1906587 (Refugee)

[2020] AATA 1931

1906587 (Refugee) [2020] AATA 1931 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906587

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Simone Burford

DATE:5 February 2020

PLACE OF DECISION:  Perth

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

Statement made on 05 February 2020 at 2:31pm

CATCHWORDS

REFUGEE – protection visa – Iraq – race – ethnic Turkmen – particular social group – Sunni Turkmen single men of fighting age – fear of killing – mistreatment from Kurds, Arab groups and Islamic State (ISIS) – originating from formerly ISIS-held areas – limited family support available – mental health issues – employment and accommodation opportunities – effective protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
SDAQ v MIMA(2003) 129 FCR 137
Selvadurai v MIEA (1994) 34 ALD 347

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 Immigration on 14 March 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Iraq, applied for the visa on 9 January 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or (aa) of the Act.

3. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 18 March 2019. He provided a copy of the delegate’s decision with his application for review.

4. The applicant is currently in immigration detention. Due to procedural issues, the applicant appeared before the Tribunal on a number of occasions. These are outlined below.

5. The applicant attended the hearings in person.

6. The issues in this review are whether there is a real chance, if the applicant is returned to Iraq, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iraq, there is a real risk that he will suffer significant harm.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   PROCEDURAL ISSUES

   Adjournment requests and interpreter issues

8. The delegate’s decision record indicates that the applicant speaks a number of languages including Turkmen, English and Arabic. The applicant indicated he wished to have the assistance of a Turkmen interpreter at his hearings and the Tribunal took steps to obtain the assistance of a Turkmen interpreter in the conduct of the proceedings. The Tribunal was advised by the interpreting service providers that there are a limited number of accredited Turkmen interpreters (2 at the relevant time). This caused a number of problems for scheduling hearings in a timely manner. In the end the substantive hearing was conducted with the assistance of a Turkish interpreter as this was the applicant’s declared preference when assistance from a Turkmen interpreter was unable to be provided. The details of the hearings are outlined below.

9. The Tribunal notes that while it was concerned to ensure the services of an interpreter were available to assist with a substantive hearing, through engagement with the applicant it formed the view that he was relatively proficient in English and able to understand discussions regarding the preliminary issues with the hearings even where the interpreter was unavailable.

10. The matter was initially listed before the Tribunal for hearing on 24 May 2019 but was postponed at the applicant’s request. A hearing was conducted on 13 June 2019. The hearing was conducted with the assistance of an accredited interpreter in the English and Turkmen languages. The applicant attended the hearing in a wheelchair. He indicated he had been injured at the detention centre and was awaiting test results. At the commencement of the hearing the applicant requested an adjournment to allow him additional time to obtain assistance from a migration agent. The hearing was adjourned.

11. The hearing resumed on 1 August 2019. The applicant attended the hearing on crutches. The hearing was conducted with the assistance of an accredited interpreter in the English and Turkmen languages. The applicant indicated he was still injured and was awaiting the outcome of his request for legal aid. He requested an adjournment to enable him further time to receive migration assistance and medical evidence. The hearing was adjourned. The applicant later submitted a copy of his legal aid application lodged [in] June 2019. No medical evidence was submitted following the hearing.

12. The hearing resumed on 4 September 2019, however the Turkmen interpreter who had been booked did not attend at the appointed time and no alternative interpreter was available. The hearing was adjourned to enable suitable interpreter arrangements to be made.

13. The hearing resumed on 7 October 2019. Again, the Turkmen interpreter who had been booked did not attend at the appointed time and no alternative interpreter was available. As the Tribunal was concerned to progress the matter as the applicant was in detention, the Tribunal decided to take evidence from the applicant’s two witnesses, his sisters, who gave evidence by telephone and who indicated they did not need the assistance of an interpreter. The Tribunal indicated that it would put any adverse information arising from the witnesses’ testimony to the applicant at a subsequent hearing when an interpreter was available. Following evidence from the applicant’s sisters, the Tribunal discussed with the applicant the arrangements for the next hearing. The Tribunal indicated that in light of the issues with securing a reliable Turkmen interpreter an additional interpreter in an alternate language would be arranged for the next hearing so it could proceed as scheduled. The applicant was asked what his preference for an alternative interpreter was and he indicated he would prefer an interpreter in the Turkish language as this was almost the same language as Turkmen.

14. The hearing resumed on 4 November 2019. Again, the Turkmen interpreter who had been booked did not attend at the appointed time. An accredited interpreter in the English and Turkish languages was available and assisted in person at the hearing. The applicant indicated that the interpreter arrangements were acceptable and the hearing proceeded on that basis. The applicant gave evidence at the hearing. Information arising out of the prior witnesses’ testimony was put to the applicant at this hearing, as outlined further below.

    CRITERIA FOR A PROTECTION VISA

15. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

16. 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.

17. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

18. 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 s.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.

19. 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

20. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Complementary Protection Guidelines’ and the ‘Refugee Law 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.

    CLAIMS AND EVIDENCE

    The applicant’s migration history

21. According to the delegate’s decision and the applicant’s evidence, the applicant arrived in Australia [in] August 1995 on a Global Special Humanitarian (Subclass 202) visa. This visa was cancelled [in] March 2007 under s.501(3A) of the Act.

22. He applied for a Protection (Class XA, Subclass 866) visa on 9 January 2018. The visa was refused by a delegate of the Minister on 14 March 2019.

    Background

23. The applicant was born on [date] in Iraq. He claims to have travelled by foot with his family from Iraqi Kurdistan to Turkey in 1990. He arrived in Australia [in] August 1995 with his mother and several of his siblings.

24. The applicant told the Tribunal that his mother is living in [Australia]. He has [specified family members], [some] are living in [Australia] with their families. He has [other siblings] in Australia, [number] of whom are married and one who is single. He has [other family members] who are living in [another country].

25. The original application for the Global Special Humanitarian visa indicated that the applicant and his family are Turkmen from Kirkuk.

26. The applicant claims that he was born in Kirkuk in north-eastern Iraq and is an Iraqi citizen.

27. His mother is Kurdish and his late father was Turkmen. Both parents were born in Iraq. The applicant identifies as Turkmen. His father died in [year]. According to the delegate’s decision, the applicant speaks, reads and writes Turkmen and Arabic and speaks English. He indicated to the delegate that he is 30% fluent in Kurdish.

28. The applicant claimed to have only one elderly maternal aunt remaining in Iraq.

29. The applicant stated on his visa application that he is a Sunni Muslim although he does not regularly attend mosque. He did not make any specific claims to fear harm in Iraq for that reason.

30. The applicant claims to have left Iraq before he turned 18 so he would not be required to undertake mandatory military service. The applicant’s father was in the army in Iraq for [many] years. The applicant believed his father reached the rank of [rank]. He was not sure how his father had died. One of the applicant’s [brothers] was serving in the army in Iraq when he [was incapacitated] in a bombing incident.

31. As noted in the delegate’s decision, according to the family’s 1994 Global Special Humanitarian visa application the applicant’s mother declared “[w]e cannot go back because my [sons] are deserters from the Kuwait’s invasion by Iraq. All our assets are confiscated by the Iraqi government in Kurdish rebels during the uprising”. The applicant is [among those sons].

32. The delegate’s decision notes that the Iraqi army’s defeat in the first Gulf War led to uprisings in Iraq. The Kurdish Peshmerga seized control of Kirkuk in March 1991 and Kirkuk was reclaimed by Saddam Hussein’s forces later that month. As a result Kurds, Turkmen and Assyrian Christians were forced out of Kirkuk and their homes were given to Arab settlers from central and southern Iraq by the Baath regime as part of their effort to “Arabise” the city and surrounding areas.

33. The delegate’s decision indicates that the applicant stated at interview his family lived in a Turkmen area of Iraq and moved to Kirkuk after the death of his father. However, according to the applicant’s mother’s information provided in the Global Special Humanitarian visa application the move occurred in June 1984. The applicant’s father died in [year].

34. The applicant claimed that in 1989 Saddam Hussein moved more Arabs into Kirkuk from Baghdad and Basra and gave them land. Property was seized including his uncle’s although they were given compensation by way of other land and money. When Iraq invaded Kuwait, Arabs fled from Kirkuk to cities like Baghdad leaving their properties which were ransacked by Kurds for weapons. Saddam Hussein’s army forced the Kurds out of Kirkuk and chemical weapons were used in the Kurdish areas of the city. According to the applicant Arab people returned to Kirkuk and found their houses had been ransacked.

35. During this period the applicant claimed he and his family fled towards [another country]. The applicant was the first to return to Kirkuk after he was separated from family during their flight. He was separated from his brothers while fleeing and was caught in crossfire between Kurds and the Iraqi army. He assisted an injured Arab child after the Kurds ran away and then he returned to school to Kirkuk where he was later reunited with family.

36. According to the delegate’s decision, the applicant stated that most Arabs are ignorant about Turkmen people in the country assuming them either to be Arab or Kurdish. The applicant’s family are considered to be Arabs by the Kurdish however the Kurds were aware the family was from Turkmen and when they returned to Kirkuk in 1990 the applicant’s family were harassed by the Kurdish people as well.

37. The applicant told the Tribunal his mother has returned to Iraq a few times, most recently about 5 or 6 years ago. She stayed in Kirkuk with her [relative].

38. The applicant undertook some English training at [a college] in Australia and has worked in various jobs [and] as a [specified occupation].

39. Prior to leaving Turkey he worked in various jobs including in [several businesses]. He said he was trained as [an occupation 1] in Iraq but he could not practise that trade in Australia as he lacked the necessary communication skills to do so.

40. The applicant has a history of criminal offending in Australia. While there is no evidence before the Tribunal that his offending history gives rise to any matters relevant to consideration of his claims for protection before the Tribunal there is material on the file indicating that the applicant has previously been diagnosed as suffering from severe depression and post-traumatic stress disorder (PTSD). There is no medical evidence before the Tribunal as to the current status of the applicant’s mental health issues and the applicant did not make any claims in this regard. Further consideration of the applicant’s mental health history is given below.

    Protection claims

41. The applicant filed his application for a protection visa on 9 January 2018. That application was refused on 14 March 2019. The applicant did not have the assistance of his registered migration agent in completing the application form. He told the Tribunal he was assisted by someone at the detention centre who helped him fill out the application form.

42. The Tribunal put to the applicant a summary of the claims contained in the application as detailed in the delegate’s decision (detailed below). The applicant confirmed this was a fair and accurate summary of his claims.

43. The applicant’s protection claims before the Department are summarised as follows (from delegate’s decision):

    ·the applicant is seeking protection in Australia because he believes he will be mistreated and killed by the Kurdish people if he returns to Iraq.

    ·The applicant left Iraq in 1990 because of the war, the government regime and because the Kurdish people are going to kill him and his family.

    ·The applicant’s family walked to Turkey to escape and for better opportunities.

    ·The applicant and his family lost all their belongings and property.

    ·After five years in Turkey, the applicant’s family came to Australia as refugees.

44. As noted above, this summary was put to the applicant at the hearing. He confirmed it was a true and correct summary of his claims.

45. The Tribunal noted that according to the delegate’s decision he also raised a claim to fear harm from Islamic State on return to Iraq. The applicant confirmed this was the case. He said:

    Yes, I still have a fear of ISIS. After Saadam in Iraq I have never heard about the happenings in Iraq. Life wouldn’t be good for me if I went back to Iraq. My mum have dreams about her country but for me and other family members we have no dreams to go back to Iraq.

46. The Tribunal understood the applicant to be raising a claim to also fear harm from extremist groups in Iraq, including from ISIS or ISIL. Further, during the applicant’s evidence he indicated that while he had expressed his claims as a fear of harm from Kurdish groups in Iraq due to his Turkmen ethnicity he also feared harm from Arab groups and the Arab-dominated Iraqi authorities on this basis.

    Evidence

47. The Tribunal had before it a copy of the delegate’s decision record dated 14 March 2019 which was provided by the applicant with his application for review. The Tribunal also had a copy of the Department’s file and information submitted by the applicant in support of his application for review.

48. The applicant was interviewed by the Department on 2 February 2018. At that time the applicant was in immigration detention on Christmas Island. Relevant information provided at the interview was included in the delegate’s decision record.

49. The applicant gave evidence at the hearing. The Tribunal also heard evidence from two of his sisters via telephone from [elsewhere in Australia].

    Receiving country

50. The applicant claims he is a national of Iraq. He claims he has never held an Iraqi passport.

51. According to the delegate’s decision, DFAT issued a certificate of identity to the applicant based on information about the applicant in its records, including a copy of his Iraqi identity documents and photographs of the applicant. The delegate was satisfied as to the applicant’s identity and that he was a citizen of Iraq.

1. At the hearing the applicant indicated he was not sure if he had Iraqi citizenship or “after Saadam it had been annulled”. He said that he had heard if you went back to Iraq you would be forgiven but if you don’t go back your citizenship would be annulled. He confirmed that when he left Iraq he was an Iraqi citizen. The Tribunal indicated it did not have any information before it that suggested his citizenship had been annulled.[1] In any event, the applicant did not raise any claims to fear harm on the basis he could not return to Iraq because he was no longer a citizen.

   [1] DFAT Country Information Report: Iraq, 9 October 2018, p.5.26 indicates that citizenship is the right of every Iraqi and is the basis for nationality, noting that anyone born to an Iraqi mother or father is Iraqi.

2. The Tribunal notes the delegate did not raise any issue with the applicant’s identity or nationality. The Tribunal is satisfied on the information before it that the applicant is an Iraqi national. There is no information before the Tribunal suggesting that the applicant is entitled to reside in another third country for the purposes of s.36(3) of the Act. Accordingly, the Tribunal finds that the receiving country for the applicant, for the purposes of the refugee and complementary protection assessment, is Iraq.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Credibility assessment

3. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2]

   [2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196.

4. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]

   [3] MIMA v Rajalingam (1999) 93 FCR 220.

   [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

5. The Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held.

6. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied. The Tribunal notes that in Iyer[5] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[6]

   [5] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

   [6] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA(2003) 129 FCR 137 at [19] per Cooper J.

   Adverse information

7. At the hearing on 4 November 2019 the Tribunal put to the applicant potentially adverse information, pursuant to the procedure in s.424AA of the Act.

8. The information arose in the testimony of the applicant’s sisters. The applicant was advised he could request an adjournment, respond at the hearing or respond following the hearing in writing. The applicant opted to comment or respond to the information orally at the hearing without an adjournment (after being advised of his options).

9. The particulars of the information put to the applicant were as follows:

   ·The applicant told the delegate that he had one remaining relative in Iraq – an elderly aunt.

   ·However, his sister told the Tribunal that the applicant has aunts and uncles in Iraq on his mother’s side. He also has cousins in Iraq. The applicant’s sister told the Tribunal that their brother married one of the cousins from Iraq in 2006 and that their brother and cousin divorced in 2007. Their brother’s former wife returned to Iraq. The applicant’s sister said her former sister-in-law later came back to Australia but again returned to Iraq.

   ·The applicant claims that he and his family fled Iraq due to his Turkmen ethnicity and that he cannot return there.

   ·However, one of the applicant’s sisters told the Tribunal that their mother had returned to Iraq a number of years ago to visit family.

10. The Tribunal indicated that the information was relevant to the review because, if accepted, it may raise doubt as to the credibility and truthfulness of the information the applicant provided to the Tribunal. This could be taken into account in assessing the genuineness of his claims. It may also lead the Tribunal to conclude that the applicant has family support in Iraq through his extended family members. The Tribunal indicated that the consequence of the Tribunal relying on the information was that it would be the reason or part of the reason for affirming the decision under review.

11. In response to the information the applicant indicated that he had [number] uncles and [number] aunts on his mother’s side in Iraq. His father’s family ([number] uncles and [number] aunts) are no longer in Iraq. He said that as a family they had been away from Iraq for about 25 years. He said he knew he had one aunty living in Iraq but he hears “different information from different people”. He said his sisters say they have a cousin “but I say before we left Iraq we had [number] uncles and [number] aunties but there is only one aunty now as far as we know, of course they had children but at the end of the day even siblings can’t help each other. Aunties and uncles may not be able to help other family members, so in a place like this one, in a war zone how can you guarantee a life free of risks?”

12. This information and the applicant’s responses are considered further below.

    Risk due to Turkmen ethnicity and Sunni religion

13. A number of the applicant’s claims centred on his claimed fear of persecution due to his Turkmen ethnicity. While the application mentioned a fear from Kurdish peoples on this basis, at the hearing the applicant claimed to fear harm on this basis from both Arab and Kurdish groups in Iraq.

14. When asked what he feared in returning to Iraq the applicant said that there was always discrimination against Turkmen “during Saadam”. He said that Kirkuk is petrol rich and all fights and wars in that area are over these petrol reserves. He claimed that after Saddam “it may be worse”. He claimed that even if he lived in another city there is still discrimination against Turkmen. He said that in the Kurdish areas near Turkey, the Kurds are trying to establish their own territories so they don’t accept Arabs or Turkmen. He said the Arabs don’t accept Turkmen either. He said that the authorities in Iraq don’t protect anyone.

15. The applicant stated that the Iraqi government, Arabic and Kurdish, did not accept Turkmen as their nationals, they only regard the Arabs and the Kurds as nationals.

16. The Tribunal also considered whether the applicant would be harmed on the basis of his Sunni religion or imputed political opinion in Iraq. As noted above, the applicant is a Sunni Turkmen who originates from the Kirkuk Governorate which has a mixed but majority Sunni population. His mother is a Sunni Kurd. His father was a Sunni Turkmen.

17. The Tribunal notes that in evidence before the Tribunal the applicant did not express any specific fears relating to fears of harm due to his Sunni religion. The Tribunal has assessed the applicant’s claim to fear harm due to his Sunni religion as a claim relating to the general risk to the Sunni population, and in particular the Sunni Turkmen population, due to extremist activity in Iraq and imputed political opinion due to the prior links of some members of the Sunni Arab and Sunni Turkmen communities with ISIL. Claims specific to other aspects of the applicant’s personal profile and circumstances are considered further below.

    Country information

18. The Tribunal has had regard to the country information discussed in the delegate’s decision record. The Tribunal discussed this country information at the hearing with the applicant. This included the Country Information Report: Iraq prepared by DFAT, dated 9 October 2018. Additional credible country information was also discussed with the applicant.

19. Turkmen and Kurds, along with Arabs and other groups have co-existed in Kirkuk for centuries. They consider Kirkuk to be their capital city. The Turkmen ethnic minority have lived in constant tension with both Arabs and Kurds. Minority Rights Group International reports that ‘Turkmen claim to be the third largest ethnic group in Iraq, residing almost exclusively in the north’, in an arc of villages and towns including Mosul, Erbil and Kirkuk. Approximately 60 per cent of Iraqi Turkmen are Sunni, while the remainder are either Ithna’ashari or other Shi’a. The Turkmen population has preserved its language despite a strong linguistic Arabisation policy under Saddam Hussein.[7]

    [7] 'World Directory of Minorities and Indigenous Peoples - Iraq: Turkmen', Minority Rights Group International, November 2017, CXC90406620355

20. The power balance in Kirkuk has shifted multiple times since the applicant’s departure including after the Kurdish independence referendum in September 2017. Kirkuk is currently under central government stewardship. The applicant claims to fear harm from Kurdish groups on return to Kirkuk. The Tribunal indicated that country information suggests that the Kurds were not in control of Kirkuk anymore. The delegate’s decision indicated that on 16 September 2018, the Baghdad government took control of Kirkuk from the Kurds, deploying local and federal police within the city and leaving the army to secure the perimeter and oil fields. It also asserted authority over local administration, promoting the (Arab) Deputy Governor to Acting Governor, and replacing absentee personnel.

21. The UNHCR reported in 2012 that Turkmen - Shia, Sunni and Christians - are generally able to access and reside in Kirkuk, including Kirkuk City provided they have a local sponsor.

22. Sources indicate that persons of Turkmen ethnicity in Kirkuk form a significant but long-marginalised community,[8] and that relations between ethnic groups in Kirkuk are strained.[9] The security situation in the disputed region of Kirkuk has worsened since October 2017.[10] Moreover, returning to Iraq can be difficult and complicated by the influence of patronage and nepotism on many aspects of Iraqi life.[11]

    [8] see, for example: 'Iraq’s Kirkuk: Oil deals, ethnic divides, and Kurdish grievances', Tom Westcott, The New Humanitarian, 26 September 2019, 20191003100258; 'Building everyday peace in Kirkuk, Iraq: The potential of locally focused interventions', Dylan O'Driscoll, Stockholm International Peace Research Institute, 4 September 2019, 20190905102541

    [9] 'EASO Country of Origin Information Report - Iraq Security situation', European Asylum Support Office (EASO), 12 March 2019, pp.97-98, 20190313085833; 'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 5 November 2018, p.16, CIS7B8394110112

    [10] 'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 5 November 2018, p.14, CIS7B8394110112

    [11] 'DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 5.24, pp.30-31, CIS7B839419766

23. The DFAT Country Information Report: Iraq notes that:

    Iraq’s constitutional legislative protections for ethnic minorities are strong on paper, but rarely and unevenly enforced. Ethnic minorities in Iraq have political representation and participate in public life. The Constitution recognises both Arabic and Kurdish as official languages, and enshrines the right of individuals to educate their children in minority languages including Turkmen…[12]

    [12] 'DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 3.1, p.12

24. With respect to Turkmen the DFAT Report notes:

    Most Turkmen live in Iraq’s North (Nineveh, Erbil, Salah al-Din and Diyala provinces). The Turkmen community includes adherents of both Sunni and Shia faiths. DFAT is aware of reports of Turkmen women and men kidnapped by ISIL brutalised, tied to electricity poles and raped in front of their family. International observers hold ISIL responsible for attacking Turkmen villages in northern Iraq with chemical weapons. Local sources report that government-linked and KRG-linked armed groups, as well as other non-aligned armed groups, intimidated and discriminated against Turkmen during the ISIL occupation. This has limited the ability of Turkmen to move from ISIL-controlled areas to safer areas of Iraq. DFAT had been unable to establish conditions faced by Turkmen since the defeat of ISIL, but is aware of reports of violence against Turkmen in the context of recent elections.

    DFAT assesses that Turkmen face a moderate risk of official and societal discrimination. Following the defeat of ISIL, DFAT assesses that Turkmen face a risk of violence similar to other Iraqis.[13]

    [13] 'DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 3.16-3.17, p.14

25. In October 2019, the Washington-based Tahrir Institute for Middle East Policy (TIMEP) indicated a somewhat uneasy co-existence between the ethnically and religiously diverse groups within Kirkuk. It noted that, despite ongoing political disputes, “Kirkukis – Kurds, Arabs, and Turkmen; Christians, Shi’a, Sunnis, and Kakayis – have been living side by side for years and also have shared family bonds”. The pre-2003 Arab government, Kurdish rule from 2003 to September 2017, and the current central Iraqi government have all “relied on overtly nationalist sentiments while failing to address the various grievances and ethno-religious conflicts in the city”, and the city suffers poor governance and lack of basic public services despite oil wealth. According to TIMEP, while “Kurdish parties want the city to be Kurdistani and Turkmen and Arabs want it to be Iraqi, none of these sides had policies to meet the demands and grievances of the people”.[14]

    [14] 'Kirkuk for Kirkukis', Kamal Chomani, Tahrir Institute for Middle East Policy, 11 October 2019, 20191014154536

26. According to a September 2019 article in The New Humanitarian (formerly IRIN News), the 2017 change of power to the central Iraqi government somewhat improved the situation for Kirkuk’s Turkmen population, but Turkmen view their community as “still underrepresented in positions of power”. Several Turkmen – Iraq’s third largest ethnicity after Arabs and Kurds – reported that this felt like their chance to take their rightful place in society after years of marginalisation, first under Saddam Hussein, who ruled Iraq until 2003, and then under the KRG:

    Before, there were many Kurdish militias who treated Arabs and Turkmen very badly, said Arab-Turkmen engineer Ahmed, who also asked that only his first name be published. For over a decade, there was no development in Kirkuk and all senior positions and contracts were given to Kurds.

27. Riyaz Sarikahya, head of Iraq’s largest Turkmen political party, Turkmenali, also criticised the Peshmerga for giving Kurds preferential treatment, although he stressed that his disapproval was of the security establishment, not the Kurdish people. “The Kurds are our friends and we have no problem with them as colleagues in the political sphere, but we don’t want them working in security,” he said. Sarikahya said Kirkuk’s Turkmen are still underrepresented in positions of power, although this may in part be because the Turkmen community has struggled to unite, being politically divided into seven main parties.

28. A more critical fault line running through its mixed Sunni-Shia community dates back to 2014, when some Sunni Turkmen joined IS and led the persecution of their Shia neighbours.[15]

    [15] 'Iraq’s Kirkuk: Oil deals, ethnic divides, and Kurdish grievances', Tom Westcott, New Humanitarian, The, 26 September 2019, 20191003100258

29. Iraqi army Major General Sa’ad Harbia, head of Kirkuk’s Joint Operations Command (which includes forces from the Iraqi army, federal police, security forces, and the Popular Mobilisation Forces) reportedly told The New Humanitarian that “there are many ethnicities in Kirkuk and we treat them all the same”.[16]

    [16] 'Iraq’s Kirkuk: Oil deals, ethnic divides, and Kurdish grievances', Tom Westcott, New Humanitarian, The, 26 September 2019, 20191003100258

30. A September 2019 report published by the Stockholm International Peace Research Institute refers to Kirkuk society as still “deeply divided”, with “largely ethnically homogenous” neighbourhoods.[17] It further states that “many commentators have referred to Kirkuk as a tinderbox”, because of its ethnosectarian tensions:

    Kirkuk is a historically multi-ethnosectarian city and province, which has seen conflict over its political and territorial control since the end of Ottoman control and the establishment of the Kingdom of Iraq under British administration in 1921. Arabs, Kurds and Turkmens all compete for power within the Provincial Council and the security apparatuses, and the Kurds advocate for the annexation of Kirkuk to the autonomous Kurdistan Region of Iraq (KRI).

    …

    Turkmens see Kirkuk as a symbol of their position as a significant ethnosectarian group in Iraq, and many want Kirkuk to have a special status as a distinct federal entity similar to the KRI. Many Arabs, on the other hand, want the central government to control Kirkuk in the same way as it does other provinces outside of the KRI, which for many would symbolize Iraqi unity. Because of these tensions, many commentators have referred to Kirkuk as a tinderbox or ticking time bomb.[18]

    [17] 'Building everyday peace in Kirkuk, Iraq: The potential of locally focused interventions', Dylan O'Driscoll, Stockholm International Peace Research Institute, 04 September 2019, pp.4-5, 20190905102541

    [18] 'Building everyday peace in Kirkuk, Iraq: The potential of locally focused interventions', Dylan O'Driscoll, Stockholm International Peace Research Institute, 04 September 2019, pp.1 and 8-9, 20190905102541

31. Earlier reporting from the Danish Immigration Service and Landinfo in November 2018 included similar observations, reporting an assessment that “there is a tense situation in Kirkuk… The ethnic groups do not trust each other”.[19]

    [19] 'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 05 November 2018, p.14, CIS7B8394110112

32. In November 2017, Minority Rights Group International reported:

    Turkmen residents of Kirkuk have been subjected to years of attacks and kidnappings, which they see as part of a strategy to induce demographic change. Many of these attacks have targeted the Turkmen intellectual class, including doctors, professors and politicians.[20]

    [20] 'World Directory of Minorities and Indigenous Peoples - Iraq: Turkmen', Minority Rights Group International, November 2017, CXC90406620355

1. The security situation in the disputed region of Kirkuk has worsened since Iraqi security forces seized control following the Kurdish referendum on independence held in September 2017, and the Iraqi Security Forces (ISF) and Popular Mobilisation Force (PMF) taking control of most of Kirkuk Governorate from the Kurdish Peshmerga forces in October 2017.[21] Shia militias that participated in the government re-taking of the disputed areas around Kirkuk reportedly carried out some kidnapping and revenge attacks.[22] Kirkuk has become one of the main areas of IS activity in Iraq,[23] particularly the southern part of the province.[24] Tensions also emerged in Kirkuk in relation to the May 2018 parliamentary election, with Arabs and Turkmen disputing results which showed the Kurdish Patriotic Union of Kurdistan leading in the province.[25]

   [21] 'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 5 November 2018, p.14, CIS7B8394110112

