1832858 (Refugee)

1832858 (Refugee) [2020] AATA 5614 (11 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1832858
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Michael Hawkins
DATE AND TIME OF
ORAL DECISION AND REASONS:         11 December 2020 at 9:10am (Qld time)
DATE OF WRITTEN RECORD:                5 January 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 05 January 2021 at 11:18am

CATCHWORDS
REFUGEE – protection visa – Iraq – imputed political opinion – pro-Ba’athist – supporter of previous regime – political opinion – anti-corruption whistleblower – member of particular social group – persons having worked at a senior level of a government department, being aware of corrupt practices and having the capacity to expose that corruption – first applicant’s and father’s work for government departments – threats and attacks – returnee, scholarship holder and educated professional – anti-militia social media activity in Australia – no access to state protection – credibility – inconsistent evidence – delay in applying for protection – social media activity not solely for purpose of enhancing protection claims – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(1)(a), (c), (2), (4), (6), 5H(1), 5L, 5LA, 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), r 1.12; Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) NG994 of 1993
Selvadurai v MIEA [1994] FCA 1105
Subramaniam v MIMA (1998) VG310 of 1997
Subramaniam v MIMA (Carr J,10/3/98)
Zhang v RRT [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 November 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Iraq, applied for the visas on 3 March 2016. The delegate refused to grant the visas on the basis that the applicants are not refugees as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to their receiving country, there was a real risk they would suffer significant harm.
At the hearing on 11 December 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) of the Act provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the wife and children of the family head.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Background:
The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:
The first named applicant is an Iraqi national.
The second to sixth-named applicants are also Iraqi nationals.
The second-named applicant is the wife of the applicant.
The third to sixth-named applicants are the children of the applicant and the second-named applicant.
The applicants arrived in Australia [in] February 2014 pursuant to a [student] visa.
The applicant departed Australia [in] July 2018 and arrived in Australia again [in] August 2018. The second to sixth named applicants remained onshore during this time.
The applicants lodged a Sub-class XA 866 Protection visa application on 3 March 2016.
The applicants’ Protection visa application was refused by the Delegate on 5 November 2018.
The applicant applied for review of the Delegate’s decision on 8 November 2018.
Claims:
The applicant’s claims are summarised in his Protection Visa Application and in the Delegate’s Decision.
The applicant is a Shia Muslim.
The applicant claims his father worked for [Government Body 1] since [year], his job was to [repair specified equipment]. His father [did repairs] for government institutions at all [levels]. Government officials would often go to his father’s home and transport him to places of work and government workers would also utilise him to conduct personal work for them.
The claims that his father was viewed as a Ba’athist because of his work and after the fall of the Hussein regime in 2003, his father and his family were targeted as Ba’athists.
The applicant claims to have worked as an [Occupation 1] for [Government Body 2] since [year]. He worked at a number of different locations in [Iraq] as an [Occupation 1] and manager.
The applicant claims that due to his Ba’athist links, he was targeted, he was beaten, he feared being killed and he was blamed when things went wrong. [In] May 2007, a bomb was remotely detonated in the front of his car, his driver was killed and he suffered serious injuries.
The applicant claims that the second-named applicant (his wife) was [an Occupation 2] and she paid for personal security to take her to and from work because she feared being killed.
The applicant claims [in] February 2010, the applicant was appointed as [Occupation 1] for the [Location 1 Project].
The applicant claims he faced dangers, including looting, while driving to and from work and contractors forced him to carry out their orders under threat that he and his family would be killed.
The applicant claims that he asked for a transfer, he did not tell his employer about the criminal behaviour of the contractors, he was transferred to [City 1]. He worked there as a [supervisor]. He remained at the job in ‘[City 1] for several years in a simple agricultural country society away from attention’.
The applicant claims while working at [City 1], he applied for a scholarship to come to Australia and he come to Australia in February 2014.
The applicant claims that he fears being harmed because of his Ba’athist background combined with his employment and his education.
The second to sixth-named applicants have no separate claims of their own.
The Tribunal received two pre-hearing submissions from the Representative dated 26 March 2019 and 19 November 2019.
The applicant’s further claims are detailed in two Statutory Declarations dated 22 March 2019 and 19 November 2019.
The Statutory Declarations are reproduced below.
Statutory declaration of 22 March 2019
My father's employment
1.    My father was employment as a [technician] for [Government Body 1] since [year].
2.    He was highly trained in the field of [specified] repairs and had a stellar technical reputation.
3.    Because of that, people in the city trusted his expertise and this is what encouraged security and intelligence, as well as the Baath officials, to mobilise him so that they could use him [in specified roles] under the guise of [specified repairs].
4.    [Details deleted].
5.    They would use my father to [assist them in their work].
6.    My father would [be carrying out assigned tasks] under the guise of [carrying out repairs].
7.    [Details deleted].
8.    My father had no other options but to obey the orders of the Baath Party and the intelligence
9.    Also, vehicles of intelligence officers and Baath official would be often seen in front of our house, picking up my father to [carry out repairs] at the security quarters and the offices of the Party, so suspicions spread about my father and also to the rest of our family.
Baath Party suspicion
10.   When the Baath Party fell in 2003, these suspicions followed me on the basis that I was from a pro-Baathist family that supported Saddam's regime, and that my father 's activities helped the security and the party.
11.   We went underground for a while for fear of repercussions and physical elimination at the hands of the various religious militias and parties.
12.   We moved to the countryside, to a place called [Location 2].
13.   While working as an [Occupation 1] on [projects] in various sites, I continued to suffer this reputation of being a follower of the past regime.
Threats
14.   In 2007, I was working as an [Occupation 1] on a public project. The project was called [Location 3 Project].
15.   Conditions were deteriorating in all parts of [City 2] and environs at that time, and the presence of militias, including Sadr's Jaysh al-Mahdi was huge.
16.   There was a lot of confrontation between the army and Jaysh al-Mahdi, and many innocent people were killed.
17.   There were also assassinations of people considered to have been part of Saddam's security or the Baath Party, and revenge against former regime members who were suspected of dealings with security, intelligence or Baath Party.
18.   Since the situation was out of the control of the state, and the militias were in the stronger position, a new campaign of assassinations started against people considered to have been members of the previous regime.
19.   Since I was one of those on account of my father's work, I asked my department to allocate a guard/driver to me, this person being my [relative, Mr A].
20.   At one point in time things got so bad and out of control that I lost my patience and spoke out against the militias in front of my colleagues at work during a morning break. I swore at the Jaysh al-Mahdi militiamen, because they had killed so many people and brought life in [City 2] to a stop. That had also affected the implementation of the project I was working on.
21.   It needs to be noted in this context that the loyalty to the militias and to Muqtada Sadr is very high.
22.   As a result of this and my perceived pro-Baath background, I became a target.
23.   On [a day in] May 2007 at 11AM I received a mobile SMS from an undisclosed number saying, "You will not cost us more than 250 dinars for the bullet which will assassinate you." I panicked about my safety and that of my wife and little [child].
24.   In May 2007, a remote-controlled bomb was placed to kill me on my way to work.
25.   Fate has ordained that I live, although I was seriously injured.
26.   My [relative, Mr A] was martyred, leaving behind his young children in a country full of bloodthirsty militias and prevalent violence.
27.   27.I suffered trauma and panic attacks following the incident, and I kept replaying the details of the event and of [Mr A] in my mind constantly. But I was forced to return to work after some time, although very cautiously, because I had to support my family.
28.   I was also very worried about my wife, who was [an Occupation 2].
29.   She too was mentioned in the threats, which made my fear double.
30.   We hired a personal security person to take her to and from work. It was very expensive to do so but we need it and a lot of our income was going into paying for this security.
31.   My wife was scared that the militias might run her over with a car while on her way to [her workplace] and back, and she was also afraid of being kidnapped.
32.   She was being threatened not just by the Jaysh al-Mahdi militias, but also by the [manager] of [her workplace], who threatened to sack her because she was married to a person perceived as being affiliated with the former regime.
33.   She received threats from Jaysh al-Mahdi milita for being [an Occupation 2].
34.   The types of threats were: send threat messages in mail box (two times) (they wrote will kill and kidnapped you if you continue [in Occupation 2]; some people there follow her and wanted to shoot her and follow her by car to run over during back from [her workplace] and kidnapped,
35.   If my wife got kidnapped, I as a Middle Eastern man would have to kill myself.
36.   My condition became tragic, l lived in fear of imminent assassination or elimination of me or my wife. But we had to continue working; there was no other option. We acted very cautiously.
[Location 1 Project]
37.   [In] 2010 I was appointed as [an Occupation 1] at the [Location 1 Project], about [distance] km from the centre of [City 2].
38.   It was very hard on me, as the site was very far from where I lived, and the road was dangerous, with many robberies occurring on it since this was a remote area.
39.   It was especially dangerous at night, when I would be driving back home. I requested from the government authorities that they place security checkpoints, however, no one responded to my request.
40.   When I started working at the [Location 1 Project], I discovered that corruption was rampant, there were many breaches of plans and standards at the project which cost nearly a million dollars.
41.   The project included [a central facility, and related facilities spread over] more than [distance km].
42.   The fraud had to do with [an aspect of the central facility], and the aim was to decrease costs and effort.
43.   The company responsible for the project was affiliated with the militias and the parties in power. I decided to report the fraud to my superior, [named], only to discover that he too was loyal to these parties and appointed by them to facilitate their goals.
44.   I feared that if I report it to him, he will pass on the information to Jaysh al-Mahdi militias.
45.   I was very scared of everyone, since everyone was loyal to the parties and militias
46.   Then I was threatened that if I refused to sign off, I would be killed together with my wife and children.
47.   My conscience and ethics did not permit me to sign off approvals for what the militias wanted, and I refused.
48.   Instead, shortly after being appointed to my duties, I resigned from work.
49.   Although I did not report the corruption officially, I remained in fear for my life, as the company responsible for the project informed the militias that I knew how massive the fraud was, and as such they were threatened by the possibility of me reporting this to the regulatory bodies. I had to remain alert and cautious.
[City 1 Project]
50.   After being relieved of my duties in [Location 1], I moved for work in [City 1], where I was appointed to supervise [City 1 Project].
51.   I expected the area to be more stable and free of militia control.
52.   Instead, I found out that the town belonged to Jaysh al-Mahdi, and that the previous director was from the [named] clan and was assassinated by them in [year] in broad daylight in front of people
53.   Therefore, I was again scared, and I dealt with them very cautiously as they were effectively the ruling power.
54.   I was often pressured by them to do what they wanted for example roll out [the project] to areas where they have supporters. There were many different militias and religious parties in [City 1], such as the Sadr Forces, the Supreme Council, and they were competing for support in elections.
55.   Since I was not always able to accommodate their demands, they would get upset and complain. They would alledge that I was not loyal to them, and this led one day to an attempt on my life while I was returning home.
56.   I was shot at by two masked men from an unknown car, and it was the Lord's mercy that I survived. I was returning from work on the [City 1] - [City 3]   Road alone, when five bullets were shot at my car. I fell down, and they sped away. Fortunately, the bullets only hit the car.
57.   The department was informed about the incident, but no one did anything thing because they were all in cahoots with these parties and militias.
58.   The [facilities] in [City 1] were old and decrepit, and the militias kept pressuring me to provide them with [services].
59.   One day a group of armed men entered my department and threatened to kill me if I did not get the [service] extended into their areas.
60.   [In year], [Mr B], who was an honest man who did not submit to the demands of the militias, was assassinated at the entrance to his home in [City 2] by the militias.
61.   When I heard about it, I was even more scared for my safety and that of my family, afraid that I might killed, or my wife and children might be kidnapped.
62.   [In] 2011, I became the [Occupation 1] in charge of the [specified work] and the extension of [the service] at the [City 1 Project].
63.   The project was funded by [International Organisation 1]. My job was to [work on the plans] for the areas to be included in the extension, however, new trouble brewed. I had put on the suggested plans areas which had very old and dysfunctional [facilities] and badly needed new [assets], but these areas were also difficult to access and extending the [project] to them would have cost around $[amount].
64.   My plans did not suit the contractor company, and they demanded that I changed the plans so as to extend the [service] to [districts] where digging would be easy. I however refused since this was my job and I was responsible for making the decisions regarding [services] within the town.
65.   First, they tried to bribe me, but I refused to accept, so the company complained to the militia to which it belonged, which at that time was Jaysh al-Mahdi.
66.   Following the complaint, I received an SMS to remind me that I it only costs them a bullet to get rid of me. I suggested that the new [services] be deferred for a while.
67.   After some time, I was again visited in my office by 5 members of the armed Jaysh al-Mahdi militia and told that if I did not do as told, they would kidnap my wife and [children]. They stayed in my office for about 25 minutes. I bought time again and convinced them I would get the demanded network extended a few months before the end of the project.
68.   The reason for the militias visit was that while working, I tried to expose them by lodging complaints against them for committing fraud and I was put on a black list for not getting the [services] extended into their areas.
69.   I lodged reported the fraud in a complaint to my superior, only to discover that he too was loyal to these parties and appointed by them to facilitate their goals. I feared that if I report it to him, he will pass on the information to Jaysh al-Mahdi militias. I was very scared of everyone, since everyone was loyal to the parties and militias.
Overseas scholarship
70.   I then started looking for an overseas scholarship. I did that very quietly and I kept out of their sight, and especially in my last days in Iraq.
71.   I started applying for the scholarship in 2012, and the main reason was to escape from the threats of physical harm and kidnapping.
72.   I was given the scholarship and the visa in late 2013, after which I reduced my working hours by taking holidays and disappeared from public sight as I secretly prepared to leave the country.
73.   I was scared they might kill me or kidnap a family member before I manage to do so.
Country information
74.   In mid-2014, four Iraqi governorates in northern and western fell into the hands of ISIS, and their forces reached close to Baghdad.
75.   The fear in central and southern Iraq was palpable, and national mobilisation stc:1rted happening, with arms being openly carried by the public.
76.   The following militias joined the popular mobilisation:
Saraya Alsalam from Jaysh al-Mahdi
Iranian-funded Asa'ib Ahl al-Haq
Badr Brigades
The Islamic Supreme Council
and over 20 more other armed organisations
77.   As a result, the areas of central and southern Iraq saw a militarised revolution and the state power there collapsed.
78.   The militias became the actual ruling force, and many people were killed.
79.   The danger to me and to my family if I returned has increased even further as a result of the militias becoming more powerful, especially as I am still perceived to be a Baath supporter, and because of my previous problems with the militias as a [specified] projects [Occupation 1].
Delay in lodgement
80.   The reason why I delayed my application this long was my worry about my aging father and my chronically ill mother from the wrath of the government if they found out that I had applied for asylum in Australia.
81.   As the militias have always infiltrated the public service, and are in fact controlling it, I was also afraid this information will reach them.
82.   However, in 2016 my father told me bluntly to start taking care of my and my family's future, and to not return to Iraq because he feared I might get killed by the militias.
83.   I had called my dad then to check how they were doing, especially my mother's health. At that time, I had not seen them for over 2 years.
84.   My father was very concerned, as some people he didn't know kept asking about my whereabouts.
85.   A bit of asking around demonstrated they were from the same Jaysh al-Mahdi militias that were threatening me when l used to work at the [Location 1] Project].
86.   I believe that this is because I know so much about the corruption at the [facility], which has since failed as a project and many of their collaborators went to jail.
