1822071 (Refugee)

1822071 (Refugee) [2019] AATA 6536 (22 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1822071
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Louise Nicholls
DATE:22 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 November 2019 at 12:23pm
CATCHWORDS
REFUGEE – protection visa – Iraq – social group – threats by former wife’s family – family has connections with Militia – parental rights – prior UNHCR application – claim of war trauma – mental health issues – credibility issues – inconsistencies of evidence – fabricated story for refugee status – counselling to strengthen claims – delayed making new protection claim – no real chance of harm – will not be denied state protection – family returned to Iraq without harm – no evidence of discrimination – family support available on return – untruthful in earlier claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 189, 195A
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

The applicant claims to be a citizen of Iraq and is [age] years old. He claims he was born in Basra, Iraq. [In] May 2011 he arrived on Christmas Island on a boat as an unauthorised maritime arrival.
The applicant applied for a temporary protection visa on 27 November 2015.
On 12 July 2018 a delegate of the Minister for Immigration refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied the applicant met the requirements for the visa.
This is an application for review of that decision and it was made on 12 July 2018.
The applicant appeared before the Tribunal on 3 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant gave evidence about his background, his migration history, his current circumstances and his claims for protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Material before the Tribunal
The Tribunal has before it documents held in the Department’s file, including:
·Notes of biodata interview conducted by an officer of the Department of Immigration and Citizenship (the Department) on 6 May 2011.
·Notes of entry interview conducted by an officer of the Department on 13 May 2011 together with Arabic language documents provided by the applicant relating to identity, family and friends.
·Statement of claims made by the applicant on 4 June 2011.
·Protection Obligations Evaluation outcome finding that the applicant is a person to whom Australia has protection obligations dated 13 July 2011.
·Assessment guidelines for a person held in community detention (s.189 of the Act). Submission relating to ministerial intervention under s.195A.
·Psychologist’s reports [dated] [June] 2012, [July] 2012, [August] 2012, [August] 2012, [August] 2012, [September] 2012 and [November] 2012.
·Report from [Organisation 1] counselling service dated [December] 2013.
·Notice granting the applicant a Humanitarian Stay (Temporary) subclass 449 visa and a Bridging visa dated 13 March 2013.
·Form 80 – personal particulars for character assessment including the applicant’s stated family composition.
·Invitation to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa dated 15 October 2015.
·Application for a protection visa received on 27 November 2015.
·Statement made by the applicant on 25 November 2015.
·[State 1] birth certificate for [Person A] born [date], photograph and request for inclusion in the application for a protection visa.
·Photocopy of the applicant’s wife’s [Country 1] passport, her [State 1] Photo Card, [a] student ID and student visa grant.
·Photocopy of the applicant’s [State 1] marriage certificate dated [in] October 2014.
·Photocopies of Arabic language documents (and English translations), applicant’s Iraqi citizenship certificate and Iraqi national ID card.
·Notification of invalid application for a temporary protection visa in relation to [Person A] born [date] (dual citizen).
·Statement made by the applicant’s brother, [Mr B] in June 2001 in relation to his application for protection.
·Statement made by the applicant on 8 May 2018.
·Arabic language document and English translation showing Iraqi national ID for [Miss C] (the applicant’s daughter) and photographs.
·Report from [Organisation 1] counselling service dated [May] 2018.
The applicant has provided documents to the Tribunal including:
·Delegate’s decision record dated 12 July 2018.
·Written submissions made by the applicant dated 26 April 2019.
·Written submissions made by the applicant on 10 May 2019.
·Arabic language documents said to be child maintenance receipts from the court in Basra.
·Referral for counselling with [Organisation 1] dated [March] 2018.
·Reports and other documents from [Organisation 1] covering a period from [March] 2018 to [July] 2018.
·[State 1] Birth Certificate for [Person D] born [date].
The issue to be decided in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
The relevant law is set out in Attachment A.
Background
The applicant is a [age] year old Iraqi national from Basra, Iraq and is a Shia Muslim.
At the Tribunal hearing the applicant gave evidence his father had been [working] [for a company] where he made [products]. His father died when he was quite young and after his death the family was supported by his paternal grandfather and uncles. His mother is alive and living in [City 1, Australia] with other family members.
He gave evidence that he attended primary school in Basra and left school when he was about [age] to [age] years of age. After he left school he worked in a market selling [particular items] and later worked in [another occupation]. He stated he was also involved in making and selling [other items] and later worked [in another occupation]. The applicant’s representative attempted to qualify some evidence given by the applicant regarding his work in Iraq but was advised to allow the applicant to give his own evidence without intervention. The Tribunal noted that the applicant’s evidence was somewhat confused. It appears from the evidence that after he left school the applicant worked in a variety of jobs.
The applicant undertook compulsory military service in 2000 but only served for three months and then paid an amount of money and was discharged. He stated that military service normally continues for three years but it is compulsory for at least three months.
He first married in Iraq in 2004 and claims he and his former wife divorced [in] July 2006 although he also claims in other evidence the couple divorced in 2007. He claims he has one daughter, [Miss C] from that marriage and she is currently living with her mother in Iraq.
In his current claims the applicant stated he left Iraq in 2009. He claims that he travelled to [Country 2] where he lived for one year and ten to eleven months. He left [Country 2] in 2011 and travelled to [Country 3]. He arrived in [Country 4] from [Country 3] where he and his mother caught a boat and travelled to Australia. He claims he threw his Iraqi passport away on the way to Australia.
The applicant arrived in Australia by boat without travel documents [in] May 2011 and was detained on Christmas Island.
He was held in detention until he came to [City 1, Australia] in November 2011 where he and his mother lived in a unit provided by the government for about one-and-a-half years. He found work about three years ago. He has been working with his brother, [Mr B] for the last two-and-a-half years in [a certain] industry.
On 29 October 2014 the applicant married [Country 1] citizen, [Ms E] ([age] years), while she was in Australia on a student visa. She was a distant relative and they had known each other since 2008 and had been engaged to be married but [Ms E’s] father called off the engagement due to a misunderstanding. [Ms E] was married to someone else in 2012 but that marriage did not last and the couple got re-engaged and married in 2014 in Australia.
The applicant has two children with his second wife, [Person A] ([age] years old) and [Person D] ([age] years old). He provided a copy of the couple’s marriage certificate and the children’s [State 1] birth certificates. The applicant’s wife and children left Australia [in] August 2017. The applicant gave evidence that they have travelled to [Country 1] where his wife is living with her parents in the state of [state deleted].
The applicant stated that he and his wife would like to stay in Australia. He has been in Australia for eight years and has been happy and comfortable in Australia. His mother, siblings and friends are here.
Procedural history
The applicant arrived on Christmas Island [in] May 2011. He attended an entry interview on 13 May 2011, then attended a more in depth interview in June 2011 and he submitted a statement outlining his claims on 4 June 2011.
On 13 July 2011 the applicant was found to be a person to whom Australia had protection obligations on the basis of his statements and the interview with an officer of the Department. However, due to ongoing security clearance issues the applicant was kept in held detention and then in community detention for a period of time.
Following advice from the Australian Federal Police that there were no concerns with the applicant’s release from detention, the applicant was granted a Temporary Safe Haven Visa (Subclass 449) and a bridging visa on 13 March 2013 and he was released from detention. Ongoing security clearance issues continued. The evidence indicates that the applicant attended two interviews with the Australian Federal Police (or a security agency) but no further action was taken in this regard.
On 15 October 2015 the applicant was invited to make an application for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa. He made his application on 27 November 2015 and relied on a written statement made on 25 November 2015.
In the meantime, the applicant gave evidence that he attended two interviews with Australian authorities; one in 2015 and the next in 2016. The nature and content of those interviews is not before the Tribunal. The only evidence relating to those interviews comes from the applicant and some obscure references in the Department’s file.
On 8 May 2018 the applicant provided a statement in which he admitted that his previous claims were untruthful. In his May 2018 statement he stated he had been interviewed twice by Australian authorities and in the interview of 12 May 2016 he admitted the falseness of the information he had previously provided and then outlined those claims he stated were his true claims.
On 22 May 2018 he attended an interview with the delegate where he discussed his previous claims and his new claims.
On 12 July 2018 the delegate refused his application for protection and the applicant lodged an application for review on 31 July 2018. The applicant provided further documents and attended a hearing at the Tribunal on 3 May 2019.
Country of reference
The applicant claims he was born in Basra, Iraq and is a citizen of Iraq. He provided a copy of his Iraqi Nationality Identity card and an extract of his Iraqi birth certificate; both documents were translated into English. He has consistently claimed that he is of Iraqi nationality, he spoke Arabic fluently and he was familiar with the geography and culture of Iraq.
Taking into account the available evidence, and noting that the applicant’s nationality or identity is not an issue, the Tribunal is satisfied that the applicant is a citizen of Iraq and that Iraq is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant claims he is a Shia Muslim from Basra.
The applicant initially claimed that he left Iraq due to fears that he would be killed by members of the Al-Mahdi Army because his father was a member of the Ba’ath Party and they will impute the applicant with Ba’ath Party values and beliefs.
He claimed that his father was a member of the Ba’ath Party and in 2008 Al-Mahdi Army members came to his father’s home and shot and killed his father in front of the applicant’s mother. He claimed that he and his brother were not at home at the time. After his father’s death the family grieved and he and his brother, [Mr F], returned to work and got on with their lives.
He claimed that in 2011 his brother, [Mr F], was working in a shop which sold [specified items] and was threatened three times by people believed to be members of the Al-Mahdi Army. On the third occasion, that is, [in] March 2011 Al-Mahdi Army members came to the shop and killed his brother because his brother refused to close the [shop]. The applicant claimed that after he found out his brother had been killed he visited the shop and then the hospital together with his uncles. After his brother was shot he decided he needed to leave Iraq and sought the assistance of his uncle to help him leave Iraq. He stated that previously in 2008, he had witnessed the killing of the [age] year old son of a neighbour who was a member of the Ba’ath Party. He had been told the only reason his neighbour’s son had been killed was due to his family association with a Ba’ath Party member.
In his Form 80 lodged together with his statement he stated that his former wife [Ms G] and daughter [Miss C] remained in Iraq, his married sister [Ms H] remained in Iraq and his mother [travelled] with him to Australia in May 2011. The section in which he was asked if he had family members living in Australia who were not included in the application was left blank.
He claimed he had travelled from Iraq to [Country 5] in March 2011; to [Country 3] [in] March 2011, then in April 2011 to [Country 4] where he boarded a boat and sailed [in] April 2011, arriving on Christmas Island [in] May 2011.
In the applicant’s statement made on 8 May 2018 he stated he had been untruthful in his earlier claims and had given false information about his family members, history and claims for protection.
He claimed the real reason he left Iraq was because he feared the family of his former wife. He and his former wife married in Iraq and the couple had one daughter. He claimed that his former wife’s brothers and uncles were members the militias and joined the Iraqi police and armed forces and they threatened the applicant with serious harm if he did not give up his rights to his daughter which he refused to do so. As a consequence they threatened to kill him. He decided to leave for [Country 2] due to these threats.
He admitted that his father was not killed by armed militia but claimed that his father was executed in 1991 by Saddam’s regime. He also admitted he did not have a brother named [Mr F] who was killed in Iraq as previously claimed. He has one brother whose name is [Mr B] and who is currently living in Australia. His father was not a member of the Ba’ath Party and he made up the details of his father’s death at the hands of the Shia militia so that he would not be returned to Iraq where he faced threats to his life for a different reason.
The applicant left Iraq and went to [Country 2] in 2009 and registered with United Nations High Commissioner for Refugees (UNHCR). He gave UNHCR the true reason he left Iraq and waited almost two years for resettlement. When this was not successful he came to Australia. He travelled from [Country 2] to [Country 3], then on to [Country 4] where he boarded a boat for Australia. He arrived in Australia in May 2011.
Assessment of claims and evidence
The applicant has consistently claimed, and the Tribunal accepts, that he was born and lived in Basra and is a Shia Muslim.
Evidence before the Tribunal
In the applicant’s entry interview in 2011, his statement of his claims made in June 2011, his interview with the officer considering his protection claims in 2011 and in the statement submitted with his application for protection in 2015 the applicant made the following claims:
·The applicant’s father is deceased, his mother is in Australia, his brother [Mr F] is deceased and he has one sister, [Ms H] living in Iraq.
·The applicant’s father was a member of the Ba’ath Party and was killed in his home [in] 2008 by five members of the Al-Mahdi Army. He claimed that his mother witnessed the killing in the family home.
·The applicant and his brother, [Mr F], were not at home at the time of the killing. After they recovered from the shock of their father’s death they returned to work.
·[Mr F] worked in a shop selling [specific items]. Members of a militia, most likely the Al-Mahdi Army threatened his brother three times to stop this trade. After the third warning his brother was killed [in] March 2011.
·The applicant was never threatened in Iraq but he was afraid because he was the son of a Ba’ath Party member as well as fearing the general insecurity in the country. In 2008 he had witnessed a neighbour’s [teenage] son being killed because his father was a Ba’ath Party member.
·The applicant’s uncle helped him to leave Iraq on a flight to [Country 5], he then travelled to [Country 3] and [Country 4] and subsequently by boat to Australia.
·He stated that he had been married in Iraq and he and his former wife were divorced. They had one daughter.
·In 2014 he married a distant relative ([Country 1] citizen) who was in Australia on a student visa and they had one son.
In his May 2018 statement the applicant stated that his earlier claims for protection were untrue. He stated that he had been interviewed twice by Australian authorities in 2015 and 2016 and in the last interview of 12 May 2016 he admitted to providing incorrect information in his earlier claims.
He claimed that the reason he feared returning to Iraq was because he had been threatened by his former wife’s family members in relation to a dispute over the custodial rights to his daughter [Miss C]. He claimed that after his divorce his former wife’s family demanded he give up all rights towards his daughter and give his former wife full custody. As he refused to do so they vowed to have him killed. He claimed that his former wife’s brothers and uncles were members of the militia and had joined the Iraqi police and armed forces.
For this reason he left Iraq and went to [Country 2] in 2009 where he remained for almost two years. He claimed that he made an application to the UNHCR but was not successful and then decided to take the risk of travelling by boat to Australia.
He stated that the reason he provided untruthful information about his family members, his history and his claims was because after his arrival in Australia he was told by other detainees that he needed to fabricate a story that included killing of family members in order to be accepted as a refugee in Australia. He claimed that he was unaware of the seriousness of making false claims to the Department. He did not want to be sent back to Iraq where he faced threats to his life for different reasons.
At the interview with the delegate the applicant claimed that he left Iraq because he had received death threats from his former wife’s family due to a dispute over access to his daughter. His former wife’s family wanted him to waive his rights of access to his daughter. He was concerned that his wife’s family were seeking to have his daughter married while she was underage. He claimed that his marriage had broken down due to his wife’s family’s interference. He also claimed his wife had stolen money from him.

He claimed that he was first threatened when he went to court regarding his daughter’s maintenance payments. He claimed that his former wife’s brother, [Mr J] abused the applicant during the court proceedings. The judge had [Mr J] removed from the court but took no further action against him. The second threat came to the applicant by letter found under his door which stated he should give up his daughter or be killed. He spoke to an uncle about the threats and his uncle advised him to leave Iraq.
He claimed that in 2009 one or two months after he received the second threat, he left Iraq and travelled to [Country 2], later travelling to Australia in the company of his mother. He claimed he spent his time in hiding moving from one place to another. He claimed that the application for protection he made in [Country 2] outlined the real reasons he feared harm in Iraq. He stated he left [Country 2] because his application was refused.
He told the delegate his former wife’s family had links with the militia and are members of the police force. When asked, he claimed that five named members of his ex-wife’s family were police officers but could not provide any further detail about their roles.
The applicant stated he had not had contact with his daughter since the divorce in 2007. He stated that although he has not had any contact with his daughter he has sent her money. The applicant stated that since leaving Iraq he had not made any attempt to contact his daughter.
He claimed if he returned to Iraq he would be killed immediately.
The applicant claimed that the reason he had provided untruthful information was because he had listened to his friends in [Country 2] before he left for Australia. He also withheld information about his Australian citizen brother [Mr B] because his friends in [Country 2] told him not to provide any information about his family.
When asked by the delegate why he had not mentioned claims that he feared harm from his former wife’s family until shortly before his interview with the delegate in 2018, he stated that he had decided to tell the truth at the interview. He stated that he had been busy with life and work. The applicant’s representative stated that interpretation of the word “busy” could mean mental health. The applicant stated that he was frustrated about his visa status, worried and his psychological health was not good.
The applicant stated that he had been advised by others regarding his previous claims. He stated he did not inform the Australian Security and Intelligence Organisation (ASIO) about threats from his wife’s family but he did tell the UNHCR in [Country 2] about these threats.
In his statement of 26 April 2019 the applicant repeated the statements he made in his earlier statement of May 2018.
At the Tribunal hearing held on 3 May 2019[1] the applicant gave further evidence regarding his current claims. He stated that he had married in 2004 and he and his wife had one daughter [Miss C] and she is currently living with her mother in Iraq.
[1] Prior to making this decision, the Tribunal listened to the recording of the hearing held on 3 May 2019.
The Tribunal asked the applicant the reason he and his wife divorced. He stated her family interfered in their life and her family asked for the divorce and his former wife supported their position. They divorced in 2007 and his wife and daughter returned to live with her family.
At the time of his divorce he was working in a shop [in a position]. He stated it was difficult to earn enough money to live at that time.
He left Iraq in 2009 because he was threatened by his former wife’s family members. After the divorce they wanted him to give whole custody to the mother and he would have no rights in any way. They did not want him to see his daughter at all and they threatened to kill him.
He then stated he had been threatened five times.
The first threat was made when he attended [a] court in Basra. [Details deleted].
By way of explanation he stated that in 2007 his former wife’s family filed a case against him, he was summoned to court and he attended. He stated they wanted a divorce and he was obliged to accept it. His former wife told the court she could not live with him anymore. They also discussed maintenance. He was threatened by his former wife’s brother, who told him he would teach him a lesson in front of the court. As her brother was [age] years old at the time the judge forgave him for his outburst.
He stated the second threat took place about a year later after a mediation meeting between representatives of the family’s respective tribes; the [name deleted] and [name deleted] tribes. His representatives came back from the mediation and stated the family had threatened to kill him. The applicant had asked for the mediation to see his daughter. Two seniors from his tribe sat with others and they told him her brothers, [Mr K] and [Mr L] threatened him.
He claimed that this threat took place after the mediation in 2009. The Tribunal pointed out that he had claimed his divorce took place in 2007 and mediation took place one year later. He stated there were many sessions for mediation but the last threat was conveyed to him from seniors of the tribe in 2009. He was told there were to be no more mediations and he was to be killed.
The third threat was delivered in an envelope. He stated the envelope contained a letter and a bullet. He stated that this was a threat to kill him and the letter stated “this is your destiny”. He decided he had to protect himself because her family members worked with the militia and religious parties.
The fourth threat took place in 2018 when his brother [Mr B] went back to Iraq. The applicant asked [Mr B] to take his daughter to his uncle’s house so the applicant could call her. His former wife’s relatives found out, and called [Mr B] and threatened the applicant.
He claimed the fifth threat took place a month before the Tribunal hearing. He stated his uncle called him and told him they were still after him. The Tribunal put it to him that he left Iraq in 2009 and questioned why they would continue to threaten him after all this time, particularly given that he had not lived in Iraq for the last 10 years. He stated that before he left he was threatened and he is still under threat.
The Tribunal asked the applicant several times why his former wife’s family did not want him to see his daughter and why they were so hostile to him. He kept repeating the same response which was they wanted full custody; they did not want him to see his daughter or have any contact. However, he was not able to give any reason for their stance or any context to the claimed family hostility. In the end the Tribunal put it to the applicant that he was not able or willing to answer the question posed.
The Tribunal asked the applicant to explain why his former wife’s family had threatened him and what they wanted to achieve through the threats. He stated he did not know exactly what they wanted from him, perhaps to let his daughter go and promise not to see her again.
The Tribunal put it to the applicant that he had not satisfactorily explained why his former wife’s family were so angry with him. He stated at first there was a misunderstanding at the beginning of the marriage relationship. Her family interfered with everything in their life and they could not solve the problem so they separated. After separation he tried to see his daughter but they would not allow it. There were mediations between the two families but there was no solution, just complications and more threats.
The Tribunal asked him about child maintenance. He stated he paid this when he was in Iraq and now pays a lump sum every two or three years. He claimed he had receipts from the court showing the payments. He provided a number of Arabic language documents which he claimed were receipts. The interpreter read from one or two of the documents and stated that the writing was very difficult to read but they appeared to be receipts from the Ministry of Justice.
The applicant claimed that when his brother [Mr B] returned to Iraq in 2018 he handed the money to the courts and was given a receipt.
He has tried to have contact with his daughter in Iraq many times but with no result. He is not allowed to speak to her. He sent her an iPad and recorded a video and sent his phone number but he has not heard anything from her.
His brother and his mother have returned to Iraq a number of times. When asked if he was concerned for their safety he stated his brother originally got a protection visa but he has been in Australia for 20 years. His mother has returned to Iraq three times. He claimed the first time she visited his sister, [Ms H] in Erbil. He claimed it was safe in Erbil which was independent. The second time his mother advised Immigration and they allowed her to go back to Basra, Iraq as one of her friends had been killed. The third time she went back to Basra to see his sister, [Ms H] and she [is also married]. He claimed she kept a low profile when she returned.
He claimed he feared his former wife’s family because her brothers worked in the government. He claimed [Mr L] worked in [one ministry] and [Mr K] worked in [another ministry]. He stated they were both officers.
He stated that he refused to agree to the family’s demands because he would not compromise his parental rights to his daughter. When the Tribunal put it to him that, in practical terms, he had given up his rights to his daughter by leaving Iraq in 2009 he stated he had no other choice.
In the applicant’s initial claims for protection he claimed he left Iraq in March 2011 after his brother [Mr F] was killed. He claimed he travelled to Australia through [Country 5], [Country 3] and [Country 4]. In [Country 4] he boarded a boat for Australia and arrived in May 2011.
In his current claims he stated that he left Iraq for [Country 2] together with his mother in 2009 where he stayed for a total of one year and ten months. When asked how he travelled to [Country 2] he claimed that he and his mother went to [the] northern part of Iraq by bus. They travelled by bus to [City 2] in [Country 2]. He described the journey in some detail including an estimate of the time the bus trip took. He organised the trip to [Country 2] on the advice of his uncle. He was told that the [City 2] area gave support to refugees, there was no tax and it was an inexpensive area to live.
He stayed there for about one year and ten months. He was working in a [business] where he [completed tasks]. He and his mother lived together in an apartment until his mother returned to Iraq after about a year-and -a-half to sort out some family inheritance issues in Karbala and Basra.
He told the Tribunal that his mother had returned to Iraq to arrange to receive his share of an inheritance from his paternal grandfather. His paternal uncles had arranged to buy out other relatives and his mother had to return to finalise the legal and financial issues involved. She stayed in Karbala and Basra before leaving Iraq to join him in [Country 3].
He claimed that he applied for protection to the UNHCR while he was in [Country 2]. His first application was rejected and he waited for another ten to eleven months and then decided to leave. He claimed that he was interviewed by someone from [Country 2] and he told that person that he feared his former wife’s relatives in Iraq. He does not have any evidence of his claims and stated that the only notification he had received of the outcome of his application was a slip of paper telling him his application had been rejected.
He decided to leave [Country 2] and travel to Australia. He left [Country 2] for [Country 3] and met up with his mother in [Country 3] in April 2011. They travelled to [Country 4] where they boarded a boat for Australia. They both arrived on Christmas Island in May 2011.
He had his Iraqi passport when he made his claims for protection in [Country 2]. His passport had been issued in 2009 around the time he decided to leave Iraq. In 2018 he applied for and received another passport issued by the Iraqi Consulate in Australia however he did not bring his passport to the Tribunal hearing. The Tribunal asked him to provide a copy after the hearing but he did not do so. He claimed he applied for the passport because he was unsure of his future. His wife [Ms E] had returned to the [Country 1] as she and the children had not been able to get residency in Australia.
The applicant claimed that if he returned to Iraq he is afraid he would be killed by his former wife’s relatives. The Tribunal asked him why after being away from Iraq for ten years would his former wife’s relatives want to kill him. He claimed that they wanted him to give up his parental control. The Tribunal noted that in practical terms he had given up his rights by leaving Iraq. He stated he did not give up his rights. He claimed they wanted to control his daughter and had no respect for him. He claimed they had contacts in the government. He stated that the threats to kill continue and he is 100% sure he will be killed if he returns to Iraq.
He told the Tribunal that he first raised his claims that he feared his former wife’s relatives when he was interviewed in 2016. He then advised the Department of his current claims in May 2018. He stated he did not disclose his true claims at an earlier stage because he was afraid he would be deported to Iraq.
He was asked why he decided to disclose his claims when he had not said anything for seven years. He stated he arrived in [City 1, Australia] in 2011 and in 2015/2016 he was interviewed and met with someone from another agency. He was also interviewed by an officer of the Department of Immigration but the questions were not as detailed. The officer asked about his daughter and their relationship. The officer also asked about his wife in [Country 1].
The Tribunal put it to him it was still not clear why it took seven years to disclose his current claims. He stated when he arrived he had a story and a case and it was cancelled and then he presented his claims. The Tribunal put it to him that he was not answering the question and he stated that the questions asked by the Tribunal were different to the questions asked previously. In any event, he stated it was less than seven years later when he disclosed his current claims.
He stated that at first he was accepted a refugee. Then they did a security check and he explained why he left [Country 2] and Iraq.
The Tribunal pointed out that when he was accepted as a refugee the account he gave was very different to the evidence he has given at the Tribunal hearing. It suggests that he had invented a very detailed story about what happened to his father and an imaginary brother. He agreed that his original claims were very different to the evidence he gave to the Tribunal. He stated others had told him to give a false story.
The Tribunal told the applicant that after giving an untruthful account he gave a different account in his later claims and in those circumstances the Tribunal may consider his later claims are also not true.
He stated that this was his only mistake. The Tribunal pointed out it was not a mistake but he had been deliberately untruthful in order to obtain a positive migration outcome. He claimed he was forced to do this so he could be granted protection. He was asked how the Tribunal could be satisfied he is now giving truthful evidence when he has given untruthful evidence over many years. He claimed he had made an affirmation and told the truth and is comfortable because his evidence was true.
After the applicant arrived on Christmas Island he was interviewed by an officer of the Department of Immigration. He did not tell his interviewer that he had a brother in Australia. He stated that people in the detention centre told him not to disclose the existence of his brother or sister in Australia. They told him he would be released sooner if he did not disclose their residence.
The Tribunal invited the applicant to comment on or respond to information which would be the reason or part of the reason for affirming the decision under review. It gave the applicant particulars of the information, explained why it was relevant and advised him he could seek further time to comment on, or respond to, the information.
The applicant was advised that information from counselling reports in the Department’s file indicated that while waiting for the resolution of his visa status he was referred by the Red Cross for a psychiatric/psychological consultation. He attended a registered psychologist for counselling as well as a counsellor from [Organisation 1] service.
In the letters from the psychologist to the applicant’s doctor, she stated that the applicant had been affected and was distressed because he had been worrying about the death of his father and brother. He told the psychologist that in 2008 his parents were home alone when five men wearing balaclavas entered the home and shot his father five times and the shooting was witnessed by his mother. His brother was shot at his workplace by men wearing balaclavas. He also stated that he had been missing his daughter and not heard from her for two years. He claimed he was unable to send her financial support.
He was advised the information was relevant because he told his counsellors a false story and as they had obligations of confidentiality he could have told them about his current claims. The Tribunal put it to him that this was a deliberate act of deception. In response he stated his deception was not deliberate. His representative submitted that the applicant sought the counselling services to endorse and support his application for protection and this is why he gave them the false details.
The Tribunal put it to him that the information indicated he told his psychologist in 2012 that he had had no contact with his daughter for the previous two years which suggests that he was in contact with her up to 2010. The reason this is relevant is because it indicates that his current claims that he has had no contact with his daughter since 2007 are not truthful. He stated the psychologist was a Lebanese lady and there was no interpreter. He claims he told her that it had been “more” than two years since he contacted his daughter which is consistent with his current claims.
Submissions and post hearing material
The applicant’s representative made oral submissions at the end of the hearing. He submitted that the applicant had been interviewed by the Australian Federal Police in 2015 and a second time in 2016. He was faced with many things in those interviews which were not directly connected to his case.
The applicant decided to be open and tell the true story when he was interviewed in 2016. By that time the applicant had been living in Australia for some years and was aware of the law with respect to deception. After his interviews he approached the Department and told them his earlier story was untrue and he then told them the true story which involved his fear of harm from his former wife’s family. He also submitted that the applicant had problems with expressing himself.
On 10 May 2019 the applicant’s representative provided further written submissions and a number of documents, including:
·Counselling records from [Organisation 1] relating to a second period of time when the applicant attended counselling, that is, from April 2018 until July 2018.
·Report from [Organisation 1] dated [May] 2018.
·Treatment summary from [Organisation 1] dated [June] 2018.
·Arabic language documents said to be receipts for child maintenance.
The counsellor’s report of [May] 2018 refers to the applicant being a client since April 2018. It states that the applicant had attended three counselling sessions so far on a weekly basis for difficulties with associated refugee trauma. One of the main problems the applicant is experiencing is his sadness and anxiety regarding his wife and children who remain in [Country 1]. The separation from them causes him great distress and has contributed towards his mental health symptoms.

The applicant reported symptoms consistent with anxiety and depression and experiences some symptoms related to post-traumatic stress disorder. His mental health is vulnerable to psychosocial stressors such as separation from family, ongoing issues relating his visa situation and feelings of frustration and helplessness in regard to legal processes that he cannot change. He has been committed to attending regular sessions with [Organisation 1]. The applicant’s father was a soldier who was killed in the Iraqi war when he was [age] years of age. The loss of this important attachment figure has had a significant impact on the applicant throughout his life and growing up without the presence of his father has made him aware of the same parental loss his sons are currently facing.
The counsellor expressed an opinion that the applicant has experienced war trauma and has witnessed combat and has been caught in the crossfire of bullets and tanks. He reported that he has witnessed the murder of strangers in Baghdad and knows of friends and neighbours who have been kidnapped, tortured and murdered. This included extreme levels of violence inflicted on his neighbour’s [age] year old child. Lastly he reported that he was threatened and persecuted by members of his former wife’s family.
The summary of psychological treatment dated [June] 2018 refers to a series of counselling appointments from April 2018 to June 2018. The report refers to the applicant’s feelings of loneliness and sadness being separated from his family who reside in [Country 1]. It also refers to claims that his former wife’s family threatened him when he sought shared custody. He told the counsellor he had to flee Iraq as a result. In other respects the summary essentially repeats the material set out in the counsellor’s report of [May] 2018.
The representative’s submissions referred to the evidence given at the Tribunal hearing on 3 May 2019. In particular, the representative stated that in relation to threats that the applicant faced in Iran as result of refusing to give up his daughter, he only departed Iraq because he refused to obey his former wife’s family demand that he relinquish his parental rights to his daughter. He stated the applicant did not abandon his daughter but was forced to do so. His former wife is still unable to make any crucial decisions in relation to their daughter without his formal consent.
With respect to the issue of the psychologist reports, the applicant stated that he did repeat the same false claims to his counsellors in 2012 because the whole purpose of going to the counselling sessions was to obtain a report to support his application for protection. He stated that he had been advised by his former representative to obtain psychological reports that could support his claims.
The applicant has provided further reports from [Organisation 1] (2018) which showed that the applicant has told the counsellor of the following: that he is lonely, isolated and frustrated in not seeing his family for over a year, that if he could obtain written clinical notes of his counselling sessions this would support evidence that he does in fact have a daughter that he loves, that he lied to Immigration when he first arrived in Australia, that the counsellor completed a letter of support for him to take to his 2018 interview with the delegate, that the applicant’s father was a soldier who was killed in the Iraq war when he was [age] years of age and that the counsellor asked if he understood the concept of counselling to which he replied that he had engaged in counselling for 18 months in the past in 2011 and 2012.
The representative stated that it was obvious from these matters that the applicant wanted at all stages of counselling to obtain evidence that he could use in support of his claims for protection. The applicant did not have a clear understanding of the concept of counselling and perceived it as a government service linked to the Department of Immigration which could be used to strengthen his claims for protection. In 2012 he was unable to understand the nature of counselling or the confidentiality surrounding the practice. He also told his counsellor that he had lied to the Department of Immigration, was aware of his mistake and decided to come forth with the true and correct information.
The applicant submits that he has committed a serious mistake in fabricating claims for protection by following the advice of other detainees at his arrival. He stated by doing so he has caused himself and his mother a great deal of harm. In the years after his arrival he started to understand Australian values, he realised the seriousness of his mistakes and decided to come forth with the truth about his claims.
What is the applicant’s family composition?
The applicant has given different accounts of his family composition. In his entry interview which took place on 13 May 2011 he identified the following family members; his former wife [Ms G] and his daughter [Miss C] (DOB [date]) both living in Iraq, his sister [Ms H] living in Iraq, his mother [present] in Australia with the applicant. He stated his father [was] killed in Iraq in 2008 and his brother [Mr F] was killed in Iraq in 2011. He noted in that interview that he had a friend, [Mr B], who lived in Australia.
In the Form 80 (Personal Particulars for character assessment) which accompanied the applicant’s request for assessment as a refugee the following family members were listed, that is; his former wife [Ms G] and daughter [Miss C] who are living in Iraq, his mother [who] is living in Australia. He stated that his father [was] killed in Iraq in 2008, his brother [Mr F] killed in Iraq in 2011 and his sister [Ms H] was living in Iraq. He also stated that he and his wife [Ms G] divorced in July 2007.
In his statement made on 4 June 2011 the applicant outlined his claims for protection and reiterated his claim that his father and brother were killed by the Al-Madhi Army and that his sister [Ms H] was married and remained in Iraq. He attended an interview with an officer of the Department on 7 June 2011 to discuss his claims. During his interview he reiterated his claims that his father was killed in 2008 and his brother in 2011. He claimed he had one sister living [in] Iraq and his former wife and his daughter lived in Basra. He stated his former wife had custody of their daughter.
In his application for protection made in 2015 he listed family members as follows: his current wife [Ms E] and his son [Person A] (DOB [date]), his mother [living] in Australia, his sister [Ms H] living in Iraq. His father [and] brother [Mr F] were listed as deceased. No mention was made of any other family members. The Form 80 lodged in conjunction with his application gave the same details of family members.
On 8 May 2018 the applicant made a statement in which he admitted that he had not given truthful information about his family composition and his claims for protection. He stated that he had been interviewed twice by Australian authorities and in the interview which took place on 12 May 2016 he admitted that he had previously given untruthful information. He claimed that he gave the true and correct information in May 2016.
With respect to his family composition he stated that his father died in 1991, that he did not have a brother named [Mr F] who was killed in 2011 and that he only has one brother named [Mr B], who is currently living in Australia. These details were repeated when the applicant was interviewed by the delegate on 22 May 2018.
The applicant made a further statement on 26 April 2019. He repeated the matters he included in his May 2018 statement.
At the Tribunal hearing held on 3 May 2019 he stated he has one brother, [Mr B] and two sisters; [Ms M] who arrived in Australia on a [specific] visa in about 2008-2009 and is living in [a suburb], and his sister [Ms H] who is living in [Basra]. His sisters are both married with children. The applicant stated that his brother [Mr B] came to Australia in the early 2000s and is engaged in [a certain] industry and the applicant works with him.
The Tribunal has considered the applicant’s evidence regarding his family members and considers that he has given untruthful evidence in the past regarding his family history and composition. The applicant has admitted giving untruthful evidence but claims that the evidence he gave to the Tribunal is accurate.
While the applicant has admitted he has not given truthful evidence in the past and the Tribunal considers that he is not a generally credible witness, it accepts that his mother travelled with him to Australia and is living in [City 1, Australia] and that his sister [Ms H] lives in Iraq with her husband and family. The Tribunal also accepts the applicant has an Australian citizen brother, [Mr B] and that he has a sister, [Ms M] also living in Australia.
The evidence that he and his mother travelled together to Australia is supported by documents and evidence on the Department’s file, his brother [Mr B’s] existence and citizen status is supported by Departmental records. The applicant has consistently claimed that he has a sister [Ms H] and that she lives in Iraq with her husband. With respect to his sister [Ms M], there is no mention of her earlier in the application and review process and she was first disclosed when the applicant gave evidence at the Tribunal hearing. However, there appears to be no apparent reason why the applicant would manufacture his sister [Ms M’s] existence, her residence in Australia and her visa status. In any event, if there was any question regarding her identity or residence this could be further investigated by officers of the Department. On that basis the Tribunal accepts the evidence of her residence in Australia.
The applicant claims that his father is deceased. He has provided different accounts of when his father died and the circumstances of his death. He was initially described as a member of the Ba’ath Party but at the hearing the applicant stated he had been [employed]. The applicant claimed his father had been executed by Saddam’s regime but there is no other evidence provided for this claim. He told the counsellor from [Organisation 1] that his father died in the Iraq- Iran war when the applicant was about [age] to [age] years. There is no reliable evidence before the Tribunal of the date or cause of death of the applicant’s father; however, for the purpose of this decision the Tribunal accepts that the applicant’s father is deceased.
Given the applicant’s history of providing inaccurate and incomplete information about his family members, it is entirely possible that there are other siblings or relatives the applicant has not disclosed. However, if that is the case, the Tribunal considers that such evidence would not be material to the consideration of the applicant’s current claims.
Did the applicant leave Iraq fearing harm from Shia militias due to a Ba’ath Party connection?
The applicant has withdrawn his earlier claims that the reason he left Iraq in 2011 was because he feared serious harm from Shia militias. He had previously claimed that his father was a member of the Baa’th Party, that his father was shot and killed in 2008 and that his brother [Mr F] was killed in 2011 for reasons of his father’s Ba’ath Party connections. The Tribunal accepts his evidence that he does not and never had, a brother named [Mr F] and that he fabricated claims that [Mr F] had been shot for being involved in a shop which sold [specific items]. It also accepts his evidence that his father was not shot at home in front of his mother in 2008.
The Tribunal finds on the evidence provided by the applicant that these claims were false and it does not accept that the applicant left Iraq in 2011 fearing serious harm for these reasons.
Was the applicant threatened with harm by members of his former wife’s family?
The Tribunal has carefully considered the evidence provided by the applicant to support his current claims that he left Iraq in 2009 as he feared harm at the hands of members of his former wife’s family.
The Tribunal does not accept his current claims that members of his former wife’s family threatened to kill or seriously harm him if he continued to seek to have contact with or retain shared parental rights of his daughter, [Miss C]. It does not accept that he received a number of threats and subsequently left Iraq for [Country 2] in 2009 because he feared serious harm from his wife’s relatives.
The Tribunal does not consider that the applicant is a credible witness and does not accept he has given truthful evidence regarding his current claims.
As put to the applicant at the Tribunal hearing, the evidence indicates that the applicant has engaged in deliberately deceitful conduct over a long period of time. He has given evidence, which the Tribunal accepts, that the reason he put forward the false claims was to obtain a protection visa. He put forward those false claims at the entry interview in May 2011, in his written statement to the Department, in his interview with a Departmental officer in 2011, in the history he gave his psychologists and counsellors in 2011-2012 and in the statement he made to support his application for a protection visa in 2015.
In his May 2018 statement he claimed that other detainees advised him to put forward the false claims; however, when he was interviewed by the delegate he stated that his friends in [Country 2] had given him this advice. When he provided submissions to the Tribunal he referred to advice he was given by other detainees when he first arrived in Australia.
The applicant gave evidence that he was interviewed by Australian authorities in 2015 and 2016. It has variously been suggested that he was interviewed either by the Australian Federal Police (applicant’s statement) or another agency, however the Tribunal does not have access to the interview material or any of the surrounding documents referred to, so it cannot make any finding as to the nature of these interviews, the topics for discussion or the interviewers.
However, on the evidence given by the applicant, it appears that during the interview in 2016 he admitted to his interviewers he had made false claims in his application for protection. He claims he put forward his current claims at the 2016 interview but there is no other evidence to support this assertion.
It is not clear to the Tribunal why, in 2016, he admitted that he had made prior false claims to Australian authorities. He claims it is because he decided it was important to tell the truth. However, the Tribunal does not accept this was his motivation for making the admission. The applicant’s conduct and evidence indicates that he was prepared to give a false account of his circumstances to a number of different people to obtain the visa without concern as to the truthfulness of his claims over a long period of time.
In explaining his motivation for providing false information he referred to it as a “mistake” and stated he eventually became aware that providing false information was a serious matter in Australia. The length of time he continued to assert the false claims and his continued reference to a mistake does not indicate that he had come to regret his dishonesty and subsequently decide to give a truthful account. It does suggest something was put to him during the interviews which made him decide to disclose that his earlier claims were untrue.
In any event, the Tribunal notes that the applicant only advised the Department in May 2018 of the falsity of his initial claims and the nature and extent of his current claims. His May 2018 statement was provided shortly before his scheduled interview with the delegate. This conduct is also not consistent with his evidence that he had an intention to disclose the truth from 2016.
The Tribunal further notes that, until he attended a Tribunal hearing in May 2019 and despite claiming that after 2016 he wanted to tell the truth, he made no mention of the existence of his sister [Ms M] who reportedly came to Australia in 2008-2009 on a [specific] visa.
The applicant claimed that the reason he provided his psychologist and [Organisation 1] counsellor false information in 2011/2012 was to endorse or strengthen his claims for protection at that time. His representative submitted that the applicant would not have been aware that the psychologist and counsellors had confidentiality obligations because he perceived them to be connected with the Department. Thus in his own evidence he confirms that he deliberately gave false information to support his untruthful account and that he used the counselling service to obtain this desired outcome rather than using it to improve his mental health.
In these circumstances, the Tribunal is also not satisfied that the information he later provided to his counsellors in 2018 is accurate or reliable. It considers that the applicant has again used the counselling service to support his current claims without any regard to the truthfulness of that information given to the counsellors.
The applicant claims, and the Tribunal accepts, that he and his former wife were divorced in 2007. The applicant has consistently claimed that he and his wife divorced in about 2007. The applicant provided a number of photographs showing his former wife and daughter and the Tribunal accepts he was married with one daughter prior to his divorce.
However, the Tribunal does not accept that the applicant was threatened with death by members of his former wife’s family and continues to face harm for this reason. The Tribunal rejects this claim for a number of reasons.
Firstly as set out above, it considers that the applicant is not a credible witness and his evidence is generally unreliable.
Second, there are some inconsistencies between the accounts he gave in his statement to the delegate and to the Tribunal. These inconsistencies are not of a minor or inconsequential nature and are set out below.
Threats from his former wife’s family
The applicant gave oral evidence at the Tribunal hearing that he had been threatened on five occasions; the first three when he was in Iraq and the last two when he was in Australia.
In his oral evidence the applicant claimed that the first threat took place when his former wife started the process for a divorce in 2007 and he was summoned to the main court in Basra. His evidence was that he attended court; his wife claimed she could not live with him and he had no choice but to agree to the divorce and his wife’s custody of his daughter. He claimed his wife’s younger brother threatened him at the court but the judge did not take action against him because he was [age] years old.
He claimed the second threat took place after he had attempted mediation between the respective families. When asked when the mediation took place he claimed it was a year after the divorce (that is 2008), then later he stated it was in 2009 just before he left Iraq. When the difference in the two time periods was put to him he claimed they had many mediation sessions and the threat in 2009 took place at the final mediation.
He claimed the third threat took place shortly after the mediation when an envelope with a letter and a bullet was delivered to him. This letter was a threat and the bullet was his destiny. This is when he decided to leave Iraq.
However, the account of events he gave to the delegate was different to the evidence he gave at hearing. He stated he had been to court with his former wife due to monthly maintenance payments. He told the delegate that his former wife’s brother had threatened him at court. While at court for maintenance his former wife’s lawyer made an application for him to waive his custody rights but he refused. This was when the first threat took place.
He stated the second threat took place when a letter was found under his door stating that he had to give up his daughter or he would be killed. He told his family about the threats and his uncle advised him to leave Iraq.

He did not mention the attempts at mediation, or any threats made during that process, to the delegate.
Living arrangements in [Country 2]
The applicant gave oral evidence at the Tribunal hearing that he and his mother travelled to [City 2] in [Country 2] in 2009 and that he lived in an apartment in [City 2] for about one year and ten months. He worked at a local [business] and explained that there were many advantages to living in [City 2] for persons fleeing Iraq, they were welcomed, there were no taxes and they could take advantage of an inexpensive lifestyle.
However, he had previously told the delegate that while he lived in [Country 2] he was in hiding and moved from place to place.
Attempts at contact with his daughter
The applicant gave evidence at the Tribunal that he had made several attempts to contact his daughter since he left Iraq but had not been allowed to do so.
However, he told the delegate he had not seen his daughter since the divorce in 2007 and had not made an attempt to contact her.
Third, the Tribunal found the applicant’s account of the reason for his former wife’s threats to him to lack context or plausible detail. Given the claims of the extreme threats made to the applicant the Tribunal would have expected that the applicant would be able to give some background to the dispute. These were personal matters which would be within the knowledge and understanding of the applicant. Notwithstanding, the applicant was not able or willing to explain the basis for the extreme hostility of members of his former wife’s family to him. His explanation for the stance taken by the family was that her family had interfered in their married life, there were complications and they did not want him to see his daughter.
He claims that her family were angry because he refused to give up his parental rights. However, the evidence given at the Tribunal hearing indicates that the applicant reluctantly agreed to his former wife having custody when he attended court in Basra. His evidence regarding his parental rights is inconsistent and the Tribunal does not accept that he refused to give up parental rights and this caused the hostility between himself and his former wife’s family. In any event, he left Iraq in 2009 and has not returned.
The Tribunal accepts that the applicant has paid some amounts of child maintenance for his daughter and that he made attempts to contact her in the past. It does not consider that the applicant has no affection or love for his daughter; it is just that his circumstances have resulted in him having very little or no involvement in her life. There may have been some family conflict over the divorce and it may be that her family are not well disposed towards him. However, while the Tribunal accepts he may not have had a cordial relationship with his former wife and her family, it does not accept that he was threatened with death by members of her family and that is the reason he left Iraq.
Fourth, despite claiming that the real reason he left Iraq was to avoid serious harm at the hands of his former wife’s relatives he made no mention of these claims to the Department at any time before 2018. In his early claims he stated he was divorced and had one daughter but made no mention of any family conflict over his daughter. Even if, in the beginning, he was mainly relying on the false claims relating to his father’s Ba’ath Party membership, the Tribunal would have expected he would have made some mention of the custody dispute over his daughter and the threats made against him as additional claims. There is no plausible reason why he would not include this in his claims. The Tribunal considers his failure to mention the claims prior to 2018 is not consistent with his current claim that he fears serious harm for those reasons and has had these fears since 2009.
The applicant claims his former wife’s family members were part of a militia group or that they are working in the Iraqi government. Initially he claimed that her family members joined the police. At the hearing he stated that one brother was an officer in [one ministry] and the other was an officer in [another ministry]. The Tribunal found his evidence to be vague and it lacked plausible detail. Given the findings regarding the applicant’s overall credit the Tribunal does not accept these claims and considers that they have been made to give support his current claims for protection.
In summary, the Tribunal does not accept that the applicant left Iraq due to threats of serious harm from the family members of his former wife. In coming to this conclusion it has weighed a number of matters. For the reasons set out above, it considers the applicant is not a credible witness and is prepared to fabricate evidence to support his claims, he has not satisfactorily explained why he delayed making his current claims to the Department until May 2018 and there are various inconsistencies in his account of events as set out above which together with the other factors set out above indicate that the applicant’s evidence is not reliable and his current claims are not truthful.
Return to Iraq
The Tribunal has considered current country information in relation to return to Iraq. The Tribunal accepts that the applicant is a Shia Muslim who was born in Basra and has family in Basra. He gave evidence that he has a married sister in the Basra district and has an uncle in Basra and an uncle in Karbala. He also referred to his relationship with his tribal elders in Basra.
He is married and his wife and two children are citizens of [Country 1] and currently living in [Country 1]. Although he told the delegate that his wife was making arrangements for him to seek residence in [Country 1] he told the Tribunal that he and his wife would prefer to live in Australia for a variety of lifestyle and family reasons.
In its most recent report the Department of Foreign Affairs (DFAT) notes that:
3.32 Shi’a have traditionally lived across Iraq. The sharp increase in sectarian violence since 2003 has seen some Shi’as leave Sunni areas. The rise of ISIL in 2014 led many Turkmen and Shabak Shi’a to relocate to other areas. As the majority community in Iraq with a dominant role in the government, Shi’a face little or no official discrimination. DFAT assesses that reported instances of societal discrimination, particularly in relation to economic and employment opportunities, are likely to be associated with patronage and nepotism, such as not having the right contacts to secure access to jobs or housing. In areas where Shi’a are not the majority religious group, employment discrimination is likely to be more pronounced, but still closely linked to patronage and nepotism. Relocation to Shi’a areas substantially reduces the risk of discrimination, but relocation is difficult in the absence of familial or other links at the destination (see Internal Relocation).
….
3.34 DFAT assesses that Shi’a do not face official discrimination. DFAT further assesses that Shi’a do not face societal discrimination in Shi’a areas, although they face a moderate risk of violence during significant Shi’a religious festivals and pilgrimage
Basra is located in southern Iraq. DFAT notes in relation to southern Iraq:
5.15 Southern Iraq (including Basrah, Karbala, Wasit, Qadisiyah, Maysan, Dhi Qar, Muthannia and Najaf provinces) is more secure than other parts of the country, although criminality and drug abuse exist in the region. Violence between different Shi’a armed groups occurs in southern Iraq and is mostly related to control of land and oil revenues. Local sources suggest that intra-Shi’a violence predominantly affects those who are actively involved in a militia or tribal group. A wide range of ethnic and religious groups live in southern Iraq. The overwhelming majority is Shi’a. Southern Iraq is also home to Iraqis of African descent, Faili Kurds, Christians and Sabean Mandaeans.
5.16 While conflict has led to previously religiously mixed areas becoming more homogenous, usually Shi’a or Sunni, local sources claim that tolerance of religious minorities remains higher in southern Iraq than in central Iraq. Sources also say that internal relocation to the south is difficult for ethnic and religious minorities, and that Shi’a without local familial, tribal or political networks would face difficulty assimilating into the community. Despite this, both Shi’a and Sunni Iraqis who have sought asylum overseas and returned to southern Iraq have done so without significant difficulty.
5.17 A person wishing to relocate to Basrah requires a relation or friend to guarantee that person ‘is free from terrorism and of good character’. The guarantor must be cleared by security services and physically attend the relevant checkpoint. If the person wanting access to the province is an IDP, that person must also register with the Ministry of Displacement and Migration.
With respect to conditions for returnees:
5.24 DFAT is aware of considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. However, local sources have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of life.
Country information indicates that family networks play an important role in providing support to persons returning to Iraq.[2]
[2] ‘EASO Country of Origin Information Report - Iraq Key socio-economic indicators’, European Asylum Support Office (EASO), 4 February 2019, pp.103-105; ‘Iraqi Migration to Europe in 2016: Profiles, Drivers and Return’, REACH Initiative, June 2017, p.26, CISEDB50AD6108
Although the southern provinces are more secure than other areas of Iraq, isolated IS attacks have occurred. However, generally speaking southern Iraq has largely escaped the IS-related violence that affected the rest of Iraq, and is more secure than other parts of the country.[3] While the south has been generally more secure there have been reports of recent community protests in relation to unemployment and poor infrastructure as well as heightened criminal activity.
[3] ‘EASO Country of Origin Information Report - Iraq Security situation’, European Asylum Support Office (EASO), 12 March 2019, p.163, 20190313085833
The Tribunal has also considered the most recent UN guidelines[4] on international protection considerations for people fleeing Iraq. The guidelines list several profiles of persons who might be at risk if they return to Iraq now or in the foreseeable future. The Tribunal does not consider the applicant falls within any of the profile groups set out in those guidelines.
[4] ‘International Protection Considerations with Regard to People Fleeing the Republic of Iraq’, UNHCR, 3 May 2019, pp.59-109
Does the applicant meet the refugee criterion?
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Iraq now or in the foreseeable future he faces a real chance of persecution for any of the reasons set out in s. 5J(1)(a) of the Act.
The applicant claims that there was a family dispute between himself and members of his wife’s family and that as a result he was threatened with death by his former wife’s family members and that threat is still current. He claims that members of the family are connected with Shia militias and are serving officers of the Iraqi government. He claims he will not be able to seek non-discriminatory state protection due to their political connections. However, the Tribunal does not accept the applicant’s claims that members of the family have threatened him with death and it does not accept that if he returns to Iraq there is a real chance he will face serious harm from members of his former wife’s family. As it does not accept he will face a real chance of harm from those family members it follows that he will not be denied non-discriminatory state protection to deal with threats of harm.
The Tribunal has considered the situation for the applicant if he returns to Iraq as a Shia Muslim from Basra with family and tribal connections in Basra. While the security situation in Iraq has been poor for many years the applicant comes from Basra in the southern area of Iraq which has generally been more secure and has escaped the sectarian violence in the central and western areas of Iraq in recent years. Basra is a Shia majority area and there is no country information indicating the applicant would be targeted for religious, ethnic or tribal reasons on his return. Further the applicant has given evidence that he has family and tribal connections in the Basra area and the Tribunal considers he would not face relocation difficulties due to a lack of family networks. His brother [Mr B] and his mother [have] visited Iraq in recent years and have not come to any harm during their visits.
The Tribunal considers that if the applicant returned to Iraq now or in the foreseeable future he would not face a real chance of serious harm for reasons of religion, ethnicity or tribal connections.
Further the country information indicates that returnees have not faced serious harm on their return even if they have applied for asylum overseas. It is reported that it is quite common for Iraqis to return to Iraq for family and employment reasons after they have obtained international protection.
Taking all of the above into account the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s.5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iraq.
There is no evidence suggesting that the applicant faces the death penalty or that he will be arbitrarily deprived of his life. There is no evidence he is wanted for any criminal activity and the evidence indicates that he could return to Basra which is a relatively secure area of Iraq. While there are random attacks on civilians in the south the risk of such attacks is low.
There is no evidence or country information indicating that the applicant will face discrimination or harm if he returns to the southern areas of Iraq. The southern areas of Iraq are Shia majority areas and there is no evidence he would face official or societal discrimination. There are several international airports in southern Iraq and there are no restrictions on access to Basra. The applicant has family members living in southern Iraq, that is, his married sister [Ms H] and his paternal uncles. He gave evidence at the hearing that after the death of his father, his grandfather and uncles supported the family for many years. The Tribunal considers his family will continue to provide him with support if he returns to Iraq.
Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied 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 he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
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.
Louise Nicholls
Senior Member

ATTACHMENT A
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6536

22 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction