Human Rights Practices – Iraq 2018, March 2019, Executive summary,
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, and lack of control over militias and lack of an impartial judiciary. The Tribunal is not satisfied the effective protection measures as per s.5LA are available to the applicant in southern Iraq provided by the state, party or organisation.
The Tribunal has gone on to consider if the applicant faces a real chance of persecution in all areas of Iraq as required by s.5J(1)(c). In the Tribunal’s view the applicant would face a real chance of persecution for reasons of her Shia religion if she attempted to relocate to Sunni areas in the north given the history of sectarian violence and the continued presence of ISIS combatants in the Sunni areas. Furthermore, given that according to DFAT women face a moderate risk of official and a moderate risk of societal discrimination and violence, and a high risk of domestic and family violence, the Tribunal is satisfied that the applicant would face a real chance of persecution in all areas of Iraq.

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 political beliefs or conceal his or her true political beliefs’ and therefore s.5J(3) does not apply.
Accordingly and for reasons above, the Tribunal finds that the applicant faces a well-founded fear of persecution for reasons of her imputed (anti-Sadr militia) political opinion if she returns to Iraq, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s.5J of the Act. In accordance with s.5H(1)(a) of the Act, the Tribunal is satisfied that the applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, is unwilling to avail herself of the protection of that country. 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.
Findings in relation to the second named applicant
The second named applicant claims that he would be at risk of serious harm on return to Iraq from Shia and Sunni extremist groups for a number of reasons including because of his close links to Mahmoud Al-Sarkhi, a Shia cleric perceived as anti-Iran and as an academic with liberal political and religious views.
In his written statement provided to the Tribunal the second named applicant states that he fears serious harm on return to Iraq because people are aware he is a strong supporter of Mahmoud Al-Sarkhi, an anti-Iran cleric, and because he believes in a secular government. He states that he became aware of Al-Sarkhi in October 2009 and was drawn to him because he works against sectarianism and is against a Shia government ruled by clerics (like Iran). He stated that they first met at his residence in Karbala in July 2010. Afterwards he spoke to colleagues and students at his university about Al-Sarkhi’s philosophy and many of his colleagues were against him as a result.
As well he states that prior to leaving for Australia he was harassed by militia connected to the government on two occasions: in 2011 he was abused and threatened by militia when he would not allow them to take a group of his students to a workshop to persuade them to join and in 2013 when he refused to pass two students who failed their exams. He added that lecturers often experienced difficulties for not passing students who were members of strong militia groups and as a result the Ministry of Education allowed academics to carry guns to protect themselves.
At hearing the second named applicant said he is from Karbala and used to lecture in the [specified] department at the [University 2] from 2009 to 2013. He is currently enrolled in a [course] at [University 1], due for completion in 2019, as the holder of an Iraqi government scholarship (although he said since 2017 payments have been irregular).
The second named applicant said universities in Iraq are currently managed by armed militias – many of whom have strong connections with Iran – which makes him fearful, especially when they discover that he has spent time in a western country and is highly educated. He said that although he is Shia he opposes the current ideologies of many Shias and the way they administer and run the country; that is he believes government should be secular not sectarian so as not to trigger hate, discrimination and violence. Iranians nurture this chaos, which is their aim, according to the second named applicant.
The second named applicant said when the situation worsened in Iraq he, along with others, began to promote their views against discrimination and sectarianism at college. He was attracted to Al-Sarkhi’s ideas of unity and liked how he tried to get the Iraqi government to negotiate with Sunni tribes in Iraq to find peace. The second named applicant advised his own students not to attend seminars organised by radicals/militias aimed to recruit and ‘brainwash’ them to fight against others. As a result he received a number of verbal threats from members of the Dawa party (or their associates) and indirect threats via his father and brother who were told to tell the second named applicant to stop such activities. These threats took place in 2013, more than once.
The second named applicant said after he was married he heard news that the Iraqi government had a list of people’s names to be killed, who have different ideologies to them. When asked if his name was on the list, the second named applicant said he would not be able to know because it is very confidential. He said a friend of his who was a lecturer at the same college is missing after being arrested.
In her written submission to the Tribunal the representative submits that academics continue to be targeted in Iraq and refers to country information to support her contentions in this regard, refuting DFAT’s assertion that there is no recent evidence of academics being targeted.
The Tribunal notes its concern that the second named applicant raised his own protection claims for the first time before the Tribunal. At hearing he said that he did not tell the Department about his claims because he always hoped one day the situation in Iraq would improve; he tried to keep everything quiet because he wanted to return to Iraq and finalise his marriage and bring his wife to Australia; and when his wife lodged the protection visa application he discussed his case with his representative at the time who advised that there was no need to mention his claims, believing that the applicant’s claims were more than enough. The Tribunal found the second named applicant a credible witness at hearing whose oral evidence was detailed, spontaneous and consistent with his written statement provided (and his wife’s oral evidence) and therefore is willing to accept his explanation for the late claims.
Another concern the Tribunal has with the second named applicant’s claims relates to the fact that he returned to Iraq after studying in Australia twice, including after allegedly receiving threats from members of the Dawa party (or their associates) because of his secular views and support for Al-Sarkhi. At hearing the second named applicant said living in Iraq he used to hear stories about academics being subject to threats in their daily lives, however they got used to it and tried to resist one way or another. He said the first time he went back to Iraq from Australia was in April 2014 and he was very pro-Sarkhi during that visit, noting there was a photograph taken of him next to Al-Sarkhi and published in a local paper (a copy of which he provided to the Tribunal). However Al-Sarkhi was not considered to be against the government at that time. The second named applicant returned to Iraq the second time in August 2014 because he was not enrolled in any course and was waiting to have his enrolment sorted out: he had to return then. He noticed that around 100 people linked to Al-Sarkhi had been killed and thousands arrested and detained. He spent his time at his parents’ house and kept a low profile: he did not go to his university or see anyone. He returned to Iraq briefly in July 2015 and February 2016 to arrange his marriage but kept a low profile and kept with his family. Although of some concern, the Tribunal is willing to accept the second named applicant’s reasons for return to Iraq on these occasions and accepts he kept a low profile and did not come to the attention of any militia or others as claimed.
The Tribunal accepts the second named applicant’s claims about his past experiences in Iraq. It accepts that he expressed his anti-sectarian views while working at the university in Karbala in the past, and attempted to dissuade students from joining various militia groups. It also accepts he was attracted to the teachings and approach of Al-Sarkhi and supported him. It accepts this was known among the community, having regard to a photograph of the second named applicant and Al-Sarkhi together [published] . The Tribunal also accepts the second named applicant received direct and indirect threats from Dawa party members and/or supporters as a result, warning him to stop his activities.
Looking to the future it is likely the second named applicant will return to academia if he returns to Iraq, as he has in the past, once he finalises his [course]. Given his past history of speaking out against sectarianism, the Tribunal is satisfied he would speak out again in some capacity – possibly also at university – and if not, this would be because of his fear of serious harm in doing so. The Tribunal accepts that the second named applicant has a history of speaking out against the power and influence of militias and associated groups which seek to impose their version of Islamic principles on the Iraqi population and in favour of secular and liberal ideals. It also accepts that he would continue to express these views in his daily life and in interaction with professional colleagues. The Tribunal also accepts that he would continue to resist attempts by militias and others to impose their will on the general population.
DFAT in its most recent report assesses that students or academics do not risk official or societal discrimination on the basis of their employment or education either in Iraq or abroad, and are not aware of any specific examples of targeting of academics or students.[20] Given this assessment the Tribunal is not satisfied that the second named applicant would face a real chance of serious harm from militia members on the basis of being an academic alone. However in the second named applicant’s case it has accepted that he has been outspoken in the past, received threats as a result, and would do so on return. Taking into account the country information below about Shia militias, the Tribunal is of the view that he has more than a remote chance of serious harm from Shia militias on return to Iraq as an academic with secular/anti-sectarian views and as a supporter of Al-Sarkhi.
[20] DFAT Country Information Report Iraq, 9 October 2018 at 3.61 & 3.62
Country information, as set out above, 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. In recent years Shia militias have become powerful in Baghdad and the south of Iraq, which is where the second named applicant is from. A lack of detailed accounts of the situation on the ground since the defeat of ISIS makes it difficult to determine the level of risk faced by someone such as the second named applicant. Nonetheless the Tribunal notes that Minority Rights Group International, in December 2018, report as follows:
Reports of death threats by militias and associated parties have become ubiquitous among activists, many of whom blame the influence of Iran, which supports the largest militias in the PMF, including the Badr Organization. There have also been unconfirmed reports that a hit list of activists’ names is circulating among members of Asaid Ahl al-Haq and Hezbollah al-Nujaba, two other PMF militias.[21]
[21] Ceasefire centre for civilian rights and Minority Rights Group International, Civilian activists under threat in Iraq, December 2018, p.16,
Having regard to such country information, and given the uncertain future and the possibility that the situation with regard to the role and activities of Shia militias could deteriorate in future, the Tribunal finds that there is a real chance that the second named applicant would suffer serious harm including abduction or significant physical harm for reasons of his political opinion, namely his support for secular and liberal ideals, noting he has been threatened in the past because of such ideas and sharing those ideas. The Tribunal finds the risk is elevated significantly in his case because of his known support for an anti-Iranian Shia cleric, Al-Sarkhi, given many Shia militia groups are pro-Iranian (as set out in country information above). In these circumstances the Tribunal accepts that should the second named applicant return to his home in Karbala, southern Iraq now or in the foreseeable future, there is a real chance that he will face ‘serious harm’ from the Shia militia or other militia groups 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 second named applicant’s political opinion is the essential and significant reason for the persecution which he fears, as required by s.5J(4)(a), and 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 selective harassment for reason of his political opinion: that is as someone perceived to be acting contrary to their agenda.[22]
[22] UK Home Office, Country Policy and Information Note, Iraq: Perceived collaborators, February 2019 at 1.2.2,
The Tribunal has gone on to consider if effective protection measures are available to the second named applicant in Karbala as required by s.5LA. In the representative’s written submission to the Tribunal it is submitted that state protection is not available because:
·They have limited capacity to enforce the law, especially against ISIS or the political and religious groups they are loyal to. They see their first obligation is to support their local leader as groups rather than ordinary citizens.
·The security forces cannot control the large number of terrorist organisations or even protect themselves, even though politicians and religious leaders have their own armed militia.
·Government parties are connected to the militia that harass them.
·They do not act in the interests of the Iraqi population unless it suits their leaders.
It is clear from the evidence set out above that Shiite 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 second named applicant if the militias were to target him. DFAT advises that years of conflict (including the recent conflict with ISIS) have limited the capacity of state protection mechanisms to deliver services. DFAT reports that the US State Department assesses that Iraqi police have committed human rights abuses and corruption is widespread at many levels, including bribery to reduce or drop charges.[23] In reports issued in June 2017 and October 2018 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. DFAT assess that violence between opposing Shia militias occurs in Baghdad and southern Iraq. This violence is often linked to other criminal activities and mostly affects those who are actively involved in militia groups rather than ordinary civilians.
[23] DFAT, Country Information Report Iraq, 9 October 2018 at 5.1-5.7
Based on this country information and the same reasoning (and country information) about the lack of effective protection in relation to the applicant as set out above (at paragraphs 44 to 47), the Tribunal is not satisfied that any 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, and lack of control over militias and lack of an impartial judiciary. The Tribunal is not satisfied the effective protection measures as per s.5LA are available to the second named applicant in southern Iraq provided by the state, party or organisation.
The Tribunal has gone on to consider if the second named applicant faces a real chance of persecution in all areas of Iraq as required by s.5J(1)(c). In the Tribunal’s view the second named applicant would face a real chance of persecution for reasons of his Shia religion if he attempted to relocate to Sunni areas in the north given the history of sectarian violence and the continued presence of ISIS combatants in the Sunni areas. Furthermore, according to DFAT internal relocation to the Kurdistan Region is difficult for anyone without a sponsor or existing network within the region. The second named applicant has never lived in Kurdistan and it appears that he would be unable to obtain the required permission to relocate to Kurdistan. In these circumstances the Tribunal is satisfied that a real chance of persecution applies throughout Iraq.
The Tribunal therefore finds that the second name applicant faces a well-founded fear of persecution for reason of his political opinion (as an academic with secular views and his links to Al-Sarkhi) from the Shia militia in Karbala, southern Iraq.
As mentioned above, 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 second named applicant to ‘alter his or her political beliefs or conceal his or her true political beliefs’ and therefore s.5J(3) does not apply.
Accordingly and for the reasons above, the Tribunal finds that the second named applicant faces a real chance of persecution for reasons of his political opinion if he returns to Iraq, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is satisfied that the second named applicant has a well-founded fear of persecution in accordance with s.5J of the Act. In accordance with s.5H(1)(a) of the Act, the Tribunal is satisfied that the second named applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, is unwilling to avail himself of the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the second named applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the second named applicant is a refugee.
CONCLUSION
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
·that the first named applicant and the second named applicant satisfy s.36(2)(a) 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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 795

10 April 2019

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Immigration

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Statutory Interpretation

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Procedural Fairness

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