87.   I believe they think I reported what I know, and so my life is in danger, as is the life of my wife and children.
88.   These people understand nothing but murder and blood spilling.
89.   I request protection for my family and myself.
Statutory declaration of 19 November 2019
Update on the situation in Iraq
1.    When the demonstrations began in the provinces the provinces of Diwaniya and the city of Hamza AI-Sharqi in central and southern Iraq on 01/10/2019, the revolutionaries burned the Governorate Department and the municipal council. Figure 2 - 4 show the fire to both buildings. On 25-10-2019 large demonstrations began again in the provinces of central and southern Iraq, including the provinces of Diwaniya and the city of Hamza Alsharqi, and there was wide mass participation. The demonstrators burned the provincial council of Diwaniyah (Figure 5 and Figure 6) the headquarters of parties. The demonstrators also burnt the militias buildings. Militias such as Badr Malesh, Saraya Alsalam from Jaysh al-Mahdi, Iranian-funded Asa'ib Ahl al-Haq and the Islamic Supreme Council (Figure 5) ( ( My [relatives] also participated in these demonstrations [in] 10/2019. Widespread chaos and clashes ensued between demonstrators and various party members. Many demonstrators were killed and many more injured. There was no control in terms of security. ( Around 15 demonstrators were killed and 30 injured in the Diwaniya Governorate, 40 killed and 100 injured in Baghdad, 30 killed and 60 injured in Maysan Governorate, 20 killed and 50 injured in Dhi Qar Governorate and more than 100 killed and injured in other Iraqi governorates on that day. By 11/11/2019, the total number of deaths exceeded 300 demonstrators, and more than 12000 were injured throughout the governorates of central and southern Iraq.
3.    The deterioration of the security situation as a result of demonstrations and armed clashes between militias and demonstrators in the cities of Hamza   Al- Sharqi and all areas of central and southern Iraq encouraged the exploitation of the situation by the militias. They engaged in punitive actions against their opponents as the government lost control over the situation. Being the armed groups on the ground, the militias detained one of my [relatives, Mr C] and also burned my house which was in the city of [City 3] [in] 10/2019 (Figure 1) while all my neighbours just looked on, unable to do anything because of their fear of the militias. All my belongings and documents was destroyed because my family and I support the demonstrations. I also post Iraqi political posts and video of demonstration on my [Social Media 1] account. I previously uncovered their corruption which led to the imprisonment of some of them when I was working in the [Location 1 Project]. They are embedded among the demonstrators, and my [relatives’] participation in the protests increased their anger and hostility towards me so they tried to liquidate them, me and my family. They tried to liquidate me previously, and increased their inquiries and search for me. They informed my family in Iraq that if I returned they must inform the Saraya Alsalam who are part of Jaysh al-Mahdi, as I was someone wanted by them. A member of the Saraya Alsalam also sent a threatening video messages was sent to my [Relative 1] on [in] 9/2019. They are in control on the ground and are armed with all sort of weapons. Please note that they are also in control in the parliament as the largest block in parliament in terms of the number of deputies. The video (translated script attached) included an explicit threat to kill me, my [children], and my wife. I have not visited my family since I left Iraq in 2014. I have been unable to see my mother for 6 years, although she is suffering from chronic diseases such as diabetes and high blood pressure.
4.    My children and my wife were very scared when they saw the burning of our house and the threatening video message sent to us. The fear was exacerbated by the insecurity of the situation in our areas and the spread of demonstrations in Baghdad, the loss of government control over the situation and the killing of the protesters by snipers using live ammunition. My return to Iraq is impossible, especially in the current situation of demonstrations and armed clashes between the militias and the protesters, and the threats to our lives in the light of the spread of control by militias and corrupt parties. These militias do not have mercy or humanness. They are killing demonstrators who are demanding their rights, and they will kill us if we return to Iraq.
5.    I have completed my [Qualification 1] in [Subject 1] at [named university]. This has increased my professional status. These militias' belong to religiously radical parties, and this increases the seriousness of the situation for my safety because these militias kill high ranking educated people. Therefore, I am kindly asking for protection, and for prioritising my case for the sake of my [children] and my wife. We are fearful for our lives in this situation fraught with danger.
Attached to the statutory declaration were the following:
Figure 1.Photo of my house which was burnt by militants in the city of [City 3], sent by my family.
[omitted]
Figure 2. [A location, in the district of City 3] is burned by the demonstrators
[omitted]
Figure 3. Burning the [named public building] and the one in the [district of City 3].
[omitted]
Figure 4. [One of the areas] in Iraq to depose its government was the city of [City 3] in [Province 1]. An emergency government is formed as two battalions of anti-riot security forces withdraw from the city. There are a lot of casualties.
[omitted]
Photos of [Province 1] [Source deleted] [Source deleted]
Figure 5. Burning of the [Province 1] [government building].
[omitted]
Figure 6. The armed clashes between militias and the pretenders.
[omitted]
[Source deleted]
Figure 7. Photos from member of the Saraya Alsalam from Jaysh al-Mahdi who sent me threatening video message.
[omitted]
Figure 8. My [relative] amongst other in demonstrations.
[omitted]
The guardian News update anti-government-protests-turn-violent-video-report
holy-city-as-protests-gain-momentum-video
demonstrators-video
Evidence:

The Tribunal has before it a range of material, including, relevantly:
- The applicants’ protection visa application forms lodged 3 March 2016 (visa application);
- The applicants’ identity document being photocopies of passports, Iraqi Nationality Registration Certificates provided to the Department;
- Marriage Deed between the first and second-named applicants dated [September] 2005;
- The written submissions of the applicants’ representative dated 29.02.2016;
- The first-named applicant’s statement for onshore protection date 17 February 2016;
- Decision of [City 2] Governorate Police Department, Permanent Central Investigative Committee dated [July] 2007;
- A translation of an Iraq News Article, [details deleted] dated [October] 2011;
- Extract of Death Registration for [Mr A] dated [May] 2007 and Death Certificate of [Mr A];
- Certificate of Participation, [Training Course] completed in 2012 in [named country] and evidentiary photographs;
- Academic Publications from which included the first named- applicant;
- Administrative orders made [February] 2010; [February] 201 and [January] 2011 from the Directorate of [named province] [services];
- The protection visa decision record (delegate’s decision record) dated 5 November 2018;
- The application for review form lodged 8 November 2018, which included a copy of the delegate’s decision record;
- The applicants’ submissions of 27 March 2019 which included:
- The applicant’s submissions of 11 November 2019 which included:
- The applicant’s priority requests of 10 June 2020 and 17 August 2020 with supporting evidence being:
- Letter regarding the first-named applicant dated 30 September 2020 from [Dr D], Clinical Psychologist;
- A letter regarding the third-named applicant dated 23 September 2020 from [Ms E] Psychologist;
- A letter regarding the third-named applicant dated 30 October 2020 from [Ms E] Psychologist;
- Pre-hearing submissions of 11 November 2020 with attachments received by the Tribunal which included;
- Pre-hearing submissions of 13 November 2020 with attached screenshot;
- Post-hearing submissions of 23 November 2020 with attachments received by the Tribunal;
- Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Iraq, published on 17 August 2020 (the DFAT Report).
Pre-hearing
The Tribunal received pre-hearing submissions from the representative dated 22 March 2019 and 19 November 2019. The contents of these submissions are contained in the statutory declarations of the applicant dated 27 March 2019 and 19 November 2019 referenced above.
Country of reference/ receiving country:
The applicants claim to be Iraqi nationals. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Iraq is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant had made requests to the Tribunal on 10 June 2020 and 17 August 2020 for the matter to be dealt with as a priority. Neither the applicant nor his Representative raised any concerns in relation to holding a telephone hearing during the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the representative, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.
The applicant appeared before the Tribunal on 9 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The representative also attended the hearing by telephone.
The Tribunal noted the presence of the applicant’s family on the telephone call.
The Tribunal confirmed with the applicant that the second to sixth-named applicants had no separate claims of their own and claimed through him. He agreed.
The Tribunal noted that the second to sixth-named applicants were all listed as witnesses. The Tribunal asked the applicant and the representative what evidence it was proposed they would provide. The applicant replied they were available to answer any questions the Tribunal might have for them. The Tribunal proposed that the second to sixth-named applicants be excused from the hearing and that the Tribunal would call upon and of the witnesses as may be required during the hearing.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Iraq. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Iraq. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Iraq.
The Tribunal discussed with the applicant and the Representative documents submitted immediately prior to the hearing which consisted of a medical report from a Clinical Psychologist dated 30 September 2020 in relation to the applicant and two letters from a practising Psychologist dated 23 September 2020 and 30 October 2020 in relation to the third-named applicant.
The Tribunal discussed the applicant’s claims as summarised in the Delegate’s Decision. It asked the applicant whether those claims so summarised were accurate and complete. The applicant replied that the claims set out in the Delegate’s Decision were in a general form only and that he would seek to elaborate on them during the hearing. The Tribunal also noted the applicant’s additional claims set out in his Statutory Declaration of 19 November 2019 which included claims to the effect of the following:
·Demonstrations began in central and southern Iraq on 1 October 2019 and government department and municipal council buildings were burnt, as well as militia buildings;
·The applicant claims his [relatives] participated in those demonstrations [in] October 2019 wherein many demonstrators were killed and many more injured;
·The applicant claims that one of his [relatives] was detained by the militias;
·The applicant claims his own house was burned down and provided photographs of the burnt building;
·The applicant claims he lost all of his possessions on account of he and his family supporting the demonstrations;
·The applicant claims that he posted Iraqi political posts and videos of the demonstrations on his [Social Media 1] account;
·The applicant claims that he had previously uncovered corruption whilst he was working in the [Location 1 Project], that the militias were aware of the fact that he knew of their corruption and that the attendance at the protests by his [relatives] increased their anger and hostility towards him;
·The applicant claims that the militias increased their enquiries and searches for him and informed his family in Iraq that if he returned, the family must inform the Saraya Alsalam as he was wanted by them;
·The applicant claims a member of the Saraya Alsalam sent a threatening video message to his [Relative 1] [in] September 2019 which contained an explicit threat to kill the applicant, his [children] and his wife.
The applicant also claims that he has now completed his [Qualification 1] in [Subject 1], which has increased his professional status and, as a consequence, he will be targeted by the militias on account of the militias seeking to kill high-ranking educated people.
The applicant provided photographic evidence of demonstrations, various buildings being burnt, a copy of the threat video and screenshots of it.
Having discussed all of the aforementioned claims, including his additional claims, the applicant agreed that his claims were now accurate and complete.
The applicant appeared before the Tribunal again on 16 November 2020 to give evidence and present arguments. This part of the Tribunal hearing was conducted at the Tribunal with the applicant and representative in the hearing room together with the Tribunal Member. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages who attended on the telephone.
The applicant appeared before the Tribunal again on 11 December 2020 to give evidence and present arguments. Again, this part of the Tribunal hearing was conducted by telephone. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages who also attended on the telephone. The Tribunal noted the presence of the applicant’s family on the telephone call.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal had strong reservations about the credibility of the applicant’s claims, based mainly on the lack of any corroborative evidence that supported his claims. The evidence provided, whilst superficially supportive, does not provide links to the claims made and evidence provided. For example, the applicant supplied a photo of a burnt house, and claimed that it was his house. But the photo is all that was provided – as the Tribunal discussed, it may have been a photo of any burnt house. The applicant then provided an electricity notice that purportedly related to that house, but again the Tribunal struggled to make satisfactory connection between the evidence provided and claims made. In each case, the applicant was requesting the Tribunal to accept his suppositions.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal discussed these concerns with the applicant at length.
The Tribunal noted that the applicant arrived in Australia in 2014 but did not make his Protection Visa application until 2016. The Tribunal explained to the applicant that it might consider that period of delay of more than two years in relation to its consideration of whether the applicant’s claims were genuine. The Tribunal invited the applicant to explain the delay.
The applicant explained that he tried to speak to an agent in March of 2015, but he was worried about his family in Iraq. He went on to state that in March of 2015, his father spoke to him and advised him that he was a target and should remain in Australia.
The Tribunal noted that, but further noted that there was a further 12 months before the applicant made his application.
The applicant replied that he made payments to a migration agent in January of 2016, but that the agent proceeded very slowly.
The Tribunal noted that this explanation appeared to depart from two previous explanations offered by the applicant. Firstly, the applicant had told the Delegate that the reason for his delay was that he thought things might get better in Iraq and that he did not know he could get a Protection Visa in Australia. When put to him, the applicant replied that there had been a misunderstanding, but confirmed that he was not aware that he could get protection.
The Tribunal also noted the applicant’s explanation as provided in his Statutory Declaration of 22 March 2019, the suggestion being that he was worried about his aging father and chronically ill mother and what might happen to them if the Iraqi government found out that he had applied for asylum in Australia. He stated that he had a conversation with his father in 2016 which referenced the father’s direction to him to take care of his own family’s future and not to return to Iraq.
The Tribunal noted the inconsistencies and said it would consider them further.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at >
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal turned to the applicant’s specific claims and considered Country Information available to it in relation to each.
Imputation of membership of Baa’th Party or Baa’thist supporter
The Tribunal noted the applicant’s claims in relation to both the employment of his father and his own employment which he maintained carried an imputation that both would be members of the Ba’athist Party.
The Tribunal confirmed with the applicant that neither he nor his father were actually members of the Ba’athist Party. The applicant confirmed that was the case.
The Tribunal noted the applicant’s evidence as provided to the Delegate that he worked as an [Occupation 1] for [Government Body 2] from [year] to 2010. He told the Delegate that he worked at a number of different locations in [Iraq] as an [Occupation 1] and Manager and because of his Ba’athist links, he was targeted, beaten and feared being killed. He also stated that [in] May 2007, a bomb was remotely detonated in the front of his car, killing his driver and causing him serious injuries. The Tribunal asked whether the applicant had any supporting evidence of such beatings, for example medical reports or police statements, but he replied that he did not. The Tribunal asked the applicant whether he had any evidence to support his claim that the remote detonation of a bomb in front of his car was a bomb intended for him rather than a random bombing which country information suggested were happening regularly in Iraq. The applicant replied that again he did not have any evidence, only his word. The Tribunal noted that it was a case of being less than his word, it was supposition on the applicant’s part that any bomb so detonated was intended to cause him harm.

The Tribunal further noted that in February 2010, the applicant was appointed as [Occupation 1] for the [Location 1 Project]. The applicant discussed some concerns he had about driving to and from work at night and corruption he identified by contractors and could not tell his employer about those concerns, instead seeking a transfer.
He was transferred to [the City 1 Project] and worked there as a [Supervisor]. The Delegate records that the applicant stated that he remained at the job in [City 1] for several years in a simple agricultural country society away from attention.
The Tribunal discussed with the applicant his statements contained in paragraphs 50 to 69 in his Statement of 22 March 2019.
The applicant elaborated on that Statement by stating that he uncovered much corruption with the contractors who he discovered were associated with the militias. The contractors would demand that he change the scope of works so that the work would be easier and of a lower cost base. He stated that they tried to bribe him and made complaints to the militia.
The Tribunal asked the applicant why he would be subjected to such pressure by the contractors in circumstances where, as he had told the Delegate in the interview, that he was only a low-level employee who had no decision-making power.
The applicant replied, stating that was a misunderstanding and that he indeed had decision-making power. He stated he was the only one with a [specified qualification] and maintained that he did not at any time say to the Delegate that he had no influence. He repeated that he was a Supervisor and made decisions about projects worth millions of dollars and that he was in charge of [key aspects of] the project.
The applicant invited the Tribunal to consider his CV which accompanied his Application for Scholarship and undertook to provide that to the Tribunal. The Tribunal duly noted it when it was submitted after the hearing.
The Tribunal discussed with the applicant some inconsistencies between his Statements and evidence as recorded by the Delegate in the Delegate’s Decision.
The applicant had explained to the Delegate that his father [repaired specified equipment] and was often called upon by the Ba’athist Party to [make such repairs]. He also stated that his father was frequently collected by car from his home to perform work for the Ba’athists. As a consequence, he believed that his neighbours would have perceived him as a member of the Ba’athist Party.
