1906304 (Refugee)

[2022] AATA 2849

1906304 (Refugee) [2022] AATA 2849 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Penny Dimopoulos (MARN: 0636233)

CASE NUMBER:  1906304

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Peter Vlahos

DATE:30 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

This Statement was made on 30^th June 2022 at 11.30PM.

CATCHWORDS
REFUGEE – Protection Visa – Iraq – religion – Assyrian Christian – participated in a police operation against illegal money transfers – applicant is a Christian in a predominately Sunni Muslim country with no real recourse to protection – effective protection measures are not available – decision under review remitted  

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Iraq, applied for the visa on 30 June 2016. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.

3. The applicant appeared before the Tribunal on 31 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arab and English languages.

4. The applicant provided no witnesses to the Tribunal for examination.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   Criteria for a protection visa

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of origins and nationality

13. Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal at the hearing and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Iraq and has had his claims (as submitted) assessed against that country in relation to his claims made pursuant to ss. 36(2)(a) and 36(2)(aa) of the Act and on the basis of this evidence before the Tribunal, the Tribunal further concludes and finds that the applicant’s identity is as claimed for the purposes of this decision.

    Department File before the Tribunal

14. The Tribunal has before it the Department’s file relating to the applicant’s application for Protection visa. The Tribunal also has had regard to the material and information referred to in the delegate’s decision record. The applicant provided a copy of this decision to the Tribunal with his Application to review the Department’s decision.

    Background – the Applicant’s migration/visa history

15. The applicant’s migration and visa history is recorded in detailed in the delegate’s decision record.[1] The Tribunal noted that the applicant on 7 February 2016 submits an application for a Class FA subclass 600 Visitor visa (offshore). On 25 February 2016 the applicant is granted his Subclass 600 visa. On [date] April 2016 the applicant departs from Iraq for Australia. On [date] April 2016 the applicant arrives in Australia.

    [1]see, Department for Home Affairs File [number] at Part 3 in particular pp. 1, 2.

16. On 30 June 2016 the applicant lodges his current Class XA subclass 866 Protection visa application.

17. On 15 July 2016 the applicant’s Subclass 600 visa ceases to have effect.

18. On 5 February 2019 the applicant attended his Protection visa interview.[2]

    The applicant’s background – Personal History

    [2] Ibid see Decision Record. 

19. Based on information provided to delegate at the time of interview and to the Tribunal at the time of hearing, the applicant is currently a [age]-year old never married male from [City 1], Erbi Governorate in the Kurdish region of Iraq. The applicant identifies as an ethnic Chaldean and is of the Catholic Christian faith. He records in his application for Protection visa that he speaks, reads, and writes English, Assyrian and Arabic. The delegate noted in his decision record that at the interview, it was clarified that the applicant also speaks the Kurdish language. The applicant stated that he moved from [City 1] to the predominantly Christian neighbourhood of [Suburb 1] in Erbil city when he was a student at the university. He also said that he previously helped his family with the land they tilled, worked as a [Occupation 1] and also as ‘[Occupation 2]’ for a [business] in Erbil up until he came to Australia. The applicant also said he had a small company – his own [business] – which he (told the department) he has since sold. The applicant’s parent and two younger brothers still live in Iraq while his younger sister has been granted asylum in [Country 1] in recent years. The applicant has as number of relatives, mostly from his mother’s side, in Australia.

    The applicant’s claims for Protection

20. The applicant’s claims for protection, including those raised at his interview, and evidence provided by the applicant in support of his claim are found in the Department’s File.[3] The applicant’s claims for protection are summarised as follows:

    §The applicant thinks he will be detained and possibly killed if he returns to Iraq;

    §the applicant has experienced harm in Iraq;

    §the applicant has sought help from the authorities, but they cannot help him as he is an Assyrian Christian

    §the applicant tried moving to another part of town, but he was still not safe as there is no authority to help him;

    §the applicant does not think the authorities can and will help him and he does not think he will be able to relocate within Iraq;

    [3] [Department file number]

21. The applicant also submitted a statement of claims dated 23 May 2016[4] which provided the following claims:

    [4] Statement of Claims: ‘[The applicant] – ‘Personal Statement of Claims’ in Department File [number].

    §The applicant is a Chaldean Christianity minority from Iraq who was forced to flee Iraq and arrived in Australia in April 2016 due to persecution and death threats;

    §The applicant’s maternal grandmother [named] and aunt [named] are in Australia;

    §The applicant is from a predominantly Sunni Muslim northern Iraqi Kurdistan city of [City 1] in Erbil governorate around [number] kilometres northeast of Erbil where his father, grandfather and uncles are well-known producers of [a product];

    §In 1999, Muslim fundamentalists threatened and forced his grandfather and uncles to leave Iraq, but his father remained in [City 1] and moved to another residence instead;

    §In mid-2005, the applicant and his father were travelling to Sulaymaniyah to deliver [goods] when gunmen at a fake checkpoint fired bullets at their truck, injuring his father in his leg;

    §The applicant’s family lived off their land after that;

    §In December 2009 the applicant was studying in Erbil and it became difficult for him to constantly travel back and forth between [City 1] and Erbil, so he moved to [Suburb 1] – the main Christian Chaldean part of Erbil where his mother owns a house;

    §The applicant also worked [as] a [Occupation 1], but the applicant was threatened by some Muslim radical students for serving alcohol and immorality in a Muslim society, and Muslims continually brand Christians in Iraq as “infidel crusaders”;

    §In September 2012, three months after graduating from university, a Sunni Muslim friend helped the applicant secure a job at a company owned by his Muslim friend’s relatives;

    §The applicant was the only Christian in that company, but he worked hard and was promoted

    §In April 2014 the applicant also obtained a travel agency licence to run his own [business];

    §Two months later, ISIS terrorists stormed Mosul in June 2014 and Christians in Mosul had to either flee or die by the sword, resulting in a mass exodus of Christians to Erbil;

    §Christian homes in the area had the letter ‘N’ painted in red paint, and ISIS deemed those houses as property of the Islamic State;

    §In November 2015, the applicant feared for his life when [Mr A] an Arab man living in Erbil came with another unidentified man and tried to bribe the applicant into helping them transfer large funds from [Country 2];

    §[Mr A] stated that his unidentified friend was acting on behalf of a wealthy merchant in Kirkuk, but the applicant refused to help them, so [Mr A] gave him “a few days” to re-think their offer;

    §The applicant felt that something was wrong, so he reported the matter to management who reported the matter to Asayish – the “Kurdistan Regional Police”;

    §The company was obliged by law to report any suspicious transfer of funds in excess of certain limits and there had also been rumours that Muslim fundamentalists were trying to covertly transfer illegal funds into Iraq for ISIS which controlled Mosul;

    §A few days later, [Mr A] and his friend – the unidentified man – returned and the applicant again refused to cooperate and this time they gave the applicant the ultimatum to help transfer the funds or face consequences and the applicant therefore pretended to agree to help them, so they left;

    §The applicant did this as he was instructed to do so as per his agreement with the Asayish and was helping the police;

    §A few days later, as the first transfer of funds took place, the two culprits were arrested red-handed when the Asayish forces raided the applicant’s company premises;

    §Ten days later, the applicant received threatening phone calls from terrorists threatening to kidnap and kill the applicant after calling him an infidel and traitor and accusing him of being behind the police raid;

    §The applicant was very terrified and knowing the authorities could not protect him, he applied for a visitor visa on 7 February 2016 and after it was granted on 25 February, he finally left Iraq and arrived on [date] April 2016;

    §The applicant’s future in Iraq is very uncertain and neither the Iraqi nor Kurdish authorities can or will protect him;

    §If he returns to Iraq, he will be targeted by Muslim terrorists as they can easily track him down.

22. The Tribunal noted and observed what was recorded in the delegate’s decision record that at the interview, the applicant submitted additional materials in support of his protection visa claims. This included a letter purportedly from a former colleague who witnessed the 2015 incident and a letter attesting to the refugee status of his sister in [Country 1].[5]

    [5] see AAT File, and Department File [number]

    EVIDENCE AT THE HEARING

23. The applicant confirmed for the Tribunal that he arrived in Australia as the holder of Tourist visa on [date] April 2016. He also confirmed for the Tribunal that he applied for a Protection visa in June 2016.

24. The applicant also confirmed for the Tribunal his biographical details as were provided to the Department.

25. The applicant confirmed the had two siblings – a brother and a sister, who had gained asylum in [Country 1].

26. Currently, while being in Australia, the applicant is employed on construction sites where he works doing [specified work] and has been doing this work for the past six (6) years.

27. The applicant does not have regular contact with his family in Iraq but tries to talk with his family ‘once a month.’

28. The applicant was asked to explain to the Tribunal – why he feared returning to Iraq? The applicant said that he fears returning to Iraq because he ‘will be killed.’ The applicant said that before he left Iraq for Australia, he was a target for ‘persecution.’

29. The applicant said that he is a ‘Christian’ and ‘his work made [him] a target.’

30. The applicant said that while in Iraq, he worked for his accommodation and living, and he was living ‘on his own…’

31. The applicant was as asked by the Tribunal to explain – what type of Christian was he? The applicant described himself as ‘Orthodox’ in his religion. He told the Tribunal that ‘his father was Catholic’. This religious fusion made the applicant as he described himself a ‘Chaldean Catholic Christian’. The ‘Chaldeans’ are [as the applicant explained] ‘Christians’ and were similar to the ‘Assyrians’ (also Christians).

32. The applicant was asked by the Tribunal – why was he unable or unwilling to return to Iraq? The applicant explained to the Tribunal that [when in Iraq] he was employed in a [company]. The company was described by the applicant as Muslim/Kurdish commercial operation, and he was the only ‘Christian’ employee.

33. The applicant said that a transfer was made of an amount of US$270,000.00 by a ‘merchant in [Country 2]’ to others. The applicant described this transaction as ‘a large sum of money for suspected terrorism funding.’

34. The applicant’s employer – [Company 1] was involved (according to the applicant) in a police operation to ‘prevent a suspected Islamic extremist (s) from transferring funds illegally to Iraq.’

35. Shortly after this incident while at his place of employment, the applicant received a threatening phone call. The applicant said that the call was from an unidentified number and that person did not identify himself. However, this person said [to the applicant] that ‘they knew what [the applicant] had done as his company’s employee and that he should live in fear’ for his wilful participation in the police operation.

36. The applicant explained that he had difficulties informing the police about this threatening phone call because he had ‘no identifiers’. The threat on the phone ‘only involved the applicant’ a known Christian and no one else.

37. The applicant also explained to the Tribunal that as a known Christian, he felt that the local authorities ‘would not take the matter seriously’ or ‘do anything about it.’ The applicant (and his counsel) told the Tribunal that ‘these types of incidents (threats to Christians) occur habitually to Christians in Iraq’ and ‘are ignored by the police’ who ‘fail to take action in response’ to such incidents protecting those threatened.

38. The applicant explained that the fact that he was not harmed or ‘killed’ in the weeks that followed the incident of the police operation ‘did not suggest’ that ‘there was not a real risk to his life.’ The applicant could not provide a particular reasoning as to why the person or group of persons who had lost this money to the police because of their intervention, had taken any reprisals against him. Nevertheless, the applicant said that ‘the activities and methods of terrorists and Islamic extremists do not follow a protocol or rational code of conduct or specified timeline.’

39. The applicant said that to ‘conclude that it is safe for him to return to Iraq’ because ‘he has immediate family members still living there’ was not correct assessment of his circumstances. The applicant said that Iraq today (according to country information) as far as it concerned the country’s Christian minority ‘clustering in numbers cannot protect targeted groups.’ The applicant said that (as he was) ‘Christians’ had been ‘systematically and unremittingly killed and harmed’ in ‘all parts of Iraq’ ‘in the last 15 years.’

40. The applicant said that even though his family is living in Iraq ‘they do not live [a] life free from persecution.’ Also, what was clear in his circumstances was that ‘his employment’ made him the immediate target and not his family members.

41. The applicant told the Tribunal that other family members had left Iraq because of the corruption, lawlessness and instability and in particular, his sister had successfully gained ‘refugee status’ in [Country 1]. According to the applicant, the whole history of Iraq indicates that even in the present, Iraq is the ‘most dangerous country’ and ‘can destabilize dramatically into extreme violence and warfare.’

42. The applicant said he feared returning to Iraq. He told the Tribunal that the circumstances in which he found himself in while working at [Company 1] have not gone away. The applicant did not have any confidence in being able to be provided with assistance or protection by the authorities first, because of his religion – he is a Christian and second, he had no confidence in the local authorities because they were influenced by bribes and were openly corrupt.

1. The applicant ended his remarks to Tribunal by saying that he had no intention of returning to Iraq and he also told the Tribunal that the applicant’s sister had not, return to Iraq nor had his three uncles who had also left Iraq to live overseas. For the applicant Iraq was an extremely volatile and unsafe place – especially for Christians and for Iraqis who have lived overseas.

   Submissions by the applicant’s legal counsel

2. The Tribunal also noted and considered the contents of the applicant’s legal counsel’s written submission which explained in detail the applicant’s claims and addressed in detail the Department’s concerns about the applicant’s claims.[6]

   COUNTRY INFORMATION – IRAQ – CHRISTIAN MINORITIES – LAW AND ORDER – STATE AUTHORITY TO POLICE CIVIL SOCIETY – CORRUPTION

   [6] see AAT File, P. Dimopoulos LLB & Migration Agent (MARN 0636233), METICUS, Lawyers and Registered Migration Agents written submission dated 19 February 2019.

3. The country information which follows has its source in the Department of Foreign Affairs and Trade Country Information report - Iraq released on 17 August 2020.

4. Religion: Article 2(1) of the Constitution states that Islam is the official religion of the State and is a foundation source of religion and prohibits the enactment of any law that contradicts the established provisions of Islam. The second part of Article 2 guarantees the rights of freedom of religious belief and practice of all individuals, especially mentioning Christians, Yazidis and Sabean-Mandeans. A number of constitutional articles further guarantee freedom of religion. Article 14 guarantees that Iraqis are equal before the law without discrimination based on (among other things) religion, sect or belief. Article 41 guarantees that Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs, or choices. Article 43 (1) guarantees that the followers of all religions and sects are free in the: a) practice of religious rites, including the Husseini (Shi’a) rituals; b) management of religious endowments, their affairs, and their religious institutions; and Article 43 (2) guarantees that the state shall guarantee freedom of worship and the protection of places of worship.

5. The following religious groups are recognised by the personal status law and thereby registered with the government: Muslim, Chaldean, Assyrian, Assyrian Catholic, Syriac Orthodox, Syriac Catholic, Armenian Apostolic, Armenian Catholic, Roman Catholic, National Protestant, Anglican, Evangelical Protestant Assyrian, Seventh-day Adventist, Coptic Orthodox, Yazidi, Sabean-Mandean and Jewish. Recognition allows groups to appoint legal representatives and perform legal transactions such as buying and selling property. The law does not specify penalties for the practice of unrecognised religious groups (with the exception of the Baha’i), but contracts signed by institutions of such groups are not legal or permissible as evidence in court.

6. Federal law does not provide a mechanism for a new religious group to obtain legal recognition. In the KRI, however, religious groups can obtain recognition by registering with the KRG Ministry of Endowment and Religious Affairs (MERA). To register, a group must have a minimum of 150 adherents, provide documentation on the sources of its financial support, and demonstrate it is not anti-Islam. Eight faiths are registered with the KRG MERA: Islam, Christianity, Yazidism, Judaism, Sabean-Mandaeism, Zoroastrianism, Yarsanism and Baha’ism.

7. By law, the Iraqi government provides support for Muslims outside the KRI desiring to perform religious pilgrimages to Mecca and Medina (the hajj and umrah), organising travel routes and immunisation documents for entry into Saudi Arabia. In the KRI, the KRG MERA organises hajj and umrah travel, carrying out a lottery to choose the pilgrims for official Hajj visas allotted to the KRI. The government of Iraq does not provide support for external pilgrimages to other religious groups but does provide security for places of worship and other religious sites, including churches, mosques, shrines and religious pilgrimage sites and routes. The Penal Code criminalises disrupting or impeding religious ceremonies and desecrating religious buildings, imposing a penalty of up to three years’ imprisonment or a fine of IQD300 (AUD0.43) for such offences.

8. Government policy requires Islamic instruction in public schools, but non-Muslim students are not required to participate. Some non-Muslim students have reported experiencing pressure to attend the Islamic instruction classes from instructors and classmates. In most areas of the country, primary and secondary school curricula includes three classes per week of Islamic education, including study of the Quran, as a graduation requirement for Muslim students. Christian religious education is included in the curricula of at least 150 public schools in Baghdad, Ninewah and Kirkuk.

9. Although there are no reliable statistics, religious minorities have reported that they are underrepresented in the ranks of national police, senior military, and intelligence and security services. Religious minorities also report being underrepresented in government appointments, in elected positions (other than reserved seats) and in public sector jobs, particularly at the provincial and local levels. This underrepresentation tends to limit the access of religious minority communities to government-provided economic opportunities.

10. There have been ongoing reports that non-Muslim minorities feel pressured by the Muslim majority to adhere to certain Islamic practices, such as wearing the hijab (traditional Islamic clothing) or fasting during Ramadan. Christians in the south and in PMF-controlled towns on the Ninewah Plain have reported that they avoid celebrating their religious festivals when they coincide with Islamic periods of mourning, such as Ashura (a day of historical significance and mourning for Shi’a, marking the murder of the Prophet Mohammed’s grandson Hussein). Non-Shi’a Muslims and non-Muslim women report feeling societal pressure to wear the hijab and all-black clothing during the holy month of Muharram, particularly during Ashura, to avoid harassment. According to representatives of Christian NGOs, some Muslims continue to harass women and girls, regardless of their religious affiliation, for refusing to wear the hijab, for dressing in Western-style clothing, or for not adhering to strict interpretations of Islamic norms governing public behaviour. Outside the KRI, numerous women, including Christians and Sabean-Mandeans, have reported opting to wear the hijab after continual harassment.

11. A number of religious minority communities (including Turkmen, Sunni and Shi’a Arabs, Yazidi, Shabak and Christians) have reported cases of discrimination from KRG authorities in territories claimed by both the central government and KRG, particularly in relation to land and property disputes. In one such case in the Nahla Valley area of Dohuk, a court sentenced Muslim Kurds convicted of taking Christian-owned land to a three-month suspended sentence, a token fine, and a requirement that they make a written pledge they would not encroach on the land again. Authorities made no attempt to follow up on the case, however, and some of the Kurds continued to occupy land the court had ruled belonged to the Christian community. A land dispute dating from 2003 – when the KRG seized 11,000 hectares (27,000 acres) of farmland near Ankawa owned by 220 Christian farmers for the construction of the Erbil International Airport– remains unresolved

12. Christians: The general decline in tolerance towards ethnic and religious minorities from majority communities in Iraq since 2003 has significantly affected Christians. Local sources report increased harassment and violence in areas where Christians are a minority, including Shi’a areas of Baghdad or in Basra. The Christian population has declined considerably since the March 2003 US-led invasion from a pre-2002 population estimate of between 800,000 and 1.4 million persons. According to Christian leaders, there are now fewer than 250,000 Christians remaining in the country, with the largest population – at least 200,000 – living in the Ninewah Plain and the KRI. According to estimates provided by Christian groups, the number of Christian families leaving Iraq daily ranged from 10 to 22 in 2018. Approximately 67 per cent of remaining Christians are Chaldean Catholics (an Eastern Rite of the Roman Catholic Church), and nearly 20 per cent are members of the Assyrian Church of the East. The remainder are Syriac Orthodox, Syriac Catholic, Armenian Catholic, Armenian Apostolic, and Anglican and other Protestants. There are approximately 2,000 registered members of evangelical Christian churches in the KRI, while an unknown number, mostly converts from Islam, practise the religion secretly.

13. A number of Christian denominations are recognised by the personal status law and thereby registered with the government. Recognition allows groups to appoint legal representatives and perform legal transactions such as buying and selling property. All recognised religious groups have their own personal status courts responsible for handling marriage, divorce, and inheritance issues.

14. In addition to the Christian denominations recognised by the federal government, the KRG has also recognised 11 evangelical and other Protestant denominations. Christian groups in the KRI may register separately with the Council of Iraqi Christian Church Leaders, an independent group formed by Christian church leaders that includes six evangelical Protestant churches. Registration with the Council of Iraqi Christian Church Leaders provides Christian churches and leaders with access to the KRG MERA and to the KRG’s Christian endowment. Some religious leaders from established apostolic churches in the KRI and Ninewah Plains have expressed concern that the KRG MERA made it too easy for new Christian groups to become established in the KRI and accused the new groups of damaging the churches’ relationships with local Muslims by proselytising.

15. As the legal ban on alcohol consumption by Muslims prevents Muslim store owners from applying for permits allowing them to carry and sell alcohol, Muslim businesspeople reportedly sometimes use Christians (and other religious minorities) as fronts to apply for these permits and operate these stores. Despite having permits, Christians involved in the alcohol business report regularly receiving threats from some PMF groups and individuals opposed to the alcohol trade. In February 2018, several gunmen shot and killed a Christian man in front of his home in Baghdad. The man had reportedly received threats to stop selling alcohol near a Muslim neighbourhood.

16. Like other religious minority communities, Christians suffered greatly during the Da’esh occupation in northern Iraq, with many forcibly converted to Islam, abducted, raped and/or killed. Da’esh destroyed religious sites including, in January 2016, the 1,400 year old Monastery of Saint Elijah, the oldest Christian monastery in Iraq. Most Christians attempted to flee Da’esh-controlled areas, and many have sought safety outside Iraq. Some Christians have complained that the Peshmerga and other security forces took over homes and at least one town abandoned by Christians fleeing from Da’esh. Christians from the Ninewah Plains area who were forced to leave their homes during the Da’esh occupation have reported being prevented from returning to their homes by PMF groups. State protection in these circumstances is unlikely to provide adequate recourse.

17. DFAT assesses Christians belonging to recognised denominations face a low risk of official discrimination. Like other minorities, Christians face a moderate risk of societal discrimination and violence in areas where they are a minority. Those involved in the alcohol trade face a high risk of societal violence. Christians living in areas controlled by PMF groups are likely to keep a low profile to avoid negative attention, including through adopting hijab. Those living in areas where violence continues or who have been displaced face a risk of societal violence similar to that faced by other groups living in those areas or situations.

18. State Protection: 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, civilian authorities quickly lost control of the large scale protests that began in early October 2019, resulting in large numbers of deaths and injuries.

19. Popular Mobilisation Forces (PMF): The Popular Mobilisation Forces (PMF) are a state-sponsored umbrella military organisation composed of approximately 60 militia groups operating nationwide. The PMF was formally established based on a 2014 fatwa (Islamic declaration) by Iraq’s Grand Ayatollah to assist in the conflict against Da’esh, and they played an important role in the eventual military victory. Most PMF units are Shi’a Arab and operate across Iraq, while Sunni Arab, Yazidi, Christian and other minority PMF units generally operate within or near their home regions. International observers place the numbers of those involved in the PMF at between 130,000 to 150,000 fighters, although precise figures are unclear. In the lower ranks, many of those involved in the PMF are reportedly motivated by financial considerations rather than ideology. In-country sources report that many PMF members ‘moonlight’ from other jobs including in the police.

20. A large number of PMF elements reportedly answer directly to the Iranian government, and in particular to the Islamic Revolutionary Guard Corps. In-country sources have described some PMF groups as being essentially Iranian occupation forces. As noted, a US drone strike in January 2020 assassinated both the commander of Iran’s elite Quds Force and the PMF deputy commander. In addition to other reported atrocities, civil society groups have identified Iran-aligned PMF groups as being responsible for various attacks against prominent women, including an activist shot and killed in Basra in September 2018 who had been participating in anti-corruption protests. Civil society groups also believe an Iran-aligned militia was responsible for shooting and killing a female social media star and model in Baghdad in September 2018, as well as the owners of three beauty centres in August and October 2018. As outlined in Protesters and Demonstrators, human rights observers blame elements of the PMF for much of the violence committed against those demonstrating against the government in the protests that began in October 2019.

21. According to in-country sources, individual PMF elements exercise close control over many neighbourhoods, particularly in Shi’a areas. PMF groups effectively run these areas, providing a range of services that would normally be fulfilled by the state (particularly welfare and security). The manner in which PMF groups conduct themselves at the neighbourhood level depends upon the individual group. While, for example, some socially-conservative Shi’a PMF groups will punish anybody involved in the alcohol or drug trades, other groups reportedly run private nightclubs in which both alcohol and drugs are readily available. Many PMF groups have reportedly taken advantage of their freedom of action to establish local crime rings and mafia-like protection rackets. Human rights organisations report that some PMF groups engage in killing, kidnapping and extortion throughout the country, particularly in ethnically and religiously mixed governorates. For instance, on 6 July 2020 a prominent political commentator, Hisham al-Hashimi, was fatally shot outside his home in Baghdad. Hashimi had commented on Iran-backed Shia militia groups and spoken out about the impunity with which these groups operated in Iraq. No group claimed responsibility for the killing, but for many political and security analysts in Iraq, it underscored the assassination campaign by militia groups against their critics. In-country sources report those who fall foul of a PMF group in their local area have little chance of gaining recourse or justice through official means.

22. Iraqi Police: The Iraqi Police falls under the authority of the Ministry of Interior’s Security Department. It is divided into the Iraqi Police Service (IPS), which is a uniformed organisation administered at the provincial level and tasked with the general maintenance of law and order and with initial incident response; and the Federal Police, which is a paramilitary organisation that responds to domestic incidents such as armed insurgency, large-scale civil disobedience and riots that are beyond the capabilities of the IPS but not severe enough for the IAF. According to in-country sources, the Iraqi Police have an estimated 300,000 members in total. The Federal Police are the better equipped and trained of the two services.

23. The police have historically been regarded as a secondary service by both the government and population and have been under-resourced and under-paid. As a result, many police have supplemented their income through Corruption. According to surveys, one-third of Iraqis report having paid a bribe to the police. Many police also ‘moonlight’ in other occupations, including as PMF members. Deficiencies in training and resources mean that in many cases police are unable to carry out normal policing functions beyond staffing checkpoints and directing traffic. Human rights observers report that police frequently physically abuse detainees in police stations, driven in large part by pressure to produce results in the confession[1]based judicial system.

24. IPS members are recruited locally and are generally reflective of the demographic of the neighbourhoods that they patrol. Local recruitment, however, can mean police are beholden to local PMF leaders. There is also a significant disconnect between the priorities of national police command and local police forces, many of which reportedly operate as independent fiefdoms. In-country sources report ordinary citizens are unlikely to receive recourse through official means in cases of abuse involving police personnel.

25. KRG Security Forces: Article 121 (5) of the Constitution allows the KRG the right to maintain internal security forces. The two main Kurdish political parties both maintain an independent security apparatus, controlling separate internal, military and intelligence services that are nominally under the control of the KRG Ministry of Interior. The KRG has no uniform policy for addressing allegations of abuse by its state security officers. However, the IHRCKR has reported that KRG police and security organisations have generally been receptive to human rights training, and responsive to reports of violations.

26. Asayish is the KRG’s primary security and intelligence agency. Its official functions include counter[1]terrorism, counter-espionage, gathering intelligence, assessing security threats, and countering smuggling, economic and political crimes, and sabotage. Human rights observers report that Asayish generally acts with impunity in the KRI. Human rights groups have regularly issued reports of Asayish forces committing human rights abuses, including conducting arbitrary or unlawful detention, enforced disappearances, and abusing and torturing individuals (particularly Sunni Arabs) during arrest, pre-trial detention and after conviction (see relevant sections).

1. The Iraqi army is forbidden by law to enter the KRG. The Peshmerga (Kurdish for ‘those who face death’) is the KRG’s military force, with primary responsibility for the KRI’s security. The Peshmerga, which is generally viewed as a highly competent military force, played an important role in the military victory over Da’esh. According to the KRG, 1,707 Peshmerga fighters were killed in the war against Da’esh, with a further 9,997 sustaining injuries. The Peshmerga contains a higher percentage of women than does the central military: in March 2020, the KRG announced that it aimed to increase women’s participation from 5 per cent to 20 per cent (women make up 1 per cent of the central military forces).

2. Although the KRG’s Ministry for Peshmerga Affairs formally controls the Peshmerga, there is no central military command structure and Peshmerga units follow separate military hierarchies depending on political allegiance. Attempts to unify Peshmerga units, and to establish a mechanism for cooperation between the central military and Peshmerga, are ongoing. Neither of the two main KRI political parties disclose information about the composition of their forces, and there are no reliable estimates as to the size of the Peshmerga. Human rights groups have regularly issued reports of Peshmerga forces committing human rights abuses, including conducting arbitrary or unlawful detention and conducting enforced disappearances.

3. Corruption: Transparency International ranked Iraq joint 162nd out of 180 countries in its Corruption Perceptions Index for 2019, scoring it 20 out of 100 (0 indicating the highest level of corruption). Iraq has signed and ratified the United Nations Convention against Corruption (UNCAC). Article 102 of the Constitution guarantees the independence of the Commission of Integrity (COI), subject to monitoring by the Council of Representatives. Key legislation that underpins anti-corruption efforts in Iraq includes amendments to the Penal Code (1969) to include bribery as a crime. The Anti-Money Laundering/Counter-Terrorism Financing Law (2015) also criminalises money laundering, concealing and altering goods originating from trafficking, corruption, influence peddling, and misappropriation of public and private property. In addition to the COI, the Council of Ministers Secretariat has an anti-corruption advisor, and the National Assembly has an integrity committee. The Council of Ministers’ secretary-general leads the Joint Anti-Corruption Council, which also includes agency inspectors-general. The KRG maintains its own COI, which issued its first report in 2017.

4. Iraq’s national COI is authorised to obtain annual financial disclosures from senior public officials, including ministers, governors, and parliamentarians, and to take legal action for nondisclosure. Penalties range from fines to imprisonment. A unified system for enforcing annual financial disclosures does not exist. The national COI has no jurisdiction over the KRI, but Kurdish members of the central government are required to conform to national law. The COI must provide public annual reports on prosecutions, transparency, accountability, and ethics of public service. According to the COI’s semi-annual report, all members of parliament (MPs) and half of the 15 governors submitted financial disclosure information in 2019, a considerable improvement from previous years.

5. Despite the strong legislative framework and protections, international observers report that corruption in Iraq is endemic, systemic and a major threat to the country’s stability. An extensive opinion poll carried out across Iraq in March/April 2019 found corruption was the major concern for ordinary Iraqis: 82 per cent were concerned or very concerned about corruption at the highest levels of government, and 83 per cent perceived corruption to be getting worse. Popular anger at high-level corruption and its debilitating effect on governance, impact on the equitable distribution of wealth and provision of services has been a driving force behind mass demonstrations across Iraq in the last two years. Significant protests took place, including in Basra and southern Iraq from July-September 2018, and in Baghdad and southern Iraq from October 2019 onwards.

6. Domestic and international observers report that corruption plays out at all levels of Iraqi society and across all sectors. Bribes are often required to obtain basic services, while bribery, money laundering, nepotism and misappropriation of public funds occur at all levels of government. As noted in the Economic Overview, payroll patronage has seen a massive expansion of the public sector since 2004, with newly appointed ministers putting their party followers and faction members on the state payroll. This has contributed to significant corruption in the government’s contracting process, with politically aligned directors-general in the public service appointing government contracts to companies with links to senior party members. The companies then often fail to provide services they are paid to deliver, with the same politicians who ensured they won the contracts protecting them from complaints about poor or non-existent service delivery. The parliamentary transparency commission reported in 2018 that corruption is responsible for the disappearance of at least USD320 billion from the state treasury since 2003, mostly because of corrupt or phantom contracts. Corruption is also endemic in other sectors, including the Judiciary, police and state security services, customs administration, and natural resources, particularly the oil industry. Criminal networks, encompassing oil ministry staff and high-ranking political and religious figures, are reportedly involved in the smuggling of oil to the black market, generating huge profits.

7. International observers report anti-corruption efforts are hampered by political influence; unclear governing legislation and sub-optimal regulatory processes; a lack of agreement concerning institutional roles; and a lack of transparency and political will. Although anti-corruption institutions increasingly collaborate with civil society groups, the effect of expanded cooperation is limited. Media and NGOs have attempted to expose corruption independently but have a limited capacity to do so. Anti-corruption, law enforcement and judicial officials, as well as civil society and media, have faced threats, intimidation, and abuse in their efforts to combat corruption. A strong sense of entitlement exists among those with access to public funds: in December 2017, one politician openly told AFP journalists that stolen sums of less than USD60 million ‘can be seen as honest; from there upwards, we can speak of corruption.’

8. Despite the difficulties faced by anti-corruption bodies, a number of prosecutions have been successful, and arrest warrants issued against former and current senior officials for corruption. In November 2019, a court sentenced the head of the Martyr’s Establishment to seven years’ imprisonment, while in the same month the Babil Criminal Court issued an arrest warrant for the provincial governor. In October 2019, the then-prime minister said the Anti-Corruption Council would refer the cases of nine former ministers and governors for trial. In its 2019 report, the national COI announced it had been involved in 26,163 notices and court cases in 2019, with 10,143 persons accused of corruption. These included 50 officials who were government ministers or holding equivalent positions. There had been 931 court rulings in which 1,231 defendants had been convicted of corruption, including four ministers or officials at the same level. According to the COI, its actions resulted in the restoration of IQD2.84 trillion (AUD1.4 billion) to the national treasury.

9. According to in-country sources, corruption levels in the KRI are lower than elsewhere in Iraq (although still extremely high by regional standards). In August 2018, the KRG formally launched a government reform program to provide more efficient and transparent government services to citizens in the KRI using an online portal. The KRG reported in May 2019 that this system, in addition to other digital reforms, had helped remove complications, identify unnecessary processes, and expose thousands of ‘ghost employees.’ As noted in KRG Security Agencies, the operation of the KRG security sector along partisan lines has reportedly made it difficult for formal KRG institutions and police to hold to account politically connected individuals who act outside the law. It has also resulted in the misappropriation of funds accumulated from the sale of the KRI’s natural resources, which has resulted in poor delivery of services and public infrastructure projects. For example, media reported in March 2020 that the KRI receives an average of six hours of electricity daily from the government, many roads are in poor condition, and water utilities and sewage are beset by severe problems.

   REASONS FOR DECISION

   Credibility

10. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from a lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

11. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[7] Nor, is the Tribunal required to accept uncritically all the allegations made by an applicant.[8]

    [7] see, section 5AAA of the Migration Act 1958.

    [8] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

12. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[9] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted. Then, if the applicant’s account appears credible, he or she, should unless there are good reasons to the contrary, be given the benefit of the doubt.[10] However, such a benefit of the doubt should be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

    Applicant’s Refugee Claims

    (a)Chaldean Catholic faith

    [9] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J at p. 482.

    [10] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva (1992) at paragraph [196].

13. The Tribunal noted that the applicant had provided sufficient documentary evidence  - both to the Department and to the Tribunal which included documents like his baptismal certificate to support his claim to be a ‘Christian’. The applicant also submitted an Iraqi identity card which listed his religion as a Christian,[11] a letter from [a] Church in Melbourne confirming his involvement in the church,[12]and the Department’s file records that post-interview, the applicant also submitted photographs of his family and of him as a child at church in Iraq.[13] The Tribunal also noted that the delegate in his decision noted that at the interview, the applicant explained that his mother is Orthodox while his father is Catholic. This was also stated in the applicant’s oral evidence before the Tribunal and the applicant confirmed his attendance at church services while in Australia. It is noted by the Tribunal (as was the case with the delegate) that the applicant’s residential address in Iraq (as listed in his protection application) indicated that he resided in [Suburb 1], Erbil, in the Iraqi Kurdistan region. Country information indicates that [Suburb 1] is the Christian quarter of Erbil city and is home to large numbers of Christians, and also has many churches and Christian-based organisations within the area.[14] Based on the evidence before the Tribunal, the concludes and finds that the applicant is a Chaldean Catholic Christian as he claimed to be.

    (b)Applicant’s family history

    [11] Certified true copy of Iraqi national identity card and English translation: ‘[Passport] Bio Pages & Identification, see Department of Home Affairs File [number].

    [12] ‘Support Doc: [file number deleted]– TRIM record [refers] 

    [13] Attachments in ‘[Department file number] - [Post Interview Submission from Agent - Part 1 of 2]’ – TRIM record [refers]

    [14] [Source deleted] 

14. The Tribunal noted from the oral and written evidence submitted that applicant claimed that his grandfather and uncles had fled Iraq to Europe via Turkey and Greece in 1999. The applicant provided no documents supporting this claim to the Department nor to the Tribunal at the hearing though, his legal counsel made similar statements.[15] The Tribunal agrees with the delegate’s conclusions as stated in his decision record accepting the applicant’s claims that his grandfather and his uncles had settled permanently in [other Western countries]. What the Tribunal cannot conclude is the (as the delegate concluded) the reasons for his grandfather and uncles having left Iraq in 1999 and in particular, the Tribunal agrees with the conclusions and finds of the delegate in his decision that the applicant’s grandfather and uncles left Iraq in 1999 – a considerable period of time had passed – almost 20 years and there is no (on the evidence before the Tribunal) direct connection between their departures (the applicant’s relatives) and the incident involving the applicant while being employed with [Company 1] in 2015.

    (c)Applicant’s sister’s refugee status

    [15] see, Legal Counsel’s written submission in AAT File dated 19 February 2019.

15. The applicant claimed that his [sister] had been granted asylum in [Country 1] and provided documents with translation attached to support this. The Tribunal has read the asylum letter issued by the responsible authorities in [Country 1] (with its translation attached) which records that the applicant’s sister and a third party, a male – [name noted] had been granted refugee status [in] 2015.[16]

    [16] see, AAT File and Department of Home Affairs File [number] - Attachments in [Department file number] - [Post Interview Submission from Agent - Part 1 of 2]’ – TRIM record [refers]; ‘Submitted at PV interview - [Country 1] Refugee Letter for Sister – [Department file number] – [the applicant] - 2019.02.05’ – TRIM record CLD2019/7689606 refers 

16. The Tribunal noted the delegate’s comments on this stating that the applicant’s sister had been granted asylum in [Country 1] under an entirely different visa process, and whose application was combined with another individual, and for ‘reasons that are not evident’ at the time to delegate or when this matter was considered by the Tribunal. Overall, the Tribunal accepts as did the delegate after considering the available evidence and finds that the applicant’s sister had been granted asylum in [Country 1] as the applicant claimed. That being the case, there is nothing before the Tribunal to indicate (as there was nothing before the delegate) that the applicant sister’s refugee status had any connection to the incident in the applicant’s claim. The Tribunal therefore finds that the applicant’s sister’s asylum status gained by her in [Country 1] has no relevance or influence the Tribunal’s conclusions concerning the applicant’s claim.

    (d)The applicant’s employment history

17. The Tribunal has considered the material submitted by the applicant, concerning his employment with [Company 1]. In particular, the Tribunal noted the [Company 1] certificate of incorporation and joint letter dated 14 February 2019 from the company’s owners.[17] The Tribunal accepts these documents as evidence of the existence of the applicant’s employer company as claimed. The Tribunal also accepts that the applicant worked at [Company 1]. for three years from 2012 to 2016. The Tribunal also accepts the applicant’s claim as credible that during this period he may have operated in his own time his own [business].

    (e)The main reason why the applicant cannot return to Iraq and seeks protection in Australia

    [17] Attachment ‘Statement from [Company 1] business owners [the applicant’s name]–compressed.pdf’ in ‘Department file number] - [Post Interview Submission from Agent - Part 1 of 2]’ in AAT File attached to Legal Counsel’s submission.

18. The applicant in his evidence to the Tribunal claimed that he was approached by an individual he identified to the Tribunal as [Mr A] – an Arab who was a customer of [Company 1] to assist in transferring an amount of money electronically through Iraq to third parties in another country. The applicant also claimed that he approached by [Mr A] to do this transaction because he was the only Christian employee of [Company 1] who could converse Arab. According to the applicant’s evidence, at that time (2015) the applicant was working as the [Company 1] ’s [Occupation 2]. The applicant in his evidence to the Tribunal stated that [Company 1] was wholly owned by Muslims and that he was the only Christian employee.

19. The applicant in his evidence claimed that he was asked by [Mr A] top transfer an amount of US$270,000.00 to third parties in [Country 2] which the applicant claimed were members of a terrorist organisation or were terrorists. The applicant further claimed that the only amount legally that could have been handled by him – in order to transfer was only US$2000.00. The applicant explained to the Tribunal that the entire transfer was being made with the knowledge of his employers (even if (the transfer) was in excess of permissible legal limit to transfer) because his employers and the local authorities were planning to apprehend a ‘terrorist cell’ which was operating in the area and to seize its assets. The applicant was told by his employers to do all that required for those providing the money to reveal themselves so that the police may apprehend them. The applicant told the Tribunal that he had concerns about his involvement in this police operation, but he was assured that his person would be protected.

20. What followed was that the local authorities seized the amount of cash (in US currency) and also apprehended a certain individual and ([Mr A]) on [date] December 2015. The applicant thereafter claimed in his evidence that he received threatening phone calls from concealed phone numbers and threats from unknown persons. The applicant also claimed that these unidentified person on the phone – appeared to know a lot about him and knew of his family whereabouts and that this unidentified person told him that “he would not escape” and also accused him being behind the police operation ands the ‘cause’ of the arrests made by the authorities.

Peter Vlahos
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.

…