1906747 (Refugee) - [2024] AATA 4075

1906747 (Refugee) [2024] AATA 4075 (18 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  1906747
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Deputy President Denis Dragovic
DATE:18 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 July 2024 at 8:19am
CATCHWORDS
REFUGEE – protection visa – Iraq – imputed political opinion – businessman and relative of official of previous government working in Australia – threating phone call and letter to applicant and cousin/business partner, and office vandalised – no harm to relative, cousin or any other family member – relative retained position through change of government – societal Shia Muslim – country information – widespread use of personal connections or influential relationships, and militias’ integration into state structure – widespread, non-discriminatory corruption not refugee ground – no initial separate claim by second applicant wife – traditional values and gender roles, with high risk of official and societal discrimination and gender-based violence – mental health and treatment – limited possibilities of official and social interactions – aspirations in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
EJC18 v Minister for Immigration [2020] FCCA 3171
S395/2002 v MIMA (2003) 216 CLR 473
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of Iraq. They applied for the visas on 1 February 2016.
The applicants appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1906747 (Refugee)

Details

AGLC: 1906747 (Refugee) [2024] AATA 4075
Case: [2024] AATA 4075
Decision Date: 18 July 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa applications of a husband and wife, both originating from Iraq. The central dispute concerned whether the applicants faced a real risk of significant harm or persecution upon return to Iraq, thereby engaging Australia's protection obligations. The first applicant, a businessman, claimed to have received threats due to his uncle's former government role and involvement in arrangements with Australian entities. The second applicant, his wife, raised concerns related to her mental health, societal discrimination, and gender-based violence in Iraq.

The Tribunal was required to determine if the first applicant had a well-founded fear of persecution based on an imputed political opinion, or if either applicant faced significant harm as a necessary and foreseeable consequence of removal to Iraq, pursuant to sections 36(2)(a) and 36(2)(aa) of the *Migration Act 1958* (Cth). Additionally, the Tribunal had to consider whether the second applicant's aspirations and the limitations imposed by her mental health, combined with societal and legal constraints on women in Iraq, constituted a risk of serious harm that could not be reasonably mitigated by modifying her behaviour. The Tribunal also needed to assess the first applicant's eligibility as a member of the same family unit as the second applicant, should she meet the criteria.

The Tribunal reasoned that while the first applicant's claims regarding threats were noted, they did not establish a well-founded fear of persecution for an imputed political opinion. However, the Tribunal found that the second applicant, due to her gender and the pervasive societal and legal discrimination against women in Iraq, faced a real risk of significant harm. This conclusion was informed by country information detailing widespread gender-based violence, discriminatory laws, and severe limitations on women's freedom of movement and participation in public life. The Tribunal determined that the modifications required for the second applicant to avoid harm, such as conforming to traditional gender roles and remaining largely confined to her home, would conflict with characteristics fundamental to her identity and conscience, and therefore were not reasonable steps to avoid persecution.

Consequently, the Tribunal remitted the matter for reconsideration. It directed that the second applicant be found to satisfy the criterion under section 36(2)(a) of the *Migration Act*, and that the first applicant, as her husband and a member of the same family unit, satisfy the criterion under section 36(2)(b)(i). The final grant of a protection visa for the first applicant would depend on the satisfaction of remaining criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEClaims of the first named applicant The first named applicant (“the applicant”) was born and raised in Baghdad. He completed his education in Baghdad and then started a business with his cousin ([Mr A]) in about 2002. The business made [products]. He said that depending on the security situation he could go to work on some days and not on others. He described the years of 2006-2008 as difficult times because of the sectarianism. The business included government contracts, such as at [Venue], and private jobs. It also included some work for foreign governments, for example, [Examples]. He did not do any work for any Western companies or countries. The applicant’s business closed in January 2016. He claimed that since the followers of Shia leader, Muqtada al-Sadr went to their office, an event discussed further below, he hasn’t gone to check on the status of the business premises. He said that they simply left the equipment there. He didn’t ask someone to have a look because he believed that it could put them in danger. He didn’t try to sell it either as he was worried about the person who would go there to pick up the material. In 2007 he married the second named applicant. The applicant has one brother who lives in [Country]; two sisters, one in Australia and one living in Iraq; and one uncle ([others] are deceased) and [aunts] (all living in Baghdad, married with children). The applicant’s uncle, who is also related to his wife, became a [job role] for the then Iraqi [official 1] and in 2009 he was [sent to work in Australia]. The applicant’s uncle is now [working in Country 1]. After completing his [job in] Australia in 2015, he was sent to [Country 2] for two years, and then worked in Iraq for [Official 2] before going to [Country 1] in 2022. The uncle has a son who is about [Age] years old and lives in [Country 3]. He has only once been to Iraq. The applicant claims that in July 2015 someone called them (the applicant and his cousin-[Mr A]) and threatened them by phone, accused them of being infidels and that their uncle is planning another Western invasion. The applicant said that he couldn’t comprehend what was being said. Most of the time he kept a low profile about his uncle’s role in the government. He understood that when his uncle was in Australia, he was trying to arrange for [people in Australia to do a job task in Iraq] and believes this to be the genesis of the threat. The applicant claims that the caller said that they will harm him and kill him. Regarding the claim of being an infidel, the applicant explained that it was used in the context of describing whoever supports foreign groups and this was only as a result of his uncle. I asked what triggered the call 9 years ago, and why would he be remembered today. He said that he wasn’t sure if his uncle accomplished getting [people in Australia] to Iraq, but the point was that some militia were stronger now than before and more involved in the government. He fears that if he goes back, he will become known to them as he’ll need to reengage with the government and go back to his old work.

Decision

Reasons for decision

It was noted earlier that the DFAT report identifies women as facing a high risk, meaning there being a strong pattern, of sexual assault. Some surveys indicate that it is widespread:A recent survey conducted by one women’s rights organization showed that 38.8 percent of women in Iraq had been subjected to physical sexual harassment and 30.6 percent had faced verbal harassment.[20][20] >Noting that the applicant’s mental health will see her engagement in the community limited, but acknowledging that sexual harassment is wide-spread, I find that she will face some physical sexual harassment and verbal harassment. This in of itself does not amount to serious or significant harm. But the applicant is mentally frail. Harassment on the applicant would have a greater impact on her than on others.At [86] I noted the second applicant’s hopes and aspirations. What place do an applicant’s unattained hopes and aspirations have in these considerations? That in Australia she could one day have [deleted], socialise freely and on her own, go to work and volunteer more often is the life she hopes for. From that standard, considering a return to Iraq would require turning my mind to whether it would be appropriate for her to modify her behaviour such that she would lose all of those freedoms. In the above passages I didn’t engage with this because I found that practically, based on evidence before me, her mental health has limited her and will continue to limit her and as such there is no modification of behaviour such that she would lose any liberties of substance. But is this the right approach? Upon reflection, I think not. To use a blunt analogy, a man who has lost the use of their legs and is wheelchair bound will have a different concept of a loss of liberty to someone who has an ability to walk but is bound to a wheelchair. The applicant’s mental health is not permanent as paraplegia but nor is it imposed by another; it lies somewhere in between. The second named applicant knows that she can embrace the freedoms that Australia offers, they are not quite within her reach, but still tangible and accessible. In Iraq, no effort will help her embrace those freedoms she hopes and aspires to. While it remains speculative as to whether she will be able to overcome her mental health challenges, which I do not dispute, in considering whether she will need to modify her behaviour upon return to Iraq, I find that she will, based on her genuinely hoped for life as opposed to the life she has lived.I now turn my mind to consider whether a modification of the applicant’s behaviour such that she would not face serious harm is reasonable. The modification is that she would accept the cultural expectations of Iraqi society such that she would remain in her home substantially more so than her hopes and aspirations are for how she would want to live her life and that when she would leave her home she would have to be accompanied by her husband. In addition, other country information outlines the constraints placed upon women that would constrain the second named applicants hopes and aspirations.The Women Peace and Security Index ranks countries in terms of women’s inclusion, justice, and security. Iraq is ranked 168 out 177.[21] [21] >With regards to the laws affecting women DFAT notes:Article 14 of the constitution guarantees equality before the law without discrimination based on gender. Nevertheless, a variety of laws discriminate against women, including in criminal, family, religious, labour and inheritance matters. In some cases, a woman’s testimony in a court of law is worth half that of a man. Female heirs inherit less, and male heirs are required to provide them financial support. While women can initiate divorce proceedings, they are not entitled to alimony, and women seeking a divorce are sometimes required to return their dowry. Fathers are automatically awarded guardianship of their children in divorce cases, although a divorced mother may be granted custody of her children until age 10 (extendable by a court until age 15), at which time the child may choose with which parent to live. Women are required by law to have the consent of a male guardian to acquire a passport.[22] [22] DFAT Country Information Report Iraq – JANUARY 2023 at [3.110]100. The United States Department of State largely agrees:Law and custom generally do not respect freedom of movement for women. For example, the law prevents a woman from applying for a passport without the consent of her male guardian or a legal representative. Women could not obtain the Civil Status Identification Document, required for access to public services, food assistance, health care, employment, education, and housing, without the consent of a male relative.[23][23] United States, Department of States, 2022 Country Reports on Human Rights Practices: Iraq101. With regards to employment, there is considerable general information that indicates that female participation in the workforce throughout the country is limited:Around 85 percent of women age 15 and up, don’t participate in Iraq’s labor force, putting them at higher risk of falling into poverty — though they may take part in the informal economy doing work like sewing or handicrafts.[24][24] I now turn my mind to what changes she would need to make to live in Iraq in a way that she would not face a real chance of serious harm. Section 5J(3) defines the considerations for decision makers when considering the reasonableness of a modification of behaviour:(3) A person does not have a well - founded fear of persecutionif 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.103. The modification that would be required for the applicant to face less than a real chance of serious harm would be for her to conform to the norms of life for women as they have developed over recent years in Iraq. Would such a modification of behaviour conflict with a characteristic that is fundamental to her identity or conscience? 104. In the Explanatory Memorandum accompanying the amendment that introduced the new subsection 5J(3) it was noted that the ‘Government considers that [it] is not inconsistent with the principles enunciated by the majority in the High Court‘s finding in S395.’ This is relevant as S395/2002 v MIMA (2003) 216 CLR 473 offers some further insight into the approach to be taken towards modification of behaviour.105. In the case of S395 the High Court grappled with a situation in which the Tribunal had determined that as the appellants had not suffered harm in the past by acting discretely, they can similarly avoid harm in the future by acting discretely. This line of thinking was summarily dismissed in S395 by noting that living a discrete life because of fear is not a ground upon which a decision maker can set aside protection obligations. While that case involved homosexual men, in this instance the second named applicant would similarly be required to act discretely. 106. In S395 Justices McHugh and Kirby noted at [40] that, ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment.’ (Italics added) They then explain in the same paragraph that, ‘persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.’107. The situation of the second named applicant in this case can be informed by principles from S395. The applicant’s ability to navigate the cultural norms of Iraqi society by wearing an abaya, remaining largely in the home, accepting a chaperone when exiting the home and playing a secondary role in society would lead to her avoiding harm but this line of reasoning is fraught as it is dependent upon changing her behaviour due to a fear of harm. As Justices Gummow and Hayne noted in S395 at [80], it would be wrong to ask the question ‘could the applicant live in that country without attracting adverse consequences’ by living a discrete life.108. In reflecting on the applicant’s unique circumstances, her hopes and aspirations form a part of her conscience. They are what she aspires to be and more deeply can be considered that that they are what she is was it not for the barriers that her current mental health challenges present. As such I find that it is not reasonable for the applicant to modify her behaviour and as such I find that the applicant faces a real chance of serious harm for reasons of her gender.109. I also do not accept that the applicant can seek protection from the state for the reason that country information referenced above identifies the state as being a potential persecutor and certainly one that reinforces cultural norms which are central to the harm she fears.110. I do not accept that the applicant can relocate to another part of Iraq as women are constrained by societal norms and official stances throughout the country and not just in Baghdad. 111. For the reasons given above I am satisfied that the second named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).112. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the first named applicant is the husband of the second named applicant and as such a member of the same family unit as the second named applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the second named applicant’s application. It follows that the applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.113. I have also considered whether according to s 36(3) the applicants have a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Iraq such as the applicants have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.DECISION114. The Tribunal remits the matter for reconsideration with the following directions:(i) that the second named applicant satisfies s 36(2)(a) of the Migration Act; and(ii) that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.Denis DragovicDeputy PresidentATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEClaims of the first named applicant The first named applicant (“the applicant”) was born and raised in Baghdad. He completed his education in Baghdad and then started a business with his cousin ([Mr A]) in about 2002. The business made [products]. He said that depending on the security situation he could go to work on some days and not on others. He described the years of 2006-2008 as difficult times because of the sectarianism. The business included government contracts, such as at [Venue], and private jobs. It also included some work for foreign governments, for example, [Examples]. He did not do any work for any Western companies or countries. The applicant’s business closed in January 2016. He claimed that since the followers of Shia leader, Muqtada al-Sadr went to their office, an event discussed further below, he hasn’t gone to check on the status of the business premises. He said that they simply left the equipment there. He didn’t ask someone to have a look because he believed that it could put them in danger. He didn’t try to sell it either as he was worried about the person who would go there to pick up the material. In 2007 he married the second named applicant. The applicant has one brother who lives in [Country]; two sisters, one in Australia and one living in Iraq; and one uncle ([others] are deceased) and [aunts] (all living in Baghdad, married with children). The applicant’s uncle, who is also related to his wife, became a [job role] for the then Iraqi [official 1] and in 2009 he was [sent to work in Australia]. The applicant’s uncle is now [working in Country 1]. After completing his [job in] Australia in 2015, he was sent to [Country 2] for two years, and then worked in Iraq for [Official 2] before going to [Country 1] in 2022. The uncle has a son who is about [Age] years old and lives in [Country 3]. He has only once been to Iraq.