1834962 (Refugee)

1834962 (Refugee) [2022] AATA 4058 (12 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss Legal Practitioner (11488)
CASE NUMBER:  1834962
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Amanda Paxton
DATE:12 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s36(2)(a) and
(ii)that the other applicants satisfy s36(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 12 September 2022 at 9:10am
CATCHWORDS
REFUGEE – protection visa – Iraq – religion, political opinion and membership of a particular social group – moderate Sunni Muslim, supporter of secular democracy and opponent of extremism, university lecturer and westernised returnee – family and personal connections with people in public positions – imputed as supporter of ISIS – kidnapping, wounding by sniper and death threats – relocation and time in refugee camp – relatives displaced or missing believed killed – fear of harm from government and militias – members of family unit – wife and older child’s return soon after arriving – urgent medical treatment in relatively safe area – younger child born in Australia – physical and mental health – credible and reliable witness – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (2), (4), 5LA, 36(2)(a), (b)(i), (c), 65
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASE
Chan v MIEA (1989) 169 CLR 379
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 26 November 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant identified himself as an Iraqi citizen and provided to the Department of Home Affairs (the Department) copies of the Iraqi passports for the applicant, second and third applicant, and a certified copy of the Victorian birth certificate for the fourth applicant. The Department accepted the claimed identities of the applicants and their nationality. Accordingly, the Tribunal accepts the applicants are nationals of Iraq and that Iraq is their ‘receiving country’ for the purposes of assessing their protection claims.
The applicant, his wife and older child arrived in Australia [in] October 2014 on a TU574, Postgraduate Research Sector visas. The applicants applied for the protection visas on 10 February 2016. The delegate refused to grant the visas on the basis that the first-named applicant (“the applicant”) is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c)) pf the Migration Act 1958 (The Act).
The second applicant (“the applicant’s wife”), and the third and fourth named applicants, the applicant’s children, are members of the same family unit as the applicant, as defined in Regulation 1.12 of the Migration Regulations 1994 and are therefore also members of the same family unit as defined in s5(1) of the Act.
As the delegate refused to grant a protection visa to the applicant, the second, third and fourth named applicants did not satisfy s36(2)(b) or s36(2)(c) of the Act as they were not a member of the same family unit as a non-citizen who holds a protection visa of the same class applied for in this application and who engages Australia’s protection obligations under s36(2)(a) or s36(2)(aa) of the Act.
The delegate therefore also refused to grant a protection visa to the second, third and fourth applicants.
The applicants validly applied for review of the refusal decision at the Tribunal on 28 November 2018, attaching the delegate’s notification of refusal of application for a Protection (subclass 866) visa and decision record.
The applicant appeared before the Tribunal on 11 August 2022 to give evidence and present arguments. An interpreter in the Arabic and English languages was present to assist at hearing. However, the applicant had a sophisticated level of English and at the request of the applicant, the Tribunal conducted the hearing in English, with occasional assistance from the interpreter. The Tribunal is satisfied the applicant had an appropriate opportunity to give evidence and present arguments.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s36(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: s5H(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: s5H(1)(b).
Under s5J(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 ss5J(2)-(6) and ss5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s36(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: s36(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 ss36(2A) and (2B), which are extracted in the attachment to this decision.
CONSIDERATION OF Claims and evidence
Background
The applicant stated in his application for a protection visa that he was born on [Date, Year] in the city of Al-Fallujah in Iraq.[1] He stated that he speaks, reads and writes in both Arabic and English. He stated he belongs to the Arab ethnic group and is of the Sunni - Muslim religion. The applicant stated he married the second applicant [in] 2010 in Iraq.
[1] See Department file.
The applicant, his wife, and eldest daughter, the third applicant, arrived in Australia on Postgraduate Research Sector visas [in] October 2014. [In] January 2015, the applicant’s wife and their daughter, the third applicant, departed Australia, returning [in] September 2015. The fourth applicant was born in Australia on [Date, Year].
Written claims for protection and supporting documentation
The applicant’s written claims for protection were submitted in the application for protection on 17 January 2016. In essence, he fears that he is at risk of persecution by Shi’a militias, because he is an educated Sunni Muslim academic and member of [a] tribe from Fallujah.[2] His claims are summarised as follows:
[2] See Department file.
·     The applicant is from Fallujah, a strong Sunni city, in al Anbar province in Iraq. He is a Sunni Muslim belonging to [a tribe].
·     Since the fall of the Baath regime in 2003, people of Anbar have suffered at the hands of the Iraqi Shi’a government who controlled Iraq as a Shi’a State like Iran. Iraqi Shi’a militias supported and sponsored by the Iranian regime played a big role in killing the educated and professional Sunnis.
·     After graduating in [Year], the applicant moved to Baghdad as extremist Sunni groups (ISIS), gained more control over Fallujah and other cities in al Anbar governorate.
·     However, two weeks after arriving in Baghdad, the applicant was kidnapped when he was stopped at a Shi’a militia check point and identified as Sunni from Fallujah. He was pulled from the car and blind folded him but released when American soldiers arrived.
·     He left Baghdad and went to Mosul which was a safer place for the Sunni people and there he studied and finished his Master’s degree in [Specialisation 1].
·     As the security situation in Baghdad had improved in 2009 as American Forces reduced terrorism, the applicant got a teaching position at [University 1] in Bagdad.
·     In 2010, the American and Iraqi government organised an educational program to send Iraqi students to study in the West, especially to Australia, the USA and Great Britain. He was accepted into the program and he continued to teach at [University 1] while he was waiting to commence a PhD.
·     After starting his job in Baghdad, he married and had a child. When the killing of Sunnis started again in 2011, he received a threatening letter with a bullet inside, he moved to Fallujah to stay at his parent’s home in 2012 but continued to travel daily to and from Baghdad for work. He was worried about his safety and decided to leave his job in Baghdad and began to work teaching at [University 2] again.
·     In January 2014, he fled Fallujah with his parents because the city was occupied by ISIL fighters. They couldn’t enter the city and were directed to a refugee camp near [Location]. The Security Forces and Sunni fighters protecting this camp fought against ISIL. From this camp, he drove to [University 2] to teach until April 2014 when ISIL fighters attacked [University 2] with mortars and rockets. Many teachers and students were killed or injured. He and many other teachers and students ran away on foot from the university and walked in the desert for two days until they arrived at a safe place under the control of the Sunni tribes.
·     Obtaining a student visa to Australia was a lifeline to him and his family. He left Iraq [in] October 2014 to come to Australia to continue his education.
·     In Iraq, there is no safe place for him and his family. He fears harm from Shi’a militias because he is an educated Sunni academic. In addition, he is connected to [Mr A] who is [an official], his [relative], which increases his risk of harm from IS and Sunni extremists on account of his real or perceived support of the Iraqi government. He also fears harm in Iraq because he has spent a significant period of time in a Western country, in particular, one of the coalition countries that was involved in the invasion and occupation of Iraq in 2003 and is currently participating in the US-led campaign against Islamic State.
The applicant submitted a further Statutory Declaration on 26 September 2018 making the following claims:[3]
·     In the past, the applicant has received multiple death threats from different actors in both Fallujah and Baghdad, been subject to a kidnapping attempt in Baghdad and has been adversely affected by extremist activity in Fallujah.
·     In 2004, the applicant was severely injured during fighting between the insurgents and the US-led coalition forces. He received extensive medical treatment from the US Army, and during this time he did [a job task] for the US Army [personnel].
·     In 2014, he and his family were forced to flee Fallujah after it was captured by Islamic State and lived in a refugee camp in [Location]. He continued lecturing in [University 2] until it was attacked and overtaken by Islamic State.
·     The biggest threat to the applicant’s safety in Iraq as a highly educated and professional Sunni from Fallujah comes from the Shi’a militia who now fully control and continue to patrol the streets of Iraq, on account of his moderate Sunni religion, his profession as an academic, his support for secular democracy and opposition to extremist activity in Iraq and his connections to the west through his residence in Australia. He also fears harm from Sunni insurgents and criminal gangs.
·     Since the defeat of ISIS and the liberation of many areas from its control, Shi’a militia have abused and killed many Sunni Muslims ostensibly for supporting Islamic State but, in reality, merely because they are Sunni.
·     The applicant has [connections] that place him at risk from Shi’a militia. The applicant worked with his [relative], [an official], [Mr A], in Fallujah and later on lived [nearby] in Baghdad. Some online websites run by Shi’a militia have accused his [relative] and close family of being terrorists. Two of the applicant’s [relatives], [Mr A]’s nephews, were tortured and killed by Shi’a militia in 2013.
·     It would not be safe for the applicant’s family and the applicant as Sunnis to return to Fallujah, especially considering the large amount of time they have spent away from it.[4]
[3] See Department file.
[4] See Department file.
The applicant’s representative submitted the following.[5]
·     Genuine Fear – the applicant fears that he is at risk of persecution by fundamentalist Shi’a militia, Sunni extremists and criminal gangs.
·     The reasons why the applicant believes he is at risk include a combination of his religion, his political opinion and familial connections, his profession as an academic and his connections to a western country. The applicant also has serious concerns about the safety of his wife and his children should they be forced to return to Iraq.
·     Religion – the applicant is a moderate Sunni Muslim who has a fear of persecution from fundamentalist Shi’a militia as well as Sunni extremists on account of his moderate Sunni Muslim faith.
·     Political opinion (real or imputed) – the applicant fears persecution for reason his political opinion as someone who is opposed to armed Islamic militant groups and their extremist political and religious agenda and supportive of the Iraqi Government and US-led coalition.
·     Membership of a particular social group – including highly educated professionals, including academics; family members of Iraqi Government members; family members of [political party] members, and Iraqis’ who have spent a significant period of time in a Western country, in this case, one of the coalition countries that was involved in the invasion and occupation of Iraq in 2003 and is currently participating in the US-led campaign against Islamic State (IS).
[5] See Department file.
On 26 September 2018, the applicant’s representative lodged submissions containing country information on behalf of the applicant.
The interview
The applicant attended an interview with the Department on 3 October 2018. The interview was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s then representative attended the interview by telephone. At interview, he provided documentation concerning his wife’s health and a list of relatives kidnapped by Shi’a Militia.[6]
The delegate’s decision
[6] See Department file.
The delegate considered the applicant’s written statement and interview to be generally credible and accepted that the applicant is an educated Sunni from Fallujah, belongs to [a tribe] and has family connections to political figures, including [a relative] who [holds a public position], and his father-in-law who obtained protection in [Country 1]. On the basis of an assessment of country information, the delegate did not accept the applicant was at risk of harm as a Sunni in Fallujah from the state or Sunni extremists, as a person with family connections to political figures, or at increased threat of harm as an educated academic who has studied in a western country. It was not clear whether the delegate considered the role of Shi’a militia or the applicant’s connection to [a number of] missing relatives or his political opinion. The delegate drew adverse credibility concerns from the applicant’s wife’s return to Iraq in 2015, three months after arrival in Australia, with her [Age]-year-old daughter and his delay in applying for a Protection visa. The delegate was not satisfied that the applicant’s claims give rise to a real chance or a real risk that the applicant will suffer serious or significant harm if he were to be removed to Iraq.
Review application
Pre-hearing submissions
In a pre-hearing statement to the Tribunal dated 16 June 2021, the applicant commented that the delegate seemed to have overlooked information provided in his previous Statutory Declaration about the work of his father-in-law, and the kidnap and disappearance of [a number] of his relatives. He set out additional information including the following claims:[7]
[7] See Tribunal file.
·     The applicant worked with his [relative], [Mr A], before coming to Australia. His [relative] was critical of Shi’a militia in the media ([Reference redacted]). His [relative] was working with other Sunni [officials] to assist Sunni people who had been accused of terrorism.
·     The applicant also assisted [a Sunni official], [Mr B], member of [a public body], who was arrested [and] has remained detained.
·     The applicant’s father-in-law held a senior position in [Political party] office in [province]. He published several articles critical of both Sunni and Shi’a militia and expressed opposition to the creation of a Sharia state in Iraq. He obtained protection in [Country 1].
·     Local militia have been to his neighbourhood asking after him, once in 2018 after his father-in-law was granted protection in [Country 1], and also in 2020 after a fake news report created by Shi’a politicians and militias and circulated to Iraqi media ([deleted] link to a report in Arabic is provided) that he had a cousin, a claimed nephew of [Mr A], who was on trial in [Country 2] for belonging to ISIS and raping and killing Yazidis.
·     The applicant has [a number of] family members who were taken by Shi’a militia on 3 June 2016 following the liberation of Fallujah from ISIS and who still remain missing, believed to have been killed. Family members continue to make enquiries about the people who are missing and have been accused by Kataib Hezbollah (KH) militia of being people connected to ISIS for this reason. The KH accuse missing persons as all having been connected with ISIS (8 September 2019: http ://al-ain.com/article/iraq-popular-mobilization-militia-iraqis-prison).
·     The applicant’s role as an academic with influence over students at university and his activity and ideology against Shi’a militia put him at risk of harm from Shi’a militia.
·     Being a member of [his tribe] does not offer him protection because the Shi’a militia, KH, have displaced the whole tribe from Fallujah. [A member] of his tribe [was] kidnapped and killed along with bodyguards and his son in [year] ([Reference redacted]).
·     Fallujah still has many and increasing pro-Iranian Shi’a militias operating in and around the city, including the Badr Brigade. Its members frequently make false accusations of connections with ISIS and the applicant fears he could be detained and tortured. A prominent head of Shi’a Militia, Aws al-Khaaji, was recorded in June 2016 in a YouTube post saying all people of Fallujah are terrorists and should be eliminated (https ://www. you tube.com/watch? v=ZheuD9d 109c&ab channel=peacenow). The Geneva International Centre for Justice (GICJ) posted a video on 24 May 2016 of the Secretary-General of the Abu Fadhl Al-Abbas Brigades Aws al-Khafaji accusing all the inhabitants of Fallujah of being terrorists ( Muslims continues to be treated with suspicion and mistreated on account of presumed support for IS.)
·     The applicant is known to be against the Shi’a militia, a Sharia State and ISIS. He had a prolonged confrontation with a Shi’a student at [University 3, Australia] because that student knew the applicant was Sunni and related to [Mr A]. This student punched him publicly and said he would report the applicant as ‘anti-Islamic’ to his contacts in Iraq. The applicant attached documents from the Security area of [University 3, Australia] in support of this claim.
·     Pro-Iran Shi’a militia gained access to all the US documents when they took over Fallujah and they know the applicant was treated and then released by the Americans so they will assume the applicant is against them because he is pro-American.
·     The applicant also fears Sunni insurgents. The local Sunni insurgents also know the applicant was detained, treated and then released by the Americans, and will assume he is opposed to Sunni extremists.
·     Government security forces cannot protect him. They are corrupt, infiltrated by Shi’a militia, highly suspicious of Sunni people and anybody with a history of criticising Shi’a militia. They mistrust people who have been living in a Western country.

On 17 June 2021, the applicant’s representative made submission to the Tribunal that the applicant is a highly educated Sunni Muslim professional and academic whose family have a high profile as Sunni political figures and members of [named] tribe. He claims that his role as an academic and his activity and ideology against Shi’a militia and ISIS, and his prolonged stay in Australia are additional factors that add to the likelihood that he will be perceived to have anti-Islamic, pro-Western opinions. It is further submitted that the applicant’s birthplace in Fallujah identifies him as a Sunni from an area that has a history of producing members of the Sunni insurgency and support for ISIS. He will also be perceived to be a wealthy professional who, along with family members, is susceptible to abduction and torture.
On 10 February 2022, the applicant submitted a number of medical and psychiatric reports concerning his physical and mental health. The applicant also submitted a report indicating health concerns for the fourth applicant, who was referred for review of [Medical condition]. The medical report dated 16 August 2021 indicates that the child has been experiencing [symptoms] since July and August 2020.[8]
[8] See Tribunal file.
On 2 May 2022, the applicant’s representative made further submission to the Tribunal providing country information concerning Iraq which had become available post 10 June 2021.[9]
[9] See Tribunal file.
Supporting documents
The applicant provided the following documents in support of his review application.[10]
[10] See Tribunal file.
·Copy of bio pages from the applicant’s wife’s father’s [Country 1] Passport.
·List of the applicant’s kidnapped/missing relatives.
·Emails from September 2016 from [University 3, Australia] Advisor responding to the applicant’s complaint of an assault on campus, matters relating to an investigation (containing some images of the alleged offender but ultimately inconclusive because CCTV does not cover the assault), and [provision] of a personal duress alarm in his office.
·Email to his representative explaining that he did not provide details of the incident report earlier because he feared the threat to his family in Iraq and did not want to mention it to the Department for the same reason.
·Request to [University 3, Australia] dated August 2021 requesting deferral of submission of work for medical reasons.
·Medical certificates concerning the applicant’s wife.
·Medical documents for child, the fourth applicant dated 16 August 2021, diagnosing [symptoms] and referral to [Hospital 1].
·Report from Consultant Psychiatrist, [Dr E], dated 15 July 2020 providing the applicant with the diagnosis of severe major depression for the last two years with co-morbid generalised anxiety disorder and PTSD.
·Report from [Hospital 2] dated 31 August 2021 that the applicant presented with [body part] pain.
·[University 3, Australia] Health Service referral to [a specialist] for opinion and management of the applicant’s [body part] pain, dated 8 February 2022. This referral states that the applicant reports a few collapses, that he has had a [test] and it was normal. The referring doctor states that they are aware of the gunshot injury to the [body part].
Applicant’s evidence
At the commencement of the hearing the Tribunal made enquiry about the applicant’s fitness to give evidence noting that the applicant had provided to the Tribunal a psychiatric certificate from 15 July 2020 indicating a diagnosis which included severe major depression and generalised anxiety disorder and PTSD, along with medical certificates from [Hospital 2] dated 31 August 2021, indicating the applicant had presented with [body part] pain and that on 2 September 2021, a consulting [specialist] provided a diagnosis of [body part] pain/anxiety with severe impact.[11] The referral refers to ongoing impact of a gunshot injury to the [body part] of the applicant. The applicant stated that he received treatment in 2021, and that he felt fine now. He has been advised not to do too much as it aggravates the gunshot injury causing pain. However, he indicated he was comfortable providing evidence and he was invited to request a break if he needed this. The Tribunal was satisfied the applicant was able to give evidence and present arguments.
[11] See Tribunal file.
At hearing, the applicant gave the following evidence.
He was born in Fallujah in [Year], and that he has not travelled to any country other than Australia. Along with his parents, his [siblings] live in the [area] of Fallujah in Anbar Province in Iraq, having moved just outside a big camp for displaced people from Fallujah relatively recently as they are unable to live at the home in Fallujah because of the security situation.
He is from [a named] tribe [which] is mainly located in Anbar/Babel region. His tribal background is mainly evident from where he lived in Fallujah. His ID used to state he was [from that tribe] (it was required) but it is not required now, and he had it removed because it caused problems with the Shi’a militia. He identifies as Sunni Muslim and practises as a “normal” person.
When the applicant was a [Number]-year [Subject] student in Fallujah in 2004, he and his family had to leave Fallujah a number of times because of the conflict between insurgents and the US led-coalition forces. The applicant was speaking with American soldiers who had come to the city to take families to a safe area when he was hit by a bullet through the [Body part] by a sniper rendering him unconscious. The American soldiers immediately took him to the American hospital in the Green zone, where he was operated on to remove the bullet and [schips]. He was treated for about 15 days and it was some months before he recovered. He was regarded as a traitor by the Sunni insurgents.
The applicant returned to study and finished his degree at [University 2] as an A student.
In 2006, when the security situation again deteriorated in Fallujah he moved to Baghdad. A short time later, he was “kidnapped”/detained by Shi’a militia along with many other Sunnis at the time but released by American forces. Subsequently he moved to Mosul, working in casual jobs and undertaking his Master’s in [Specialisation 1].
In 2008 he taught at [University 2] while doing a project for his Master’s degree but when he finished the project he got a teaching job at the university in Bagdad where the security situation was improving. He taught in various units in [Specialisation 1], but [Specialisation 2] is his field of speciality (e.g. [example of Specialisation 2]). He moved between different centres, because as a Sunni, security was uncertain.
In 2010 he married his wife, then a student in the [Specialisation 2] course in which he was a lecturer, and their daughter (now in Grade [Number]) was born in [Year]. The applicant’s second daughter [was] born in Australia in [Year] and he also has a [Age]-year-old daughter. His wife and two children are applicants in this application.
In Baghdad, from April 2009 to February 2012, he lived with [his relative], and then later in the house [near] his [relative]’s home. In this period, the applicant assisted his [relative] in his work as [an Occupation]. The applicant provided Google maps photos to explain these arrangements. In 2009, at his [relative]’s request he met with [people], collected information about their problems, and advised his [relative]. He assisted his [relative]. This was not a formal role, because he had a formal role with the university. In 2009, when Sunni people had a problem, they would come to [his relative’s] office.
The applicant received a number of death threats in this time and in 2012 he received a threatening letter from extremist militia KH which included a bullet, a terrorist list and cited verses from Koran. He moved immediately back to his father’s house in Fallujah.
The applicant commenced a lecturing role at [University 2] and successfully applied to do his PhD under a scholarship program of the US-coalition, to send academics to the UK, USA and Australia. In 2012, as he was preparing for his scholarship, including doing an English course, there were huge protests in Anbar Governorate, including Fallujah, where soldiers fired on protesters killing a large number in what became a long violent uprising. In December 2012, ISIS launched a campaign taking over Fallujah, including occupying the applicant’s family house (and the conflict escalated to full scale war).
As ISIS occupied Fallujah, the applicant and his family packed the car and left for a neighbouring area. The applicant started a job with [University 2] but when ISIS attacked the University, he and his colleagues escaped by walking into the desert.
The applicant gave evidence that in 2013 he assisted [Mr B], a Sunni leader and prominent [person] who lived [near him]. He told the Tribunal that he met and worked with him frequently. [Mr B] was arrested after he had been speaking aggressively against the militia. The applicant provided media reports and photos of [Mr B] before and after his arrest.
The applicant’s father-in-law [was a member] of [Political party] in [Province], advocating for a civil, democratic state and he had been working with the US against Shi’a extremists since 2004. The applicant provided evidence that his father-in-law was later granted asylum on the basis of his history with the [Party] and articles he published opposing sectarian authority.
The applicant explained that in 2014 his wife [had a medical incident] amid shelling and needed complex emergency treatment. They drove to a [hospital] in Erbil in Kurdistan Region of Iraq (KRI) because it was safer and had the facilities needed. Ten days later in lengthy, complicated surgery, [details deleted].
The Tribunal heard that three months after arrival in Australia, the applicant’s wife returned to Erbil with their daughter, for medical treatment at the same hospital where this surgery took place when she experienced a similar medical condition. She saw a specialist and GP in Australia who indicated she needed urgent attention, but they did not have access to Medicare or health insurance sufficient to provide resources for complex hospital treatment here and decided that his wife would be best off returning to the hospital and doctor where she had received treatment previously and remaining in Erbil for the period of her visit. The applicant stated that his wife took their daughter because he had commenced his PhD and their daughter who was [Age] years was very dependent on her mother. Erbil, in the KRI, is relatively safe but not a place where the applicants, Sunnis from Iraq, can remain.
The Tribunal enquired why the applicant did not seek protection until February 2016, 18 months after arrival. The applicant said that there was a very significant period to run before his visa expired and that the situation in Iraq over that period was very unstable and that he waited until his wife retuned from Erbil and lodged the application following the Christmas break.
On arrival in Australia, the applicant studied English [and] then commenced his PhD at [University 3, Australia] and taught at [University 3]. He postponed his study about two years ago for medical reasons and aggravation of his old [body part] injury. He is hoping to return to complete his PhD and understands the university is receptive to this.
The applicant fears he will be harmed on return to Iraq because as an educated Sunni academic with high profile family connections and a history of activity against Shi’a militia he has been identified as someone holding anti-Iranian ideology. In support of this claim, the applicant referred to an incident in 2016 on the [University 3, Australia] campus where he was the subject of threats and assault, once in front of his colleagues, by a Shi’a Iraqi student who threatened to report the applicant for anti-Islamic opinion to contacts in Iraq.[12] This matter has been the subject of incident reports and information provided to the Tribunal. At the university, people knew he came from Fallujah and people would immediately ask him about the situation there. He puts his views, speaking against both ISIS and the Shi’a militia. He is a strong supporter of a civil society and democratic state, both against Iranian ideology.
[12] See Tribunal file.
The applicant fears Shi’a militia, who want to take over every part of Fallujah and consider Sunni people from Fallujah to be a threat and supporters of ISIS. He claims that this view is compounded by the fact that people of his tribe are known to be against the militia. For this reason, they seek to displace all people from the tribe from Fallujah, and people from his tribe are not permitted to return to Fallujah.
The applicant told the Tribunal that he will be specifically targeted because he is affiliated with this [relative]. The applicant told the Tribunal that his [relative] lives in Iraq in the Green zone and in [Country 3], and still continues a role as a Sunni leader. In 2020, his [relative] was accused as a Sunni leader supporting terrorism and this is frequently mentioned in the media. In 2013, the militia abducted and killed [a number of] nephews of his [relative]’s nephews.
The applicant’s [relative] has a [role] in a commission investigating disappearances of Sunni people and about [Number] months ago, he angered the militia when he was [interviewed] speaking loudly about more than 12000 abducted people and complaining that action has not been taken against the perpetrators (Shi’a militia) because of fear of the powerful militia. He claims that subsequently, the militia have fabricated a story against his [relative], as a “person connected to ISIS”. A story has been circulated in the press that someone supposedly his [relative]’s nephew (but isn’t) has been arrested in [Country 2] as an ISIS member.
The applicant discussed a list of [people], part of a much larger list, his relatives, civilians who had been abducted by Shi’a militia in Fallujah in June 2016 and had disappeared. Cases have been lodged with the commission of enquiry seeking to establish what happened to them. He told the Tribunal that this list has been provided to US authorities and international organisations. The applicant claimed that the names of his close relatives had been published on one popular TV channel in Iraq an online website (and provided a link to a list in Arabic). A case has been lodged against Badr Organisation and Kataib Hezbollah in relation to these disappearances.
The applicant said that the militia are now claiming that the people on this list were ISIS people, and this absolves them of responsibility. This makes pursuing what happened to these people very difficult and dangerous because anyone doing this is accused of being family of an ISIS member. The applicant’s sister’s husband is one who has lodged a follow-up case against militia. He is at risk of being identified as a “ISIS family” as justification to target him for harm.
The applicant stated he also fears Sunni extremists because he was connected with his [relative] and to the US through his treatment at the American hospital. Although this may appear to have occurred a long time ago, in Iraq there is a culture of revenge which means that these allegiances are not forgotten.
Local militia have been twice to his neighbourhood and asked after him. Once in 2018, after his father-in-law was granted protection in [Country 1], and also in 2020 after fake news created by Shi’a politicians and militias about his cousin, a nephew of [Mr A], circulated to Iraqi media. Recently neighbours have told him that the militia have asked the mayor where the applicant and his wife are.
The applicant was a lecturer in a university. He fears that as a Sunni academic in Iraq he is at heightened risk of serious harm because Shi’a militia don’t want people who do not share their ideology in teaching positions where they may influence students. Shi’a militia focus on universities because they want teaching staff to support Iranian ideology. In support of this claim, he stated that last month the Minister for Higher Education in Iraq ordered university administrations to make way for Shi’a scholars. Prioritising Shi’a scholars was previously an informal requirement for university administration, but this was recently formalised requiring all universities to provide reports of the religious affiliation of their staff. He provided a strong statement from the Sunni organisation, Association of Muslim Scholars (Sunni), objecting to this requirement as unjustified and inciting sectarian conflict at universities and designed to strengthen the authority of Shi’a militias in universities. The applicant stated that his former colleagues from the [faculty], have been detained and some are still in detention now because they are believed to oppose Shi’a ideology.
As a returnee from the west, the applicant fears he would attract interest. While he may not appear westernised from his appearance, if he was to go anywhere he was known, he would be regarded as westernised.
He holds fears for his children, who have been raised in Australia, are easily identifiable as westernised.
He fears that he and his family may be targeted for kidnap and ransom by Shi’a militia and gangs. Academics at universities are considered to be privileged and wealthy, placing them at heightened risk of harm.
The applicant’s middle daughter has been receiving treatment for [symptoms]. The applicant explained that until June this year her [symptoms] were uncontrolled, and in May she had more than 10 [incidents] in one month. Medical tests have been undertaken and sent [overseas] for analysis and they are waiting for results to guide future treatment. In the meantime, she is on new medication, which is working well.
At hearing, the applicant provided the following:[13]
·     Recent photos of scars from his gunshot injury of 2004.
·     Google Maps images of his home in Baghdad from April 2009 to February 2012 indicating [the location of his house] to his [relative] [Mr A]’s house and his office, and the house of [Mr B], [official] now in prison accused of terrorism.
·     A Google translation of an article of The Association of Muslim Scholars: The Ministry of Education’s actions in the Baghdad government are a means to stir up sectarian strife.
[13] See Tribunal file.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The Tribunal found the applicant to be a credible and reliable witness (as did the Departmental delegate). His evidence to the Tribunal was entirely consistent with written and oral evidence he had previously provided to the Department and was detailed, spontaneous and specific. His claims were supported by documents and information from independent sources.
The applicant
Applicant’s relevant grounds
The applicant submits that he holds a well-founded fear of persecution by reason of his religion, as a well-educated, moderate Sunni Muslim employed as a university academic, and his political opinion as a supporter of a civil society and democratic state in Iraq in opposition to Shi’a militia groups and Sunni extremists. The Tribunal accepts the applicant’s claims fall within s 5J(1)(a) of the Act by reason of his religion and political opinion.
The applicant’s well-founded fear

Section 5J of the Act states that for the purposes of an application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
In Chan v MIEA[14] the Court held that ‘well-founded fear’ involves both a subjective and objective element. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. In this respect, the delegate was concerned that the applicant’s wife’s travel to Erbil in the KRI with their [Age] year old daughter shortly after their arrival in Australia casts doubt on the credibility of the applicant’s claim to fear serious harm on return to Iraq. The Tribunal has considered the applicant’s explanation for his wife’s travel to Erbil with their young daughter for treatment and found it plausible and reasonable in the circumstances of her health and need to obtain surgery. The Tribunal accepts the applicant and his wife saw no alternatives to obtaining medical assistance and that return to the KRI was a safe option. The Tribunal also accepts that the applicants cannot return to the KRI as residents. The Tribunal further accepts that the applicant’s [Age]-year-old child was dependent on her mother at this time. The Tribunal is satisfied that this travel to the KRI by the applicant’s wife and child does not reflect an absence of subjective fear of threat to applicant’s life on return to Iraq. Nor does the Tribunal make an adverse credibility finding against the applicant on this basis.
[14] (1989) 169 CLR 379 at 396.
The Tribunal is also satisfied that the applicant holds a subjective fear of return to Iraq and that the 18 month delay in lodging the protection visa application does not indicate that the applicants’ claim to fear serious or significant harm was is not genuine. The Tribunal accepts the applicant’s explanation that there was a very significant period to run before his student visa expired and notes that country information indicates that the situation in Iraq over that period was very unstable. This application was lodged following the Christmas break, after the applicant’s wife and child had returned to Australia. In these circumstances, the Tribunal is satisfied that delay in lodging this protection visa application does not reflect an absence of subjective fear of threat to applicant’s life on return to Iraq. Nor does the Tribunal make an adverse credibility finding against the applicant on this basis. The Tribunal finds the applicant has a genuine fear of persecution in Iraq.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below the Tribunal accepts that the applicant has a well-founded fear of persecution on both a subjective and objective basis if he is returned to Iraq.
Accepted facts
Based on the applicant’s evidence and the documentation provided to the Tribunal by the applicant the Tribunal accepts and finds the following:
·     The applicant is a [Age] year old moderate Sunni Muslim academic in the field of [Subject]. He is of [a named] tribe from Fallujah, in Iraq. The applicant is married to the second applicant and has two children who are included in the application.
·     The applicant, his wife, and oldest daughter, the third applicant, arrived in Australia on Postgraduate Research Sector visas [in] October 2014. [In] January 2015, the applicant’s wife and the third applicant, departed Australia, returning [in] September 2015. The fourth applicant, the applicant’s youngest daughter was born in Australia on [Date, Year].
·     As a resident of Fallujah, the applicant has been displaced a number of times as a result of conflict. In 2004 he suffered a gunshot wound to the [body part] from sniper gunfire and treated in the US hospital.
·     In 2008, he was detained at a Shi’a militia checkpoint in Baghdad when he was identified as Sunni from Fallujah. He was released by US forces.
·     The applicant is a highly qualified university academic. He completed his [degree] at [University 2], and completed his Master’s degree at [University 4], before undertaking various projects at universities, and commencing lecturing positions in [Specialisation 1] (specialising in [Specialisation 2]) at [University 2], and [University 1], Baghdad. More recently, he taught at [University 3] in Australia where he commenced his PhD.
·     The applicant was granted a scholarship to undertake his PhD in Australia under a program sponsored by Coalition countries. The Tribunal finds that the applicant has deferred his PhD for health reasons, but the Tribunal is satisfied that if he were removed to Iraq he would return to employment in his occupation as a lecturer at University.
·     In Iraq, the applicant is known to be Sunni from his residence in Fallujah and high-profile Sunni family connections, and he is known to have demonstrated anti-Iranian political ideology, advocating for a civil, democratic state and undertaking activities critical of Shi’a militia and Sunni extremists, through his work with his [relative], [Mr A], and the currently detained Sunni leader, [Mr B], and his connection to his father-in-law, a high profile opponent of Islamic extremism.
·     The applicant received threatening letters when undertaking this political work.
·     The applicant’s [relative], and relatives have been accused of being ISIS family members because they have been pursuing investigations of the role of Shi’a militia in the disappearance of their relatives, Sunnis in Fallujah.
·     Local Shi’a militia have been to his neighbourhood enquiring after the applicant most recently in 2020 when his [relative] was linked to a claimed ISIS family member.
·     In Australia, the applicant was assaulted and threatened by a Shi’a colleague at [University 3, Australia] for his support of a civil society and democratic state in Iraq.
Applicant as a moderate Sunni Muslim academic
The applicant claims he has a real chance of being targeted for serious harm by pro- Iranian militia because of his profile as a moderate Sunni academic from Fallujah, with potential to influence students and known to hold views critical of pro-Iranian Shi’a militia, through his connection to high profile figures critical of Shi’a militia activities in Fallujah.
The Tribunal has consulted a range of sources and considers they indicate that academics in Iraq, regardless of their field of teaching or research, have been the subject of threats, assassination, and kidnapping over the course of a number of years.[15] Students, academics and academic institutions have been targeted by ISIS, and students and academics engaged in anti-government activities, political activism, and educational activities deemed objectionable are also subject to mistreatment. [16]
[15] See the website of Scholars at Risk Network for a comprehensive chronicle of these incidents in Iraq over a number of years: Region: Iraq | Scholars at Risk.
[16] EASO Country of Origin Information Report - Iraq Targeting of Individuals', European Asylum Support Office (EASO), 7 March 2019, p.126; 'Country Reports on Human Rights Practices for 2017 – Iraq', US Department of State, 20 April 2018, Section 2.a.
The evidence before the Tribunal indicates that various groups in all regions of Iraq have sought to control the pursuit of formal education and the granting of academic positions. Country information indicates that educators have long faced the threat of violence or other repercussions for teaching subjects or discussing topics that powerful state or non-state actors find objectionable.[17] While reports indicate that attacks against academics in Iraq occurred predominantly in 2006 and 2007, when sectarian violence was at its height,[18] many academic staff from Mosul University were executed by ISIS during the period that the city was under its control and several universities closed as a result of ISIS’s 2014 campaign.[19] It is also clear that academics have been the subject of threats and kidnappings in relation to the recent anti-government demonstrations in Iraq.[20]
[17] Freedom in the World 2022 - Iraq', Freedom House, 24 February 2022, Section D3; 'Freedom in the World 2021 - Iraq', Freedom House, 3 March 2021.
[18] DFAT Country Report Iraq’, Department of Foreign Affairs and Trade, 13 February 2015 [3.101].
[19] 'Making Victory Count After Defeating ISIS: Stabilization Challenges in Mosul and Beyond', Culbertson, S and Robinson, L, RAND Corporation, 24 July 2017, p.43.
[20] ''I just wanted to die': the torture of an Iraqi protester', Abdul-Ahad, G, The Guardian, 18 February 2020.
The Tribunal has noted reports over recent years that some leaders of pro-Iranian Shi’a militia, Popular Mobilization Forces (PMF), have been seeking to establish units in universities in efforts to force universities to comply with the political and religious ideologies of pro-Iranian militia.[21] In this respect, the Tribunal takes into account recent country information that there is a build-up of Shi’a militia groups, Kataib Hezbollah and Badr Organisation, around the applicant’s home in the eastern part of Anbar Governorate including Fallujah.[22] The Tribunal also takes into account a report of a recent decision by the Ministry of Higher Education in the Baghdad government requiring universities to implement a religious reporting program and prioritise Shi’a scholars in Iraqi universities.[23]
[21] “Shiite militias prepare for education 'revolution' in Iraq”.
[22] -project.
[23] The Association of Muslim Scholars: The Ministry of Education’s action in the Baghdad government are a means to stir up sectarian strife, 25 July 2022.
The Tribunal accepts that Shi'a militias have used threats and acts of violence to get their preferred academics into tertiary institutions.[24] On the basis of DFAT country reporting, the Tribunal also accepts that a large number of PMF groups answer directly to the Iranian government, and are powerful and can act with impunity in Iraq and that the Iraqi authorities are not effectively in control.[25] The current DFAT report observes that in-country sources report that those who fall foul of a PMF group in their local area have little chance of gaining recourse or justice through official means.[26] In relation to the applicant’s claim that he faces harm from Shi’a militia as a moderate Sunni academic from Fallujah, the Tribunal has also considered that the United Kingdom Home Office reported in January 2021 that Sunnis are routinely suspected of being involved with IS largely as a way to use that suspicion to justify action against people without any basis in truth.[27] This report also references the US State Department’s annual report on religious freedom of June 2020 that some Shi’a militias, including some under the PMF umbrella, continued to commit physical abuses and were again implicated in several attacks on Sunni civilians, allegedly to avenge IS crimes against Shi’a.
[24] A Thousand Hezbollahs: Iraq’s Emerging Militia State, New Lines Institute, 4 May 2021.
[25] DFAT Country Information Report, Iraq, 17 August 2020, [5.9 – 5.10].
[26] DFAT Country Information Report, Iraq, 17 August 2020, [3.75].
[27]
The Tribunal has accepted above that the applicant has been targeted in the past by Shi’a militia and is identifiable as a Sunni academic critical of pro-Iranian ideology, and a supporter of a democratic, civil society. On this basis, the Tribunal accepts there is a real chance the applicant’s attributes are or will become known to Shi’a militia and that as someone who has influence through tertiary teaching responsibilities at the university, he will be targeted for serious harm from Shi’a militia in Iraq for reason of his religion/imputed political opinion.
As discussed above, the Tribunal finds that the Iraqi government has little, if any, control over its security forces and their associated militia, who are able to target and harm their real and perceived enemies with impunity. Therefore, based on the available country information the Tribunal finds that there is no effective protection measure in Iraq pursuant to ss5J(2) and 5LA of the Act. Accordingly, the Tribunal finds that the real chance the applicant will suffer serious harm relates to all areas of the country.
On the basis of the evidence before it, the Tribunal finds that there is a real chance that the applicant would face threats to his life or liberty, significant physical harassment and significant ill-treatment if he were to return to Iraq. The Tribunal is satisfied that such treatment would amount to serious harm under s5J(4)(b) of the Act. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s5J(4)(c). The Tribunal finds that State protection against the harm he fears is not available to the applicant in Iraq. The Tribunal is satisfied that the real chance of persecution relates to all areas of Iraq. The Tribunal is satisfied that the essential and significant reasons for the applicant’s fear of persecution are his religion and political opinion and his membership of the particular social groups of academics in Iraq.
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution. He is a person in respect of whom Australia has protection obligations under s36(2)(a).
The applicant’s wife and daughters
On behalf of the applicant’s wife and the two children included in this application, the applicant put the claim that in the event they returned to Iraq, they would return with perceived attributes of wealth likely to attract would be abductors seeking ransom.
The Tribunal accepts that the security situation in Iraq, while varying according to location, is highly unstable and fluid and that kidnap by militia and criminal groups for political and monetary gain from either family or employer occurs.[28] However, while the Tribunal accepts that the applicant’s job as an academic is well regarded, the applicant is not at a high level of academic seniority or salary, and in the event the family returned to Iraq, the Tribunal is not satisfied they would be returning as people who might attract attention for their wealth. The Tribunal acknowledges that the applicant’s children may appear westernised having grown up in Australia but considers DFAT advice indicates that large numbers of dual nationals return to Iraq from the West and experience no difficulties. The Tribunal is not satisfied that the applicant’s wife and children will attract adverse attention from militia or criminal gangs for this reason.
[28] DFAT Country Information Report, Iraq, 17 August 2020, [2.54]; OSAC Country Security Report Iraq', Overseas Security Advisory Council (OSAC), 2 September 2021, p.11; 'Iraq: Security situation', European Asylum Support Office (EASO), 30 October 2020, p.82.
For these reasons, the Tribunal is not satisfied that the second, third or fourth applicants have a real chance of serious or significant harm from militia or criminal groups or any other actor on return to Iraq. The Tribunal finds that the second, third or fourth applicants do not have a well-founded fear of persecution for any reason on return to Iraq now or in the reasonably foreseeable future. For the same reasons, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of any of the second, third or fourth applicants being removed from Australia to Iraq, there is a real risk that they will suffer significant harm.
CONCLUSION
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 s36(2)(a).
The Tribunal is not satisfied that the second, third or fourth 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 second applicant, the applicant’s wife, and the third or fourth named applicants, the applicant’s children, are members of the same family unit as the first named applicant for the purposes of s36(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 second, third or fourth named applicants will be entitled to a protection visa provided the criterion in s36(2)(b)(ii) and the remaining criteria for the visa are met.
decision
The Tribunal remits the matter for reconsideration with the following directions:
(i)        that the first named applicant satisfies s36(2)(a) of the Act;
(ii)that the other applicants satisfy s36(2)(b)(i) of the Act, on the basis of membership of the same family unit as the first named applicant.
Amanda Paxton
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.
…

[2022] AATA 4058

12 September 2022

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