   [22] ‘Families of Peshmerga killed in Kirkuk demand answers’, Rudaw, 26 November 2017, CXC90406618222; 'Kirkuk not as liberated from IS as claimed', Hawramy, F, Al-Monitor, 26 February 2018, CXBB8A1DA23037

   [23] 'Iraq Saw Lowest Violence Ever March 2019', Wing, J, Musings on Iraq, 3 April 2019, 20190404082755; 'Islamic State Might Be Coming Out Of Its Winter Hibernation In Iraq', Wing, J, Musings on Iraq, 4 March 2019, 20190305090042; 'Iraqi military says it killed 15 Islamic State militants in the north', Reuters, 21 November 2018, CXBB8A1DA39048; 'Fight Against Last Vestige of ISIS in Syria Stalls, to Dismay of U.S.', Schmitt, E, The New York Times, 6 November 2018, CXBB8A1DA37911; 'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 5 November 2018, pp.15-16, CIS7B8394110112

   [24] 'View of Some Of Iraq’s Rural Areas: Few Jobs, Little Rebuilding Or Reconciliation, Still Insurgent Threat', Musings on Iraq, 14 November 2018, CXBB8A1DA38574; 'October 2018: Islamic State Expanding Operations In Iraq', Musings on Iraq, 2 November 2018, CXBB8A1DA37970

   [25] 'Iraqi security deny siege on election employees in Kirkuk', Mostafa, M, Iraqi News, 17 May 2018, CXBB8A1DA27454; 'Iraq Weekly Insight Report 14 May - 20 May 2018', Constellis, 22 May 2018, p.4, CIS7B839411060; 'Iraq’s Election Fraud Controversy', Musings on Iraq, 24 May 2018, CXBB8A1DA27953; 'The Contested Iraqi Parliamentary Elections in Kirkuk', International Crisis Group (ICG), 24 May 2018, CXBB8A1DA27966

2. Recent reporting indicates that the response of Turkmen to the 2017 shift in power has been mixed. A September 2019 article in The New Humanitarian, for example cites comment from an Arab-Turkmen engineer in Kirkuk that the situation had generally improved, compared to earlier times when many Kurdish militias “treated Arabs and Turkmen very badly”.[26]

   [26] 'In Iraqi Kurdistan, reality bites as independence dream fades', Tom Westcott, New Humanitarian, The, 26 September 2019, 20191003095647

3. A November 2018 report by the Danish Immigration Service and Landinfo stated that “the general situation in Kirkuk Governorate is characterised as both fragile and complex” and noted comment from one source that “the Turkmens seem more targeted than the other ethnic groups”. As reported:

   In general, there are still many security incidents in Kirkuk City and the level of violence, including assassinations, bombs (vehicle-borne improvised explosive (VBIED) in the city is relatively high, but the situation is somehow improving.

   …

   However, the relations among the ethnic groups are strained, which is the root cause of the violence in Kirkuk. There is a lot of distrust among the different ethnic groups and violent attacks based on hatred and revenge takes place frequently. All ethnic or religious groups are allowed into the city. One source said that for unknown reasons the Turkmens seem more targeted than the other ethnic groups.[27]

   [27] 'Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)', Danish Immigration Service and Landinfo, 05 November 2018, CIS7B8394110112

4. In August 2019, Rudaw reported a deadly attack on a group of six Shiite Turkmen, south of Kirkuk, noting that military and political leaders disagreed on who was behind the attack. The local mayor said that the attack was carried out by armed ISIL militants, and the head of the Iraqi Turkmen Front political party said the attack was “a deliberate attack on the minority group”.[28] 

   [28] 'Disagreement on who was behind attack against Turkmen south of Kirkuk', Lawk Ghafuri, Rudaw (Iraq), 26 August 2019, 20190827104707

5. The Tribunal notes that the applicant’s parents were of a mixed Turkmen/Kurdish marriage. He said at that time it was encouraged. This was supported by country information from the UNHCR which noted that marriages between individuals of different communities were “socially acceptable and common” in Iraq prior to about 2006:

   Before the fall of the former regime, marriages between different sects and communities (e.g. between Sunnis and Shi’ites, between Kurds, Arabs and Turkmen) were socially acceptable and common, especially among the middle class in demographically heterogeneous cities. However, due to increased sectarian tensions since the conflict in 2006/2007, mixed marriages, particularly between Sunnis and Shi’ites, are reported to have decreased…[29]

   [29] International Protection Considerations with Regard to People Fleeing the Republic of Iraq', United Nations High Commission for Refugees (UNHCR), 03 May 2019, p.80, 20190506112913

6. The Tribunal notes that the European Asylum Support Office noted recently that Turkmen in Kirkuk seem to be the most targeted group among all ethnic and religious groups living in the city. The report noted:

   Turkmen are the third largest ethnic group in Iraq after Arabs and Kurds. They comprise both Sunni and Shia, and a small group of Christian Turkmen.

   There are reports from 2017 of KRG authorities discriminating against Turkmen in the disputed territories. There are reports of harassment, arbitrary arrests, forced evictions of displaced Turkmen at the hands of the KRG authorities up until Iraqi takeover of the disputed territories in October 2017.

   Turkmen in Kirkuk seem to be the most targeted group among all ethnic and religious groups living in the city.

   There were reports of abductions and killings of Shia Turkmen by ISIL…

   Based on suspicion of being affiliated with ISIL, Sunni Turkmen, along with Sunni Arabs, are targeted by the PMU and subjected to discrimination, forms of collective punishment, and killings.

   A large group of Turkmen are IDP’s. There have been reports that Sunni Turkmen IDPs were prevented by the Peshmerga and PMU from returning to their homes in areas liberated from ISIL.[30]

   [30] Country Guidance, Iraq, Common analysis and guidance note, European Asylum Support Office, June 2019 page 68.

7. The report notes that not all Turkmen face the level of risk required to establish well-founded fear of persecution. The individual assessment of whether or not there is a reasonable degree of likelihood for the applicant to face persecution should take into account risk-impacting circumstances, such as areas of origin, perceived affiliation with ISIL or PMU and religion. The UNHCR identifies Turkmen as a specific ethnic minority likely to be in need of international protection following the targeting of Turkmen by armed groups on the basis of their ethnic and religious identity as well as (imputed) political opinion.[31] The UNHCR also identifies Sunni Turkmen as a group of civilians who may be wrongly suspected of supporting ISIS/ISIL. The report notes that civilians in this profile have regularly been subjected to a range of retaliatory acts of violence and abuses at the hands of state and non-state actors.[32] Suspicion of involvement with ISIS is raised without regard to the nature of the person’s involvement with ISIS. In the context of military operations against ISIS between 2014 and 2017 civilians with these profiles have reported to have been targeted by ISF and affiliated forces, and Kurdish forces for arbitrary arrest and detention, abduction, enforced disappearance, torture and extra-judicial killing. Since 2017 clearing operations against ISIS suspects continues. Entry and residency restrictions remain in place in some areas and are often based on broad discriminatory criteria such as a perceived affiliation with ISIS.[33]

   [31] International Protection Considerations with regard to people fleeing the Republic of Iraq, UNHCR, May 2019, page 33.

   [32] International Protection Considerations with regard to people fleeing the Republic of Iraq, UNHCR, May 2019, page 59-60.

   [33] International Protection Considerations with regard to people fleeing the Republic of Iraq, UNHCR, May 2019, page 60-61.

8. The UNHCR considers that civilians falling into the category of “Sunni Turkmen men and boys of fighting age, who lived in an area under ISIS control and/or where ISIS maintains a presence” are likely to be in need of international refugee protection on the basis of imputed political opinion, their religious or ethnic identity, and/or other relevant ground. ^[34]

   [34] International Protection Considerations with regard to people fleeing the Republic of Iraq, UNHCR, May 2019, page 65.

9. As noted above, country information suggests that the Iraqi army, supported by fighters from paramilitary groups (called popular mobilisation units), drove up from the south and pushed ISIL out of Kirkuk’s western districts in October 2017. Country information indicates that ISIL continues to raid villages in the area. Iraqi citizens may be targeted by ISIL in Kirkuk.

10. The delegate noted and the Tribunal accepts that country information indicates that the applicant would be able to safely and lawfully access Kirkuk City. The delegate notes that although the applicant does not hold an Iraqi passport Iraqis are able to obtain a single trip Laissez Passer document to consular missions abroad for entry into Iraq. Returnees from overseas use airports in Erbil or Baghdad to travel overland to Kirkuk City. The route from Erbil offers a safer route back to Kirkuk. The delegate further found, and the Tribunal accepts, that the applicant has transferrable work skills including training in a trade as [an occupation 1]. This would enable him to work which would facilitate the re-establishment of his life in Iraq. He also has at least one family member who could act as a sponsor though she is a member of the Kurdish community which may present an issue for the applicant who the Tribunal accepts is likely to be identified as a Turkmen, including by Kurdish groups in Kirkuk.

11. The delegate found that the reports reflect continuing tensions between Kirkuk’s competing groups but they do not indicate that the Turkmen population is being targeted specifically or that the government forces are unwilling or unable to protect the Turkmen population. Based on country information, there was no evidence to suggest Turkmen in Kirkuk are currently being persecuted by the government or will be in the foreseeable future (although status quo may be unsustainable). The delegate noted that in response to complaints of human rights abuses in Kirkuk City the PMF was ordered to retreat from the city by the Prime Minister and the city is now controlled by the local police and the counter-terrorism unit.

12. The delegate found that although relations between ethnic groups in Kirkuk are strained recent country information does not reflect that the Turkmen population of Kirkuk is a specific target of harm to any group. Turkmen are the third largest ethnic group in Kirkuk and have been a significant ethnic minority in the city since 1055 along with Kurds and Arabs. There are ongoing tensions between the ethnic groups, as well as between Kurdish political entities and the government, and within the government and state-backed PMF armed groups and political parties, for control over the region and its oilfields. Iraq’s Turkmen are a minority who fear domination by more powerful forces but more recently local Arab and Turkmen politicians have been cited as supporting joint power-sharing arrangements allowing Kurds back into Kirkuk to share control and administration. The delegate found that with the defeat of ISIL and the defeat of the Kurdish security and an administrative presence the primary agents of harm against the Turkmen population of Kirkuk no longer have a viable presence in the city and forces associated with the government of Iraq remain in effective control. Although Turkmen in Kirkuk have strained and at times hostile relationships with the other dominant Arab and Kurdish ethnic groups and that tensions over control of the city and its oil riches continue it is evident the government-supported forces are maintaining effective control over the city.

13. The applicant indicated he could not comment on the information because he hadn’t been in Iraq for 25 years and has never gone back. The Tribunal asked whether the fact his brother had married a cousin from Iraq who had been able to travel to and from Kirkuk and the fact his mother had been able to travel back to visit Kirkuk might suggest he could return there safely. The applicant indicated he didn’t think it was a safe place for him. The Tribunal asked whether his skills as [an occupation 1] would assist him on return and he stated that “there is no life in Kirkuk, I don’t see any life in Iraq, no safety in Kirkuk.”

14. The Tribunal accepts based on country information that Kurdish forces in Kirkuk currently represent less of a threat to the Turkmen population than when they were controlling the Kirkuk area. Further, country information also suggests that, having regard to the general level of violence that there is no longer such a high level of indiscriminate violence in Iraq such that substantial grounds exist for believing that an applicant for protection would, solely by being present there, face a real risk which threatens their life or person.[35] However, with respect to Kirkuk, there remains a relatively high level of indiscriminate violence.

    [35] UK Home Office, Country Policy and Information Note Iraq: Security and humanitarian situation, November 2018, Country Guidance, Iraq, Common analysis and guidance note, European Asylum Support Office, June 2019 (discussing the application of Article 15(c) of Qualification Directive 2011/95/EU).

15. The Tribunal accepts that country information suggests that ethnic tensions between Turkmen, Kurds and Arabs have been a historical feature of this area of Northern Iraq and in that sense is not new. Similarly the Tribunal accepts on country information that the position of some Turkmen in Kirkuk has improved following the establishment of central Iraqi control of Kirkuk.

16. However, the Tribunal does not accept that country information supports an assessment that there is not a real risk of serious harm for some members of the Turkmen community in Kirkuk. Historically, agents of harm against the Turkmen community have included both Arab and Kurdish authorities. Turkmen have also been targeted by extremist groups including ISIL. Country information suggests that there may be a real risk to persons of Turkmen ethnicity particularly those who may be wrongly assumed to be supporters of ISIS and targeted on that basis. For those persons, identified in country information as Sunni Turkmen men and boys of fighting age residing in the areas of Northern Iraq formerly held by ISIS (which included Kirkuk) there is a risk of targeting by ISF, PMF and Kurdish authorities both for retaliatory and security reasons.

17. Further, country information suggests the region remains one of the more unstable areas of Iraq with ongoing activity from ISIL and significant economic damage caused by prolonged conflict and the period of ISIL occupation. Country information suggests this presents an additional risk for those who lack family support of patronage, both from a security and economic standpoint.

18. In the Tribunal’s view, country information suggests an ongoing risk of harm for some members of the Turkmen community with particular characteristics of profile, including Sunni Turkmen men of fighting age.

    Returnee from the West

19. DFAT reported in October 2018 that returning to Iraq can be difficult, particularly if the individual in question does not return to their original community. This is because integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of Iraqi life.[36] Conflict has also resulted in previously religiously mixed areas becoming more homogeneous, usually Shia or Sunni, which thus limits relocation options. As a result, DFAT has assessed that, in most cases, internal relocation for religious and ethnic minorities is difficult.[37]

    [36] 'DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 5.24, pp.30-31, CIS7B839419766

    [37] 'DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 5.11, pp.28-29, CIS7B839419766

20. According to UNHCR, access and residency requirements in Iraq relating to relocation and return are not always clearly defined. Implementation can vary or be subject to changes depending mostly on the security situation.[38]

    [38] 'Iraq: Country of Origin Information on Access and Residency Requirements in Iraq: Ability of Persons Originating from Formerly ISIS-Held or Conflict-Affected Areas to Legally Access and Remain in Proposed Areas of Relocation', United Nations High Commissioner for Refugees (UNHCR), 25 April 2019, p.3, 20190430084415

21. Disproportionately high numbers of IDPs came from minority communities, including Sunnis and Turkmen.[39] As of 30 June 2019, Kirkuk reportedly hosts over 100,000 IDPs and is amongst those Iraqi governorates hosting the highest numbers of displaced persons.[40]

    [39] 'DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 5.11, p.28, CIS7B839419766

    [40] 'Iraq: Displacement Tracking Matrix - DTM Round 110 - July 2019', International Organization for Migration (IOM), 29 July 2019, p.5, 20190730094906

    Consideration

22. The Tribunal accepts that the applicant is an Iraqi who identifies as being of Turkmen ethnicity. The Tribunal accepts that the applicant is a Sunni Muslim. The Tribunal also accepts that the applicant’s mother is a Sunni Kurd and that the applicant and his family grew up in a mixed Turkmen/Kurdish area of Kirkuk. The Tribunal accepts that the applicant does not have family remaining in Iraq on his father’s side. The Tribunal finds that the applicant speaks English, Turkish and some Arabic and some Kurdish.

23. The Tribunal finds that the applicant has transferrable work skills including training in a trade as [an occupation 1]. This would enable him to work which would facilitate the re-establishment of his life in Iraq. The applicant has documentation to demonstrate he was born in Kirkuk and has the option of returning via the airport in Erbil offering a safer, lawful journey into Kirkuk.

24. The Tribunal finds that the applicant has significant family connections remaining in Iraq on his mother’s side but that these are principally through his aunt, his mother’s sister. The Tribunal finds he would likely have at least one family member, his aunt, who would be able to sponsor him on return to Kirkuk. While the Tribunal finds the applicant’s family in Australia has clearly maintained contact with this side of the family including through his mother’s return visits to Iraq and through the marriage of his aunt’s grand-daughter to his brother there is evidence this relationship is strained through that marriage ending in divorce. On the basis of the evidence the Tribunal accepts that the applicant is likely to have limited family support available in Iraq and that the family support available would be among members of the Kurdish community with whom the applicant has little familiarity. The Tribunal also accepts the applicant is not fluent in Kurdish and has lived in Australia for more than 20 years. The Tribunal accepts he has limited familiarity with life in Iraq and limited Kurdish language skills.

1. The Tribunal finds the applicant would be considered to be a single Sunni Turkmen male of fighting age in Kirkuk and as he originates from an area previously under ISIL control may be perceived by PMF, government and Kurdish forces as having been affiliated with ISIL.

2. The Tribunal accepts the applicant does not wish to return to Iraq and fears the general conditions in Iraq may place him at risk of violence. However, the Tribunal finds the level of generalised violence in Iraq is currently not sufficient to pose a real risk of serious or significant harm to the applicant on that basis alone.

3. The Tribunal finds that the applicant has not previously come to the adverse attention of authorities or extremists in Iraq. The Tribunal finds that the applicant has not involved himself in any activities in Australia or Iraq which will bring him to the attention of extremists or authorities in Iraq or make him of particular interest to them such that he would face a risk of persecution on return to Iraq.

4. The Tribunal also finds that the applicant has a history of mental health issues including severe depression and PTSD. While there is limited evidence before the Tribunal on the current status of the applicant’s mental health, the Tribunal accepts his mental health history presents a risk in terms of his capacity to reintegrate in Iraq in a manner which would enable him to avoid coming to the adverse attention of extremists, Iraqi or Kurdish authorities or PMF forces.

   PROTECTION ASSESSMENT

   Does the applicant meet the refugee criterion?

   Well-founded fear of persecution

5. Section 5J(1) of the Act provides that a person has a well-founded fear of persecution if:

   ·they fear persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion; and

   ·there is a real chance that if returned to the receiving country, the person would be persecuted for one or more of the above reasons; and

   ·the real chance of persecution relates to all areas of the receiving country.

6. Section 5L of the Act sets out that a person is to be treated as a member of a particular social group (other than the person’s family) if:

   ·a characteristic is shared by each member of the group; and

   ·the person shares, or is perceived as sharing, a characteristic that is shared by each member of that group; and

   ·the characteristic is an innate or immutable characteristic; or is so fundamental to a member’s identity or conscience the member should not be forced to renounce it; or the characteristic distinguishes the group from society; and

   ·the characteristic is not a fear of persecution.

7. The Tribunal finds that the applicant is a person who fears persecution on the basis of his Turkmen ethnicity. The applicant did not claim to fear harm as a Sunni Muslim and the Tribunal finds that the harm he fears is linked to his Sunni Muslim faith as it pertains to his ethnicity as a Sunni Turkmen.

8. The Tribunal also finds that he is a member of a particular social group – being “Sunni Turkmen single men of fighting age who originate from formally ISIS-held areas of Iraq”. On the material available to the Tribunal it is satisfied that this is a particular social group for the purposes of s.5L of the Act and the applicant is a member of this group. The Tribunal also considers this group is identifiable by the characteristics common to all members of the group which distinguishes them from society at large and that the applicant shares those characteristics. The characteristics or attributes common to all members of the group are not their shared fear of persecution; rather they encompass objective characteristics.

9. The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is his membership of this particular social group. The Tribunal is satisfied that the harm involves systematic and discriminatory conduct in that it will be done to the applicant selectively and intentionally. The nature of the harm feared by the applicant means that there are no effective protection measures available to him.

10. The Tribunal accepts that if returned to Iraq, there is a real chance the applicant will face serious harm involving systematic and discriminatory conduct including to discrimination, forms of collective punishment, harassment, arbitrary arrests, forced evictions and arbitrary killings amounting to serious harm for the essential and significant reasons of his membership of the particular social group in Iraq – “Sunni Turkmen single men of fighting age who originate from formally ISIS-held areas of Iraq”.

11. Further, the Tribunal considers that the applicant has a cumulative profile of adverse factors, as a person who:

    ·is a Sunni Turkmen;

    ·is single and of fighting age;

    ·originates from a formerly ISIL-held area of Iraq;

    ·has limited family support in Iraq;

    ·has a history of mental health issues;

    ·has been absent from Iraq for more than 20 years.

12. In the Tribunal’s view, in an environment of general security instability in Kirkuk, there is a real chance these aspects of the applicant’s profile will result in the withholding of both support and opportunities for employment and accommodation, as well as restrict his access to basic services. The Tribunal is satisfied this will result in significant economic hardship to the applicant that threatens his capacity to subsist.

13. The adverse aspects of the applicant’s profile, as listed above, each bring the applicant within membership of a particular social group as defined by the Act. They each have a particular characteristic shared by members of the group which is either innate or immutable, and which is not the fear of persecution.

14. The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is his membership of each of these particular social groups. Combined, they heighten the chance of the serious harm occurring to a real one. Further, the Tribunal is satisfied that this harm involves systematic and discriminatory conduct in that it will be done to the applicant selectively and intentionally. The nature of the harm feared by the applicant means that there are no effective protection measures available to him.

15. The Tribunal is therefore satisfied the criteria set out in s.5J(1)(a) and (b) of the Act are met.

16. The Tribunal notes that it will not be sufficient that a person has a real chance of being persecuted only in a particular part of the receiving country. Under s.5J(1)(c), the real chance of persecution must relate to all areas of the relevant receiving country. When considering whether the apprehended persecution can properly be regarded as localised, it will often be relevant to have regard to whether the source of the persecution feared is the state, or by contrast, a non-state agent. When determining whether a person can relocate to another area of the receiving country where they do not have a real chance of persecution, a decision-maker should take into account whether the person can safely and legally access the area upon returning to the receiving country.[41]

    [41] PAM3: Refugee and Humanitarian – Refugee Law Guidelines – Real chance in all areas of the receiving country - s5J(1)(c) – 8.1 Overview

17. The Tribunal has considered whether the applicant faces a real chance of persecution in all areas of Iraq. Country information suggests that returning to Iraq can be difficult, particularly if the individual in question does not return to their original community.[42] This is because integration with new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of Iraqi life. DFAT has assessed that in most cases internal relocation for religious and ethnic minorities is difficult.[43] Based on the country information above there are limitations on the internal movement of Iraqis, particularly Sunni Muslims from Northern Iraq. Further, safe internal relocation options are limited for the particular social group of “Sunni Turkmen single men of fighting age who originate from formally ISIS-held areas of Iraq” due to their perceived support for ISIL.

    [42] DFAT Country Information Report Iraq, 9 October 2018, p 30

    [43] DFAT Country Information Report Iraq, 9 October 2018, p 30

18. The Tribunal has found that the applicant has a real chance of experiencing serious harm in his home province of Kirkuk. Based on country information relating to other areas in Iraq, the Tribunal is also satisfied that this real chance exists in all areas of the receiving country in particular due to the risk the applicant would be perceived as having links to ISIL placing him at risk from Iraqi security forces and PMF who operate throughout Iraq and from Kurdish forces in Northern Iraq and disputed territories.

19. Further, the applicant’s cumulative profile of adverse factors would prevent him from securing safe and lawful access to other areas of the country or successfully resettling in those areas. In the Tribunal’s view the applicant would face a real chance of persecution for the reasons outlined above if he attempted to relocate to other Turkmen or Kurd areas in Northern Iraq or to predominately Shia areas in the South given the history of sectarian violence, restrictions on movement of those originating from former ISIL-held areas of Northern Iraq and the continued presence of ISIL combatants in the Sunni areas.

20. The Tribunal is satisfied that a real chance of persecution relates to all areas of Iraq. Therefore the Tribunal finds the criterion set out in s.5J(1)(c) of the Act is met.

    Availability of effective protection

21. Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection measures are available to them. Section 5LA of the Act provides that effective protection is available to a person in a receiving country if it could be provided by the relevant state or a party or organisation (including an international organisation) that controls the state or a substantial part of the territory of the state. A state is taken to be able to offer protection against persecution if the person can access the protection, the protection is durable and in the case of state protection, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

22. DFAT advises that years of conflict (including the recent conflict with ISIS) have limited the capacity of state protection mechanisms to deliver services. They report that respected NGOs have reported on human rights abuses by the ISF, who are responsible for security in Iraq and includes the army, federal police and provincial police forces, and that the ISF have failed to act on human rights abuses by other actors, such as the PMF. They also report that the Iraqi government’s ability to assert centralised control over the actions of the ISF in the field is limited. Although there is an estimated 300,000 police members in total in Iraq, DFAT reports that anti-government militia, and ISIS in particular, have targeted police and the latter may pose a continuing threat to police and other law enforcement. DFAT also notes the pervasive and widespread corruption at many levels, including bribery to reduce or drop charges.[44] With respect to the judiciary in Iraq, DFAT assesses that:

    politics and sectarianism continue to influence judicial appointments and decisions, and removing or diminishing this influence has been a key demand of recent popular protests. Members of the judiciary continue to face significant pressure, including intimidation and violence, particularly in cases involving organised crime, corruption and the activities of militias. Armed groups have targeted judges with violence. Corruption is common and courts lack resources, including forensic capabilities.

    ...

    A lack of government capacity and strong traditions mean tribal culture continues to play an important role in dispute resolution, particularly in the poorer areas of the south and west. Some Iraqi citizens have turned to local militias and religious and tribal groups to dispense justice rather than seeking redress through the official justice system. Women are particularly vulnerable, and DFAT is aware of reports of traditional and religious judicial outcomes in which women are awarded as compensation in disputes. Women often face harsh punishment for transgressing tribal customs.[45]

    [44] DFAT, Country Information Report Iraq, 9 October 2018 at 5.1-5.7

    [45] DFAT Country Information Report, Iraq, 9 October 2018 at 5.9 and 5.10

23. A recent US State Department report on human rights practices in Iraq states that during the year “civilian authorities did not maintain effective control over some elements of the security forces, particularly certain units of the Popular Mobilization Forces (PMF) that were aligned with Iran” and that impunity was a problem. The report also assesses that there have been reports of human rights abuses by some members of the ISF, particularly Iran-aligned elements of the PMF and while the government investigated allegations of abuse by the ISF, it rarely made the results public or punished those responsible.[46]

    [46] US State Department, Country Report on Human Rights Practices – Iraq 2018, March 2019, Executive summary,

24. Based on such country information, the Tribunal is not satisfied that the state, party or organisation is willing and able to offer protection, noting in particular concerns about the police force’s lack of capacity, and the prevalence of human rights abuses committed by ISF and others, and lack of control over militias and lack of an impartial judiciary. The Tribunal is not satisfied the effective protection measures as per s.5LA are available to the applicant in Iraq provided by the state, party or organisation.

    Modification of behaviour

25. Section 5J(3) of the Act provides that 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, with a number of stated exceptions. The exceptions set out in s.5J(3)(a) to (c) include characteristics that are fundamental to a person’s identity or conscience and characteristics that are innate or immutable and the Tribunal is satisfied that religion here is such a characteristic. In these circumstances the Tribunal is satisfied the applicant is not excluded from having a well-founded fear of persecution by the operation of s.5J(3).

26. It follows that the applicant satisfies s.36(2)(a) of the Act and is a person in respect of whom Australia has protection obligations.

    Summary

27. Based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Iraq, he would be persecuted because of his Sunni Turkmen ethnicity were credible. Further, the Tribunal finds that the applicant’s claimed fears that he would be persecuted because of his Sunni Turkmen ethnicity were well-founded. Further the Tribunal finds that the applicant has a well-founded fear of persecution due to his membership of a particular social group being “Sunni Turkmen single men of fighting age who originate from formally ISIS-held areas of Iraq”.

28. The Tribunal therefore finds that considered individually and cumulatively, there is a substantial risk that the applicant would face persecution now, or in the reasonably foreseeable future, as a result of his Sunni Turkmen ethnicity and his membership of a particular social group being “Sunni Turkmen single men of fighting age who originate from formally ISIS-held areas of Iraq”.

29. Further the Tribunal finds that the cumulative adverse aspects of the applicant’s profile, as listed above, each bring the applicant within membership of a particular social group as defined by the Act. They each have a particular characteristic shared by members of the group which is either innate or immutable, and which is not the fear of persecution.

30. The Tribunal, therefore, finds that there is a real chance the applicant will suffer serious harm for the purposes of s.36(2)(a) of the Act on return to Iraq now or in the reasonably foreseeable future.

31. For the reasons above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s.5J of the Act. In accordance with s.5H(1)(a) of the Act, the Tribunal is satisfied that the applicant is outside the country of his nationality and owing to a well-founded fear of persecution, is unwilling to avail himself of the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.

    DECISION

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

    Simone Burford
    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.

    …
    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.

    …

    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.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)    the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)    the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)    a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)    significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)    a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)    any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

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

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)    protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)    the person can access the protection; and

    (b)   the protection is durable; and

    (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36 Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …