1817220 (Refugee)

1817220 (Refugee) [2023] AATA 2844 (24 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Alkafaji (MARN: 1386318)
CASE NUMBER:  1817220
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Rodger Shanahan
DATE:24 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 24 May 2023 at 8:07am
CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Sunni Muslim – tribal excommunication – victim of attack on home and business – fear of harm by al-Mahdi Army – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 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 Home Affairs on 7 June 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Iraq, applied for the visas on 1 August 2017.
The applicants appeared before the Tribunal on 14 February 2023 to give evidence and present arguments. The second-named applicant also appeared in a second hearing on 12 April 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicants were represented in relation to the review.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Statement in Support of his Protection Obligations Determination January 2012
I left Iraq because I was at risk of being persecuted for religious reasons. I was considered to be against Islam. The fact that I am Sunni compounded the issue. The al-Mahdi army had attacked my home and killed my wife. My son was injured in the attack. They had also blown up my business. My tribe has also excommunicated me.
I had opened a bar in [City 1] in 2009. In 2008 things had started to improve in Iraq. Moqtada as-Sadr seem to have gone and there was an air of moderation in Iraq. People started to live more freely and things like bars started to open and thrive.
I am a very moderate Muslim. I just saw opening a bar as being a good way to make a living. I openbed the bar with my partner, [Mr A] who was Christian. The bar was doing extremely well in the early days. I was in charge of getting supplies to the bar from our store. I would carry the goods in a van which had biscuit advertising on the outside. We were nervous about openly carrying alcohol. My partner was serving and we had eight workers in the bar. The bar could fit 40-50 people. It was called [name].
Things took a devastating turn [in] November 2010. My home and the bar were bombed by the al-Mahdi Army. The day before I had received a letter telling me to close the shop. The explosions took place on the same day, [date] November 2010. I was in the store when the explosions happened. The store is near the bar. I rushed out when I heard the explosion and saw smoke and fire coming from the bar.
According to eye-witnesses, the attackers had first come to the bar in four cars, they were wearing balaclavas and went into the bar. They shot [Mr A] at the entrance. They said to the patrons ‘learn from what we are doing, what you are doing is against Islam.’ After they killed him they threw grenades into the shop. The patrons managed to flee before the grenades were thrown. They went through another door and threw themselves into the water nearby.
As I first witnessed what had happened to the bar, my brother called me and told me that they threw grenades at my house, they put a trap at the door, and that my wife and son had been hurt. I rushed home and saw that the house had been bombed and I called out to my brother ‘get anyone alive out’. [The second applicant] and his mother were at home and [Mr B] and [Brother C] were at my sister’s house. My brother took my wife to hospital and she passed away at 3 am that morning. [The second applicant] had been injured and I took him to [maternal uncle’s] home and he was admitted to hospital. At that time I decided that I had to leave the country. It was clear that they wanted to kill me.
The al-Mahdi Army went to my brother’s house and were seeking information about my whereabouts. They did not given them information. They then went to the head of our tribe and told him that he had to hand me in. The tribal head said he did not know where I was. The Army then told the tribal elder that he had to sign a declaration that I was excommunicated from the tribe and they would not protect me. I am a wanted man and I have no protection. I would have to register if I moved anywhere else and that registration would put me at risk. I cannot hide anywhere in Iraq.
My tribe has been shamed also and they will be after me if I went back. They see me as severely contravening Islam and they will seek to harm me for damaging the reputation of the tribe. They will also seek to kill me. Even my siblings in Iraq are not happy with what I have done. My brother from Australia intervened and went to Iraq to try and negotiate with the tribe. He was very scared to do this but he wanted to attempt it anyway. He said that he failed and they wouldn’t listen to him.
I believe if I returned to Iraq I would face a real chance of being killed for reasons of religion. I am a moderate Muslim and I have openly behaved in an un-Islamic way. My tribe are also against me.
I have behaved in an un-Islamic way by opening a bar. I have shamed my tribe and the al-Mahdi Army want to kill me. This is made worse by the fact that I am Sunni and the extremists that want to kill me are Shi’a.
Statement in Support of his SHEV application July 2017:
I was persecuted in Iraq due to my Sunni religion and my involvement in alcohol sales. That In addition to the information the department have, and in addition to the statements that I made to the department, I now have new circumstances that prevent me and my children from going to Iraq. That the people in my area started gossiping about me and my children [Mr B] and [the second applicant], they accused us of going to the north of Baghdad and fighting alongside ISIS, and that some people saw us in Mosul, these gossips were developed although me and my sons were here in Australia all the time.
The gossips started around one and half years ago when the some local people in [City 1] told my brother [Brother C] that they heard that some people saw me and my sons in Mosul, [Brother C] used to go to the shia mosque in the area, he was told about these gossips while he was doing Friday prayers, [Brother C] told them that I was in Australia, however no one believed him, after that the gossips spread everywhere, some people even told [Brother C] that he should disown me and my sons at the same mosque, some of them threatened that they will kill me and my sons if they catch us.
The rumours about my whereabouts is continuing till this movement, even my brothers [Brother D] and [Brother E] are witnessing multi kind of insults because of me as they stated. I fear going back to Iraq as my life will be at risk because of these gossips.
AAT Hearing
The applicant’s sons [Mr B] and [the second applicant] were both present. [The second applicant] was asked if he had any separate claims and his adviser said that he didn’t. The adviser was asked what was present on the CD that had been provided and he said it was the video recording of a Muqtada Sadr speech that the Tribunal requested. It did not have a date on it. He said he couldn’t verify the exact date but the Tribunal should consult the URL. It was put to him that unless he could point the Tribunal to a date of the Sadr speech then it would be of little use. The adviser said that he would try to address the date in the future.
[The second applicant] was asked and said that his claims were the same as his father’s. The applicants were asked if they knew everything in their claims and that it was true and correct and they replied that they did. The first-named applicant (hereafter referred to as the applicant) stated that if he returned to Iraq he would be arrested and killed because there is an arrest warrant against him. Also his own [tribe] have disowned him because they claim he is a terrorist. Asked who would arrest and kill him, he said that it would be the Iraqi government – the arrest warrant was issued in 2018 during ISIS, there was a rumour that he and his children were fighting in the north of Iraq.
He was a Sunni in a Shi’a-dominated area and the Shi’a organisations were trying to find out which Sunnis were not in the area at the time (the group was called Ahl al-Bayt). The group went to his brother and asked where he was as someone had told the group that they had seen him fighting in the north. Asked what he had been charged with, he said that he was perceived as fighting with ISIS. Anyone not there during the census was either arrested if they were there and if not present they had an arrest warrant issued. He was asked to confirm that this applied to all Sunnis in [City 1], and he said this was the news he got from his brother. It was put to him that this was significant news and the Tribunal was unaware that such an event occurred – he was asked to provide some country information to support this claim.
He was asked if he had provided a copy of the arrest warrant to the Tribunal and he said in Australia the Tribunal was unaware of these charges were but he knew. Being charged with being a terrorist was very serious. The adviser stated that a copy of the arrest warrant had been provided. This was confirmed. He was asked and said that he had no other claims. It was put to him that he had made other claims previously and asked if they were still relevant, and he said that one was linked to the others. It was put to him that he needed to articulate them now as the Tribunal had to make findings on each claim.
He claimed that he suffered from the time he opened the bar in Iraq until now. He was asked to be precise about his claims. He said that he had provided statements and a letter from his tribe. It was put to him that he had made a claim that he ran a bar and that it had been blown up by Jaysh al-Mahdi (JAM). Asked if he still feared JAM he said that he did and they would target him because an arrest warrant had been issued and they went to his tribe to get them to disown him.
Asked why JAM targeted him, he said that because he sold alcohol they believed him to be a kaffir. He began selling alcohol in 2009 until the end of 2010. Before this he had a [Product 1] shop and had this from 2002 until 2008. Asked if he was in business himself or with anyone else, he said he was in business with himself. Asked if he had other work, he said he had other jobs but they were not the same as the shop and bar. He also rented two storage places to people – he rented these and sub-leased the space but it wasn’t a big business. He did this around the same year he had a [Product 1] shop and did this for two years – from 2002-04. He didn’t work anywhere else, and these were his only sources of employment/income.
He agreed that he was Sunni in the Shi’a-majority [City 1]. Asked how this came about, he stated that his mother was Sunni, his father Shi’a. His father died when he was three and his mother raised him. His brother [Brother D] then looked after him. Asked what job his father did, he said that he had an ice-cream trolley. Asked if he was an observant Shi’a, he said that he was and that he didn’t go to mosque because life here very busy, He would go every three to four weeks and went to [Mosque 1].
Asked the name of the imam, he said he didn’t know. It was put to him that he had been going monthly for years so it was strange he didn’t know the imam’s name. He said he was very busy and worked in [Industry 1] and [had another job]. He said that he didn’t go that frequently and there was always a new person leading the prayers. It was put to him that this wasn’t how it normally worked and there was normally the same person giving the sermon after Friday prayers.[1] Given he had been going to mosque every three to four weeks for years it was strange that he didn’t know the name of the imam.
[1] See Importance of Friday Sermon (Khutbah) in Islam - Islamic Articles (quranreading.com) for example.
He said that the member may go to the church or he to the mosque and he didn’t go there to socialise – he just went there to pray and leave. He didn’t understand why the name of the imam was so important. It was put to him that on Fridays he didn’t just pray but would listen to the sermon so he should be able to know the name of the imam. He again claimed that he didn’t go that often.
Asked the name of the mosque that he attended when he was in Perth, he claimed that after he married his wife he went to the mosque in [location]. He didn’t go there much because after he married his Christian wife they fought a bit. Asked what type of wedding he had, he said they had a civil marriage as his wife didn’t agree to a religious marriage. His wife died in Sydney and he was asked where he buried her. He said she was buried in [location]. It was a religious funeral. Asked if she was buried in the Christian or Muslim part of the cemetery, he said it was the Muslim part. Asked why this was the case if she was Christian, he claimed the parts were very close to each other. He was again asked why she was buried in the Muslim section, he claimed that the only people he knew who sold graves were Muslims, he was Muslim and so that’s what he did.
He was asked why he couldn’t find a Christian funeral director who would bury or cremate her and place her in the Christian section. He said she wished to be buried. Asked if it was a religious burial in the Muslim section, he claimed that she was washed and the company came and took her to the grave (the funeral director). Asked if the funeral director was a Sunni or Shi’a, he said that he didn’t ask. Asked how he found the funeral director, he said that he had a friend who arranged it. The friend told him the company would take her and bury her. He said that he was in financial trouble at this stage.
It was put to him that, while the Tribunal understood this was a very personal issue, it was strange that he couldn’t have approached [Mosque 1] for assistance given charity was feature of Islam. He stated that there are no charities that help with good causes. He said he called his friend and asked him to help with the difficult situation and said he needed help burying her. His friend was [name] and he knew this person from another friend who called him on the applicant’s behalf. The applicant had been carer for his wife for the last two years because she was in a wheelchair.
He was advised about s 424AA and it was put to him that the business address of the funeral director was [a large Shi’a mosque]. The fact that he buried his Christian wife in the Muslim section of the cemetery using someone from [a large Shi’a mosque] raised concerns in the Tribunal’s mind that the applicant was Shi’a, not Sunni.
The department had also informed him previously that it had reviewed his [social media] page (linked to his phone number) that indicated he had attended a Shi’a school in Iraq. He also had videos and commentary about ‘ashura (a Shi’a religious commemoration), his father was Shi’a and religious identity normally passed down via the father, his parents were both buried in Najaf (a traditional cemetery site for Shi’a) and he was from a majority Shi’a city. Individually and particularly collectively he appeared to shown traits associated with being Shi’a and the concern was that he was and always had been, Shi’a. He could also not indicate he had Sunni witnesses even though he knew his religious identity was an issue previously and he couldn’t name the imam at the Sunni mosque he alleged that he had been attending for years.
He claimed that he lived in Australia and he didn’t check the religious identity of the company about their religion. He just wanted someone to wash and bury his wife. He was in a difficult situation financially so didn’t care who washed his wife or buried her. He claimed that he was Sunni and wasn’t expecting such racism in this country. He hadn’t seen his son for 13 years and just because he buried his wife where he did, this shouldn’t be held against him. He was asked if he wished to say anything about his [social media] page and said that he didn’t have any comment.

Asked when his bar was attacked, he said it was in 2010, at the end of the year – he couldn’t remember but thought it was December. It was put to him that he was asked for any media reports about the attack on his bar because the Tribunal couldn’t find any from media or research/think tank organisations and he was asked if he had any. He claimed that he didn’t have any such evidence about the bombing but if anyone attempted to publish this they would themselves be threatened or their life would be at risk so nobody would do that.
It was put to him that he had previously provided country information about a group called [name] operating in [City 1]. This would indicate that there were reports about militia groups’ activities in Iraq. He said that some do and some don’t and governing parties only allow publishing those things that serve their goals. He was asked if JAM was the ruling party in 2010 and he said it has always been the ruling party. He said that JAM was above the government and did things without their knowledge.
It was put to him that he had provided information to the Tribunal that JAM had been expelled from [City 1] in 2008 yet he was know saying they were running things in 2010. He claimed that JAM and Tayyara Sadr were the same. It was put to him that he had provided the Tribunal with country information that said JAM was kicked out of [City 1] in 2008 but now he was saying JAM was running it – what he had provided to the Tribunal was different to what he was telling the Tribunal. He said he wasn’t a politician and was a simple person so had no comment but was just saying what he knew.
It was put to him that what the Tribunal had to do was discern the truth from what he was telling the Tribunal. He had provided some documents but country information indicated that fraudulent documents were easily obtained in Iraq and some could have easily been produced on a computer so little weight was normally given to them. Hence weight was given to his oral testimony and if he had told different stories to different people this may adversely effect the weight given to his oral testimony. The Tribunal had to be satisfied that he was telling the truth – the role of JAM in 2008 and 2010 was sone such point. He said that he understood.
Also under s 424AA it was put to him that he had previously told interviewers that Muqtada as-Sadr had left Iraq but when he returned in 2010 he saw bars operating and he issued a fatwa calling for them to be destroyed. This was the reason why JAM destroyed his barat the end of 2010, yet country information indicated that as-Sadr didn’t return to Iraq until 2011. This raised questions as to whether JAM ever destroyed a bar that he owned.
He said he had told the story and it was true. The Tribunal did not know Iraq and didn’t have anything to worry about and didn’t have suffering. The Tribunal should care about the applicant’s child who he hadn’t seen for 13 years. He was advised that the Tribunal’s job was to determine whether he was telling the truth and whether he was owed protection.
He was asked if he had ever applied for a visa to come to Australia previously. He said that his brother previously applied for a visa for him. He couldn’t remember when he applied for the visa, nor how close it was to the applicant leaving Iraq. He was asked if his brother got information and documents from the applicant and he said he couldn’t remember whether he gave him any or whether he was asked, or what they were. He couldn’t remember if it was approved but he assumed not or else he would have come.
Under s 424AA it was put to him that as part of the application he stated that he only had one employment, as a [Occupation 1] with [Company 1] since 2006 and this was the only job he had for the last five years, including a statement from the company and a bank statement. There was no mention of a shop or bar that he owned and that he only worked for [Company 1] and never actually owned a shop or a bar.
The applicant said that [Company 1] was the company he worked for and the others were businesses. The amount of problems he had was making him forget things, such as his employment with [Company 1]. It was put to him that he had worked for [Company 1] for a long time. He stated that it wasn’t the reason he left Iraq and it was the bar and being accused of being a terrorist not because of his employment.
He was asked why his bar ownership wasn’t mentioned in the visa application submitted by his brother given he would have been employed doing this at the time of the application. There was room for several employments and he only submitted a letter from one employer. He stated that he didn’t know why he didn’t mention this and didn’t have an answer.
It was put to him that a visitor visa application was lodged August/September 2010 then more information was requested at this came at the end of 2010 and was refused. The bar was allegedly bombed in November/December 2010. The Tribunal was concerned that he had been refused a visitor’s visa and had then concocted a story about what occurred to him in Iraq in order to establish a reason to come to Australia. He said that the Tribunal may believe this to be the case, but he had no comment.
It was also put to him under s 424AA that he had been asked in a previous interview where he worked and his business structure and he had stated that he had a [Product 1] shop that he owned on his own but that he had other businesses where he had partners. When he worked in [Industry 1] he and his partner owned it yet here he said that he was an employee. He told the delegate that he ran a [Product 2] shop with his [partner] yet made no mention of this today. This raised further issues regarding his truthfulness. He said that he couldn’t remember.
Asked where his passports were currently, he said they were lost. They were lost in the sea – they lost their luggage and they were inside the luggage. Under s 424AA it was put to him that in 2014 in response to advice about a data breach that involved him, he provided a response in September 2014 about why he couldn’t return to Iraq. In this he said that his brother in Iraq had his passports. This was different to his claim that the passports went overboard. The inconsistency could go to issues of his credibility. He said that he couldn’t remember this but his passport fell into the sea.
The applicant was advised that if the if the Tribunal did not accept that the applicant ever owned a bar it would follow that nobody ever attacked it or his house and killed his wife and wounded his child. He claimed that his son could show his leg injury and the Tribunal stated that it could have no idea where such a wound can have come from. It was put to him that he could provide contemporaneous medical reports from Iraq to give such a claim weight – he had had a decade top source such reports. He said that he understood but at the time he was escaping from JAM. He could not have sourced a medical report at the time he was running away. It was put to him that he didn’t have to have sourced it himself, he could have got someone else in his family to pick up such evidence. But simply having a scar on one’s leg was not necessarily evidence of how he received such a scar.
It was put to him that his claims relied to a large extent on his oral evidence so if the Tribunal had an adverse opinion regarding his credibility then this could effect other elements of his claim that relied on accepting his oral evidence. He could strengthen claims such as the ‘census’ of Sunnis in [City 1] and widespread use of arrest warrants that he claimed was carried out, by providing country information about such an event having occurred. HE claimed that what he said was the truth and that this event really happened.
It was put to him that he hadn’t made a claim regarding the 2014 data breach and was asked whether he intended making a claim regarding this. He said he didn’t remember what occurred and the Tribunal reminded him. It was put to him that there was no country information that indicated anybody was harmed because of it. He stated that many people were harmed and he was asked what country information he based this claim on. He said that of course there would be no information about this but for sure people had seen this information. Not even their families would be left alone and measures would be taken against them.
He said that this was like his brother who had been bashed because of rumours circulating that they had joined Islamic State. It was put to him that country information indicated that those Iraqis who returned from overseas as failed asylum seekers normally re-integrate well upon return, particularly if they existing familial/tribal support. He had significant family support and owned land and was asked why he could not re-integrate on return to Iraq. He said he had no support whatsoever as shown by the letter from his tribe and the arrest warrant.
Asked if this was based on his claim to be Sunni, he said this was correct and also because he had a bar and it was believed that he fought with Islamic State. He was asked how he met his business partner in the bar, he claimed that he met him because he used to come to his shop. The man had a money exchange at the same time the applicant had his [Product 1] shop and he would sometimes go to the exchange shop to send money to people he owed money to in Baghdad.
Asked how this resulted in them opening a bar, he claimed that the other person suggested it as he was Christian and could get a permit for alcohol. It was put to him under s 424AA that in a previous interview he stated that he and this person used to study together and never mentioned the story about these shops as the meeting point. He claimed that the Tribunal’s question was how they agreed to open a bar. He didn’t know how far back he had to go in explaining things and he didn’t know what he needed to answer.
The applicant said he had lived in Australia for 13 years and the door of hope had been opened to him. He ate pork and lamb and his children had been educated and he learnt how to live properly and the Tribunal should look at his case with the eye of mercy. It was put to him that the Tribunal needed to look at the truthfulness of his claim.
The son [Mr B] was asked if he had anything to say. He stated that his father told him about the allegations that had been made against them about fighting for Islamic State. This concerned him that he would be arrested, taken to prison and given a death sentence for fighting for Islamic State, even if it was just an accusation. There would not be any investigation. Anyone who reported such a claim would be believed. No investigation would be carried out.
It was put to him that there was no country information available to the Tribunal that indicated people returning from Australia could be accused of fighting for Islamic State, detained and executed. Indeed the opposite appeared to be true regarding returnees. He said that he had mates who returned recently who told him but he didn’t have country information. He heard recently about four people who were executed recently and this gave him stress and groups controlled media and they wouldn’t let such news out. He was told that he would be given time post-hearing to provide country information about issues in Iraq that related directly to his case.
Asked if he spoke Arabic, he said that he could speak it but couldn’t read or write at all. Asked if he couldn’t do it at all he then said he could just write simple things such as hullo. Asked how old he was when he came to Australia he said that he was about 12. Asked if he hadn’t gone to school and was taught in Arabic he said that he had, before he came to Australia.
The second-named applicant was then asked if he had anything to say, he said that if he returned to Iraq there was nothing for him and that he didn’t believe anything the media says. It was put to him that this was his opportunity to make claims not already made by his father. He said that he didn’t want to. He was told that this wasn’t the forum to provide opinions, but rather to put forward claims for protection. He was then asked to read the definition of serious harm and he said that he didn’t have any additional claims he wished to make.
The adviser said that he didn’t want a natural justice break but would require some time post-hearing. He asked the Tribunal to re-direct the question to the applicant as to whether there was an official census in [City 1] or just a local counting of Sunnis in [City 1]. The Tribunal stated that it didn’t take it as an official government census but rather an informal count. The advisor stated that he had some concerns about some elements of the interpreting and would include any issues in a submission.
The advisor also stated that the DFAT reports spoke about the dominance of Muqtada Sadr even though JAM was removed from the south in 2008. He pointed to reports about as-Sadr talking about the destruction of alcohol shops. Asked when the report was from, he said it was in 2011. It was put to him that the issue related to a previous submission in which the applicant claimed as-Sadr returned in 2010 and issued the alcohol shops, yet he never actually returned until 2011. He also stated that DFAT reports indicated that accusations of Sunnis being supportive of Islamic State could be easily made.
Second Hearing 13 April 2023
A second hearing was held in order to address issues relating to religious identity raised as a result of post-hearing submissions made by the second-named applicant. The adviser told the Tribunal that [the second applicant] wasn’t attending the hearing due to a medical appointment and that this had been relayed to the Tribunal the previous evening. He was asked if it was an emergency and his brother ([Mr B]) said it was for his leg and was an emergency because of the pain. He had to wait for a week for the appointment and the brother was asked and stated that it was a specialist appointment.
The adviser was told that the hearing would have to be adjourned if the applicant wasn’t present and he advised that [the second applicant] had said that it was unlikely he would attend in the future and that this had been advised in the correspondence sent to the Tribunal. The hearing was adjourned while the member sought out the correspondence. During the adjournment the adviser contacted the second-named applicant who said that he would attend the hearing and this was arranged by telephone (the medical appointment was with a GP and there was sufficient time to attend the hearing by telephone prior to it).
It was put to [the second applicant] that the additional hearing was the result of a post-hearing submission they had provided after the last hearing, including material from witnesses regarding his religious identity. The witness who provided a statement for [the second applicant] was unavailable as he was overseas.
[The second applicant] was advised that the Tribunal needed to turn its mind to his true religious identity and there existed within the Shi’a faith a theological justification (tawqiyya) for pretending to be of a non-Shi’a faith if there was justification for doing so. There was also a non-theological justification in trying to portray oneself as a Sunni for a positive visa outcome.
[The second applicant] was asked if he went to mosque and he said that it depended if he had work. He said that when he came to Canberra he got a job and it was demanding on his time. He said he was a hidden away person and didn’t like to interact with people as they were always trying to altercate (sic) his mind and telling him what was right from wrong. He went to mosque every now and then, he wasn’t very religious and he tried to get back to it during Ramadan but Ramadan was very demeaning. He knew he hadn’t done the right thing by his religion. He worked very hard and wanted to work and it kept him away from people who tried to tell him what was right from wrong.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants arrived in Australia as illegal maritime arrivals [in] November 2011 and applied for protection. A second son was also included as a family member however he was subsequently removed from this application and has his own application before the same Tribunal member. A Protection Obligation Evaluation was conducted in March 2012 and the first-named applicant was found not to be owed protection. This was affirmed by the Independent Protection Obligation assessment in October 2012. The applicant was involved in the Departmental data breach in 2014 and an ITAO assessment carried out which did not preclude him from being returned to Iraq.
Due to a change in government regulations in April 2016 the applicant was then allowed to submit a SHEV application, which he did in August 2017. He attended an interview with a delegate and his application was subsequently refused in June 2018.
The first-named applicant is a [age] year-old widower, the second-named applicant ([named]) his [age] year-old son. [The second applicant] was [age] years old when the alleged events occurred in Iraq and relies on his father’s claims regarding them. Another son ([Mr B]) has a separate application however he largely relies on his father’s claims although he is the subject of a separate Tribunal finding. The first-named applicant (hereafter named ‘the applicant’) claimed that if he returned to Iraq, he would be arrested and killed by the Iraqi government since his tribe had disowned him and he had been accused of fighting with Islamic State (IS).
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Employment and Part-Ownership of a Bar
I do not accept that the applicant was ever a part-owner of a bar in [City 1]. He has given differing versions of his employment history to a range of Australian authorities over the years. The applicant unsuccessfully applied for a tourist visa to come to visit his brother in Australia in August 2010 at which time (according to his protection visa claim) he was a part-time bar owner. Yet he never mentioned this employment in his tourist visa application, only that he was a [Occupation 1] with [Company 1] and that he had been employed as such since 2006. He could not explain why he never mentioned his bar on his tourist visa application.
During the hearing he claimed that he had the alcohol business from 2009 until the end of 2010, and before this a [Product 1] shop from 2002-08 that he ran himself. He also sub-leased two storage places to other people as a small business. These were his only sources of income and he didn’t work anywhere else.
In a previous interview with a delegate however, the applicant also stated that he had a [Product 1] shop that he owned on his own but also other businesses where he had partners, including a [Industry 1] business that he and his partner owned. He also told the delegate that he and a business partner owned a [Product 2] shop. There was no mention of this [Product 2] shop elsewhere in his claim and he also stated at hearing that he was an employee (as opposed to an owner) of the [Company 1] [Industry 1] company. In response to concerns about the differing accounts regarding his employment that he had given he simply stated that he couldn’t remember.
Because I do not accept that the applicant ever part-owned a bar, it follows that the bar of which he was allegedly a part-owner and his home were never attacked, nor was his wife or his business partner killed.

In addition to the concerns over his failure to have previously noted his alleged part-ownership of the bar, as well as the inconsistencies regarding his employment, there are also concerns with the account of the attack. To begin with, the applicant had previously claimed that the attack on the bar was initiated because Muqtada as-Sadr returned to Iraq in 2010 and then issued a fatwa calling for bars to be destroyed. Yet as-Sadr did not return to Iraq until 2011, after his bar had allegedly been destroyed. I have taken into account the post-hearing submission that refers to an (undated) video showing JAM punishing alcohol-sellers in Dhi Qar province which it said was evidence that a fatwa against alcohol existed prior to the attack. The Tribunal has concerns over the applicant’s timeline in which he claimed that as-Sadr returned to Iraq in 2010 and then issued a fatwa, whereas as-Sadr did not return to Iraq until 2011, after the alleged attack.
The Tribunal also has concerns regarding the timing of the alleged attack, occurring the month after his visitor visa to Australia was refused. His account of his own survival also appears to be so fortuitous as to lack credibility. He claimed that he received a letter telling him to close the shop on 13 November 2010, which would indicate that the militants knew what he did and how to contact him. Yet at the very time the attackers chose to simultaneously attack the bar and the applicant’s house, he happened to be in the store close to the shop getting some stores. It is reasonable to believe that if the applicant was a target of the militants they would have kept tabs on his movements and either waited for him to return to the bar or killed him at the store.
The lack of any media report whatsoever regarding the attack also lends weight to the concerns the Tribunal has regarding its truthfulness. It is reasonable to believe that a simultaneous attack on a bar in which the part-owner was shot and killed by militants arriving in four cars and the patrons forced to jump in the [river] as grenades were thrown into the bar, at the same time as a house was attacked by the same group and a woman killed would be newsworthy.
I do not accept that the failure to provide any media reports regarding the attack was because if anybody attempted to publish it they would be threatened or their life be at risk. This is inconsistent with the applicant’s own pre-hearing submission in which he included media reports of alcohol shops being targeted as evidence that such things occurred. The Tribunal does not take issue with the proposition that alcohol shops have been attacked on occasion in Iraq. The Tribunal does not believe however, that the applicant part-owned a bar or that it was attacked.
The absence of any media reporting about a coordinated attack of this size does nothing to support his claim, and the fact that he has provided media reports regarding attacks against other bars is inconsistent with his claim that the absence of any media reports about the attack he alleged was conducted against his bar was because such attacks were not reported upon. I have taken into account the post-hearing submission in which it was claimed that only large-scale bombings using Improvised explosive Devices (IED) were covered or if such attacks were carried out by AQ or ISIS rather than JAM.
The applicant provided a media report in response to a question from the Tribunal pre-hearing in which a media account of a non-AQ/IS group was instituting Islamic social mores (including non-attacks against liquor stores) while a quote from as-Sadr (referenced in the same response) from January 2011 was part of a larger CNN story that referred to attacks against liquor stores. This is inconsistent with his claim that only AQ/ISIS attacks were likely to be the subject of media attention.
I have also taken into account the photos provided post-hearing of what the applicant claims is a scar on the son’s leg from a wound he received during the attack on the house in Iraq. Whilst there is a scar there is no way of knowing how it was caused, nor is there any medical records submitted in the decade since the application was made, that may allow the Tribunal to give the claim some weight. As a consequence I can give it little weight in support of the claim.
Tribal Excommunication
Because I do not accept that the applicant ever part-owned a bar in [City 1] that was attacked by al-Mahdi Army (JAM) members, it follows that JAM members never went to the applicant’s brothers and asked about the applicant’s whereabouts. Nor did JAM members go to their tribal head and ask them to hand the applicant over to them, or that the tribal elder was forced to sign a declaration that the applicant had been excommunicated from the tribe.
Religious Identity
I do not accept that the applicant is Sunni but that rather he is and always has been Shi’a. His claim to be Sunni rests on his uncorroborated statements that he used to pray at a mosque in Perth and since being in Sydney he prays at least monthly at [Mosque 1].
There is however, a range of evidence that indicates that the applicant is actually Shi’a and is claiming to be Sunni in order to establish a refugee claim. The concerns that lead the Tribunal to this conclusion are as follows:
a.Despite claiming to have regularly attended [Mosque 1] in Sydney for several years, he was unable to name the imam there;
b.He was from [City 1], a Shi’a-majority city in Iraq;
c.Country information indicates that in Sunni-Shi’a marriages the children generally follow their father’s faith[2];
d.A social media page belonging to him indicated that he had attended a Shi’a school while he lived in Iraq. It also included footage of and commentary on ‘ashura a key Shi’a Muslim commemoration. He chose to not comment when this issue was put to him;
e.Both his parents are buried in Najaf, noted as a burial site for the Shi’a faithful[3]; and
f.He buried his (Christian) Australian wife in the Muslim section of the cemetery using a funeral director whose office location is the same address as [a large Shi’a mosque]. I do not accept that he only knew Muslim people who sold grave sites at the cemetery – he could easily have looked for Christian or even non-denominational ones if he so chose. I also do not accept that he was in financial trouble and sourced the funeral director through a friend and was unaware that they were Shi’a, given this relies entirely on his own testimony which I have found lacks credibility.
[2] Refworld | Pakistan: The consequences of a Shia-Sunni inter-religious marriage, including the treatment of the couple and their children (October 2003 - May 2005), accessed 17 March 2023.
[3] Millions of Muslims Rest in Najaf's Valley of Peace : NPR, accessed 17 March 2023.
Any one of these would be sufficient in the opinion of the Tribunal to identify the applicant as a Shi’a Muslim – the combination of them makes the case for his Shi’a identity overwhelming.
I have also taken into account the [second-named applicant’s] claim that he is a Sunni, including a letter of support from the vice-president of [a Muslim Community organisation] who states that [the second applicant] is a practising Muslim who occasionally attends the [named] mosque and usually performs Friday prayers.
[The second applicant] was invited to a second hearing to explore this issue. The person who wrote the letter of support was unable to attend as they were overseas. [The second applicant] initially indicated that he would not attend because he claimed that it clashed with a GP appointment in Canberra, however he did subsequently join the hearing by phone.
[The second applicant]’s evidence did little to reassure the Tribunal that he was religiously observant, let alone a Sunni. Given the Tribunal is of the opinion that the applicant’s father is of the Shi’a faith but attempting to pass himself off as a Sunni, it should follow that [the second applicant] has followed the same path given religious identity is normally passed along the paternal line.
It is of course difficult for a Tribunal to understand what is truly in one’s heart given that faith is a private matter. The Tribunal must however, also turn its mind to whether actions such as attendance at a mosque is reflective of a person’s faith or simply done to strengthen their refugee claim. In this particular case, the Tribunal is also aware that some Shi’a may employ the use of taqiyya (precautionary dissimulation)[4] to present themselves to be of another sect if it is believed necessary to do so.
[4] Are Muslims Commanded to Deceive? Why Melanie Phillips Should Know Better - Carnegie Endowment for International Peace, accessed 8 May 2023.
Regardless of whether his occasional attendance at a Sunni mosque is driven by ideologically-, or pragmatically-justified reasons, I am satisfied that it does not indicate that [the second applicant] is actually a Sunni Muslim. His attendance at mosque is by his own admission, at best sporadic (he attends ‘every now and then’) and he described himself as being not very religious. [The second applicant]’s account of his own religious practise also appears to be at odds with that of the vice-president who claimed the applicant usually performs Friday prayers. This disparity between what the letter says about [the second applicant]’s faith observance and what [the second applicant] himself says means that I give relatively little weight to the letter as evidence that [the second applicant] is Sunni. The Tribunal is satisfied that he is in fact a Shi’a Muslim like his father, albeit not one who practises the faith at the moment.
Claims Relating to Religious Identity
Because I do not accept that the applicant is Sunni and is, and always has been Shi’a, it follows that:
a.There was no gossip that the applicant and his sons were fighting with Islamic State (an avowedly Sunni group) in Iraq and that they would be killed because of this, nor had his brother in Iraq been bashed because this rumour had circulated or had an arrest warrant been issued for them because of this;
b.There was no informal head-count of Sunnis in [City 1] by JAM, and there was no arrest warrant issued for him on suspicion of fighting for Islamic State. He was asked to provide any country information indicating that such an informal head count ever occurred however none was forthcoming; and
c.His tribe never disowned him because he was considered to be against Shi’a and an alcohol seller.
I have taken into account documents that he claimed were a letter from the tribe dated 2019 informing him of his expulsion, as well as what he claimed were copies of the arrest warrants against him. I lend them no weight given they could have been produced on any home computer and country information indicates that fraudulent documents are cheap and commonly available.[5]
Targeting over Data Breach
[5] DFAT Country Information Report – Iraq, 16 January 2023, p 44.
Whilst the applicants did not make a claim regarding the matter, I accept that the applicant’s name was included in a data breach that appeared briefly on the Departmental website in early 2014 and will address it for completeness’ sake. I do not accept that people had seen this information and that many people were harmed because of this. To begin with, the first-named applicant did not mention this claim during the hearing and had to be prompted as to whether it remained a claim at all. He provided no country information to support his claim that people in Iraq had seen the information or that many people had been harmed because of it. I note that the data placed on the site contained limited identifying information – it did not include the person’s citizenship or home country address, and there is no indication that anyone in Iraq downloaded this information.[6]
Return to Iraq
[6] Asylum data breach file – the full list of countries from which it was accessed | Australia news | theguardian.com, accessed 8 March 2023.
Although not mentioned explicitly, the Tribunal has also considered issues related to returning to Iraq as a failed asylum seeker. Country information indicates that it is highly unlikely that a failed asylum seeker would face mistreatment on return to Iraq solely on the basis of having sought asylum overseas.[7]
[7] DFAT Country Information Report – Iraq, 16 January 2023, p 41.
I note that the applicants have spent an extended period of time in Australia, however I also note that this is because they have maintained a claim that has been knowingly fabricated for all of that time. They have extant family links back in Iraq (including a son/brother they have been separated from) and I am satisfied that they would be able to secure employment in accordance with their skills and qualifications. I note that [the second applicant] has also spent the majority of his life in Australia to this point and would likely find the readjustment to life in Iraq more challenging than that of his father. With a family support network available however, I am not satisfied that such an adjustment is beyond him and his youth means that he has time on his side to re-integrate into Iraqi society undoubtedly with the assistance of his family.

100. As the applicants haven’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
101. Because I do not accept that the applicants are Sunni, or that the first-named applicant ever part-owned a bar that was attacked and his wife killed, that he was ever targeted by JAM, excommunicated by his tribe or that there are any rumours circulating that they fought for Islamic State, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.
102. As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iraq, that there is a real risk that the applicants will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION

104. The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2844

24 May 2023

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Statutory Construction

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Natural Justice

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