1817890 (Refugee)

1817890 (Refugee) [2021] AATA 5172 (28 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1817890

COUNTRY OF REFERENCE: Iraq
MEMBER:K. Chapman
DATE:28 November 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 28 November 2021 at 8:16pm
CATCHWORDS
REFUGEE – protection visa – Iraq – particular social group – former police officer – mental health conditions – religion – conversion to Christianity – reporting police corruption – training by the United States military – guarding foreign fighter prisoners – fear of revenge by Muslim militia groups – state protection – fear of killing – inadequate family support – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J, 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 25 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (‘the Act’).
The applicant, who claims to be a citizen of Iraq, applied for the Subclass 790 visa on 1 September 2017. He arrived in Australia as an Unauthorised Maritime Arrival (UMA) in 2011. The applicant made written claims for protection regarding his work as an Officer in the Iraqi Police Service (IPS), where he purportedly reported corruption. Furthermore, he made claims in relation to a conversion to Christianity in Australia and on the basis of his inability to subsist in Iraq arising from mental health conditions. The delegate did not accept the applicant’s claims due to concerns with his credibility, including regarding the veracity of submitted identity documents such as an expired Iraqi Police Service Identity Card. Additionally, the delegate located [social media] posts that contradicted the applicant’s claim to have converted to Christianity in Australia and suggested he remains in contact with family members in Iraq.
On 19 June 2018, the applicant applied for review of the decision to refuse the Subclass 790 visa. He provided a copy of that decision to the Tribunal. The applicant has been represented by a pro bono solicitor (‘the representative’) in the review process since July 2021. On 23 July 2021, the Tribunal invited the applicant to attend a review hearing scheduled for 8 September 2021. The applicant, through the representative, requested a postponement due to medical issues faced by the applicant. A postponement was duly granted.
On 9 August 2021, the Tribunal wrote to the applicant, pursuant to s.424A of the Act, inviting him to comment on or respond to certain information contained in the Department file. Following the grant of an extension of time to respond, the Tribunal received a response from the applicant on 30 August 2021. This response included a Statutory Declaration from the applicant, annotated photographs of him as a member of the Iraqi Police Service and a media article referring to [Prison 1] in Al Muthanna Province.
On 21 September 2021, the Tribunal invited the applicant to attend a review hearing scheduled for 14 October 2021. The applicant appeared by video before the Tribunal on 14 and 21 October 2021 to give evidence and present arguments. The applicant was represented by his pro bono solicitor. The review hearing was scheduled by video means to provide the applicant with a more comfortable environment given his mental health conditions. The applicant informed the Tribunal he was comfortable proceeding with the hearing by video means. The review hearing was conducted using the assistance of an interpreter in the Arabic and English languages. The applicant confirmed he understood the interpreter and there were no other witnesses to be called.
The applicant requested, and was granted, time following the hearing to provide further documentary material. The applicant, through his representative, lodged final submissions on 16 November 2021. All submitted material has been carefully considered by the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Iraq. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed an Iraqi national. Iraq is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Issues
The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Iraq, there is a real risk he will suffer significant harm.
Documentary evidence before the Tribunal
The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:
a.the applicant’s protection visa application forms lodged on 1 September 2017;
b.the applicant’s identity documents, including his Iraqi national identity card, Iraqi residency card, Iraqi citizenship certificate, marriage certificates and religious divorce certificates;
c.written submissions from the applicant’s representative dated 5 October 2021;
d.the applicant’s Statutory Declaration dated 30 August 2021;
e.the applicant’s Statutory Declaration dated 29 August 2017;
f.the applicant’s Statutory Declaration dated 20 January 2012;
g.the applicant’s letter to the Minister for Immigration and Border Protection requesting ministerial intervention dated 11 May 2015;
h.support letters from [three named persons] submitted to the Department in support of the applicant’s request for ministerial intervention;
i.the applicant’s Certificate of Baptism issued by [church name] in Perth, Australia [in] March 2013;
j.the death certificate of [Brother A] issued [in] June 2012;
k.letter from [Psychiatrist A], Consultant Psychiatrist from [Health Service 1] dated 13 September 2021;
l.letter from [a] General Practitioner from [Health Service 1] dated 22 September 2021;
m.email from [a named administrator and teacher] from [a named] University dated 22 August 2021;
n.report of [a] Counsellor from [Agency 1] dated 27 August 2021;
o.an original copy and English translation of the applicant’s temporary Police identification card;
p.an original copy and English translation of a letter to [Iraqi Agency 1] dated [in] May 2009;
q.an original copy and English translation of a letter to [Iraqi Agency 2] from [Officer A] dated [in] November 2010;
r.an original copy and English translation of an arrest warrant issued by [Iraqi Agency 3] [in] September 2011;
s.an original copy and English translation of a summary of default judgement made by [Iraqi Court 1] dated [in] 2014;
t.UNHCR Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Process, published in November 2017;
u.annotated photographs;
v.a news article published by [a news agency] [in] May 2021;
w.screenshots of [social media] pages, posts and photographs posted on [social media];
x.untranslated documents;
y.the Departmental delegate’s protection visa refusal decision record dated 25 May 2018 (a complete copy of which was provided to the applicant by the Tribunal pursuant to s.424A of the Act);
z.the application for review submitted on 19 June 2018;
aa.Departmental administrative and movement records;
bb.letter from [Psychiatrist A], Consultant Psychiatrist from [Health Service 1] dated 1 November 2021;
cc.email correspondence between the representative and an interpreter of November 2021;
dd.the applicant’s Statutory Declaration dated 11 November 2021; and
ee.post hearing written submissions from the representative dated 16 November 2021.
Claims for protection
The applicant made claims for protection that, with the effluxion of time, have evolved. His claims for protection may be summarised as follows:
a.he is an Arab Shia Muslim from Samawah, in the Al Muthanna Province of Southern Iraq. He joined the Iraqi Police Service (IPS) in [year] and was initially trained by the United States military (and later [Country 1] forces), thereafter being assigned to guard duty at [Prison 2] where Shia militia members were detained;
b.he faced difficulties as a Police Officer from 2009 when the Islamic Supreme Council of Iraq (ISCI)/Badr Organisation (pro-Iranian Shia groups) gained influence in Samawah, as they despised the Coalition military forces and those trained by them. Using this influence, the ICSI/Badr were able to direct that Police Officers trained by the Coalition be sent into areas of Samawah controlled by the [Militia 1] (an anti-Coalition Shia militia group) to be placed at heightened risk of attack;
c.he worked as an undercover Police Officer and in June 2011 located a weapons cache through an informant. The applicant reported the weapons cache to his superior, [Officer B], who then arranged for the munitions to disappear with vehicles used by the Islamic Dawa Party (IDP). The applicant claims he confronted [Officer B] and reported his corruption to an Investigative Judge. However, the Judge was aligned with the IDP and [Officer B]. The applicant was then transferred to another Police Station and he learned that his life was at risk from the ISCI and IDP, who utilised Police Special Forces (SWAT) to hunt for him;
d.the applicant deserted the Iraqi Police Service and escaped the Police Special Forces (SWAT) by travelling to [City 1] in 2011 then living on the streets. He then obtained a false Iraqi Passport from his brother, [named], that enabled him to depart Iraq from [City 1] Airport on a commercial flight. Thereafter, he made his way to [two countries] and ultimately to Australia by boat in November 2011;
e.he claims his brother, [Brother A], was murdered [in] June 2012 by members of the Islamic Dawa Party, seeking revenge on the applicant after he departed Iraq;
f.the applicant converted to Christianity in Australia, placing him at risk as an apostate if he returns to Iraq. However, he has since returned to his Shia Muslim faith; and
g.the applicant suffers mental health conditions, including anxiety, depression and post traumatic stress disorder (PTSD). He claims that his ability to subsist is threatened if he returns to Iraq due to his mental health conditions. Additionally, he claims that due to the gravity of his illness, he will draw attention to himself in Iraq as a person who has worked with Coalition military forces in the Iraqi Police Service, reported corruption in that occupation and who opposes the Islamic Dawa Party (and aligned groups).
Section 424A Invitation dated 9 August 2021
The Tribunal wrote to the applicant, pursuant to s.424A of the Act, inviting him to comment on, or respond to, the following information:
·The Department File [number] (enclosed) contains material including, but not limited to, the Biodata Notes of 15 November 2011, Request for Protection Obligations Determination (POD) of 19 January 2012 including Statutory Declaration dated 20 January 2012, Protection Obligations Evaluation (POE) Referral of 21 March 2012, IMA Entry Interview record of 16 July 2012, the Independent Protection Assessment (IPA) of 15 October 2012, application for the Subclass 790 Safe Haven Enterprise Visa (SHEV) including Statutory Declaration dated 29 August 2017, the delegate’s decision to refuse to grant the Subclass 790 Safe Haven Enterprise Visa (SHEV) of 25 May 2018, associated documentation including interview records and [social media] posts. This material appears to contain inconsistencies in relation to your claims for Protection such as regarding:
othe identification of those seeking to harm you;
othe genuineness of your claimed service as an Iraqi Policeman, including with respect to supporting documents you submitted;
othe particulars of the bomb discovery incident of [June] 2011 and how you learned that your life was in danger;
othe manner in which you came to be alerted to the Iraqi SWAT Police searching for you;
othe identity documents you used to depart Iraq; and
oyour conversion to Christianity in Australia, including photographs depicting you with Shia Muslim tattoo art on your body acquired in Australia and those suggesting you are in contact with family members in Iraq.
The applicant’s response, received on 30 August 2021, may be summarised as follows. He maintains that he held a temporary Iraqi Police Service Identity Card (with expiry in 2010) and could not obtain a permanent card due to problems with the [specified] equipment that saw delay in the process. He therefore did not possess a valid card in 2011 when he deserted from the Iraqi Police Service. The applicant also contends that perceived difficulties in submitted Iraqi Police Service training certificates, such as spelling and format, are attributable to unfamiliarity with the English language in that organisation. The applicant also outlined the Iraqi Police Service structure as applicable to his station, maintained that he reported corruption and advised that he was in danger due to the influence of the Islamic Dawa Party. Additionally, the applicant sought to resile from his statement upon arrival in Australia, that he departed Iraq lawfully using his own Passport, indicating he gave an initial false statement because he was scared to admit he departed that country with a false Passport (a claim he has maintained since).
The applicant also submitted a media article dated [in] May 2021 indicating that [Officer B] had been sanctioned due to involvement with a prison escape at [Prison 1] in Al Muthanna Province. Further, the applicant submitted annotated photographs of him serving in the Iraqi Police Service during [year range]. These photographs depict the applicant in uniform with United States and [Country 1] military personnel. The Tribunal has carefully considered the applicant’s response to the s.424A invitation.
Evidence at the review hearing on 14 and 21 October 2021
The Tribunal conducted the review hearing over two days, using video means and permitting support persons to assist the applicant given his submitted mental health conditions. The Tribunal was able to engage with the applicant effectively using a clear video link on both days. The Tribunal observed the applicant to mainly be calm, lucid and able to recall significant detail of past events where this tended to support his claims for protection. However, where topics were raised with him that might tend to be adverse to his claims, the Tribunal observed the applicant to become guarded. He often tended to rely upon the effluxion of time as the antidote to any inconsistency in past statements. Furthermore, written submissions on his behalf urged the Tribunal to overlook significant inconsistencies in his evidence on account of his mental health conditions.
The Tribunal has been very careful to take into account the significant medical evidence pointing to the applicant having serious mental health conditions. Indeed, the Tribunal made adjustments during the hearing to accommodate him. However, the Tribunal is not satisfied that the effluxion of time, in combination with mental health conditions, explains some of the applicant’s inability to reconcile inconsistent statements over the years. On balance, the Tribunal is not satisfied that the applicant was forthcoming regarding the particulars of his purported anti-corruption stance during employment in the Iraqi Police Service, the lead up to his departure from Iraq, the degree of contact he has with his family in Iraq and the genuineness of his conversion to Christianity in Australia. These are matters referred to in greater detail below.

The Tribunal canvassed the applicant’s background with him at hearing. He outlined that he departed Iraq in his [age range] and travelled to Australia by boat from Indonesia in 2011. The applicant is an Iraqi Arab, who is a Shia Muslim. He speaks Arabic and English. The applicant specifically advised the Tribunal he has not been involved in any political activities in any country. The applicant has elderly parents, in poor health, residing in Samawah, Al Muthanna Province. His father relies upon a State pension. The applicant has [specified family members]. The applicant’s sister, [named], resides in [Country 3] and holds citizenship of that country. His [Brother A] died in 2012 from a gunshot wound. The applicant claims this was a revenge killing by persons from the Islamic Dawa Party. Two of his [siblings], [named], are unemployed and reside with their parents. One [sibling], [named], is a [specified occupation]. His brother [named] used to work in a [specified business].
The applicant’s brother, [Brother B], has been a member of the Iraqi Police Service for around [number] years. He is a [named specialist]. The applicant’s brother, [Brother C], has been a member of the Iraqi Police Service for around [number] years. He also is a [specialist]. [Brother C] has a disabled son and does not work so often. The applicant claims that he has not spoken to his two brothers in the Iraqi Police Service for some years. Further, the applicant contends that he could not return to live in Iraq and be supported by his family members, given their own straitened circumstances. The applicant has two former wives and [number] children. He is in regular contact with his children using video calls.
The applicant served in the Iraqi Army as a conscript between [specified years] in the vicinity of Baghdad. During this time, he was mistreated by superiors and went absent without leave to escape from impending harm from his commander. The applicant subsequently underwent a period of military detention where he was physically beaten. In due course he was released and transferred to another barracks, where he served out his time until November 2002. Thereafter, the applicant was released from service and returned home to Samawah, where he stayed home until the United States military forces arrived in 2003. The Tribunal notes that the applicant’s recollection of his service, including the description of his basic training and duties, was vivid and detailed. Accordingly, the Tribunal accepts his evidence on this topic.
In [year], the applicant went to a Hospital in Samawah, as he learned the Coalition forces were there seeking men to become Police Officers. Given his past low level Army experience, he was accepted as a Police recruit. The applicant outlined his initial training at [named venue], including the duties of a Police recruit. He explained that United States military forces provided the initial training to the recruits. Following this training, the applicant was posted to guard [Prison 2]. He advised that at that time all of the Iraqi guards were Police Officers. The applicant also explained that the prison initially held convicted criminals, but later held foreign terrorist suspects and [Militia 1] (Shia militia) members captured by the Coalition.
The Tribunal canvassed in detail with the applicant the nature of his duties in the prison and his liaison with Coalition military forces. The applicant explained how he primarily worked with United States military members and later on [Country 1] forces. He also outlined the disposition of other Coalition forces operating in the vicinity of Samawah, including the [specified] Army who arrived later on. The applicant described with clarity the tactics, techniques and procedures employed by the United States forces, with whom he would operate. He also provided a comprehensive description of his uniform and accoutrements at that time. The Tribunal observed the applicant to provide detailed and compelling evidence regarding his work with Coalition military forces as a Police Officer in Southern Iraq. Additionally, the applicant provided further particulars regarding the photographs he submitted depicting him working with Coalition forces during [specified years]. The Tribunal accepts the evidence of the applicant regarding his duties in that period.
In 2005, the applicant was transferred to learn [further] policing duties at a station within Samawah. Whilst there he became aware of significant infiltration of the Iraqi Police Service by members of the [Militia 1]. They warned him not to assist Coalition military forces, including [one nationality], whom they were targeting. He was told that they know he was trained by the United States military forces, to whom they were opposed. Over time the applicant transitioned into the plain clothes section where he investigated various criminal activity. He contends that he performed such duties until 2011 when he had to escape. The Tribunal canvassed with the applicant his duties and training regarding these duties. The Tribunal observed the applicant to provide a general description of these duties that was reasonably broad. In contrast with the applicant’s claim that he was an experienced Police Officer by 2011, the Tribunal considers him to have provided fairly limited detail in relation to his investigative Police duties.
The applicant contends that in June 2011 he located a munitions cache in Samawah through an informant. He contends he reported this to his superior, [Officer B]. According to the applicant, [Officer B] directed the applicant to return to the Police Station and then had the munitions removed by cars operated by [a named agency], which was then run by the Islamic Dawa Party. The applicant purportedly confronted [Officer B] in a terse exchange and then reported him to an Investigative Judge for corruption. According to the applicant, the Judge was aligned to the Islamic Dawa Party and informed [Officer B] of his actions. Thereafter, the applicant says he was transferred to another Police station. He subsequently learned his life was in danger and he fled to [City 1] where he lived on the streets. The applicant claims his former wife sold a piece of land to fund his escape, his [Brother B] delivered him a fake Iraqi Passport with his photograph in it and he was able to depart by air through the [City 1] Airport. The Tribunal notes that the applicant’s narrative regarding his discovery of the munitions cache, and escape from Iraq, contained several inconsistencies with his prior statements to Department Officers during the earlier processing of his claims.
The Tribunal canvassed with the applicant that the delegate located [social media] posts which tended to indicate he was in contact with his brothers in the Iraqi Police Service. The applicant denied that he is now in contact with them. He also provided a vague account of not having full access to his [social media] accounts and of one brother actually making posts on his behalf. The Tribunal also canvassed the relationship with these brothers and the applicant indicated they are both aligned to political parties (unknown) in Iraq. He added that [Brother B] is basically a terrorist. When asked by the Tribunal why these matters had not been raised at an earlier point, the applicant indicated he was never asked by the Department about them. In the view of the Tribunal, this evidence of the applicant regarding his brothers in the Iraqi Police Service was unpersuasive.
The Tribunal canvassed with the applicant his purported conversion to Christianity in Australia and the delegate’s discovery of [social media] photographs he posted with large Shia Muslim tattoo artistry on his back. The applicant maintained that his conversion was genuine. He contended that an Iraqi he met in Australia had returned to Iraq and told others that he had converted to Christianity. In order to protect his children, the applicant says he obtained the Shia tattoos and posted them to [social media]. When the Tribunal raised with him that he did not offer this information to the Department until confronted with the adverse [social media] posts, the applicant responded with an oblique answer indicating he knew the Department was monitoring his social media so he was not worried about the posts. The applicant advised the Tribunal that he had returned to Shia Islam as all religions are essentially similar. In the view of the Tribunal, the applicant’s evidence regarding this topic was unpersuasive.
The Tribunal canvassed with the applicant that the media article he submitted regarding the transfer of [Officer B] from his post, might tend to suggest that his influence was reduced and the applicant is unlikely to be at risk from him. The applicant advised that [Officer B] was not dismissed from the Iraqi Police Service, rather his duties were reassigned. He added that [Officer B] is linked to the Iranians and he has significant influence. The Tribunal observed the applicant’s response to be somewhat inconsistent with the content of the media article that he submitted.
The Tribunal canvassed with the applicant the DFAT country information regarding mental health services and the ability to return to Iraq from a Western country.[1] The Tribunal noted that, whilst it might be challenging, the country information might tend to suggest he could return to Iraq given the family support available to him. In response, the applicant detailed that he could not return to live with his parents given their straitened financial circumstances, in combination with them already looking after two of his brothers who do not work. The applicant also outlined that he has not been in contact with the bulk of his siblings for some time and that none of them are able to support him given their own commitments and general poverty afflicting them in Southern Iraq. It was also submitted that the applicant could not access adequate mental health services should he be returned to Iraq. On balance, the Tribunal considers that the applicant gave direct and compelling evidence regarding his inability to access adequate family and mental health support.
[1] DFAT Country Report Iraq, 17 August 2020 at paragraphs 2.37 & 5.43-5.46.
In conclusion, the applicant contended that his life was in danger from the Shia militia in Iraq. He also submitted that he is taking medication and cannot obtain the required mental health treatment if he is returned to Iraq. His representative gave submissions focused on the impact of the applicant’s mental health conditions and the threat posed to his subsistence if he returned to Iraq. Additionally, it was submitted that the applicant would draw attention to himself given his mental health and this placed him at a higher risk of harm if he returned to Iraq.
Post hearing submissions
On 16 November 2021, post hearing submissions were received. In summary, it is contended that the applicant’s mental health conditions remain significant and pose a risk to his subsistence, his family members are not in a position to support him, that inconsistencies in prior evidence to the Department at the POD stage are attributable to the stress of that situation, and that the transfer of [Officer B] will make him more sensitive to allegations of corruption. The Tribunal has carefully considered these submissions. Further, these post hearing submissions contend that the applicant’s name is incorrectly spelt in the English language in Department records. The Tribunal considers this to be a matter between the applicant and the Department.
Analysis
That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.
The Tribunal does accept the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. For the reasons that follow, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Iraq. He is a Shia Muslim who served in the Iraqi Police Service, was initially trained by the United States military and assigned to guard duties in [Prison 2] in Al Muthanna Province. He also received additional training from [Country 1] military forces. The applicant provided a detailed and compelling account of this aspect of his service as a Police Officer between [specified years]. Additionally, submitted photographic evidence confirms the applicant worked with both United States and [Country 1] military forces as a member of the Iraqi Police Service during that time.
The Tribunal also accepts the evidence of the applicant that he was subsequently identified by members of the [Militia 1] (a Shia militia group), who worked in the Iraqi Police Service, as a member who was trained by the United States military. Additionally, the Tribunal accepts he was responsible for guarding prisoners in [specified years] who were members of the [Militia 1] and also foreign fighters. These matters, in the view of the Tribunal, elevate his risk of harm by Shia militia should he return to Iraq and it is plausible that he may be targeted by such groups. The DFAT country information, to which the Tribunal must have regard, notes that individuals who have worked with the international community, and particularly the United States Government, have faced recriminations previously.[2] Accordingly, the Tribunal accepts that it is plausible the applicant would also be targeted by other anti-Coalition forces, including Sunni Muslim militia groups, should he return to Iraq.
[2] DFAT Country Report Iraq, 17 August 2020 at paragraphs 3.73-3.76.
The Tribunal also accepts that the applicant suffers from significant mental health conditions as demonstrated by the raft of submitted credible medical evidence. The relevant DFAT country information indicates that mental health services are very stretched in Iraq.[3] Furthermore, the Tribunal accepts that the applicant’s family is not able to care for him in the manner required by his mental health conditions. Having regard to the particular gravity of the anxiety, depression and PTSD suffered by the applicant, that renders him unable to work, the Tribunal is satisfied he would suffer significant economic hardship that threatens his capacity to subsist if returned to Iraq. Furthermore, the Tribunal is satisfied that the applicant would draw attention to himself, given his mental health, and this places him at a higher risk of harm if he returned to Iraq. This is particularly so when considered in combination with his risk of harm derived from his former employment with the Iraqi Police Service in support of Coalition forces in Iraq.
[3] DFAT Country Report Iraq, 17 August 2020 at paragraph 2.37.
The Tribunal has had regard to s.5L of the Act which provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. Following careful consideration, the Tribunal finds that the applicant is a member of the particular social group ‘persons who have worked with the international community’ given his initial duties an Iraqi Police Service member, he was trained by the United States military and worked with Coalition military forces. Additionally, the Tribunal finds that the applicant is a member of the particular social group ‘persons with significant mental health conditions’.
In the view of the Tribunal, the applicant fears persecution on these bases, and his membership of these particular social groups places him at increased risk of harm from both Shia and Sunni militant groups should he return to Iraq, in addition to threatening his capacity to subsist. The Tribunal notes in making this finding that it has duly considered s.5K of the Act and that no barrier is posed by that provision in determining the applicant to be a member of these particular social groups.
Real chance of persecution for reason of membership of a particular social group
With regard to assessing whether the applicant faces a well founded fear of persecution as a person who has worked with the international community, and as a person with significant mental health conditions, the Tribunal has duly considered that the criterion in s.5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. For reasons previously expressed, the Tribunal accepts that the applicant satisfies the aforementioned subjective requirement. The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

Following careful consideration, the Tribunal finds that if the applicant returns to Iraq now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that he would be physically injured or even killed by Shia or Sunni militants due to his being ‘a person who has worked with the international community’. In making this finding, the Tribunal is satisfied that the applicant was a member of the Iraqi Police Service for several years from [year] and worked closely with United States and [Country 1] military forces, including by guarding [Militia 1] members and foreign terrorist fighters at [Prison 2].
Furthermore, the Tribunal finds that if the applicant returns to Iraq now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that he would suffer significant economic hardship that threatens his capacity to subsist as ‘a person with significant mental health conditions.’ This is because of the gravity of his mental health conditions, as demonstrated by the submitted medical evidence, and the inability for his family to adequately support him. In particular, the Tribunal is also satisfied that the applicant’s mental health conditions exacerbate his risk of harm as ‘a person who has worked with the international community’, given he is likely to draw attention to himself if returned to Iraq.
For completeness, the Tribunal has considered the other claims raised by the applicant. The Tribunal does not accept that the applicant was a member of the Iraqi Police Service beyond 2010 and nor does it accept he located a weapons cache and reported [Officer B] for corruption in relation to it. This is due to the significant inconsistencies in the evidence provided by the applicant in relation to these matters over the years since his arrival in Australia in 2011, in combination with the manner in which he gave his evidence at hearing. On balance, the Tribunal considers this aspect of the applicant’s claims to have been an embellishment.
Further, the Tribunal does not accept that the applicant deserted from the Iraqi Police Service following a sweep by the Iraqi Police Special Forces (SWAT), nor that he escaped to [City 1] and lived on the streets until he received a false Iraqi Passport with his photograph in it from his brother [Brother B]. This is also due to the significant inconsistencies in the evidence provided by the applicant in relation to these matters over the years and the manner in which he gave his evidence on these matters at hearing. On balance, the Tribunal does not accept the applicant is the subject of a warrant from the Iraqi authorities and it does not accept he departed Iraq illegally using a false Iraqi Passport.
The Tribunal accepts the applicant’s [Brother A], died of a gunshot wound in 2012. This is a tragic event. However, given the Tribunal does not accept the applicant’s account of anti-corruption activity concerning [Officer B], it also does not accept that the Islamic Dawa Party took action against [Brother A] in revenge. Rather, the Tribunal is of the view that [Brother A’s] passing more likely arose out of the general violence occurring in Iraq at that time. In addition, the Tribunal does not accept that the applicant has not been in contact with his brothers serving in the Iraqi Police Service, given the [social media] posts located by the delegate. Nor does the Tribunal accept that the applicant’s brothers [Brother B] and [Brother C] are affiliated with political parties (unknown) given the significant delay in raising this claim and its vagary. Notwithstanding these matters, the Tribunal accepts that [Brother B] and [Brother C] are not in a position to assist the applicant to meet his subsistence needs if he returns to Iraq.
The Tribunal does not accept that the applicant genuinely converted to Christianity in Australia, given the [social media] posts located by the delegate of him with large Shia Muslim tattoo artistry on his back, at the same time he maintained an apostacy claim. Additionally, the applicant did not seek to resile from his apostacy claim until well after he was confronted with these [social media] posts. Further, his explanation at hearing on this topic was delivered in a most unpersuasive fashion. On balance, the Tribunal considers this aspect of the applicant’s claims to have been an embellishment.
For the sake of completeness, the Tribunal does not accept that the applicant would face a real chance of harm on account of being a returnee from a Western country (however described). This is because the DFAT country information does not support this claim[4] and the applicant did not press it with any vigour.
Does the real chance of persecution extend to all areas of Iraq?
[4] DFAT Country Report Iraq, 17 August 2020 at paragraphs 5.43-5.46.
Having carefully considered the above pertinent evidence submitted by the applicant, and the relevant DFAT country information, the Tribunal finds that the real chance of the applicant being persecuted for reasons of his membership of the particular social groups ‘persons who have worked with the international community’ and ‘persons with significant mental health conditions’ extends to the whole of Iraq in conformity with s.5J(1)(c) of the Act.
Are there effective protection measures?
The Tribunal has duly considered whether ‘effective protection measures’ as defined in s.5LA of the Act are available to the applicant. Having regard to the DFAT country information concerning the effectiveness of the Iraqi Security Forces, and in particular the links between elements of it and the Shia militia groups, the Tribunal is not satisfied that the applicant can access the protection of the Iraqi State in the regions it controls, nor that there is a reasonably effective police force to assist him, for the purposes of s.5LA(2)(a) and (c) of the Act, in respect of the persecution he faces as ‘a person who has worked with the international community’.[5] Additionally, given the pressures for mental health services in Iraq, as outlined, there are no effective protection measures for the applicant as ‘a person with significant mental health conditions’. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant for the purposes of s.5J(2) of the Act.
Other factors concerning the persecution
[5]DFAT Country Report Iraq, 17 August 2020 at paragraphs 5.2-5.14.
Having regard to all of the evidence, the Tribunal finds that the persecution which the applicant fears in respect of him being ‘a person who has worked with the international community’ and ‘a person with significant mental health conditions’, involves ‘serious harm’ in accordance with s.5J(4)(b) of the Act. This is because it involves a threat to his life, or significant physical harassment or ill-treatment, or significant economic hardship that threatens his capacity to subsist. Further, the applicant’s membership of the particular social groups are the essential and significant reasons for the persecution which he fears, thus satisfying the requirements in s.5J(4)(a) of the Act. Additionally, the Tribunal finds that the aforementioned persecution which the applicant fears involves systematic and discriminatory conduct, in accordance with s.5J(4)(c) of the Act. There are no relevant behavioural modification steps for the purposes of s.5J(3) of the Act and the Tribunal finds accordingly.
Well founded fear of persecution
Having considered all of the above circumstances, both individually and cumulatively, the Tribunal finds that there is a real chance in the reasonably foreseeable future the applicant would be persecuted for reason of his membership of a particular social group. His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H. Having reached these conclusions, the Tribunal finds it is unnecessary to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer significant harm.
CONCLUSION
For the reasons outlined above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
K. Chapman
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 5172

28 November 2021

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