The Tribunal discussed the applicant’s statements in his Statutory Declaration of 22 March 2019 which appeared to go somewhat beyond what he had described to the Delegate. In his latest Statement, the applicant stated that his father was [effectively] being made by the Ba’athists to [assist them in their security and intelligence work]. He said that his father would [carry out assigned tasks]. He went on to state that his father had no option but to obey the orders of the Ba’ath Party. The applicant, upon being asked, confirmed he had no evidence, including for example, any statement from his father, to support his claims that his father was [doing such work].
Asked also to explain why that information was not discussed with the Delegate, the applicant replied that his agent has now told him that he must be very detailed in his claims and evidence.
The Tribunal again confirmed that his father and himself were not actual members of the Ba’athist Party. The applicant again confirmed that was the case.
The Tribunal confirmed with the applicant that the gist of his claim was that he, the applicant, was imputed to have Ba’athist connections or links because of his father’s employment. The applicant confirmed that was the case.
The Tribunal discussed Country Information with the applicant contained in the DFAT Report.
3.77 Between 1968 and 2003, membership of the Ba’ath party was a precondition for employment with the government. After the removal of the Saddam regime in 2003, the US-led transitional administration established a High Commission for De-Ba’athification to steer efforts to remove the influence of the Ba’ath Party. The de-Ba’athification process led to the dismissal of thousands of predominantly Sunni individuals from the public service and military. The Accountability and Justice Act (2008) established the High Commission for De-Ba’athification’s replacement, the Accountability and Justice Commission. The Act included measures to ensure that Sunnis, who dominated the Ba’ath Party, were not excluded from Iraq’s governance processes, including by allowing some lower-level Ba’athists to return to government service. Most individuals dismissed under the previous regulations were entitled to access their pensions.
3.78 Article 7 (1) of the Constitution specifically prohibits the Ba’ath Party and the promotion of its symbols (along with entities or programs that promote or justify racism, terrorism, accusations of being an infidel or ethnic cleansing). However, Article 135 (5) states that mere membership in the dissolved Ba'ath party shall not be considered a sufficient basis for referral to court, and a member shall enjoy equality before the law and protection unless covered by the provisions of the de-Ba'athification mechanism and the directives issued according to it. Article 138 (3)(c) states that members of the Presidency Council must have quit the Ba’ath Party at least ten years prior to its fall.
3.79 According to in-country sources, most senior Ba’athists are now dead, in prison or have left Iraq. A broad societal consensus reportedly exists in Iraq that sanctions against the Ba’ath Party should not apply to former party members as individuals, based on a recognition that the dominance of the Ba’ath Party in all aspects of government forced millions of Iraqis to join the party. The passage of time and the turbulence of recent years has also reduced the level of societal hostility against Ba’athists, with many Iraqis too young to remember the Saddam era. However, DFAT is aware of reports that imputed association with the Ba’ath Party has been used as a threat on occasion against Sunni government workers, particularly in Shi’a majority areas of southern Iraq. Such incidents reportedly occur in relation to rivalries over promotions in government workplaces. DFAT is unable to comment on the prevalence of such incidents, or how seriously such allegations are taken.
3.80 DFAT assesses former Ba’athists whose involvement with the party did not extend beyond mere membership of the party are unlikely to face significant official or societal discrimination.
The Tribunal confirmed with the applicant that his father was not a target of the militias and had not suffered harm despite continuing to reside in Iraq.
The applicant confirmed that was the case, but said that his father was an old man and not important anymore.
The Tribunal accepts the Country Information above and finds that the applicant does not have a well-founded fear of persecution based on the former employment of his father being imputed as having membership of the Ba’athist Party, or the perception that he may have been a member of the Ba’ath Party, or based on his own former employment or any perception that he may have been a member of the Ba’ath Party, now or in the reasonably foreseeable future.
The Country Information is clear as to actual members of the Ba’ath Party and the Tribunal is satisfied as to the reasonable extension of that Country Information to persons imputed to be members of the Ba’ath Party.
Shi’a Muslim
The applicant has made no specific claims in relation to his claim as to being a Shi’a Muslim, apart from a paragraph in his statement of claims. Notwithstanding, the Tribunal has dealt with the matter as a specific claim for the sake of completeness.
The Tribunal considered country information contained in the DFAT report.
Shi’a communities live in most areas of Iraq but are concentrated in the south and east. The majority of Baghdad’s population is Shi’a[3]. The Tribunal noted that the applicant lived in Baghdad before traveling to Australia and still has family residing in Baghdad. The Tribunal noted the following:[4]
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.
Anti-Shi’a violence has reduced in 2018 following the defeat of ISIL. However, isolated incidents of violence in Shi’a dominated areas of Iraq, claimed by ISIL, continue to occur. Violence between opposing Shi’a militias (including those in the PMF) also occurs, more often in Shi’a areas, such as Baghdad and southern Iraq. Intra-Shi’a violence is often linked to other criminal activities, including robbery and kidnapping. Local sources report that those who are actively involved in a militia group face a greater risk of intra-Shi’a violence than ordinary civilians, who may be perceived to be part of a militia or tribal group’s constituency.
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 pilgrimages.
[3] DFAT Report, 9 October 2018, paragraph 2.12.
[4] DFAT Report, 9 October 2018, paragraphs 3.32 – 3.34.
The Tribunal accepts that country information and finds that the applicant does not have a well-founded fear of persecution based on his religion of being a Shi’a Muslim now, or in the reasonably foreseeable future.
Applicant’s employment

100. The Tribunal discussed with the applicant his claims in relation to his employment in the [City 1 Project].
101. It noted the Delegate’s record of evidence put to him during the interview and then the Tribunal considered the applicant’s claims as set out in his most recent Statutory Declarations. The Tribunal made the observation that the applicant’s claims were substantially more detailed than as documented in his Protection Visa application and as stated in his evidence as recorded by the Delegate.
102. The Tribunal discussed with the applicant the decision of the Delegate, especially as it related to his employment in [City 1]. The Delegate concluded that as the applicant was an employee of little influence and militia groups in the area forced whoever held his position to perform certain acts, then it was hard to be convinced that militia groups would want to kill the applicant because he left his job and departed the country. The Delegate was persuaded by the applicant’s evidence that he was a low ranked employee and could not make decisions of importance. Accordingly, the Delegate concluded that while his employment position may have been of interest to the contractors and the militia, he himself was not of significance.
103. However, the Tribunal does note that the applicant’s evidence in relation to being shot at whilst working at [City 1] is consistent.
104. The Tribunal considered the applicant’s Statement at paragraphs 43 and 44 of his Statutory Declaration of 22 March 2019 and put to the applicant an apparent inconsistency where in one paragraph he appears to state that he reported incidences of fraud to his superior, but in the second stated that he feared that if he did report it to him, that information would be passed on to the militias. The Tribunal sought to clarify whether the applicant had actually reported the incidences of fraud to his superior. The applicant confirmed that he had made no such report but stated instead that the militias knew that he, the applicant, knew of their frauds. It was as a consequence of that knowledge (that they knew that he knew) that he feared the militias.
105. The applicant confirmed that he resigned from his position at the [Location 1 Project] [in] April 2010.
106. He commenced employment at [City 1] shortly after that time. [City 1] was about [distance] kilometres from his house and the house that he lived in was the one that he claimed was subsequently burned down in 2019.
107. The Tribunal quizzed the applicant about his claim to have been shot at one day whilst returning from work. The Tribunal asked the applicant what date the shooting took place. He replied that he could not be sure of the date.
108. The Tribunal noted the applicant’s statement in his Statutory Declaration that he was “shot at by two masked men from an unknown car”. The Tribunal asked the applicant how he could know who they were given they were masked and in an unknown car. The applicant confirmed that he did not know specifically who they were, but assumed they were connected with the militias as the shooting followed a threat that had been made to him. The Tribunal asked the applicant whether he had any corroborative evidence of the threats. He replied that he did not.
109. The Tribunal referred to paragraph 60 of the applicant’s Statutory Declaration wherein it references the assassination of one [Mr B]. The Tribunal asked the applicant who he was. The applicant replied that he was an [Occupation 1] who worked with him but in a different department. The Tribunal asked the applicant why it was that the [Occupation 1] was assassinated. He replied that the [Occupation 1] had been forced to sign a document, but he refused and so they killed him.
110. The Tribunal asked the applicant to explain the difficulties he had that gave rise to the subsequent issues he had with the contractors. The applicant explained that as he [oversaw aspects of] the [project], he advised that he wanted to replace the entire [system]. He said [specified assets] were [in such a poor state that they] would give rise to [health problems]. The applicant went on to explain that replacing the [system] would be very expensive and the contractor (the militia) did not want to do that. The applicant provided to the Tribunal a very detailed explanation of the project, its specifications and its costs.
111. The Tribunal stated to the applicant that it was an impressive amount of detail about the project, but asked why he had not explained that to the Delegate, rather stating that he was a low level employee with no decision-making power.
112. The applicant disputed that he had said that to the Delegate, but also stated that he did not realise at the time that he had to provide such detail. The Tribunal asked the applicant what was different between the Delegate interview and the Tribunal interview, both were interviews to determine the genuineness of his claims and his entitlement to a Protection Visa.
113. The applicant then went on to state that the Interpreter left the interview early and as a consequence, he did not have time to go into detail. The Tribunal noted that the applicant had gone into a reasonable amount of detail in explaining the requirement on him to impose a tax on users.
114. The Tribunal noted the applicant’s claim that the militia had attempted to bribe him. It asked the applicant when that took place. The applicant replied some time in 2013.
115. The Tribunal again noted an inconsistency between paragraphs 68 and 69 of the applicant’s Statement wherein he stated at first that he tried to expose them by lodging complaints against them for committing fraud and that as a consequence he was put on a blacklist for not getting the [system] extended into their areas. He then states that he lodged a report as to the fraud in a complaint to his superior only to discover that he was loyal to those parties. He said that he feared that if he reported it to him, he would pass on the information to the militias.
116. Again, the Tribunal sought to clarify whether the applicant had actually made a report. He replied that he had not actually made any report. He stated that he intended to lodge a report but was fearful of his Supervisor being connected to the militias.
117. But again, the applicant made the statement that the militias knew that he knew about their fraud, being the change of the [plans].
118. The applicant then stated that after he had left Iraq, the fraud was discovered by others and the contractors were all arrested. The applicant stated that the contractors thought that he was behind them being arrested.
119. The Tribunal asked the applicant when the contractors were arrested. He replied sometime in 2016.
120. The Tribunal noted the Delegate’s decision was dated in November 2018 and again enquired why the applicant had not discussed the issue of the arrest of the contractors with the Delegate. The Tribunal noted that such an arrest, given the nature of the applicant’s claim, was quite an important fact. The applicant replied that his agent had told him to be general only in the interview.
121. The Tribunal noted from the Delegate’s decision, a reference to the applicant having to impose a tax on [users]. The Tribunal noted that there was no reference to this in either of the applicant’s Statutory Declarations. The Tribunal asked the applicant to explain the nature of this claim. The applicant replied that the government wanted the applicant to tell it who was not paying its fees. Those not paying included the militias. The applicant claims that he told the government about the militias’ non-payment of their [fees]. He said that his employees had the responsibility of collecting the fees and if they were not paid, they would be referred to debt collection and ultimately referred to a Court for collection.
122. Again, the Tribunal asked the applicant why he had not referred to this aspect in either of his two Statutory Declarations. The applicant replied that he was trying to focus on the main things.
123. The Tribunal discussed with the applicant concerns it had in relation to the timeline of events, specifically that the issues he had with the contractors and militia were in 2013 when he worked on the [project], the contractors being arrested in 2016 and his house being burned down in 2019. How was it that these three events could be connected over a span of six years? Further, how could these three events, the demonstrations that took place in 2019 and the applicant’s [Social Media 1] entries all be connected?
124. The applicant explained that the demonstrations were a chance for the militia to do what they wanted to. He said the demonstrations were about [distance] kilometres from his house. The Council Chambers that were burned down were [distance] kilometres from his house.
125. Noting his claims as to public buildings, being buildings owned by the council and the governate and the militias being burned down, the Tribunal asked the applicant why his house was burned down. Furthermore, why, after three years, would the militia send a threat on a DVD and burn his house down.
126. The applicant explained that the demonstrations were an uprising against corruption. The Tribunal accepted that but asked the applicant why he would be implicated some three years after the contractors were arrested.
127. He replied that it was because his [relative] and he had supported the demonstrations.
128. The Tribunal confirmed with the applicant that his “support for the demonstrations” was his [Social Media 1] entries. It asked the applicant why the militia would think to check his [Social Media 1] entries after such a period of time and given that he was now in Australia.

129. The applicant replied that that is what the militias did. And the militias would have seen his [relatives] at the demonstrations.
130. The Tribunal proposed to the applicant that it would revisit the corroborative evidence that the applicant had tendered both at the Delegate interview and in his previous submissions.
131. The Tribunal noted the applicant’s claim that due to his Ba’athist links, he was targeted and he was beaten. The Tribunal asked the applicant for details in relation to the beatings he had received and for corroborative evidence of the same, perhaps in the form of a police report or medical reports.
132. The applicant replied that he had not been beaten, but had been subject to harassment.
133. The Tribunal noted from the applicant’s claims that [in] May 2007, a bomb was remotely detonated in the front of his car, his driver was killed and he suffered serious injuries. The Tribunal asked the applicant for details about the bombing. For example, was a bomb planted on the vehicle or did he drive over it. The applicant replied that his vehicle drove over the bomb and it was remotely detonated.
134. The Tribunal asked the applicant how it was that he knew he was targeted by such a bomb. The applicant explained that at a particular meeting with his work colleagues, he became so impatient that he swore at one his colleagues. He later discovered that that colleague was connected with the militias. He was cursing the Al-Mahdi militiamen. He claims that as a result of that outburst, he became a target of the militia. He explained that [in] May 2007 at about 11am, he received an SMS on his mobile phone from an undisclosed number saying “You will not cost us more than 250 Dinars for the bullet which will assassinate you”. He states that as a consequence of his outburst, the resultant threat by SMS and the bombing that took place just two days later, that he surmised that the bombing of his car and the death of his driver were connected.
135. The Tribunal asked the applicant whether he had any corroborative evidence of the event, apart from the Extract of Death and Death Certificate of his driver, for example photos, media reports or police reports. He replied that he did not.
136. The Tribunal expressed its concern about the Death Certificate. It noted that the Death Certificate was silent as to the driver’s cause of death. However, it noted that the Extract of the Death Certificate referred to an explosion as the cause of death.
137. The Tribunal asked the applicant how the two could be reconciled, especially given that one was an extract of the other. The applicant could not reconcile the two, but stated that the medical report made it clear that the driver was killed by an explosion. The Tribunal noted that it did not have any medical report.
138. The Tribunal noted that following the fall of the Ba’ath Party in 2003, the applicant claimed he went underground for a while. The Tribunal enquired as to who he went underground with and where underground was. The applicant replied that his family, being mother, father and siblings, went to a place called [Location 2].
139. The Tribunal noted the applicant’s claims in relation to his wife and discussed with the applicant his claim that his wife was being threatened by the militias and by the [manager] of the [workplace] at which she [was employed]. He stated that his wife received threats from the Al-Mahdi militia for being [an Occupation 2]. The Tribunal enquired as to the form of those threats.
140. The applicant replied that the militia would throw letters at his house and stated that his wife would be killed if she continued to [be employed as an Occupation 2].
141. The Tribunal enquired as to whether the applicant had retained those letters or had copies of those letters. He replied that he did not.
142. The Tribunal enquired as to the nature of the threats from the [manager]. He replied that the [manager] had threatened to sack his wife because she was married to a Ba’athist.
143. The Tribunal took direct evidence from the second-named applicant, the applicant’s wife. She stated that she was [an Occupation 2] at a [specified workplace]. She confirmed that for a time she was followed by strangers and found the experience frightening. Thereafter, she and her husband hired security to escort her to and from home and [her workplace].
144. The second-named applicant also confirmed that the [manager] was loyal to the militias and monitored everything that she did, including the clothes that she wore.
145. The Tribunal considered country information regarding the employment of women contained in the DFAT Report.
3.118 Only 14 per cent of women are working or actively seeking work compared to 73 per cent of men, and 21 per cent of active females are unemployed compared to 11 per cent of active males. The percentage increases to 27 per cent for young women and is significantly higher in urban areas than in rural areas, where women are mainly employed in the agricultural sector. Throughout Iraq (including the KRI), the overwhelming majority of employed women (94 per cent) are in the public sector, primarily in the public finance, education and banking sectors. Women reportedly choose to work for the public sector because of the stability it brings, and because labour law rights are not guaranteed or enforced in the private sector. Women in Iraq face a range of obstacles to greater participation in the private sector, including: economic barriers to participation; access to health; legal rules and processes; public participation and representation in decision-making forums; crime and lack of security. Cultural and social obstacles are the other main driving factors preventing women from working in the private sector, such as restrictions on movement and the necessity of having to obtain consent from a male relative to work.
3.132 DFAT assesses the majority of Iraqi women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. Long-standing traditional values and gender roles continue to restrict significantly the participation of women in the community and workforce, in both the public and private sectors. DFAT assesses Iraqi women and girls face a high risk of gender-based violence, including sexual assault and domestic violence, while Iraqi girls face a high risk of being forced into early or involuntary marriage. Iraqi women working to advocate for women’s rights face a high risk of violence, including targeted killings.

146. The second-named applicant also stated that as a consequence of the threats she received, she commenced a series of maternity leaves, effectively having children in order to avoid having to go back to work.
147. The applicant stated that in Iraq, culture predicates that the threat to kidnap a woman is a major issue.
148. The Tribunal asked the second-named applicant about their children.
149. She stated that their oldest [child] (the third-named applicant) is [age] years of age. She stated that the [child] suffers from anxiety. The Tribunal noted a medical report from a Psychologist which confirmed an anxiety-related condition, and the medication that [s/he] was prescribed. The report also noted suicidal tendencies but which the child [her/himself] denied.
150. Asked to explain the nature of the child’s anxiety, the second-named applicant replied that the child’s classmates, which included many Iraqi children, continually asked her [child] about [her/his] citizenship which they knew was an issue given the status of their Protection Visa application. The second-named applicant also stated that their [child] is stressed about news that [s/he] hears from Iraq and is fearful of having to return to Iraq.
151. The applicant also stated that his [child] can see how he is always nervous and tense all the time about their status and fear of returning to Iraq. He stated that this plays into [her/his] anxiety.
152. The Tribunal discussed with the applicant his claim that [City 1] belonged to Al-Mahdi and that the previous director was assassinated by them in [year]. The Tribunal enquired as to whether the previous director was the person who was in the same position as the applicant now occupied. The applicant replied that it was not the previous director in relation to a [project], but rather [an office bearer] of the town and the applicant referred to it only as evidence of how dangerous the place was.
153. The Tribunal asked the applicant whether he had any corroborative evidence of his claim as to being shot at by two masked men from an unknown car. For example, had the applicant reported the shooting to the police? The applicant confirmed that the shooting took place [in] September 2011, but confirmed that he made no police report, rather just a phone call to his Department.
154. The Tribunal enquired as to the applicant’s claim that a colleague of his, [Mr B], was assassinated at the entrance to his home by the militias, and as to his relationship with [Mr B]. The applicant replied that [Mr B] was assassinated [in] October 2011, confirming that he was also an [Occupation 1] who worked for the same organisation that he did, but who was in a separate department. The Tribunal noted a media report about the death of an [Occupation 1] but confirmed that the applicant had no corroborative evidence in relation to his relationship to [Mr B].
155. The Tribunal noted the applicant’s claim in relation to an SMS he received following his refusal to accept a bribe from the militia. The Tribunal asked whether he had a record of the SMS or a screenshot of it. The applicant replied that he did not.
156. The Tribunal referred to the applicant’s claim that he was put on a blacklist for not getting the [project system] extended into the militia’s areas. The Tribunal queried the applicant as to why he would have been put on a blacklist if it was the case, as he had stated previously, that he had not actually complained to his superior given that he had learned that his superior was connected to the Al-Mahdi militias.
157. The applicant confirmed to the Tribunal that he was only worried about being put on a blacklist.
158. However, the applicant then amended his evidence to state that he had told his Supervisor that he intended to file a report against the contractors but when he learned that the Supervisor was connected to the militia, he did not lodge a report. He then went on to explain that it was the contractors who thought they were blacklisted. Explaining the blacklisting, he replied that the contractors thought they would not receive future contracts, and therefore would not receive future corrupt payments. It was, in fact, the contractors who were angry about the applicant for having blacklisted them.
159. The Tribunal confirmed that despite his specifically written claim, it was not he who was put on a blacklist or he who was worried about being put on a blacklist, but the contractors who feared a blacklisting and the consequences of not receiving further contracts as a consequence.
160. The applicant confirmed that that was the case and believed that he was the source of that threat to the contractors, and that the contractors believed that he was that source.
161. The Tribunal then referred to the applicant’s additional claims made in his Statement of 11 November 2019.
162. The Tribunal asked the applicant whether he had any corroborative evidence of his [relatives] having participated in the demonstrations of October 2019. He replied that he did not.
163. The Tribunal noted the applicant’s claim that the militias detained one of his [relatives] ([Mr C]). The Tribunal asked the applicant whether he had any corroborative evidence of that detention, for example an arrest warrant or a Statement from his [relative]. He replied that he did not. He went on to add that his [relative] was beaten like all of the other demonstrators.
164. The Tribunal noted the applicant’s claim that his house was burned down. The Tribunal acknowledged that a photograph purporting to be the applicant’s house had been tendered. It noted, however, that no evidence linked the applicant to the ownership of that house.
165. At this point, the applicant became quite emotional and agreed that he had no such direct evidence but went on to explain that his father would go to his house and do the gardening. He also explained that he had tendered an electricity bill relating to the house and that the last electricity bill that he had was dated [September] 2019. That was the last bill that he had before the property was burned to the ground.
166. The Tribunal noted the applicant’s claim that the militias would inform his family in Iraq that if he, the applicant, returned to Iraq that the family must inform the Al-Mahdi militias. The Tribunal asked the applicant how those demands were made. The applicant replied that they were verbal requests made to his father and other family members. He had no corroborative evidence of them, including any statements from those family members.
167. The Tribunal noted the video of a message purportedly sent to his [Relative 1] [in] September 2019. The Tribunal enquired of the applicant whether he had any corroborative evidence linking the [Relative 1] to the receipt of the threat. He replied that he did not. He stated that the threat was sent through social media and that the DVD was burnt from the social media post. He also stated that the social media post had been deleted and he had no evidence of its receipt by his [Relative 1]. The applicant had no evidence corroborating its veracity.
168. The Tribunal returned again to the issue of the connection of the various events of 2013, 2014, 2016 and 2019, advising the applicant that it had concerns about how and why all of those events were connected. The Tribunal restated the events as being the militia thinking that the applicant knew about their corruption, the applicant’s departure from Iraq in 2014, the interrogation, arrest or detention of the contractors in 2016 and the renewed threats to the applicant and the burning down of his house and receipt of video threats in 2019.
169. The applicant replied that in 2016, he was requested to attend an Integrity Inquiry set up by the government. He did not appear as he was in Australia. He went on to state that the contractors had been called before the Inquiry on several occasions and had been interrogated about corruption. He stated that notwithstanding being interrogated regularly, they were always released and were not put in jail immediately.
170. The applicant then went on to explain that in 2019, in October, demonstrations broke out all over Iraq in relation to corruption. He explained that that was the link to the contractors. He said that he supported the demonstrations and that the contractors were worried that they might have to return money they had illegally taken and that they might be prevented from leaving the country. He stated that the contractors wanted to terrify the applicant. He maintained that the contractors believed that he was the source of the information about their corruption.
171. The Tribunal asked the applicant how it was that the contractors and militias knew about his support for the demonstrations given that he was at all times in 2019 in Australia. He replied that there were reports on the media about the contractors. He also stated that he had told his [relative] about the specific corruption and the contractors and that his [relative] was shouting and chanting slogans about it, that is, about the specific corruption claims. He then explained that people loyal to the militias were within the demonstrations and spying and reporting on who and what was being said.
172. The applicant also stated that he posted the specific information that he had about corruption on his [Social Media 1] account and on pages of those opposing the corruption.
173. Asked again whether he had evidence to corroborate those claims of his [Social Media 1] postings, he replied that he had removed his [Social Media 1] account and removed his photo from his [Social Media 1] account as he was terrified.
174. The Tribunal then noted the decision of the Delegate in late 2018, noting that the applicant’s [Social Media 1] activity and his purported support of the demonstrations in Iraq took place during a period of time whilst he was awaiting the review of the Delegate’s decision by this Tribunal. The Tribunal asked the applicant whether it was possible that he had entered into his [Social Media 1] activities for the sole purpose of enhancing his protection claims.
175. The applicant replied that the demonstrations taking place in Iraq gave him the opportunity to inform people about the corruption that he had witnessed and experienced. He stated that it did not enter his head about enhancing his claims. The Tribunal advised that it would consider that response.
176. The Tribunal expressed its very grave concerns about the paucity of any evidence in support of the applicant’s claims. Many of the applicant’s claims, represented as fact, were, upon interrogation, discovered to be suppositions drawn by the applicant based on his interpretation of events. Most other claims, as detailed above, simply lacked any corroboration. And others were not supported by Country Information.
177. The Representative asked the Tribunal to consider that the applicant is disclosing corruption, and that the militias are aware that the applicant is a person who is actually aware of their corrupt practices and with that knowledge is capable of exposing them to the risk of arrest, the requirement to repay monies unlawfully obtained and to be blacklisted from attaining future government contacts.
178. The Tribunal considered Country Information from the DFAT Report.
2.28 Domestic and international observers report that corruption plays out at all levels of Iraqi society and across all sectors. Bribes are often required to obtain basic services, while bribery, money laundering, nepotism and misappropriation of public funds occur at all levels of government. As noted in the Economic Overview, payroll patronage has seen a massive expansion of the public sector since 2004, with newly appointed ministers putting their party followers and faction members on the state payroll. This has contributed to significant corruption in the government’s contracting process, with politically aligned directors-general in the public service appointing government contracts to companies with links to senior party members. The companies then often fail to provide services they are paid to deliver, with the same politicians who ensured they won the contracts protecting them from complaints about poor or non-existent service delivery. The parliamentary transparency commission reported in 2018 that corruption is responsible for the disappearance of at least USD320 billion from the state treasury since 2003, mostly because of corrupt or phantom contracts. Corruption is also endemic in other sectors, including the Judiciary, police and state security services (see State Protection), customs administration and natural resources, particularly the oil industry. Criminal networks, encompassing oil ministry staff and high-ranking political and religious figures, are reportedly involved in the smuggling of oil to the black market, generating huge profits.
2.29 International observers report anti-corruption efforts are hampered by: political influence; unclear governing legislation and sub-optimal regulatory processes; a lack of agreement concerning institutional roles; and a lack of transparency and political will. Although anti-corruption institutions increasingly collaborate with civil society groups, the effect of expanded cooperation is limited. Media and NGOs have attempted to expose corruption independently, but have a limited capacity to do so. Anti-corruption, law enforcement and judicial officials, as well as civil society and media, have faced threats, intimidation and abuse in their efforts to combat corruption. A strong sense of entitlement exists among those with access to public funds: in December 2017, one politician openly told AFP journalists that stolen sums of less than USD60 million ‘can be seen as honest; from there upwards, we can speak of corruption.’

213. The Tribunal considered DFAT country information relating to Iraq’s security situation, to which the Tribunal must have regard, which notes that Shia Muslim militias remain active in Iraq, the overall security situation in the country is fragile, elements of the Iraqi Security Forces have been involved in human rights abuses, and elements of the Iraqi Federal Police are reported to have close links with the Shia militia groups in the Popular Mobilisation Forces.[11] Accordingly, the Tribunal finds that the applicant fears being persecuted on account of his actual political opinion concerning anti-corruption, which has drawn him to the adverse attention of Shia militia groups.
[11] DFAT Report at paragraphs 2.54 – 2.60.
214. The Tribunal has had regard to s.5L of the Act which provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society. Following careful consideration, the Tribunal finds that the applicant is a member of the particular social group ‘of persons having worked at a senior level of a government department, being aware of corrupt practices and having the capacity to expose that corruption’. In the view of the Tribunal, he fears persecution on this basis, and his membership of that particular social group places him at increased risk of harm from militia groups should he return to Iraq.
215. With regard to assessing whether the applicant faces a well-founded fear of persecution on account of his political opinion, and as a person having worked at a senior level of a government department, being aware of corrupt practices and having the capacity to expose that corruption, the Tribunal has duly considered that the criterion in s.5J(1)(a) of the Act. That criterion contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. For reasons previously expressed, the Tribunal accepts that the applicant satisfies the aforementioned subjective requirement. The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. Following careful consideration, the Tribunal finds that if the applicant returns to Iraq now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that he would be physically injured or even killed by militias due to his political opinion.
216. Additionally, the Tribunal finds that if the applicant returns to Iraq now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that he would be physically injured or killed by militias due to his being a person having worked at a senior level of a government department, being aware of corrupt practices and having the capacity to expose that corruption.
217. Having carefully considered the evidence submitted by the Representative, and relevant DFAT country information, the Tribunal finds that the real chance of the applicant being persecuted for reasons of his political opinion, and membership of the particular social group ‘person having worked at a senior level of a government department, being aware of corrupt practices and having the capacity to expose that corruption’, extends to the whole of Iraq as required by s.5J(1)(c) of the Act.
218. The Tribunal has duly considered whether effective protection measures as defined in s.5LA of the Act are available to the applicant. Having regard to the DFAT country information concerning the effectiveness of the Iraqi Security Forces, and in particular the links between elements of it and the Shia militia groups, the Tribunal is not satisfied that the applicant can access the protection of the Iraqi State in the regions it controls, nor that there is a reasonably effective police force to assist him, for the purposes of s.5LA(2)(a) and (c) of the Act, in respect of the persecution he faces on account of his political opinion and being a ‘person having worked at a senior level of a government department, being aware of corrupt practices and having the capacity to expose that corruption’.[12] Accordingly, the Tribunal finds that effective protection measures are not available to the applicant for the purposes of s.5J(2) of the Act.
[12]DFAT Report at paragraphs 5.1 to 5.7
219. Having regard to all of the evidence, the Tribunal finds that the persecution which the applicant fears in respect of his political opinion and his being a ‘person having worked at a senior level of a government department, being aware of corrupt practices and having the capacity to expose that corruption’, involves serious harm in accordance with s.5J(4)(b) of the Act given it involves a threat to his life or significant physical harassment or ill-treatment. Further, the applicant’s political opinion and membership of the particular social group are the essential and significant reasons for the persecution which he fears, thus satisfying the requirements in s.5J(4)(a) of the Act. Additionally, the Tribunal finds that the aforementioned persecution which the applicant fears involves systematic and discriminatory conduct, in accordance with s.5J(4)(c) of the Act. There are no relevant behavioural modification steps for the purposes of s.5J(3) of the Act and the Tribunal finds accordingly.
220. Having considered all of the above circumstances, both individually and cumulatively, the Tribunal is satisfied that there is a real chance in the reasonably foreseeable future the applicant would be persecuted for reason of his political opinion and membership of a particular social group. His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
221. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iraq.
Conclusion: Refugee Criterion
222. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
223. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iraq.
Overall Conclusion
224. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
225. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the wife and children of the first-named applicant are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
226. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Michael Hawkins
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5614

11 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction