1905039 (Refugee)

1905039 (Refugee) [2022] AATA 889 (13 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905039
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Joseph Lindsay
DATE:13 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 36(2)(a) of the Migration Act.

Statement made on 13 April 2022 at 5:19pm

CATCHWORDS
REFUGEE – protection visa – Iraq – political opinion – fear of harm from pro-Iranian Shia extremist militia – witness to father’s murder – threats but no harm – inadequate investigation by police – mental health – credible claims and evidence – country information – unstable security situation and continuing militia activity – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 18 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Iraq, applied for the visa on 18 September 2018. The applicant appeared before the Tribunal on 5 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (Cth) (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection are now quite old, and largely date from 2010. As detailed in his more recent statement dated 3 November 2021, the applicant’s key claim is that he fears the Thar Allah militia group in Iraq. He claimed that before he left Iraq, his father was murdered by members of the Thar Allah militia group in 2006. The applicant stated that he personally witnessed this incident. He also claimed he has mental health issues.
In the hearing, the Tribunal discussed the applicant’s protection claims. The applicant gave evidence about his father and how his father died in 2006. He gave evidence about his father’s employment at [a] company. Importantly, the applicant gave evidence about how his father was threatened by some people who wanted a car from him, and how his father was subsequently shot and killed in 2006. The applicant gave evidence about how he saw what he believed to be members of the Thar Allah militia group shoot his father. He said he and his father were at home at the time of the incident. He said his father was drinking tea outside the house, and the applicant was also outside the house. The applicant said he was speaking to a neighbour at the time. The applicant said that a [vehicle] drove near the house, and then another person came behind his father and shot him dead. The applicant said he started screaming when he saw his father get shot, and then he ran towards his father. The applicant said someone got out of the [vehicle] with a gun and told him to stop screaming or he would be shot as well. The applicant said the man then got back in the [vehicle] and the [vehicle] drove away. The applicant indicated that this incident had a profound impact on the family and himself. He said the police were aware of the incident but did not properly investigate the matter and the assailants were never held to account.
The applicant conceded that he remained in Iraq for some time after the incident, and left Iraq in 2010. The applicant said he remained in the same house up until the time he left Iraq. He said he did receive threats when he was in Iraq but he was never personally harmed and none of his other family members have been harmed. The applicant said he has not been threatened since he left Iraq. He said the threats he received after his father’s death were what motivated him to leave Iraq.
The applicant spoke about his fears about the Thar Allah militia, and what he thought would happen to him if he returned to Iraq. He said that, even given the significant lapse of time since he has been in Iraq, he was still afraid. He said that even though he did not have any fears about the Iraqi authorities, he thought they would consider him to be a spy.
The Tribunal spoke with the applicant about the DFAT Country Information Report for Iraq dated 17 August 2020. The Tribunal put to the applicant that the DFAT report did not support the applicant’s claims that the Iraqi authorities would necessarily treat him as a spy or harm him. In response, the applicant said he thought if he went back to Iraq, he would be taken away and interrogated and harmed by the Iraqi authorities.
The Tribunal also discussed a number of articles in the public arena about the Iraqi government’s more recent attempts to deal with Thar Allah. A recent article from Al-Monitor[1] stated:
Iraqi police in the southern province of Basra stormed the office of the Thar Allah al-Islami militia Monday and arrested all the members in the office, including its leader, Yusif Sanawi. Militia members were accused of shooting protesters from their office on Sunday.
Thar Allah was established in 1995 and was active against Saddam Hussein. It was a part of a sectarian war in southern Iraq after Saddam was ousted in 2003. The militia was dismantled and Sanawi was arrested in the Battle of Basra military campaign under then Prime Minister Nouri Maliki in 2008. But Sanawi was able to escape to Iran, where he stayed for years, before he returned and reactivated the militia in 2014. Sanawi formed a political wing and participated in the 2018 election but did not win any seats.
The office of new Prime Minister Mustafa al-Kadhimi later announced that he had ordered the attack on the Thar Allah militia. “With direct oversight by Commander-in-Chief PM @MAKadhimi, Iraqi security forces today conducted a dawn raid on a building in Basra Province from which bullets were fired earlier at demonstrators, killing one protestor and injuring others,” his Twitter account said.
“The security forces arrested all those inside the building and confiscated their weapons and ammunitions. Those detained have been referred to the judiciary,” it added.
In his first Cabinet meeting, Kadhimi ordered the release of all protesters arrested during the last few months and formed a special committee to identify the militias that have shot and abducted protesters. He returned Lt. Gen. Abdul-Wahab al-Saadi to the Special Counterterrorism Force and made him head of the force. Saadi's removal last year by then Prime Minister Adel Abdul Mahdi triggered the mass protest movement that began in October.
In his government plan approved by the parliament, Kadimi put “restricting the arms to the state” at the top of his priorities, promising to identify, prosecute and try all militias involved in violent attacks against the protesters during the last seven months.
[1] Al-Monitor, 11 May 2020, Iraqi Security forces target armed groups that attacked protesters
Similar reporting was found in an article from Voice of America[2] that in part stated:
In his first week as prime minister, al-Kadhimi issued a decision to free all the anti-government protesters who had been arrested by the previous administration to the displeasure of the U.S.
He also directly went after a militia group accused of killing protesters and closed the office for Thar Allah, or God’s Revolution, a pro-Iran militant group, in Basra.
"Kadhimi’s priority is much needed damage control caused by Adil Abdul-Mahdi’s tenure,” said Bilal Wahab, an Iraq expert at the Washington Institute for Near East Policy, referring to the previous premier. It includes “deeper militia infiltration and activity, Iraq’s regional and international isolation due to Baghdad’s closeness to Tehran, and seeking accountability for the brutal crackdown against the protesters,” he told VOA.
Before assuming office, al-Kadhimi was the director of Iraq’s National Intelligence Service, an organization that under his stewardship played a critical role in the territorial defeat of the Islamic State (IS) terror group in Iraq.
“National intelligence, he has reformed it very well,” said Abbas Kadhim, an Iraq expert with the Atlantic Council, adding that al-Kadhimi turned the intelligence service into a more effective and apolitical institution that cooperated with rival countries, such as Saudi Arabia, Iran and the U.S., on counterterrorism matters.
“He was credited with providing critical information to the U.S. that led to the killing of [IS leader Abu Bakr] al-Baghdadi,” he added.
[2] Voice of America, 22 May 2020, Iraq’s New PM Was Once Critical of Country Seen as ‘Iran’s Backyard’, accessed 5 November 2021.
In response, the applicant said he was still concerned about his security, and whether he would be safe from attacks from Thar Allah. The applicant said he still felt that he would not be safe, despite the recent efforts by the Iraqi government. In any event, the applicant said if he went back to Iraq he would search for the people that killed his father, and he did not believe that, even given the significant lapse of time since he was last in Iraq, that he would be safe.
The Tribunal put to the applicant that the DFAT report indicated he would be able to access mental health services in Iraq. However, the applicant maintained that services in his home area of Basra were very poor.
The Tribunal notes that the applicant’s representative provided post hearing submissions dated 26 November 2021.
Analysis and Findings
The Tribunal has carefully considered the applicant’s claims and the evidence available to the Tribunal in respect to those claims. The Tribunal accepts that the applicant gave credible evidence in respect to his claims. The Tribunal accepts that when the applicant was in Iraq, he witnessed his father’s murder by members of the Thar Allah militia group. The Tribunal accepts that the applicant fears the Thar Allah militia group in Iraq.
The Tribunal has carefully considered the submissions from applicant’s representative, which were comprehensive and persuasive. The DFAT report makes clear that:
2.54 The security situation in Iraq, while varying according to location, is highly unstable and fluid. Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire, assassinations and kidnapping for ransom. Targets include government security forces, government offices, diplomatic missions, coalition and Iraqi military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure.
2.55 Increasing tension between the US and Iran, and their actions within Iraq, has further complicated the security environment. Shi’a militias aligned to Iran in the Popular Mobilisation Forces want to expel US forces from Iraq and, as a result, have launched rocket attacks against the International Zone in Baghdad (formerly known as the Green Zone) and other locations in Iraq, relatively frequently. In a two-day period across the 2019-20 New Year, violent demonstrations by PMF elements caused damage to the external perimeter and guard houses of the US Embassy compound. The US subsequently killed Qasem Soleimani, head of Iran's Islamic Revolutionary Guard Corps (IRGC). Iran responded with ground-to-ground missile strikes on a number of Iraqi military installations that hosted US troops.
In addition, the DFAT report’s commentary on state protection states:
5.1 The ability of authorities to provide state protection varies according to geographic location, with several parts of the country not under the effective control of the state. Human rights groups have consistently raised concerns that impunity for abuses committed by security authorities and other official bodies remains the norm. All state protection institutions are significantly subject to and affected by Corruption, particularly the police. State protection bodies are also heavily politicised, and politically motivated appointments and problematic management have negatively affected their overall performance in many cases. Poorly defined administrative boundaries and disputed territories between central authorities and the KRG have led to confusion and dispute in some instances over the jurisdiction of security forces and the courts. As reported in Protesters and Demonstrators, civilian authorities quickly lost control of the largescale protests that began in early October 2019, resulting in large numbers of deaths and injuries.
In consideration of the country information and the information from the applicant and his representative, the Tribunal makes the following findings.
The Tribunal accepts that there is a lack of information about exactly what further progress has been made by the Iraqi authorities in respect to Thar Allah. The Tribunal accepts that while the 2020 intervention by the Iraqi authorities does show some interest from the Iraqi government in curtailing the activities of such militias, the Tribunal gives this factor limited weight. The Tribunal accepts that the intervening action was only taken after Thar Allah orchestrated public and well-publicised attacks on protestors, and it was in fact the national attention and politicised nature of these attacks which led to the Iraqi government taking action.
The Tribunal accepts that current country information indicates that pro-Iranian militias such as Thar Allah, Asaib Ahl Al-haq and others continue to demonstrate they are active in Iraq by orchestrating attacks and making aggressive public statements against the Iraqi government, demonstrating that intervening action by the Iraqi government has not deterred these groups.
The Tribunal accepts that media reports from local sources indicate that both Thar Allah and its leader, Youssuf al Moussawi, remain active in the Basra area. The Tribunal accepts that Youssuf al Moussawi along with other members of the Thar Allah party were candidates in the recent Iraqi elections for district 2 and 3 in the Basra region. The Tribunal accepts that this group remains active on such platforms as YouTube, with regular posts promoting the agenda of both Thar Allah and Youssuf al Moussawi. The Tribunal accepts that this continued activity demonstrates that, despite attempted government intervention, the militia continues to operate and present a significant risk of serious harm to those who oppose them.
The Tribunal accepts that if the applicant were to be harmed, such actions would be unlikely to draw the attention of the Iraqi government and any investigations would likely be handled by inadequate and easily corruptible police forces. The Tribunal accepts that these same police forces conducted little to no follow up when the applicant’s father was murdered and are unlikely to deter the Thar Allah militia.
The Tribunal accepts that were the applicant to return to Basra he would draw immediate attention, given his extended absence and profile as a returnee from a Western nation. The Tribunal accepts that in returning to Basra the applicant would be required to prove his identity at numerous checkpoints, making detection unavoidable. The Tribunal accepts that these checkpoints are staffed predominantly by members of the police force that are, according to the latest DFAT report, easily corrupted and susceptible to being influenced by external organisations.
The Tribunal accepts that any sporadic interest by the Iraq government in prosecuting pro-Iranian militia groups will likely exacerbate the risk faced by the applicant.
The Tribunal accepts that the applicant is the only member of his family to witness his father’s murder and is as such the only one who could be relied upon to testify in court or seek tribal recompense should action be taken. The Tribunal accepts that tribal resolutions for such matters can often be protracted affairs and be acted upon long after an event taking place with experts explaining that tribal feuds ‘will not fade away with time’.
The Tribunal accepts that as a witness who could testify against militia members for the murder of his father, the applicant could be targeted by Thar Allah or affiliated groups. This specific harm would occur with the aim of preventing the applicant from testifying in any potential charges or tribal complaints that could be raised against Youssuf al Moussawi and Thar Allah members.

The Tribunal accepts that after witnessing his father’s murder, the applicant made subsequent enquiries and received threats to his life. Accordingly, the Tribunal accepts that the applicant has an imputed anti-Thar Allah, and more broadly anti-Iranian, political opinion, and the applicant’s perceived opposition of these pro-Iranian Shia militias place him at risk of harm from such militia groups.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Joseph Lindsay
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.
…

Iraq's new government is taking a series of decisions to rein in Iran-backed militias, accessed 5 November 2021.

[2022] AATA 889

13 April 2022

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

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Jurisdiction

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