1826065 (Refugee)

1826065 (Refugee) [2018] AATA 5396 (13 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826065
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Rodger Shanahan
DATE:13 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 November 2018 at 4:42pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Sunni Muslim – imputed political opinion – family of Ba'th Party member – dispossessed from home – explosive attack upon home – fear of killing – Shia militias – inter-sectarian marriage – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 September 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 16 April 2018.
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.
Protection Visa Application
The applicant claimed that his father was [an Officer Rank 1] and that his Sunni family came from the same province as Saddam Hussein and that in [year] his father was called for by US forces, trained and then became the [leader] of [Agency 1] in [a named town]. They began receiving threats as a result and his father was seriously injured by an RPG fired at his office; they also received threats via phone.
In 2005 the applicant believed he was targeted as a faulty explosive device was found attached to his vehicle. He was then subject to threatening phone calls and accused of being a Ba’thist, Saddamist and supporter of Sunni terrorist groups.
He was with his father in his car driving to see relatives in [a named town] when a car followed them and fired at them. His father was shot in the back and legs and they were able to take him to hospital. As a result of this, his [Brother A] and his father fled to [Country 1] but the applicant stayed to look after the womenfolk – he also lacked a passport. During this time their house was raided and shot at.
Whenever he went shopping he was bashed by the militias who wanted information about his father’s whereabouts, and insisted that he was hiding in Iraq. In January 2007 their house was shot at and the attackers screamed at them. [Later in] 2007 they obtained passports and went to [Country 1] for nine months. Once the prime minister said the security situation had improved his father advised that they would be returning to Iraq.
On returning to Iraq their home had been confiscated by the Mahdi Army, so they moved and kept a low profile. His father was forced to apply for retirement. The applicant was unable to find a job as he was discriminated against and worked privately as [an Occupation 1], but this also made him fearful of militias as they [frowned upon people in his industry following western influenced work practices].
He rarely went out in public but in 2013 he accidentally saw one of his perpetrators who had previously threatened them. He knew the applicant’s work address but quizzed him about his home address. He knew that he had to escape Iraq so he went to [Country 2] in June 2013 and sought asylum with UNHCR. It was there that he met his wife.
AAT Hearing
A number of people were present in the hearing room and the applicant was advised that only people who could attest to his situation in Iraq based on first-hand knowledge would be suitable as witnesses. He nominated his wife as such a person and she was the only one sworn in. The applicant stated that in 2007 he had been recognised as a refugee. Asked if he had returned to Iraq after this, he said that he had but he had to follow what his father said.
It was put to him that his refugee status would normally lapse if he voluntarily returned to a country from which he had previously claimed protection. Australia applied a forward-looking test and he said he understood. He was asked if he understood the interpreter and he said that he did and that there were no problems. He was also asked if there were any medical reasons that he could not attend the hearing and he said that there weren’t.
The applicant claimed that if he returned to Iraq it would be like living in a cemetery. He was asked to refer to his individual circumstances, and he said that he was a Sunni whose family had received threats from the Shi’a. Originally he said that the threats were from the Jaysh al-Mahdi (JAM), but now these groups had become part of the government and there were several groups and organisations. He then said the Shi‘a would harm him, and it was put to him that the Shi’a were about 60% of Iraq’s population so he needed to be more specific.
He claimed the hatred went back more than 1400 years. It was put to him that the member had a PhD in Shi’a political development so was aware of the Shi’a faith and its interaction with the broader Muslim community and was familiar with the Middle East. He was asked to stick to details about his personal claims.
He then said JAM, Asaib al-Haqq (AAH) had joined the government and they would kill him as he was Sunni. He also claimed that his father was a friend of Saddam Hussein and they were accused of being members of the Ba’th party and they would kill him. After the US forces entered Iraq his father had gone into service with them. Asked in what role, he claimed that he went back as the head of [Agency 1] in [town name] (in Baghdad). His father was given the rank of [Officer Rank 2]. Asked if he meant [Officer Rank 1] or [Officer Rank 2], he said he was [an Officer Rank 2] at his highest rank. This was in [year]. It was put to him that in [that year] his father was [an Officer Rank 1]. The applicant then said that he became [an Officer Rank 2] one or two years after this.
His father was originally in the army but was then sent to [Agency 1] as a reinforcement, but he was still considered to be in the army. Asked who considered him to still be in the army, he claimed that during Saddam’s reign in 1994 and then during the Iraqi forces’ time. This was clarified as meaning that the Iraqi government still considered him in the army. It was put to him that the certificates that he had provided the Tribunal were from [a different Ministry], not Defence, so it didn’t appear that he was considered to be in the army by the Iraqi government. He said that he had been transferred into [Agency 1] in 1994 as a reinforcement. Asked if he had any evidence to support this, he said that his adviser did. His adviser was asked to check.
He also said that his father was given a certificate saying he was a friend of Saddam Hussein but that the document had to be burnt. All of his family were in the Ba’th party. Asked if his father was a senior-ranked Ba’thist, he said he was a member of a group. Asked if he was a party branch, city or regional branch head or just a party member the applicant said his father was a member and used to train Jaysh al-Qudus that would then go on to be trained by some senior people.
It was put to him that the Ba’th was very hierarchical and he was asked again what level his father was. He repeated what he said previously, and then agreed that his father was not a senior member of the Ba’th – he was only a member of [Agency 1]. He wasn’t interested in rising in the hierarchical system of the Ba’th.
He was asked how someone with a friendship certificate from Saddam Hussein could become employed by the US forces, he said the Americans called him. It was put to him that the US was trying to purge the system of the Ba’thists so it was strange they would come looking for someone whose whole family was in the Ba’th and was a friend of Saddam Hussein. He said they were only looking for the highest commanders but his father was not a senior member. It was put to him that he had claimed his father was a senior Ba’thist and he said that the Americans were looking for people ‘higher up’ than his father.
It was put to him that it was strange that the US vetting process would not have turned up the friendship between the applicant’s father and Saddam Hussein and therefore invalidated his employment. He claimed the US would have known everyone and the higher-ranking members were the ones arrested. His father was never accused of anything.
He was asked why he would be killed from amongst the approximately eight million Sunnis in Iraq, and claimed that he and his brother were like bodyguards for his father, and they were subject to many shootings as a consequence of being bodyguards for his father. This occurred from when the US forces were there and his father didn’t trust anyone and they acted as additional security. Asked if he were trained in Close Personal Protection (CPP) by being put on a course, he claimed that when his father trained Jaysh al-Qudus he and his brother would accompany his father while he trained them. It was put to him that this was not what he was asked, and he then said he received no training from the US or anyone else.
Asked why his father didn’t have his own CPP of adults, he claimed he had no trust as the government recruited criminals. It was put to him that it seemed hard to believe that his father would use an untrained [age] year-old as his bodyguard and the Tribunal could not recall this being mentioned before. He claimed that he may not have mentioned it as a big point previously but now he had more time. It was put to him that the Tribunal could not recall this being mentioned at any time previously. He agreed he hadn’t and then said his job was to get his father somewhere. Asked if he meant he drove his father, he claimed that they would drive the father in their own private car to wherever he needed to go and they had weapons with them.
Asked why he feared being targeted in 2018, he said that the militia were present before but now they were in the government so they could fabricate any story to kill someone. Asked why he would be killed, he claimed that in 2013 he met the person who kicked them out of the house which is why he became scared and ran away. There was no safety in Iraq and he could be killed or die of cancer from all the pollution there.
In 2013 the military gave control of security of his area to the [local] [Agency 1]. A person called [Mr B] was in the group that came to the applicant’s house – [Mr B] had been their neighbour in the Shi’a area. [Mr B] asked him where his parents were now and why they had come back to their house now after they had been defeated. [Mr B] was part of JAM and his family had left the house and [Mr B] forged papers giving him their home and took their house. They found out he had done this when they returned to Iraq. Asked if they had taken [Mr B] to court he claimed they hadn’t as if any Sunni ever took a Shi’a to court the Sunni was found against. He was worried and ran away.
He had no evidence that their family home had been taken away except for his oral claim. They never returned to [their town]. They left Iraq for [Country 1] in February 2007 and returned to Iraq in November 2007 because his father was notified that things were safe now and he could return to his service. He was forced to retire when he returned because the Iraqis were now in charge. Asked how he was forced to retire, he said that he was threatened and told he would be charged as being a Ba’thist with a crime unless he resigned. Asked why they let his father resign rather than charging him anyway, he claimed that he was given the choice.
Asked if he was given a pension, he said that he was after a time. His father was born in [year] and it was put to him that his father would have had enough service to retire normally – he was asked how the Tribunal could be sure he was made to resign rather than just retiring normally and receiving his pension. He claimed his father served for [number] years but in Iraq they just picked people they wanted. He was asked if he had any evidence that he was forced to resign rather than just retired. He claimed there was nothing in writing.
It was put to him that he had claimed his father had been seriously injured in a RPG attack in [year] and in [another year] he was shot in the back and the legs while speeding away in a car. He was asked if there was any photographic evidence of these injuries or medical reports from [Country 1] or the like. He claimed that he had none. It was put to him that if there were attacks against his father in [specified years] and an assassination attempt against the applicant in 2005, they left for [Country 1] in 2007 but returned nine months later, this may raise questions as to whether any of these events actually occurred.
He claimed his father is a patriotic man and he listened to his friends and family. His father died in [year]. Asked why he wasn’t targeted by Shi’a militia or anyone else between his return in November 2007 and his death in [year], he claimed that he never left the house. Just stayed inside and watched TV or listened to the radio. He could have stayed inside for a hundred years because he had been in the military.
He then said that if his father ever went out he felt depressed at the state of things. He was asked if he had or hadn’t gone outside, he claimed he only went to the local market and never went out further than the house. He was asked how it was that the Shi’a militias who had tried to kill him previously and were now in government were unable to know that his father was staying in the same house for [number] years without the Shi’a militia knowing anything of it. this appeared quite strange. He claimed that his father’s looks changed because of his illnesses he suffered; [specified medical conditions]. He had big problems with [a medical issue] and his looks changed – he lost a lot of weight.
Asked what members of his family still lived in Baghdad, he claimed that [specified family members] lived in Baghdad. Asked what happened to his [Brother A] after he returned to Iraq given he had also allegedly been a bodyguard for the applicant’s father, he claimed that the Iraqi government announced they would target any member of Ba’thist’s family and their assets would be taken over and couldn’t work in the government. He was asked how his brothers could live in Baghdad for 11 years without being killed, yet the applicant claimed he couldn’t return because he would be.
He claimed that [Brother A] was issued a new citizenship in another name. Asked if he had copies of his old and new documents he said he would get them. It was put to him that his [Brother A‘s] identity would have been known to the government if he had to go to them to get a new ID card. He claimed that this card was forged as the government refused to do it when he asked them to do it. Asked how [another of his relatives] survived, he claimed he worked as a [Occupation 2].
The siblings had all been to university. Asked how they were able to go to university and attend classes and get degrees without ever coming to the attention to the militias given their alleged backgrounds, he claimed that there were government universities and other types not known by government. They were [two university names]. His [siblings] did [specified courses], [and another sibling] studied [one course at a specified university]. [Another] studied at [a named] University. It wasn’t private, but a public university. Asked how his siblings could study at these universities. He said his [sibling] graduated from [this university] in [year] as did another and there were no issues then.
It was put to him that he had written a letter that his father died on [date], he was in good health and died a few days after [identifying specified pain]. His brother was doubtful about the cause of death as his father was in such good health that his brother asked for an autopsy. Yet the applicant had also claimed at the Tribunal that his father’s appearance had changed because he was very ill and was half-blind. This inconsistency could go to his credibility as a witness. He claimed that the [medical condition] had changed his features and he lost so much weight because of it. They could only get him to the government hospital, and it treated him as a guinea pig.

Asked why his brothers didn’t leave in 2015 with him if they were all at fear of being hunted down by Shi’a militias, he claimed that they didn’t have the financial assets to do this. It was put to him that UNHCR looked after him in [Country 2] so they could have done the same for his other family members (at a less comfortable level than they were used to for sure) and he said the camps were sick and not well. He had visited the [named] camp. His siblings also had family, children and it wasn’t easy for them.
It was put to him that the member had also visited [the named] camp and his recollection was different to that described by the applicant. He claimed it depended on what people wanted to see, but he had seen something very sad there. It was put to him that at least they weren’t being killed and the fact they hadn’t gone to the camp may indicate that they weren’t fearful of being killed. He claimed that they weren’t 100% ready and they were fearful of things, including for their children.
The applicant’s wife appeared and she claimed she was aware of what was happening in Iraq as she was friends with his family and spoke to them. They had been threatened by JAM and now they were in the government. Asked how his brothers could survive being there, she claimed that his [Brother A] was humiliated and mental torture about being humiliated any time he went outside. The government didn’t allow him to change his name. they avoided going out and only went out to take his mother to the hospital.
Asked how his brother could live for so long without being killed, or his father for that matter, she claimed that the assets of Ba’thists were taken and they weren’t allowed to work in government departments. She was asked if her husband’s father had a pension and said he did. She was asked how he could be given a pension if they took their cash assets away. She repeated that the father-in-law was asked to return to Iraq and then made to retire.
The applicant’s wife stated that she was Shi’a when asked and was asked how she met her husband if Shi’a persecuted Sunni. She said her family was not fanatical and the applicant’s [siblings] were both married to Shi’a. She claimed that if he returned he would be targeted by gangs who thought he was rich coming from Australia. She married her husband in [Country 2] because of the security.
The applicant then said that his wife’s father was friends with Saddam Hussein but he could provide no evidence of this when asked. Asked if some family members were married to Shi’a, he said they were but the Shi’a they married weren’t fanatical. They followed the same people the Sunnis did. He claimed that fanatical Shi’a followed Iranian books. He claimed that [specified siblings] married Shi’a. It was put to him that it was strange that two siblings would marry Shi’a as well as the applicant if they were being targeted by Shi’a. He claimed the two fathers were friends of Saddam Hussein. His siblings lived in a mixed-sectarian neighbourhood.
A natural justice break was given however the recorder was inadvertently not turned back on by the member. The only issue of note (besides the adviser being told he would be given additional time to answer concerns after the hearing) which was noted in near contemporaneous notes was a query of the applicant as to who attended his wedding in [Country 2], to which he replied his father, mother and [specified family members] but [no other family]. Under s 424AA it was put to him that he had previously claimed that his father never left the house except to go to the nearby market, yet he had travelled outside the country to attend the applicant’s wedding. This could raise questions as the credibility of the applicant. He stated that his father also went because he had a medical appointment in [Country 2] as well.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age] year-old married man who arrived in this country [in] January 2017 on a spouse visa, having married his Australian national wife in [Country 2] in April 2015. The sponsorship was later withdrawn and his visa later cancelled. He applied for protection validly on 14 April 2018. His wife claims that they have been reconciled.
The applicant claimed that if he returned to Iraq he would be killed by Shi‘a Islamic groups because of his father’s profile as a Ba’thist, friend of Saddam and because they were Sunni. He had no other claims.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the psychologist’s report (folios 82-86) but note there was nothing in that to indicate an inability to attend the hearing, and the applicant said that he was medically able to attend. I found the applicant’s evidence regarding his claim to be inconsistent, at times implausible and to lack credibility. For reasons set out below I did not find him to be a reliable, credible or truthful witness, and that he fabricated much of his claim in order to be granted a protection visa.
Father’s Circumstances
I am willing to accept that the applicant’s father worked as [an Officer Rank 1] in [Agency 1] and that he had similar or related service during the Saddam Hussein era. I am also willing to accept that he was a member of the Ba’th Party. I do not, however, accept that either of these issues caused him to come to the attention of the Shi’a militias or that he or members of his family were ever targeted as a result.
Country information[1] indicates that membership of the Ba’th party was a precondition for employment within the government and that a de-Ba’thification program was instituted post-war to remove the influence of the Ba’th Party. The applicant has admitted that his father was just a party member, and the fact that he was employed and trained by the US administration would indicate that he had passed a vetting process and was not considered a senior Ba’thist.
[1] DFAT Country Information report – Iraq, 9 October 2018
I do not accept that the applicant was a member of the Ba’th Party or that he would be targeted because his father had been. There is no reason why the applicant would have needed to have been in the party given he was [age] years old at the time of the US invasion. There is also no country information available to the Tribunal, nor was any provided by the applicant that indicates that the family of simple Ba’th Party members were or are targeted.
I also do not accept that the applicant’s father was seriously injured in a RPG attack on his office in [year] and that he was shot in the back and legs during a car chase in [year]. He has provided no photographic, media or any medical evidence to support the claim and this is entirely reliant on his oral evidence, which I have found to lack credibility.
Nor do I accept that the applicant was used by his father as a bodyguard and subject to many shootings as a result. He had never mentioned this previously, and the idea that his father would use a [age range] year old boy (he was not specific about when he started) with no training in close personal protection lacks credibility. When this was put to him, he later revised his claim to say that he and his brother would drive his father to meetings and that there was a weapon in the car. This is a far cry from being a bodyguard and I am satisfied was proposed by the applicant on realising his claim of being a bodyguard lacked credibility.
I also do not accept that the applicant had a faulty improvised explosive device (IED) attached to his car in 2005, that their house was raided and shot at in January 2007 and that he was bashed by the militias whenever he went shopping when he refused to lead them to his father’s location that they believed was somewhere in Iraq.
Given I have not accepted the applicant was a bodyguard, I also do not accept that the militia would have bothered placing an IED on his vehicle (or what [an age] year old was doing with their own vehicle in the first place), or have done it is such an amateurish fashion that a completely untrained [age] year old boy would have been able to determine its presence.
It also lacks credibility that if the militias were trying to gain information about his father’s whereabouts, they would simply bash the applicant every time he went to the markets and release him when he denied any knowledge. If they believed his father to be in hiding in Iraq, then it is reasonable to believe that they would have detained the applicant, tortured him for the information and/or held him until the father gave himself up, returned to Iraq, or another family member revealed his location.
I do not accept that their house was shot at and attacked by militias who screamed at them. This relies entirely on the applicant’s oral claim, which I have found lacks credibility.
I accept that the applicant’s father, and later the applicant, left Iraq and sought protection in [Country 1] between November 2006 and February 2007 where they were issued refugee certificates (folios 39/40). Country information[2] indicates that the level of violence in Iraq spiked in 2006 and that there was a general increase of refugees to [other countries] in 2006[3] - this is consistent with the family moving to the safety of [Country 1] to avoid the fighting. Their return to Iraq in late 2007 indicates that they believed they could avail themselves of the protection of the Iraqi government, and is also consistent with the positive impact on the security in Baghdad brought on by the US troop increase under General David Petraeus.[4]
[2] accessed 8 November 2018
[3] accessed 8 November 2018
[4] accessed 8 November 2018
I do not accept that the applicant’s father was able to survive in Baghdad after returning because he effectively hid in his house. This relies entirely on the applicant’s oral testimony which I have found to lack credibility. Some examples of the inconsistencies regarding this particular claim are as follows:
a.The applicant claimed to the Tribunal that the father spent the period between November 2007 and his death in [year] in his house, never leaving it except to go the nearby market. He was not recognised because his looks had changed due to his numerous illnesses [specified]. He had lost a lot of weight;
b.Yet in a submission he made (folio 44) he also claimed that his father died suddenly after [identifying specified pain]. He had stated that his father had been in good health – in fact in such good health that his brother asked the hospital to perform an autopsy; and
c.The applicant also stated that his father was present at his wedding in [Country 2] which is inconsistent with his claim to the Tribunal that his father stayed at home for [number] years only going to the market. I do not accept that the father also had to attend a medical appointment in [Country 2] at the same time. This was only raised when the inconsistency was pointed out to the applicant, and no evidence was presented in support of this claim.
I do not accept that the applicant’s father was forced to retire after coming back to Iraq and threatened with being charged as a Ba’thist if he didn’t. If the authorities had wanted to charge him with being a Ba’thist they could have done so at any stage. And given the fact that he had served for [number] years and received a pension means that I am satisfied that he had reached retirement age and was given a pension as a result, and was not forced out with the threat of charges being laid.
I also do not accept that either the applicant’s father or father-in-law was a friend of Saddam Hussein. He never articulated what he meant by being a friend, nor did he offer any evidence to support this claim. He stated that there had been a certificate but that they had had to burn it lest they be identified as a friend of Saddam. This means that the claim relies solely on his credibility, which I have found to be lacking.
Targeting for being Sunni
I do not accept that the applicant will be targeted in Iraq simply for being Sunni. Despite starting to outline the hatred between Sunni and Shi’a going back 1400 years at the start of the hearing, by the end he had admitted that he, and [specified siblings] were all married to Shi‘a partners. Although he claimed that they were moderates, this inter-sectarian marriage pattern within his family was never mentioned previously.
While not determinative in itself, in concert with country information that indicates that outside of areas recently controlled by Islamic State, Sunni face a low risk of societal violence and a moderate risk of societal and official discrimination where they are a minority I am satisfied that there is no real chance that the applicant will face serious harm for simply being Sunni. His father received a government pension and three of the children are married to Shi’a, which would indicate that officially and socially they are well integrated within Iraqi society.
Lack of Interest in Family
Despite claiming that he would be targeted because of his father’s work and because he was Sunni, and that now the Shi’a militias were in government and could fabricate any story to kill someone, I note that the rest of his family ([specified siblings]) have lived in Baghdad for the past 11 years without apparent incident.
I do not accept that his [Brother A] has had to obtain a fraudulent identity document as the government refused to allow him to legally change his name, as this relies solely on the applicant’s oral testimony, which I have found lacks credibility. I also note that none of the siblings registered with the UNHCR as the applicant did, even though they are Sunni children of a Ba’thist member.
Whilst I acknowledge that the presence of children would make the move more difficult, it does not make it impossible. I also do not accept that they lacked the financial resources to do so. When it was put to him that UNHCR could support them he claimed that the camps were sick and the people not well in them. He then said that the siblings were not 100 per cent ready, which is difficult to reconcile with the fact that they have been living in Iraq for 11 years to date and this would indicate that, rather than not being ready, financially able or too burdened by children to seek protection they have not done so because they do not fear serious harm.
I have taken into account the UNHCR asylum seeker certificate issued from [Country 2] (folio 91) but lend it little weight. A determination was not made and it was issued in June 2014, although he claimed in his protection visa that he entered [Country 2] in June 2013 as a consequence of his chance encounter with [Mr B], the ex-JAM member and now part of the security forces. There is no explanation as to why there was such a delay, nor how he was able to survive in Baghdad from the end of 2007 until June 2013 if he had been the target of Shi’a militias.
Other Issues
I do not accept that their house in Baghdad had been taken over by a member of JAM called [Mr B] who had forged papers that transferred title to him. This relies entirely on the applicant’s oral evidence, which I have found lacks credibility. The applicant’s family have not taken any legal steps to try to overturn this fraudulent transaction, and I do not accept that it was because courts always found against Sunnis in a case against a Shi’a. The Tribunal has not seen any evidence to support this assertion, nor was any provided to it by the applicant.
I also do not accept that the applicant was subject to threatening phone calls, accused of being a Ba’thist, Saddamist or supporter of Sunni terrorist groups, nor that he was discriminated against professionally and could only work as [an Occupation 1] or that militias [frowned upon people in his industry following western influenced work practices]. These claims also rely on the applicant’s oral evidence which I have found to be lacking in credibility.
His work as [an Occupation 1] is commensurate with his level of education and qualifications, and he has not presented any country information to support his claim that the militia targeted [people in Occupation 1] for [following western influenced work practices] (which was not defined) nor is the Tribunal aware of any country information that would support the claim. He also failed to raise this claim at the AAT hearing.
I also do not accept that militia groups would make threatening calls to a [teenager] about being a Saddamist, Ba’thist or supporter of Sunni terrorist groups given he would have only been [age] years old at the time of the US-led invasion, and he had no contact with any Sunni terrorist groups. I have previously not accepted his claims of being a bodyguard for his father.
Further, I do not accept his wife’s claim that if the applicant returned he would be targeted by gangs who thought he was rich coming from Australia. To begin with, he would be returning as a failed asylum seeker and therefore not someone who had become rich while working for an extended period in Australia. Secondly, country information[5] indicates that there is only limited evidence that voluntary returnees face difficulties in assimilating back into their communities. Given he has a large family support network in Iraq and a trade as [an Occupation 1], assimilation should not be difficult. No country information to support his wife’s claim that he would be targeted because he would be considered rich was offered by the applicant.
[5] DFAT Country Information report – Iraq, 9 October 2018, p 30
I have taken into account the post-hearing submission from the applicant’s adviser but lend it little weight. Amongst other things he has asserted that any finding that the applicant could avoid persecution in Iraq by living discretely in the manner of his siblings would constitute legal error, whereas I have found that they have survived for 11 years in Baghdad not because they lived discretely but because they were never, and are not of interest to the Shi’a militias or anyone else. He has also claimed that the applicant was recognised as a refugee in [Country 1] and [Country 2] which is incorrect, as he has only provided evidence of seeking asylum in [Country 2], not being recognised as a refugee.
I have also taken into account the pre-hearing submission but also lend it little weight. They contained reports of the murder of beauty queens and an Instagram model in Iraq. It was not apparent what they had to do with the applicant’s claim and no written submission to help with their relevance was provided.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the that the applicant was ever targeted by Shi’a militias for being Sunni or the son of a Ba’th Party member or member of [Agency 1], ever served as his father’s bodyguard, was the subject of a failed IED attack, ever bashed by Shi’a militia at the markets, had his house fraudulently taken over by [Mr B], ever had his house shot at and attacked by Shi’a militia, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

I am satisfied that, given the effective defeat of Islamic State and the fact that the applicant’s family has lived without incident in Baghdad for the past 11 years that the applicant would be able to return and live safely in Iraq.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 [Agency 1] 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.
…

[2018] AATA 5396

13 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction