1825403 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning an Iraqi national’s application for a protection visa. The applicant, who had lived in Australia for most of his life since arriving as an infant, claimed he feared persecution upon return to Iraq due to his perceived cultural unfamiliarity, English accent, English tattoos, and his marriage to a Sunni woman while being Shia. The Tribunal considered the applicant's extensive criminal history and history of drug use in Australia.

The primary legal issue before the Tribunal was whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as defined by the Migration Act 1958. This included assessing whether he would be unable or unwilling to avail himself of the protection of Iraq due to such fear, and whether any such fear related to all areas of Iraq. The Tribunal also had to consider whether the applicant could access effective state or third-party protection in Iraq.

The Tribunal noted that while the applicant presented claims regarding potential harm, the delegate had found some of these claims not credible, particularly concerning tribal protection. The Tribunal acknowledged the applicant's fear of being targeted as a "Western man" due to his accent, tattoos, and cultural disconnect, but also recognised that the applicant's father had returned to Iraq without harm. Crucially, the Tribunal identified that it lacked the power to determine issues arising under section 36(1C) of the Migration Act, which relates to whether an applicant is a danger to Australia's security or community due to a serious crime.

Consequently, the Tribunal remitted the matter to the Department for reconsideration. This reconsideration was to include an assessment of whether the applicant is ineligible for a protection visa under section 36(1C) of the Act. The Tribunal directed that, for the purposes of the reconsideration, the applicant satisfied the criterion under section 36(2)(a) of the Migration Act, meaning he was considered a refugee for the purposes of the application.