1821540 (Refugee)

1821540 (Refugee) [2023] AATA 2002 (16 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms HADDAD HANAN (MARN: 1461976)
CASE NUMBER:  1821540
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Rodger Shanahan
DATE:16 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 March 2023 at 1:30pm
CATCHWORDS
REFUGEE – protection visa – Iraq – political opinion – worked for Americans – anti-Jaysh al-Mahdi (JAM) or Saraya as-Salam (SAS) – death of relatives – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 24 October 2016.
The applicant appeared before the Tribunal on 15 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s wife]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was 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
The applicant made the following statement on 18 October 2016 as part of his protection visa application:
I [name deleted], born on [date] in Basra, Iraq. I am an Iraqi Citizen and I arrived in Australia as an illegal maritime arrival. I fear to return to Iraq because I will be subject to harm, loss of life and significant dangerous living conditions. I have been threatened due to my working status and employments with the Americans. I cannot return to live in any part of Iraq. I am here after making a deadly trip over the sea to seek the protection and civil human safety from the Australian government. No authority will protect me in Iraq and I do not have any permanent residency rights in any other country.
In 2008 I started working with my two uncles [Uncle A] and [Uncle B] and my brother [Brother A]. They were qualified [tradespeople] and worked for themselves. They trained me to become [an Occupation 1]. My father also assisted with my training. In the beginning I was an apprentice and I gradually became skilled at work. In that year we also entered into an arrangement to work on [Project 1] which was a [building] that was built in [named] city. It was a project that was supervised by an American company. The local company in charge was [name deleted] and our agreement was with that company. (Please see attached agreement) We were to do [trade work] in [building]. The work in the [building] was to last for a few years and the pay was good.
In February 2009 my uncle [Uncle A] was murdered. (Please see death certificate attached) This happened during the time he was coming home and was shot almost at the door. My father was at the house and saw him being killed. Witnesses also said that a car came up to him, stopped and two men in black clothing and balaclavas got out and shot him dead. After my father experienced that, he had severe shock and was in hospital for 13 days. He has suffered a stroke.
There was a police investigation and they asked my other uncle, [Uncle B] questions about whether there were any tribal or other issues. I do not know any other details about the investigation. My family did not day much specially to me about what was going on. The police report said nothing about who killed him but everything was indicating that it was the Almahdi army. It was the only possible Militia at the time and even today. It has very strong control and forces over the country. They are also the strongest militia group in our area.
Thus police did not do anything about the incident. After the murder of [Uncle A] my other uncle [Uncle B] did not come back to work. With my father being incapacitated and my uncles no longer involved, [Brother A] (my brother) and I continued working on [Project 1]. We needed the money for survival. At times I would hear about [Project 1] contractors being murdered. I was afraid all the time but I tried to push that out of my mind. We had no other option and we needed the money to survive and support our family financially.
In August 2009 my uncle [Uncle B] was killed (Please see death certificate). He had left the job at [Project 1] but they still murdered him. He was on a moving car and a gunman on a motorbike came up to the car and shot him in the head. They also shot other workers who were travelling in the car as well. In February 2010 my brother [Brother A] was kidnapped (Please see Court report). We had been to work and came back home. [Brother A] got ready to go out with his friends. He headed out and we never saw him or heard from him again. Complete silence followed and we have absolute no indication of what happened to him. If we knew he had been killed it would have been better and easier for the family. His disappearance has shattered my family.
Every time the police find a body they call my family to go and see the body just in case it is [Brother A]. This has traumatised my parents. Following my brother [Brother A]'s disappearance I stopped working for a while but eventually I had to go back because my family had no income. I went back in March 2010 but did not go regularly. I received a call on my mobile one evening in July. The voice said "wherever you are we will find you and we will kill you, you have not learnt your lesson". I said "who is that?" and they just hung up. After this threat I did not leave the house at all. Indeed my family urged me not to leave for my own safety.
I told my mother about the call and she told me I could not leave the house. I did not leave the house for four months. My mother would even tell my friends that I was not at home. She would tell people that I had left Basrah and was in other places. Not many people knew that I was in the house. I became so depressed and I was going mad. I could not go outside because I would be identified and killed.
In November 2010 my uncle [Uncle C] was making arrangements to flee Iraq. My mother ordered me to leave with him so that I would be protected. My father organised my passport and visa to Iran and they sent me out of the country. My mother said "we are doing this so they don't kill you, we have lost your uncles and your brother and we don't want to lose you". That is why I had to leave, in order to save my life.
I was forced to leave Iraq because my life was at risk. I would have been killed by militia groups because I had worked with Americans. I worked on a project that was supervised by Americans. Another significant issue now is that my life and my family life are at big risk. After the data leak by the immigration department (Please see letter of unauthorised access attached) and the release of my name on the official website, as I was identified now by the militia groups in Basrah and south of Iraq.
In early 2014 the Almahdi army came to my family house and interrogated them. They shot my brother [Brother B] in his leg because they refused to answer them (Please see attached photos of [Brother B] shot in his leg). They main questions were about me and my uncle's activities. Approximately after 2 months a person in the name of [deleted] to my family house. He knew that I was in Australia and the information that was published on the immigration website was his source of knowledge.
He then demanded a ransom or else he will report it to the military of Almahdi army, my family refused to pay him so he did as he threatened and reported the matter to the Almahdi army. Accordingly the Almahdi army came to my family house again threatening and told them that I was on their list to be killed as in their view I was a traitor. My family has been very frightened ever since the incident and the publication of my name. They are always at risk of being targeted and they have always told me not to go back to Iraq. My family always says that my life is in real risk and that there is no future for me in Iraq.
I fear to be killed if I return to Iraq. There is nowhere in Iraq I will be safe. There is sectarian violence throughout Iraq and I fear I will be harmed as a result of the ongoing violence. I fear to be killed or severely harmed by the Almadhi militia or other controlling Shiite Militias in Iraq due to my previous history and work against their doctrines. There is no safety throughout Iraq. I fear to return to Iraq for I will face the same danger, uncertainly, threat and loss of life. I cannot imagine myself returning to the same treatment I faced in Iraq, and seek protection of Australia as it is my only option for safety and civil human rights. I have no access to any other country and no authority in my country will attempt to save and protect me.
I cannot relocate elsewhere in my country. Should I be forced to return to my country I will be subjected to the same harm and threat to my life as previously and will continue being subjected to harm. I deserve to be treated equally, to be given basic human rights and not be subjected to danger and prosecution for unjust reasons. I deserve to be treated as a human and therefore I request the government to offer me that simple right.
AAT Hearing
The applicant claimed that if he returned to Iraq, he would be harmed by Jaysh al-Mahdi (JAM) or Saraya as-Salam (SAS) because he had sworn at them and was talking against them. Because of this he was well known to them and he would be killed. He claimed that his uncle was a well-known cleric (Sheikh [C]) killed in 2007. He swore at them because he was angry at JAM for killing his uncles. JAM told him they knew him, would not forget him and it was religiously legal to kill him. Asked if he had any other claims, he said that his brother was shot in the leg in 2014 by people looking for the applicant. This was an old claim he had informed the Australian authorities about.
He stated that his uncle [Uncle C] was killed in 2007 and they went to the hospital and viewed his dead uncle. Asked if he had mentioned this previously, he said this was in the applications. Asked if he mentioned this when he arrived in Australia, he said that he did. Asked when he first mentioned this, he said that he wasn’t sure if it was in the first interview or later. It was put to him that the member was looking at his 2012 statement and there was no mention of it. He said he thought it would be there.
He said he may have mentioned it at the second interview. Asked why he wouldn’t have mentioned it at the first interview, he said he was fully confused, had just arrived in the country and so many things were happening. It was put to him that there was also no mention in his October 2016 statement. He stated that it was there and he was advised by the member that he was looking at the statement and it wasn’t there. The fact that there was no mention of this uncle in either report was strange given the famous nature of his uncle and his subsequent death.
He claimed that they were unable to mention on his death certificate that he was killed by JAM. He was asked to answer the question put to him, and he said that he definitely provided it to the lawyer when they were in Perth and she was able to get media reports of the death.
He was told that the death of [Uncle C] was public knowledge and accepted. The issue was whether he was related to the applicant. The applicant was asked if [the name] was a common name in Iraq and he said that it was but the person was his uncle. It was put to him that a close family connection to Sheikh [C] was never mentioned by the applicant in his 2012 or 2016 statements, and was first put forward after the applicant’s refused. The concern was that he may just have tried to establish a family connection to improve his chances of his claim being accepted and it was not mentioned previously because they were not in fact related.
He stated that he swore to God this person was his [uncle]. He was asked again why he never mentioned this connection in 2012 or 2016 and he stated that he was working with both uncles killed and he was young when he came to Australia and no one helped him to relay this information. He was asked if he had a lawyer in 2016 and he said that he did – he was also four years older and had been in Australia for a number of years. He was asked why he didn’t mention it to the lawyer and he said he didn’t know what happened to him. He was able to get the death certificate from his uncle. It was put to him that country information indicated that fraudulent documents were easy to obtain in Iraq so documents such as death certificates were unlikely to carry much weight. He said he was telling the truth.
Asked what happened to him as a result of his uncle’s death in 2007, he said he was young at the time so nothing happened to him. He was working with his uncles. [Uncle A] was killed first in February 2009 and [Uncle B] in August 2009. They were both [Occupation 1]. They were killed because they were working with foreign companies and they were against JAM and used to swear at JAM. Asked what foreign company they worked for, he said that he worked with them and his brother for a short time.
Asked what foreign company they worked for, he said that they used to work for foreign companies but then they began to work for [Company 1] Company an Iraqi firm. He said he didn’t know which foreign companies they worked for. Asked how he knew they worked for a foreign company he said he overheard them talking but he never asked which one as he wasn’t curious. Asked if he had mentioned previously that they worked for a foreign company, he said that he had.
He said that they had resigned from the foreign company they worked for and moved to the [Project 1] project. It was put to him that he had said they worked for themselves, not for a foreign company. He said they were [Occupation 1]. [Uncle A] was killed at the door of his house after work and [Uncle B] was killed on his way back from work. Asked why they were killed, he said they were killed because they worked for an American company. It was put to him that [Company 1] was an Iraqi company.
Asked what the connection between [Company 1] and a foreign company was, he claimed that his uncles were working for an American company before they began work at [Project 1]. He was again asked what the name of the company was and he said he didn’t know. Asked if he had ever mentioned that they worked for a US company before they worked for [Company 1], he said they were labourers. It was put to him that he had not mentioned that they worked for a US company previously, and he claimed that he had mentioned it. Asked to clarify this, he said they were working for the foreign company before they went to work for [Company 1] at [Project 1].
Asked why his uncles were killed, he said that it was because they were working for an American company and because they had spoken against JAM after Sheikh [C] was killed. Asked if anything else happened other than his two uncles being killed, and he stated that in February 2010 his brother disappeared, and they had no idea of his whereabouts. At that time his father was sick after a stroke following the death of his brothers.
Asked if anything happened to the applicant, he claimed that two months after he went to work at [Project 1] following the disappearance of his brother, he began receiving threat calls. People claimed he spoke ill of them, saying they were murderers and bad people and that they would not forget him and would ‘fix him up’. He clarified that it was just one call but his mother told him not to mention it to his father. As a result he remained in his room for four months – he received this call around July-August. After this his parents took his phone away from him and became over-protective of him. They denied to anyone who came asking for him that he was at the house.
He stayed in the room for four months and after this his mother spoke to her brother who said he was leaving the country and the mother begged him to take the applicant with him. His only concern was to protect himself. Asked why his uncle was leaving, he said that his wife was killed. Asked what his uncle did for work, he said that his uncle told him not to mention anything about his story. Asked to explain what he meant, he said that his uncle told him not to say anything about his claim. The Tribunal said it didn’t want to ask about his uncle’s claim, just what work his uncle did in Iraq. He said that he didn’t remember – he said that he lived in a different area from him. Asked if he didn’t ask him what work he did in Iraq during the 7-8 months they were together in [Country 1], he said they didn’t. It was put to him that this was strange.

He was asked why anyone would be interested in him in Iraq in 2023 on the basis of a single phone call he allegedly received in 2010. He claimed that they won’t forget anything as time doesn’t wipe the memory. Regardless of the time they will follow their aim. JAM will get the person they are after regardless of the time. There is no security or safety there and it is the supremacy of the militia and a few months ago there was a battle between two militias. Five months ago during the election they bombarded the parliament – how would he be expected to return there. Asked if Iraq was an unsafe country, he said that it was for him. Asked about other people, he said that the others had no problem to go back to Iraq and would be welcomed. Asked who he meant by the other people, he said that for anyone who was not against the militias there were no problems.
Asked what about the rest of his family who were also related to Sheikh [C] and why they weren’t targeted, he said that Sheikh [C]’s family were still young when he was killed. He said that Sheikh [C] was his [uncle]. Asked if his father swore at JAM, he said that he said nothing because he was too wise – he tried to stop others from saying bad things about JAM.
Asked if his family in Iraq were not in danger, he claimed that they had nothing to do with any political movement and lived in a neutral way. They were definitely afraid but had no dealings with anyone. They were not currently at risk. Asked when this danger stopped if they were only not at risk currently, he stated that the fear is always there. Their whole life is lived in fear – they keep away from trouble. He was asked again if they were at risk from JAM, not whether they were fearful. He said of course they were but if they kept themselves away from JAM or others they would be safe. Asked if anything had happened to them since he left, he said that his brother [Brother B] was shot in the leg in 2014 after JAM came looking for the applicant and [Brother B] said he didn’t know where he was.
Asked why they did this and whether [Brother B] had ever worked for a foreign company or swore at JAM he said he hadn’t worked for them and was a quiet and kind man who kept to himself. Asked why JAM shot him, he said they were trying to determine his whereabouts. Asked if the applicant had a [Social media 1] or social media page, He said he used to have one but stopped it maybe 2-3 years ago. It was after 2020. Asked why he stopped, he said he was afraid from everything.
Asked what he meant, he said that he was afraid to receive threats from Iraq – asked how he was going to be threatened over [Social media 1] he said that he hadn’t but he deleted it in case he did. He deleted his [Social media 1]. Asked why he deleted it after a decade because he thought he would get some threats despite the fact he hadn’t received any. He said that seeing the situation in Iraq and the suffering it hurt his heart so he wanted to avoid any negative comments. He was asked again if he had received any threats before he closed it, he said that he hadn’t. Asked if he had written any anti-JAM pieces or commemorated the death of his uncle Sheikh [C] on his [Social media 1] page he said that he hadn’t.
It was put to him that he was quite religious, his senior cleric uncle was martyred and yet he had never mentioned him on his social media – this appeared strange. He said he was afraid of his safety from others and his uncle was in his heart forever. He confirmed that [Uncle C] was his [uncle] and was asked if he had been in contact via social media with his father to which he replied that he had. He was asked if he ever sent his father a condolence message on the death of his [uncle] Sheikh [C] and he said that on the direct and extended family account definitely. He was told that he was asked about his personal account and he said that it was probably yes but he couldn’t remember. He was asked why he didn’t commiserate with his father on [Uncle C]’s anniversary given he was in direct contact with his dad. He said that he couldn’t remember.
Asked what job his father did, he stated that he was [an Occupation 1]. He agreed that his father was a manual labourer – asked if he had always been, he said that he was until he his brother was killed and then very little after this. He had a stroke after his brother was killed and couldn’t work until 2019 when he started doing some [other] work like [Occupation 2] or such. He confirmed that he did this work after 2019 – he was back to some light work such as [Occupation 2]. Asked if he was a qualified [Occupation 2], he said that he wasn’t. Asked when he went back to work, he said that based on the medical advice he needed to go back to work so he could get motivation. Asked when this occurred, he said that he didn’t remember. It was put to him that his father was very sick and he was close to his father so it was put to him that it was strange he didn’t know when he went back to work. He was also asked how he got the qualifications to do the [stated] work.
He said that his father took a long time to recover from the stroke and the doctor was the one who advised him to do some work. He was helping friends to do paper work. It was put to him that he said his father was doing some [Occupation 2 work] and now said he was doing some paperwork. He said it wasn’t a proper [Occupation 2] job – he just [did] certain things for work. It was put to him that the Tribunal didn’t understand – he was asked if he was working for a company and said he wasn’t. He was [an Occupation 1] and [details deleted].
Asked when he got the passport to leave Iraq he said he couldn’t remember but it was just before he left. In Iraq he had a citizenship certificate and was imprisoned in his room for four months and he didn’t know how the passport was obtained for him. He was very young.
It was put to him that there was no country information available to the Tribunal that indicated anyone working at [Project 1] was ever targeted by the militia or others and he was asked if he had any that would support his claim. He said again that his uncles were working for a foreign company – it was put to him that he had not mentioned previously that they worked for a foreign company, only that they had worked on the [Project 1] project.
He said they weren’t targeted at the [Project 1], but one at the door of his home and the other on his way home from work. It was put to him that he had previously written in his claim that ‘…at times I would hear of [Project 1] contractors being murdered. I was afraid but I tried to push that out of my mind.’ The Tribunal could find no information that any [Project 1] contractors were murdered and he was asked if he had any. He stated that he didn’t. It was put to him that this raised a concern that nobody was targeted for working at [Project 1] – he had had 12 years to provide information to support his claim. He stated that he was threatened but wasn’t sure if it was because of his work at [Project 1].
It was put to him that he claimed that in February 2009 two men from JAM came to his uncle [Uncle A]’s front door – this was serious. Six months later a motorbike came up to his uncle as he was returning from [Project 1] and shot him. A brutal, merciless act. Then six months after that his brother [Brother A] disappears, never to be seen again. Then in July 2010 somebody calls the applicant and threaten him. This made no sense given that in the previous 12 months there had been three brutal attacks that were conducted without warning and yet he got a phone call threat. He had told the Tribunal previously that these people neither forgave nor forgot, so the random warning call seemed to lack credibility whereas they had not given any of his close relatives any warning before allegedly taking action against them. He said he wasn’t sure if they called any of his relatives before they were killed or kidnapped.
He was advised about s 424AA and it was put to him that the timing of his actions appeared to be suspicious. He stated that he received a threatening call about July 2010 then stayed in his room for four months until around November 2010. His maternal uncle, with whom he travelled to Australia, had applied to come to Australia on a visitor’s visa in Nov/Dec 2010 but this was denied. He then claimed there was an attack on his [business] in November 2010. His uncle’s need to leave Iraq after an attack on his [business] by JAM in Nassiriyyah seemed to be coincident with the applicant’s need to come out of hiding from his room in fear of JAM.
Nothing occurred in Basra at his house from July 2010 until he was informed about a potential information breach on the internet in 2014. People then came to his house and shot [Brother B] in the leg and then someone called [Mr A] came and threatened the family. Then nothing had happened in the ensuing eight and a half years. The Tribunal was concerned that his timeline about interest in him from JAM was in synch with other members of his extended family who had attempted to come to Australia by conventional means but then came by boat with the applicant once their visa was not approved.
There is no indication that anyone in Iraq downloaded the information contained in the data breach. Yet he claimed that JAM came, shot [Brother B] in the leg then have done nothing in the past eight and a half years. He used this alleged 2014 attack as an additional claim for protection. Given the convenient and coincidental timing, the Tribunal has concerns that he has just fabricated these claims regarding threats and attacks by JAM. He said that all the information he provided was correct.
Also under s 424AA it was put to him that his uncle was shot at his front door in February 2009 his uncle was shot at his front door and the shock of this resulted in his father having a stroke and as at March 2018 he was still immobilised and could only go to the bathroom or front door and was essentially bed-ridden. In his March 2018 interview with the Department, a [Social media 1] site believed to belong to the applicant was shown to him that included photos of his father at the gym in 2016 with the applicant congratulating him, as well as photos of his father in a suit and tie in a work environment.
The Tribunal was concerned that if he was this well in 2016, and also at Shi’a pilgrimages in Iraq or Iran which meant he was out and travelling, it meant that the applicant wasn’t truthful; about his father’s condition and that he never had a stroke because his uncle was never shot at the door to his house. He had also deleted his [Social media 1] page and the Tribunal was concerned that he did this because he realised the [Social media 1] site was inconsistent with his claims and not because he feared receiving threats via it.
His father’s appearance indicated that he was in some type of middle-management office job in a suit and tie, rather than [an Occupation 1]. This also called into question his credibility not only regarding this claim but other claims he had made regarding his fear of serious harm. He stated that what he had said previously was true. His father may have gone on a social activity in a suit and tie and it wasn’t a big deal. Regarding the gym he didn’t have much information and he didn’t know if he was attending or not but he was just happy he was fine. It was put to him that he claimed his father was bed-ridden in 2018 yet in 2016 he was attending the gym and the applicant was commenting on this. He claimed that with time, his father improved. It was put to him that it wasn’t about his father getting better, it was about what he told the Department at his interview.
He claimed that in 2016 his condition was improving but when the applicant called home in 2018 his father’s situation wasn’t stable and he went on medication to help him with his stroke. There was a risk he might die at any time from another stroke.
Also under s 424AA it was put to him that he agreed that [C] was a common family name in Iraq. A quick internet search brings up people with the name [who] was a [deleted], [a person named [C] who was a [sportsperson], someone who worked for [a named person] and a range of others. His claim that [Uncle C] was his uncle relied on his oral testimony. The Tribunal was concerned that the sheikh was killed but he was not a relative of the applicant, simply someone who shared a common family name. The applicant claimed that Sheikh [C] was his [uncle].
He was asked if he had had any mental health treatment since being in Australia given the threats he claimed to have been under and the fact he was confined to his room for four months. He said he did when he arrived but he didn’t know for how long.
Also under 424AA it was put to him that his uncle with whom he travelled to Australia had claimed to have worked as a supervisor for the [Company 1] Company for nearly five years (including time when the applicant claimed to work for the company). It was strange that the applicant wouldn’t have known this at the time or since they had left Iraq. This raised concerns that he wasn’t working for the [Company 1] Company at [Project 1]. Concerns had also been raised with him previously that the timelines he had given regarding when his uncles worked for [Company 1] at [Project 1] were different from when the company actually began working on the [Project 1] project. He said he didn’t know the exact information as he was a simple worker.
The applicant’s wife appeared as a witness. She had travelled to Iraq in 2017 on religious pilgrimage – she didn’t have a fear while going there. She visited the cemetery of the applicant’s uncle and had witnessed the trauma and seen the gravesite. Her husband had submitted the death certificates as well. She claimed that his uncles may not have been killed if his uncle [Uncle C] had been killed. She had sat with Sheikh [C]’s family and had seen photos of [Uncle C]. It was put to her that the issue wasn’t whether Sheikh [C] was killed or not, it was whether he was the uncle of the applicant. She said that the applicant was in Australia because he was hiding because he was the nephew of Sheikh [C].
Asked if she went to Basra, she said that she went to the applicant’s family home and they went to Baghdad and Karbala. Iraq was very safe but through the checkpoints her husband’s family wanted to downplay her appearance in the vehicle. Asked if she met male family members, she said that she met his father and he was good and was working. He used to go into an office but he wasn’t working full-time – it was local work but he wasn’t gone from 9 to 5. She claimed that all of JAM weren’t after him it was only a section of this group that had a personal grudge against the applicant. None of this would have happened if Sheikh [C] hadn’t been killed. Asked if she had photos of the grave sites she said that she did – she was asked to provide them.
The applicant was advised that he had said that his family was always at risk of being targeted. Therefore it was strange that he would send his wife and family to Iraq to be with his family in 2017 if he believed this to be the case. He claimed that he meant it was against him, not his family. He was asked why he referred to ‘my family’, he said that he meant his parents, siblings etc. he was asked why, if this was the case, he was happy for his wife and child to stay with them in Iraq. He said that his wife went to the pilgrimage so it was safe.
It was put to him that she stayed with his family in Basra as well – he stated that he didn’t have a problem with her staying with his family. It was put to him that his wife mentioned that the applicant’s father went off to work in an office each day in 2017 yet in 2018 he claimed that his dad was effectively bed-ridden. He claimed that he didn’t remember the exact information as he was really young – it was put to him that he gave this information in 2018. He said that he knew his father was sick and he said that he wasn’t the best, and this was the information he got. The applicant’s adviser was told that she would be given additional time to provide a post-hearing submission.
CONSIDERATION OF Claims and evidence
The applicant arrived in Australia as an illegal maritime arrival [in] November 2011 and applied for protection. A Protection Obligation Evaluation was conducted in march 2012 and he was found not to be owed protection. This was affirmed by the Independent Protection Obligation assessment in September 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 the applicant was then allowed to submit a SHEV application, which he did on 24 October 2016. He attended an interview with a delegate in March 2018 and his application was subsequently refused.
The applicant is [an age] year-old man married to an Australian citizen with whom he has two children. He claimed that if he returned to Iraq, he would be harmed by JAM or SAS (Shi’a militia groups) because he was publicly opposed to them and this was well-known.
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.
Credibility Issues
Much of the claim relies on the applicant’s oral testimony, so it is appropriate for the Tribunal to form a view of his personal credibility based on information available to it and that may be inconsistent with what he claims. The following inconsistencies have meant that the Tribunal has serious doubts about the applicant’s credibility and his willingness to fabricate claims in order to achieve a positive migration outcome for himself:
a.The applicant claimed that his father suffered a stroke and was bed-ridden. In his January 2012 statement he said that his father was present at the house when the applicant’s [uncle] [Uncle A] was shot near his front door. His father went into shock and suffered a stroke and was incapacitated, meaning the applicant and his brother had to work. In his October 2016 statement he repeated this claim;
b.In his March 2018 interview with the Department he continued to claim that his father was immobilised as a result of the stroke, could only get to the front door and bathroom of his house from the bedroom and was essentially bed-ridden. Yet the applicant also operated a [Social media 1] page (under the name [deleted]) in which there were photos of his father that showed him attending religious pilgrimages and at the weights room of a gym in 2016 with positive commentary from the applicant;
c.I do not accept that with time his father’s health improved, or that in 2016 his health was improving but his father’s situation wasn’t stable and he had to go on to medication. He had never mentioned this previously and it was only done in response to inconsistencies revealed in his social media account between his claims and the posts featuring his father; and
d.The applicant also stated that his father was [an Occupation 1] and therefore a manual labourer. I do not accept this to be the case as social media pages also showed the applicant’s father in a suit and tie in what was obviously a work office environment. I do not accept that his father began doing some [Occupation 2 work] (later changed to [deleted]) and that this was done on doctor’s advice after 2019. The [Social media 1] page of the applicant included photos of the father in business dress from 2018. I also note that the applicant’s wife stated that her father-in-law went off to the office each day during her visit to Basra in 2017.
Targeted for working with or for a foreign company

I do not accept that the applicant ever worked for, or would have been impugned with having worked for a foreign company. The applicant’s evidence regarding his work status is somewhat vague and contradictory. In his January 2012 statement he said that he was apprenticed to his uncles (who worked for themselves) as [an Occupation 1] from 2008, and that in the same year they had an agreement with [Company 1] Company to do [trade work] in the [building] as part of the [Project 1] project. The project was supervised by an (unnamed) American company. At the hearing the applicant stated that his uncles were killed because they used to work for an (unnamed) American company, resigned and then began to work for [Company 1] Company. He was unable to say what foreign companies they previously worked for.
In his initial statement as part of his protection visa application he claimed that he had been threatened because of his ‘working status and employments with the Americans’ and that if he had stayed he would have been killed ‘because I had worked with Americans. I worked on a project that was supervised by Americans.’ At hearing though, he stated that he was threatened but wasn’t sure if it was because of his work at [Project 1].
I do not accept that the applicant or his family members ever worked for an American company or that they worked as sub-contractors to [Company 1] Company who in turn was working on a project supervised by a US company and he would be targeted as a result of this. There are a number of reasons for this:
a.In his January 2012 statement he claimed that his uncles worked for themselves, then at hearing he claimed that they worked for a US company but he was unable to name what that company was and that they had an agreement with [Company 1] company;
b.A maternal uncle, with whom he travelled to Australia by boat, separately claimed that he had worked as a supervisor for [Company 1] company for five years (including the time the applicant also claimed to have worked for the company with two of his uncles) yet the applicant was unable to say what company this uncle worked for in Iraq. I do not accept that this was because they lived in different areas, given they spent around eight months living together in [Country 1] before coming to Australia; and
c.Concerns were previously raised with the applicant regarding the timing of his alleged work on [Project 1]. Construction of the site began in July 2009[1] yet the applicant claimed that he began work there in 2008. I have taken into account letters that he claims are from [name] Company and the copy of what is claimed to be a tender document relating to [Project 1] however I lend them no weight. They are photocopies and I note that country information indicates that fraudulent documents are commonly available in Iraq.[2]
[1] [Source deleted].
[2] DFAT Country Information Report – Iraq, 17 August 2020, p 67.
In addition, the nature and timing of the alleged targeting appears implausible and coincidental. The applicant claimed that his uncles were killed, with one being shot at the front door of his house and the other shot and killed in his car (along with other workers) returning from the worksite, whilst his brother disappeared and has never been found again. This shows a significant degree of ruthlessness on the part of the militia group that he claimed was targeting him and his family. Yet when it came to targeting the applicant he simply received a threatening phone call on his mobile phone and subsequently stayed in his room in his house for the next four months.
It seems anomalous that a group that the applicant described as never forgiving or forgetting would simply give the applicant a threatening call rather than kill him on his way back from working at [Project 1], or enter and search his home during the four months that he allegedly stayed in his room. I do not accept that his other relatives may have received a threatening call before their death or disappearance. Given they all allegedly worked at the same location on the same project, it lacks credibility that if any of them had received a threatening call that they would not have at least warned their other family members about it.
Further adding to concerns regarding the truthfulness of the claim is the lack of any country information supporting the claim that workers for the [Project 1] project were targeted. The applicant stated that had heard of [Project 1] contractors being murdered but tried to put it out of his mind. He also claimed that his uncle and other workers returning from work at [Project 1] were shot and killed in the car in which they were travelling. No country information about this or any other attack on [Project 1] workers was found by the Tribunal, nor was any provided by the applicant even though he was given the opportunity to do so.
I have taken into account the death certificates provided for the two uncles [and post-hearing for [Uncle C] (see below)] however lend them little weight. They are photocopies and I have noted above what available country information states about the prevalence of fraudulent documents in Iraq. I have also taken into account a police report noting the reported kidnapping of the applicant’s brother [Brother A]. This is simply a handwritten note in Arabic with no security features and the Tribunal therefore lends it no weight.
I also note the coincidental timing of the applicant’s departure from Iraq with an uncle and two cousins. The alleged threatening phone call that forced the applicant to hide in his room for four months from July 2010 was coincidentally around the same time as his maternal uncle (whose visitor visa was refused in November 2010) also claimed that he needed to leave Iraq because of an attack by JAM against his home and his [shop]. The Tribunal is concerned that the coincidental timing of these events means that the extended family has colluded in order to send several members to Australia utilising fabricated claims.
Relationship to Sheikh [C]
I do not accept that the applicant is related to Sheikh [C] or that his death caused the applicant to swear at and talk against JAM which in turn caused JAM to threaten the applicant with death. The Tribunal accepts that Sheikh [C] was [deleted]. I do not, however, accept that he is the [uncle] of the applicant.
The applicant agreed that [C] is a common name in Iraq and a simple internet search revealed a range of individuals [deleted]. It is therefore given this and for reasons below, the applicant is not related to Sheikh [C].
To begin with, there is no mention of Sheikh [C]’s death in the applicant’s January 2012 statement. I do not accept that this was because he was young, had just arrived in the country and was confused. He had the assistance of a migration agent and yet made no mention of Sheikh [C]’s death, although he was able to mention the alleged deaths of two other [uncles] of much lesser standing. He also made no mention of the threat made to him by JAM for cursing them in the aftermath of Sheikh [C]’s killing. His claim only mentioned that he was in danger for having worked for an American company.
He also made no mention of Sheikh [C]’s death in his October 2016 statement which looks as though it is simply copied from his 2012 statement, nor did he include a copy of Sheikh [C]’s death certificate even though he provided what he claimed were death certificates for his two other uncles. If he was able to obtain copies of two of his [uncles’] certificates it is strange that he was unable to do it for the third.
In a post-hearing submission, his adviser stated that in his initial interview news articles were included that suggested he had discussed information about his uncle [C] and his relationship to the applicant. This is not born out by the records that indicate that no mention was made of [Uncle C] until his second interview with the IPAO in September 2012 after a refusal of his application following a POD interview in January 2012. The lateness of the claim and the fact that it occurred after his initial application had been refused mean that I am not satisfied that the Sheikh [C] who was killed was a relative of the applicant.
I have taken into account material provided post-hearing by the applicant’s adviser. Some are photocopies of photos that purport to be of the applicant with his uncle Sheikh [C]. I cannot give them much weight given I cannot recognise the applicant from the photos (he is allegedly a child) nor are the circumstances in which the photos were taken outlined. The applicant’s wife stated that she had a photo of the grave site from her visit to Iraq and would provide it, however no such photo was provided post-hearing.
Targeting over Data Breach
I accept that the applicant’s name was included in a data breach that appeared briefly on the Departmental website in early 2014. I do not however, accept that this data breach led to the applicant being identified and his house in Basra attacked and his brother shot in the leg. The data placed on the site contained limited identifying information – it did not include the person’s citizenship or home country address. There is no indication that anyone in Iraq downloaded this information.[3]
[3] Asylum data breach file – the full list of countries from which it was accessed | Australia news | theguardian.com, accessed 8 March 2023.
Whilst I accept that the applicant’s name was included in the data breach I do not accept that it resulted in militia members came to the applicant’s house, interrogated his family and shot his brother [Brother B] in the leg, or that someone called [Mr A] came to their house and demanded a ransom or that he subsequently reported the applicant’s whereabouts to JAM. These accounts rely on the applicant’s oral evidence which I have already noted lacks credibility. The applicant also stated that [Mr A]’s source of knowledge regarding this information was the immigration website although I have already noted that there is no evidence it was downloaded in Iraq. The speed and accuracy with which the applicant’s family home was allegedly identified even though such limited information was contained in the data breach also raises concerns in the Tribunal’s mind as to the truthfulness of the claim.
I have taken into account photos of what the applicant claims is his brother [Brother B] in hospital being treated for his leg wound, however I lend it no weight. There is no way of identifying who the photo is actually of or when or where it was taken. And while there is a bandage on the patient’s right leg, there appears to be wound marks on the foot, ankle and lower left leg that don’t appear to be consistent with a shotgun wound to one leg delivered inside a house.
Other Issues
I do not accept that there is sectarian violence throughout Iraq and that the applicant would be harmed as a result of ongoing violence. I note that the applicant stated this in his 2012 and 2016 statements, however at hearing he said that those not against the militias had no problem going back to Iraq and would be welcomed. Country information notes that intra-Muslim sectarian violence has reduced substantially since the mid- to late-2000s but may still occur occasionally.[4]
[4] DFAT Country Information Report – Iraq, 17 August 2020, p 20.
Because I do not accept that the applicant has taken any position against Shi’a militias, he would not be considered to have, or be imputed with an anti-militia opinion. Given this, I do not accept that there is a real chance that he will be of any, let alone adverse interest to the militias and by his own admission would be welcomed back. I also note that he was happy to send his wife and child to Iraq where they travelled to Basra, Baghdad and Karbala which would also indicate that he believes it safe.
I do not accept that the applicant’s family are always at risk of being targeted. I have already noted that I do not accept that the applicant’s claims regarding interest in him from the militias are true, and I have also noted his willingness for his wife and child to travel to Iraq in 2017 and stay with his family which it is reasonable to believe he would not have done if he thought there was any risk to them because his family was always at risk of being targeted. I do not accept that his wife and child remained anonymous and out of sight for the entire duration of their stay in Iraq as the adviser claimed post-hearing. This is inconsistent with the wife’s evidence at hearing where she stated that she went to Basra, Baghdad and Karbala on pilgrimage.
I have also taken into account claims made in the post-hearing submission that the applicant is ‘struggling psychologically with flashbacks all the time’ and that his ‘mental health has been impacted’. No medical evidence was provided to support these claims. He stated that he had some mental health treatment when he arrived in Australia but no evidence was presented that he has had any since he first arrived in the country over a decade ago. While the Tribunal understands that his visa uncertainty would be stressful, it is also satisfied that the failure to be granted protection is because he has fabricated his claims. I do not accept that the applicant has any mental health issues requiring treatment in Australia and therefore he would not need to access any similar mental health treatment on return to Iraq.
Complementary Protection
Because I do not accept that the applicant ever worked at [Project 1] for [Company 1] Company, was ever imputed with working for an American company or targeted because of it, that any uncles were killed by or his brother disappeared by militias, that his father suffered a stroke because of it, that he had to hide in his house for four months, that Sheikh [C] was his uncle or that he swore at militias after he was killed, that his brother was shot in the leg or his family threatened after a data breach by the Immigration Department revealed the applicant’s name on a website, that he would be the victim of sectarian violence if he returned to Iraq, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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 2002

16 March 2023

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