1908269 (Refugee)

1908269 (Refugee) [2022] AATA 3567 (25 August 2022)
Corrigendum
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Alkafaji
CASE NUMBER:  1908269 & 2107856
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Shahyar Roushan
DATE OF DECISION:  25 August 2022
DATE CORRIGENDUM
SIGNED:2 September 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
1.This is a combined decision for Case Number 1908269 & 2107856.
2.The case number on the front page and the footers of the Decision Record states: ‘Case Number 1908269’. This is to be replaced with:
‘Case Number 1908269 & 2107856’.
3.The Home Affairs Reference(s) on the first page of the Decision Record states: ‘[File number]’. This is to be replaced with:
‘[File number]
[File number]’

4.Page 2 referred to case number 2107856 of the decision record is to be deleted.

Shahyar Roushan
Senior Member
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Alkafaji
CASE NUMBER:  1908269
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Shahyar Roushan
DATE:25 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 August 2022 at 5:18pm
CATCHWORDS
REFUGEE – protection visa – Iraq – race – Arab ethnicity – nationality – Iraqi citizenship – religion – secularism – perceived Iranian background – education – fear of killing – fear of Muslim fundamentalists – language skills – property dispute – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 46, 48, 57, 65, 91, 411, 427, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
DQU16 v MHA [2021] HCA 10
MICMSMA v CBW20 [2021] FCAFC 63
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.
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Mahmood Alkafaji (MARN: 1386318)
CASE NUMBER:  2107856
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Shahyar Roushan
DATE:
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

These are applications for review of two separate decisions made by delegates of the Minister for Home Affairs on 3 March 2017 and 1 June 2021 to refuse to grant the applicant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, who claims to be a national of Iraq, is [an age]-year-old Shi’a Muslim and of Arab ethnicity. He was born in Isfahan[1], Iran after his parents were displaced and relocated from Iraq to Iran.
[1] Also transliterated as Esfahan and Asfahan in the applicant’s written evidence and elsewhere
According to Departmental records, the applicant arrived in Australia [in] October 2012 by sea at the Territory of Ashmore and Cartier Islands (Ashmore). He was initially considered an Unauthorised Maritime Arrival (UMA) as defined in s 5AA of the Act due to this arrival method and subject to s 46A of the Act.
On 6 December 2012, the Minister lifted the s 46A bar, and the applicant was granted a Temporary Safe Haven visa (Subclass 449), the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act, because the applicant was considered to be a UMA at that time.
On 25 February 2016, the applicant applied for a Subclass 785 Temporary Protection visa (TPV) (the first TPV application), under the [applicant’s name], and a delegate of the Minister refused the application on 3 March 2017.
On 8 March 2017, the applicant applied to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision, as he was thought to be subject to the ‘fast track’ review process. On 4 August 2017, the IAA affirmed the decision under review.
Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant should not have been considered a UMA and was not a ‘fast track applicant’. Therefore, the subsequent decisions to refuse to grant him protection visas are not ‘fast track decisions’ under s 5(1) of the Act. Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of this Tribunal (the Tribunal) under s 411.
On 23 March 2019, the Department renotified the applicant of the delegate’s decision to refuse him the first TPV application. On 4 April 2019, the applicant made an application to the Tribunal for a review of that decision.
On 11 September 2020, the Department advised the applicant that his first TPV application was invalid due to the effect of s 91K of the Act. The applicant was subsequently notified that the Minister has lifted the 91K bar to allow him an opportunity to apply again for a TPV. The Department also lifted the s 48A bar, being the bar against the making of a further protection visa application onshore following a protection visa refusal or cancellation.
On 28 September 2020, the applicant made another application for a TPV (the second TPV application) which was also valid. This application was made under the name of [Alias A].
On 1 June 2021, a delegate of the Minister refused that application. A valid application for review of that decision was made on 17 June 2021.
Following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Accordingly, the applicant’s first TPV application was not subject to the s 91K bar and was also a valid application and the applicant had made a valid application for review of the delegate’s decision of 3 March 2017.
In view of the above circumstances, which have resulted in the applicant having two valid applications for review of two separate decisions made by delegates of the Minister, the Tribunal decided to combine the two reviews pursuant to s 427(2). As detailed further below, the applicant was invited to appear before the Tribunal at joint hearings of the two separate applications to give evidence and present arguments.
Claims and evidence
The first TPV application
According to his application form, the applicant resided at a single address in Isfahan before coming to Australia. Having only completed primary school-level education In Iran, he was employed in various positions in the informal [sector]. His parents [and specified family members] continue to reside in Iran. He also has [specified family members] who reside in Australia.
In a statement dated 19 February 2016 and attached to his first TPV application forms, the applicant made the following claims.
He is of ‘Iraqi origins’, born in Isfahan, Iran. His parents were displaced from Iraq for ‘sectarian’ reasons after Saddam Hussain targeted Shi’as with ‘murder and torture and dumping great numbers of them in Iran under the pretext that they are Iranian Shiites’. As ‘a son of a displaced family’ and holder of a Green Card issues to Iraqi refugees, he was born ‘stateless with no nationality and no rights.’ He was denied access to education, medical care and work in Iran. He grew up as a ‘lost homeless child not knowing [his] origin or nationality’. He faced ‘harsh criticism’ and felt ‘hatred’ from Iranian children due to his Arab ethnicity. He became ‘well versed’ in the Persian language to avoid being bullied and ‘abandoned’ the Arabic language. He completed primary school education only as it was the ‘limit of education allowed’ for someone in his position.
Since his ‘early manhood’, he tried to work to help his family, but he ‘faced dangers and chase’ because he was forbidden to work. His father secretly sold food, such as cooked broad beans or nuts and grains in public places. His father was arrested and detained in Iran by security forces and the police, who would fine and then release him on bail.
He has been deprived of his rights in both Iran and Iraq. He has no support in Iraq and cannot return to that country because of the ‘wars and the sectarian militias.’ His Iraqi National identity card indicates that he is taba’iyya (a person of Iranian origin). He cannot return to Iran as he has no right of return.
He is a ‘secular’ man who hates religious fanaticism and rigidness. He is open to all religions and principles.
Supporting documents
In a submission to the Department, the applicant’s then representative essentially repeated the applicant’s claims. It was submitted that the applicant is ‘currently stateless.’ He has no ‘status’ in Iran and that his Iraqi Civil ID card and his Certificate of Iraqi Nationality were obtained by his father through the payment of bribes. The applicant does not speak or read Arabic and cannot apply for an Iraqi passport.
It was submitted that, despite being born a Shi'a Muslim, the applicant found life in Iran ‘so restrictive and unreasonable for an active young man that he became opposed to the idea of an Islamic theocratic state and became quietly hostile towards the theocratic regime in Iran’. Instead, he found himself embracing the ‘Christian way of secularism’. He became secularised in Iran and Australia and hostile to radical Sunnis and Shi'a fundamentalists.
It was submitted that the applicant fears persecution for the reason of his religion. He has become secularised in Iran and in Australia and would be perceived as ‘hostile’ by both Sunni Islamists and Shi’a fundamentalists. He has an ‘independent mind’ and would be regarded as a kafir (apostate) and a Shi’a Muslim ‘who refuses to bow to their religious edicts’. The applicant also fears persecution for the reason of his membership of a particular social group of ‘Iranian born secularised taba’iya’. He will be perceived by Da’esh and Sunni extremists as a ‘traitorous and criminal apostate’, who deserves instant death. Furthermore, the applicant fears harm for the reason of his political opinion because of his escape from Iraq and the imputation that he is hostile to the establishment of a radical Islamist regime in Iraq based on the Shari’a law. The representative contended that there is an increased risk of ‘severe persecutory treatment’ against the applicant from Shi’a radical armed groups and the Da’esh Jihadists fighting the Iraqi government due to his profile. It was further submitted that Iraq is now violent country and ‘embroiled in sectarian turmoil’ due to Da’esh and foreign jihadists invading the country.
The representative referred to country information in relation to the situation in Iraq at that time, as well as decisions of the then Refugee Review Tribunal. He also submitted the following documents to the Department.
·Copy and translation of a Certificate of Iraqi Nationality issued in the applicant’s name.
·Copy and translation of an Extract Identify Document issued to the applicant by Iraq’s Ministry of Interior, Department of Citizenship.
·Copy and translation of Identity Document issued to the applicant by the Iranian Department of Foreign Affairs.
·Copy and translation of a Birth Certificate issued in the applicant’s name in Iran.
Departmental interview
The applicant attended an interview with the Department on 28 February 2017 (the first interview). The applicant’s then representative also attended in the interview. The interview was conducted with the assistance of an interpreter in the Persian (Farsi) and English languages. Where relevant, the applicant’s oral evidence to the delegate in the course of that interview is referred to further below.
The Delegate’s decision
The delegate accepted that the applicant is a Shi’a Muslim of Arab ethnicity and that he was born in Iran to parents of Iraqi origins. The delegate found that the applicant speaks Arabic but cannot read and write Arabic. The delegate also found that the applicant has both maternal and paternal relatives in Iraq. The delegate further noted that the applicant is a practicing Shi’a Muslim and his family’s place of origin in Iraq, Al Diwaniya (or Diwaniya), is predominately Shi’a.
Based on the available country information before her at that time, the delegate was not satisfied that there is a real chance that the applicant will face serious harm in Iraq for the reason of his religion, his status as a returnee from Iran, the security situation in Iraq or as a failed asylum seeker from a western country. The delegate found that the applicant did not have a well-founded fear of persecution in Iraq. The delegate also found that there was no real risk of the applicant facing significant harm for the reasons provided if removed to Iraq.
On 4 April 2019, the applicant applied to the Tribunal for a review of the delegate’s decision (the first review application).
The second TPV application
On 9 October 2020, in support of the second TPV application, the applicant’s new representative, Mr Ali Alkafaji, submitted a copy and translation of a statement by the applicant dated 25 March 2017. The applicant provided the following additional information and claims in this statement.
He was born in Iran of Iraqi parents who were forcibly expelled from Iraq during Saddam's regime, as they were of Iranian origin.
He did not have an Iraqi or an Iranian citizenship and lived ‘in a hard security environment.’ In Iran. He was a holder of a Green Card, issued to Iraqi refugees, he did not have any rights and was denied access to services.
His father was eager to return to Iraq and claim back the properties he previously owned in Diwaniya. Whilst his father was able to obtain Iraqi documents, including Civil Status Cards and citizenship corticates for the whole family, he was unable to reclaim his properties.
Through the documents obtained by his father, the applicant was able to contact the Iraqi authorities in Iran and obtain an Iraqi passport. Although he was in possession of a passport, he ‘was not confident to depart Iran to Iraq, as Iraq's reputation was and still dangerous and full of risk to be subject for kidnapping, murder and theft.’ He was warned of these dangers by others and was very concerned when the delegate in her decision suggested that he could return to Iraq.
His family members reside in Iran and Australia and he has no one in Iraq. He had previously stated that he has an aunt in Iraq, but he does not know her whereabouts or whether she is still alive, as she is older than his father and there is no family contact with her.
His [uncle], [Uncle A], sided with the Iranian forces and fought against Iraq during the Iran-Iraq War and was subsequently killed. As a result, the family are seen as traitors to Iraq and the presence of any member of the family in Iraq ‘could be revealed by the opposition forces, where terrorism is largely escalated in Iraq, even amongst the Shiite sect.’
He has limited Arabic language skills and his accent is ‘clear to those who live in Iran and ‘any lurk could discover [his] identity and that leads to kidnapping or killing’ (sic).
Diwaniya is known for its ‘tribal loyalty’. The residents are all Arabs of Qahtani origin. He does not know the city or its people and this could expose him to serious danger and ‘accusation’ that he is ‘plotting’ or that he has ‘hostile goals’, which would lead to him being harmed by the tribes as he does not have any ‘Arabic Tribal or Iraqi loyalty’. Iraq is a ‘strange’ country to him. Living there requires him to have friends, to know people and to have money. He also has to find work. It is well-known that Shi’a militias, led by Ammar Al Hakim, Muqtada Al Sadr and Nouri Al Maliki, ‘have filled their pockets with the stolen money’. No Iraqi can get employment even in the military without paying bribes. He is not a member or a supporter of any ‘forces leading in Iraq’.
His father was able to obtain Iraqi citizenship documents ‘after he paid all the saved money that he had’, putting him in financial hardship. He was forced to return to Iran and continue to live there. All of the family’s properties have been confiscated, notably the family house and all attempts to reclaim these have failed. Those who now reside in his house have the title deed in their names. His father was ‘almost killed’ when he tried to reclaim the house.
His sister is Australian citizen, and he has family members in Australia. His also has uncles in [other countries] who have been recognised as refugees.
Supporting documents
On 6 May 2021, Mr Alkafaji submitted the following documents to the Department.
·Copy and translation of a request for investigation by [Court 1] issued by [Judge A] [in] October 2019, regarding a complaint from the applicant's brother, [Brother A].
·Copy and translation of a police report issued [in] October 2019 by [Police Station 1], General Directorate for Bagdad Police. The report stated that [Brother A] has claimed that when he returned to Iraq, he was beaten by a group of men, and kidnapped for two hours. He was accused of being loyal to Iran, and his attackers named various relatives, including the applicant, accusing them of being Iran loyalists.
In a covering statement, signed on 6 May 2021, the applicant provided the following information.
Prior to 1980, his family owned several pieces of land used as [farms], [number] houses, and [shops]. Following the fall of Saddam Hussein, ‘the political parties’ in Iraq confiscated these properties as militias with strong connection to the Iraqi government in Iraq were in full control of the Qadisiya province. The lands were eventually converted into high value residential houses.
After 2003, his father returned to Iraq illegally in order to reclaim the properties previously owned by the family. At that time, his father was threatened that he would be killed if he returned to Iraq or if he tried to escalate the matter further.
[In] October 2019, his brother, [Brother A], travelled to Iraq with the intention of reclaiming the family’s properties. His brother went to Baghdad to press the claim in the capital as required. In Baghdad, his brother was threatened and kidnapped by armed men with ‘connections to the government.’ Subsequently, his brother lodged a complaint with the designated Court in Baghdad, but he was advised ‘to avoid mentioning that the armed group belongs to the government.’ His brother then returned to Iran. Due to these recent events, the ‘threat extends to all of their family members.’
He was not able to provide the above documents earlier because his brother was in no position to obtain them when he fled Iraq. After being invited to the second interview, he contacted his brother, who in turn contacted ‘someone’ in Iraq to request the documents from the court.
Departmental interview
The applicant attended an interview with the Department on 7 May 2021 (the second interview). Mr Alkafaji also attended the interview, which was conducted with the assistance of an interpreter in the Persian (Farsi) and English languages. Where relevant, the applicant’s oral evidence to the delegate in the course of the second interview is referred to further below.
Following the interview, the applicant’s representative provided a submission, stating that the applicant had previously informed the Department of the threats made against his father when the latter returned to Iraq after 2003 to reclaim the family’s properties. The applicant had also informed the Department of what had happened to his brother when he decided to return to Iraq in 2019.
Mr Alkafaji submitted that the applicant will be at risk of harm in Iraq because of the following reasons.
He has never ever lived in Iraq, and Iraq is a dangerous Country for someone who has never lived there. There is a ‘language barrier’, which makes it difficult for him to return to Iraq as his Arabic ‘is not that good, he understands some Arabic words, but he is not able to communicate effectively, and that he cannot read or write Arabic.’ His language skills will create ‘problems’ for him in Iraq, as he will be ‘singled out as an “Iranian person” in Iraq’ and he will face ‘social and formal discrimination.’ He is also at risk due to the presence of different militias in Iraq, particularly in view of the fact that Iraq and Baghdad witnessed protests against the Iranian influence in Iraq in late 2019, culminating in the burning down of headquarters of some of the militias considered to be loyal to Iran. In this environment, the applicant would be at risk ‘because of his Farsi language.’

There is infighting amongst Shi'a militias in Iraq for ‘financial and criminal reasons.’ As a result, the applicant’s family’s insistence on restoring their property rights would put the applicant and his family at risk of harm. The fact that some Shi'a militias are loyal to Iran does not mean that there is no risk to the applicant.
The applicant does not agree with the delegate’s findings that he will not pursue his family’s property claims if he were to return to Iraq. This is because the ‘property means life or death to the applicant and his family’, as the applicant has never lived in Iraq, he has no familial links, he has ‘no means to subsist’ and he will be discriminated against because of his Farsi language. The applicant and his family were already ‘singled out as people of adverse interests to the Shia’s militias in the south.’ This is evidenced by the incidents involving his father and brother, despite the two incidents being over 10 years apart. This suggests that ‘the threats and harm will be implemented against the applicant if he is to return now or the near foreseeable future.’
Mr Alkafaji referred to a number of news reports from a variety of sources, including Foreign Policy, The Economist, Al Arabiya and Washington Post, in relation to the 2019 anti-Iranian protests and sentiments in Iraq.
The delegate’s decision
On 1 June 2021, the delegate refused the second TPV application. The delegate expressed concerns in relation to the applicant’s evidence that he had limited knowledge of his brother [Brother B’s] travels to Iraq before they both came to Australia together by boat. The delegate also formed the view that the applicant has embellished his claims to have limited Arabic language skills. The delegate further found that the applicant had a reasonable level of community support through his own family contacts to assist him to re-integrate in Iraq if he were to return. Whilst the delegate accepted that the applicant's father had to abandon his property claims, he found that the applicant has fabricated his claims in relation to the threats received by his father and brother in relation to this issue and placed weight on the applicant’s delay in raising the claims regarding the incident involving his brother. The delegate also found that the documents submitted in relation to the incident involving the applicant’s brother are bogus documents. The delegate was not satisfied that the applicant will face a real chance of serious harm or a real risk of significant harm in Iraq as a returnee from Iran and/or Australia, being perceived as an Iranian or being associated with the Iranian regime, not having a tribal affiliation or for any reasons related to religion.
The applicant applied for a review of this decision on 17 June 2021 (the second review application).
The review
As noted earlier, in view of the procedural history outlined earlier, the Tribunal decided to combine the first and the second review applications pursuant to s 427(2) of the Act.
On 11 March 2022, the Tribunal wrote to the applicant with respect to each of his review applications and invited him to attend an initial combined hearing.
Subsequently, the applicant appointed Mr Alkafaji as his representative in relation to the first review application.
Submissions
On 31 March 2022, Mr Alkafaji made a submission to the Tribunal in relation to the applicant’s claims. It was submitted that the applicant fears persecution due to his perceived Iranian background and accusations of being an Iranian spy. His uncle fought against Iraq during the Iran-Iraq War, and people in Iraq who lost someone during that war will target the applicant because of his uncle’s actions. The community in Diwaniya was aware of his uncle’s involvement in the war in support of Iran and this is why the applicant’s father was threatened in Iraq when he returned after 2003.
The submission referred to the recent anti-Iranian protests in Iraq and stated that the applicant will be ‘singled out by the people who are against the Iranian intervention in Iraq.’ Mr Alkafaji cited a report, sourced from Al Arabiya, stating that, following the death of ‘a prominent activist’ from the city of Diwaniya, demonstrators set fire to the headquarters of two pro-Iran militias. He also referred to and attached to his submission other news reports regarding anti-Iranian protests, including a November 2019 New York Times report and a BBC report in relation to an attack on the Iranian consulate in Basra.
Mr Alkafaji noted that the applicant had told the delegate that whilst he had not been formally educated in Arabic, he had learnt it at home as his parents spoke Arabic. He can ‘understand Arabic quite well’, but his spoken Arabic is not as good, and it is mixed with Farsi. It was submitted that the applicant’s limited understanding of Arabic doesn’t mean that he will be able to communicate in Iraq. He cannot read or write Arabic and has a different accent. He will be singled out as ‘a person who speak Farsi’ or as an Iranian.
Mr Alkafaji referred to two separate reports sourced from the Global Policy Forum and the UNHCR, dated 2006 and 2008 respectively. In the first report it is stated
[Grand Ayatollah Sistani] who is an Iranian living in Iraq, was seen by Iraqis as a foreigner because he speaks Arabic with a Persian accent and does not even hold an Iraqi passport. When people say, however, that Sistani is a follower of Iran, this is not very correct. The truth is that Iran follows Sistani, because of his paramount standing as a religious authority on Shi'ite Islam.
In the second report, which is in relation the situation of Iraqis fleeing to Iran due to the security situation at that time, reference is made to the case of a 32-year-old Iraqi man from Karbala, who had first fled to Iran in 1980. According to the report, the man had returned to Baghdad ‘six month ago’ but was arrested and imprisoned for a month. He was told that he was suspected of being a spy because he spoke Arabic with a Persian accent. He was released, however, once he produced his documents, ‘but was warned by prison guards that his accent would get him into trouble with the militias.’
Mr Alkafaji further submitted that the applicant has never lived in Iraq, nor has he ever travelled to Iraq and the delegate accepted this claim. His brother [Brother B’s] claims regarding his ([Brother B’s]) travels to Iraq has ‘nothing to do with him or the assessment of his case.’ If [Brother B] has travelled to Iraq, then that doesn’t mean that the applicant’s claims are not true or that there is no real chance that the applicant will not face persecution. [Brother B] is now in immigration detention and the applicant does not have any contact with him.
It was submitted that the applicant has no familial or tribal connection to Iraq, which is a ‘tribal based community’, particularly in the south. The fact that his sister is married to an Iraqi who ‘originates’ from Diwaniya and currently resides in Australia does not mean that his brother-in-law can protect him if he were to be removed to Iraq.
Mr Alkafaji referred to the 2020 DFAT report in relation to Iraq, noting that ‘successful relocation in Iraq will typically be dependent upon the availability of and access to social networks, consisting of the person’s family, extended family or tribe’ and that ‘to relocate beyond the reach of existing support networks is a difficult proposition, doubly so if it is the person’s tribe or extended family from which the person seeks to escape.’
Finally, it was reiterated that the applicant fears harm due to the fact that properties owned previously by his family were ceased by persons loyal to the Shi’a militias in Iraq. It was submitted that militias exist everywhere in Iraq and it will be easy for them to locate the applicant anywhere. Their interest ‘is not to see the applicant in Iraq.’ The militias are ‘very active’ in Qadisiya province where the applicant’s father was born and DFAT has reported that Shi'a militias are engaged in forcible conscription of minors. This is relevant as it shows the prevalence of the Shi'a militias in Qadisiya.
In October 2019, the applicant’s brother travelled to Baghdad with the intention of claiming back the family’s properties. However, he was threatened and kidnapped by some armed men affiliated with the government. The applicant did not raise this claim in his second TPV application form due to the fact that, following the Federal Court decision in DBB16, the applicant was given only 7 working days to apply for a SHEV or TPV, which he did ‘in haste.’
The first hearing
On 7 April 2022, the applicant attended an initial hearing accompanied by Mr Alkafaji. He was assisted by an interpreter in Farsi (Persian) and English languages.
At that hearing, the Tribunal explained to the applicant the procedural history of his case, resulting in two valid review applications being lodged with the Tribunal. The Tribunal also explained that it had decided to combine the two reviews, to which the applicant expressed no objections. In addition, the Tribunal discussed with the applicant and Mr Alkafaji the determinative issues and timeline for further submissions.
Submissions
On 28 April 2022, the Tribunal received an additional submission from Mr Alkafaji in relation to the applicant’s first TPV. Mr Alkafaji stated in his submission that, contrary to what was claimed in the first TPV application, the applicant is not stateless and that he had never mentioned to his former representative that he embraces secularism or ‘the Christian way of Secularism.’ These claims can be attributed to ‘the misunderstanding of the former migration agent and due to the fact that the applicant doesn’t speak or read Arabic fluently, so it might be the case that the applicant was lost in translation.’
It was submitted that the applicant maintains that he will be targeted in Iraq by persons or groups opposed to the Iranian intervention in Iraq, regardless of sect because he has never lived in Iraq, has ‘no idea about Iraq’ and has no family or tribal connections in Iraq. He will also be targeted because his father and brother had attempted to reclaim properties previously owned by the family and confiscated by persons affiliated with Shi’a militias. The applicant’s lack of Arabic language skills and his ‘Iranian language and accent’, as well as the fact that his uncle fought on Iran’s side against Iraq will exacerbate the threats against him as he will attract suspicion. There is corruption and ‘fighting for criminal gains’ in Iraq. Persons who have no familial or tribal connections in that country will be targeted for ‘criminal gains’. The applicant will be harmed for the reason of his membership of his family, and he will not be protected by the Iraqi government.
It was further submitted that unemployment is high, and the economic situation is poor in Iraq. In these circumstances, as a person who does not ‘speak Iraqi accent’ and who has never lived in Iraq, the applicant will face an even more detrimental situation.
The second hearing
The applicant appeared before the Tribunal again on 12 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian (Farsi) and English languages. Mr Alkafaji also attended the hearing. Where relevant, the applicant’s oral evidence to the Tribunal at the second hearing is referred to below.
Non-Disclosure Certificate
The Department’s file relating to the applicant's second TPV application ([File number]) contains a non-disclosure certificate under s 438(1)(b) of the Act, relating to the IAA’s decision record and reasons with respect to the applicant’s brother, [Brother B]. The reason stated in the certificate is that the disclosure of the information would be contrary to the public interest because it contains personal information provided in confidence by a person other than the review applicant. The certificate states that the applicant has been provided a summary of the relevant adverse information contained in this document and has been invited to comment on this information under s 57 of the Act.
After considering the information covered by the certificate, the Tribunal formed the view that the reason provided forms sufficient basis for public interest immunity and that the certificate is valid. This was discussed with the applicant at the hearing, but he offered no comments or submissions on the validity of the certificate. As already noted, the relevant aspects of this information were disclosed to the applicant by the Department and the applicant has responded to and commented on this information in his written submissions and oral evidence to the Department and the Tribunal.
CONSIDERATION OF Claims and evidence
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The Tribunal accepts that the applicant was born in Iran after his family were forcibly displaced from Iraq and relocated to Iran. The Tribunal accepts that the applicant primarily resided in Iran until he decided to come to Australia in 2012.
The Tribunal accepts that, as an ‘Iraqi refugee’ in Iran, the applicant was issued a Green Card permitting him to remain in Iran with restricted rights to access education and employment. The Tribunal accepts that the applicant is not a national of Iran and that his Green Card, which is now expired, does not provide him with a right to re-enter and reside in Iran.
In the submissions provided by the applicant’s former migration agent in support of his first TPV application, it was claimed that the applicant was born ‘stateless’ and that he is ‘currently stateless’. presumably on the basis that his father obtained identity and citizenship documents by paying a bribe. However, in submissions subsequently provided by Mr Alkafaji, as well as in evidence given by the applicant to the Tribunal, this claim was expressly abandoned. In his submission of 28 April 2022, Mr Alkafaji stated that, contrary to the earlier claims, the applicant is not stateless.
The applicant has consistently claimed to be an Iraqi national. The Tribunal accepts his evidence that his father was able to return to Iraq following the fall of Saddam Hussein and obtain Iraqi national identity and citizenship documents for himself and other family members, including the applicant. These documents enabled the applicant to obtain an Iraqi passport. The Tribunal finds that the applicant is not stateless. The Tribunal finds that the applicant is a national of Iraq, and his protection claims have been assessed against that country.
Links with Iran
In his written evidence to the Department in support of his first TPV application, the applicant claimed that he is considered to be an Iraqi national of Iranian origins (taba’iya). In the submissions accompanying the first TPV application, the applicant’s former representative contended that the applicant will be imputed with an adverse political opinion because of his escape from Iraq and the imputation that he is hostile to the establishment of a radical Islamist state in Iraq. It was also claimed that the applicant does not speak or read Arabic.
In connection with his second TPV application, the applicant claimed that he fears persecution in Iraq due to his Iranian background. He will be accused of being an Iranian spy and will be targeted by persons or groups in Iraq who are opposed to the influence Iran exercises in the country. He claimed that his uncle had died during the Iran-Iraq War, fighting in support if Iran. As a result, the family are seen as traitors to Iraq and Iraqis who had suffered losses during that war will be hostile towards him for the reason of his uncle’s actions. He also referred to his limited Arabic language skills and his ‘accent’.
In his submissions to the Department, Mr Alkafaji stated that the applicant speaks Arabic with an accent. His Arabic ‘is not that good, he understands some Arabic words, but he is not able to communicate effectively, and that he cannot read write Arabic.’ It was submitted that the applicant's language skills will create ‘problems’ for him in Iraq, as he will be ‘singled out as an “Iranian person” in Iraq’ and he will face ‘social and formal discrimination. Subsequently, in submissions in support of the review applications, Mr Alkafaji acknowledged that the applicant had told the delegate that whilst he had not been formally educated in Arabic, he had learnt it at home as his parents spoke Arabic. He can ‘understand Arabic quite well’, but his spoken Arabic is not as good, and it is mixed with Farsi. He cannot read or write Arabic and has a different accent.
In his March 2022 submission to the Tribunal, Mr Alkafaji stated that the applicant fears persecution due to his perceived Iranian background and being accused of spying for Iran. In addition, the community in Diwaniya was aware of his uncle’s involvement in the Iran-Iraq War in support of Iran.

At the second hearing, the applicant reiterated that he will be accused of being a spy for Iran and referred to his uncle having sided with Iran during the Iran-Iraq War. He added that no one would want their daughter to marry him because he will be considered an Iranian. The applicant also stated that he can understand Arabic, but his Arabic speaking skills are limited.
In his written and oral evidence, the applicant also claimed that he has no familial or tribal connection to Iraq, and it was submitted on his behalf that he does not have any tribal affiliation or ‘Iraqi loyalty’. Consequently, he will be suspected of having ‘hostile goals’ and will be even more vulnerable to harm.
As it was discussed with the applicant at the second hearing, the Tribunal has found no information in any of the sources consulted, including consecutive DFAT reports (see below), other government reports, recent news articles and reports from non-government organisations to suggest that Iraqi returnees from Iran, Iraqi citizens who are perceived to be of Iranian origin or those who speak Farsi or speak Arabic with an accent are subjected to serious harm or discrimination amounting to serious harm in Iraq. It was also put to him that the Tribunal had uncovered no information to suggest that Iraqi dissidents who had sided with Iran and had fought against Saddam Hussein have subsequently experienced any harm, let alone non-immediate members of their family. The applicant again referred to his Arabic language skills and Persian accent. He reiterated that he has no tribal affiliation or support and that he will be perceived to be associated with the Iranian regime. He added that there are many incidents that are not reported by the media. In his oral submissions, Mr Alkafaji again stressed the applicant’s lack of tribal affiliations due to the timing of his family’s departure from Iraq, and again referred to the more recent anti-Iran protests, contending that the applicant’s Persian accent should be viewed in this context.
The country information before the Tribunal indicates that, in 1999, Iran was hosting about 531,000 Iraqi refugees, with many having lived in Iran for the previous two decades after being expelled from Iraq at the time of the Iraq-Iran War because of their suspected Iranian origin.[2] In 2003, UNHCR reported that Iran was hosting 204,000 Iraqi refugees who had been registered by the government in 2001.[3] Following 2003, in spite of the escalating security situation Iraq, due to both forcible and voluntary repatriation, the number of Iraqi refugees in Iran had gradually but significantly decreased.[4] According to UNHCR, the number of long-staying Iraqi refugees in Iran at the end of 2007 was approximately 55,000, with some opting to return voluntarily.[5] By 2020, this figure had dropped down to 20,000[6] due to repatriation and voluntary returns.[7]
[2] United States Committee for Refugees and Immigrants, U.S. Committee for Refugees World Refugee Survey 1999 - Iran, 1 January 1999,
[3] Redden, J, New hope for Iraqi refugees in Iran, UNHCR, 23 April 2003,
[4] Between November 2003 and December 2005, 146,692 Iraqis had returned to Iraq: see Azizi, S, Hosseini, SB and Basavaraju, C, Existence Gaps in Effective Protection of Refugees in Iran with an Overview on Iran’s Domestic Laws and its International Responsibilities, International Journal of Current Research, Vol. 9, Issue, 1, January 2017.
[5] UNHCR, UNHCR Global Appeal 2009 Update: Islamic Republic of Iran,
[6] UNHCR, Refugees in Iran (undated), UNHCR helps nearly one million refugees in Iran, mostly from Afghanistan and Iraq.
[7] See, for example, UNHCR, Fact Sheet: Iran, 1 October 2019,
It is evident that a significant number of former Iraqi refugees in Iran, including long-term residents, including Iraqis born in Iran or with Iranian roots, have returned to Iraq over the past 20 years and it would be reasonable to expect that if these Iraqi expatriates had encountered serious harm amounting to persecution for the reason of their perceived Iranian origins, links with Iran, any Arabic language deficiencies or accent, this would have been reported by the numerous government, NGOs or media organisations who have been vigilantly monitoring and reporting on the situation in Iraq since the fall of Saddam Hussein.
The Tribunal has considered the two reports submitted by Mr Alkafaji sourced from the Global Policy Forum and the UNHCR, dated 2006 and 2008 respectively. Both these reports are relatively old and should be considered in the context of the particular prevailing security situation in Iraq at the time of publication, notably a deadly insurgency and violent sectarian clashes. The mere fact that, as reported by the Global Policy Forum, Grand Ayatollah Sistani was or is seen by Iraqis as a ‘foreigner’ or a follower of Iran does not support the view that Iraqi refugees returning to Iraq from Iran face a real chance of persecution for the reasons put forward by the applicant. Indeed, according to the report, as well as speaking Arabic with an accent, Grand Ayatollah Sistani is an Iranian and does not hold an Iraqi passport. With regard to the UNHCR report, the man referred to in the article had been detained due to apparently being suspected of being a spy because he spoke Arabic with a Persian accent. However, the report also clearly implies that the person was not in possession of his ‘documents’ at the time of his arrest, as he had been released once he had produced his documents. The Tribunal is not persuaded that this single report from 2008 supports the view that any Iraqi national speaking Arabic with a Persian accent would be at risk of arrest, detention or other forms of harm in Iraq today or in the reasonably foreseeable future. Indeed, the Tribunal has found no other information in any other sources to support this view.
The Tribunal has considered information provided by DFAT in relation to Faili Kurds in its 2020 Iraq Country Information Report, stating that ‘Faili Kurds who have managed to obtain nationality documents have reported that the identity cards issued are a different colour than those of other Iraqis, or show them as citizens of ‘Iranian origin,’ which could open them up to discrimination’ (emphasis added).[8] The DFAT report does not offer any further analysis or contain any other information in relation to the nature of the discrimination or to suggest that other Iraqi citizens of ‘Iranian origin’ may be subjected to harm or discrimination. Other sources, however, strongly suggest that this perception or attitude may be specifically directed towards Faili Kurds and not necessarily other citizens who are or are perceived to be of Iranian origin.
[8] DFAT, DFAT Country Information Report: Iraq, August 2020.
In his comprehensive book on minorities in Iraq, Sa’ad Salloum explains the genesis of the attitude towards Faili Kurds in Iraq. He states:
Of all other Iraqi groups, [Failis] continue to be viewed with suspicion; a minority group with an unconfirmed Iraqi identity. The identity card issued to most of them still shows that they are citizens ‘of Iranian origin’ which suggests that they do not belong to the country and that they are no more than second-class citizens. It is the plight of possessing a compound identity; they are Kurds and Shiites but at the same time they are not. As a consequence, the compound identity caused the Faili Kurds compound discrimination: social discrimination by the Kurds of the Kurdistan Region and the Shiite majority, and political discrimination by the successive governments, which treated them as foreigners of ‘Iranian dependency’.[9]
[9] Salloum, S, Minorities in Iraq: Memory, Identity and Challenges, Baghdad, Masarat for Cultural and Media Development, 2013.
In contrast, Salloum notes that although those associated with the Sheikhiya religious minority group, including the leaders and senior founders, have Iranian origin, and though their senior scholars lived for a long time in Iran, where they had many schools and followers,
[We] did not find in the writings and literature written by the Sheikhiya opponents, which attacked their practices and ideas, any reference, assault, or any teasing and disgracing remark which indicates that the Sheikhiya might have an ambiguous or implicit relation with Iran, especially after the Islamic Revolution.[10]
[10] Ibid
Other sources consulted suggest that other Iraqis of Iranian origin who returned to Iraq following the fall of Saddam Hussein were able to occupy powerful positions within the Iraqi political establishment. For example, after 2003, the Supreme Council for the Islamic Revolution in Iraq (SCIRI) consolidated its position to play a significant role in post-Saddam Iraq, not least by taking on leadership of the Committee that was responsible for drafting the Constitution.[11] The key constituency for SCIRI was Iraqis of Iranian origin and the Marsh Arabs that migrated to Iran at times of crisis.[12] Other examples include the Iraqi Badr Organisation, a large and influential group which was originally an auxiliary military force of Iraqi Shia volunteers that fought on the Iranian side of the Iran–Iraq War. The group’s deep Iranian roots are undeniable and its head, Hadi al-Ameri, as well as other top leaders spent much of their professional lives in Iran.[13] Whilst it appears that the headquarters of the organisation were firebombed in 2019 following the death of ‘an activist from Diwaniya, the Tribunal did not encounter any evidence to suggest that any harm or retribution had been directed towards individual members of Badr or any other Iranian aligned militias, any person perceived to be associated with these groups, any person who had fought on the Iranian side of the Iran–Iraq War or members of their families.
[11] Mamedov, R, The Formation of the Political Elite in Modern Iraq: The U.S. and Iranian Factors, Russian International Affairs Council, 10 December 2019, and Georgis, M, Postwar Iraq (2003-2016): A Postcolonial Grassroots Approach to the Failure of “Democratic Nation-Building, A thesis submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy, Department of Political Science, University of Alberta, 2017.
[12] Mamedov, ibid.
[13]Iran’s Networks of Influence - Chapter Four: Iraq, The International Institute of Strategic Studies, November 2019,

100. The applicant and his representative have repeatedly referred to reports of anti-Iran protests in Iraq. The Tribunal has considered the news reports provided by Mr Alkafaji, as well as other reports and analysis in relation to the protests. The sources consulted indicate that the protests were against the Iraqi government, with groups of protesters directing their anger towards Iran. DFAT has reported that, ‘a wave of nationwide protests commenced at the beginning of October 2019, with demonstrators expressing discontent at a system perceived as corrupt and untrustworthy, and with unacceptable influence from Iran and elsewhere’.[14] In November 2019, protesters stormed and torched the Iranian Consulate in Najaf, threw gasoline bombs at the Iranian Consulate in Karbala and burned bases of Iranian-supported factions within the Popular Mobilization Forces (PMF).[15] Previously, in 2018, protesters had attacked the Iranian consulate in Basra.[16]
[14] DFAT, n8, above.
[15] DFAT, ibid. See also Rubin, A, Iraqis Rise Against a Reviled Occupier: Iran, The New York Times, 4 November 2019, Ibrahim, A, Why are Iraqi protesters targeting Iranian buildings?, Aljazeera, 29 November 2019,
101. Analysts and commentators have emphasised that the expression of anti-Iranian sentiments in Iraq ‘is ultimately a function of anger with the Iraqi political system’ and the target of rage is ‘the Iraqi political order and the ruling oligarchy.’[17] According to Fanar Haddad, the anti-Iranian sentiment in Iraq manifested itself in multiple ways during the recent protests: appearance of anti-Iranian slogans, more extensive and open violence against Iranian ‘assets and interests’ and targeting of PMF bases.[18] Haddad noted that ‘the current protests in Iraq were not primarily about Iran or meant to be anti-Iranian but are opposed to the political setting in which Iran has deeply invested’.[19] Renad Mansour, director of Iraq Initiative at Chatham House, has also noted that while protesters are angry with Iran, ‘they are angry with the political system more generally and Iran fits into that system because it’s perceived to be one of the external backers of that system’.[20] The sources consulted do not suggest that the recent anti-Iranian sentiments have manifested in or translated into targeting of other Iraqi citizens who are or are perceived to be of Iranian origin, or indeed scores of Iranian nationals visiting Iraq on a regular basis, including pilgrims to Shi’a holy sites.[21]
[17] Haddad, F, How Deep Is Anti-Iranian Sentiment in Iraq?, Carnegie Middle East Centre, 14 November 2019,
[18] Ibid.
[19] Ibid.
[20] Sighted in Ibrahim, n13, above.
[21] See, for example, Almost 2 million Iranian pilgrims head into Iraq for Arbaeen, France24, 28 October 2018, and Rubin, A and Fassihi, F, A Shiite Holiday Turns Into a Test of Iranian Power in Iraq, New York Times, 22 October 2019,
102. The applicant is not a Faili Kurd and contrary to his former representative’s submissions that his Iraqi National Identity Card indicates that he is tab’iyya or a person of Iranian origin, the Tribunal has been unable to detect any information identifying the applicant as a person of Iranian origin in the documents he has submitted in support of his Iraqi nationality. As noted above, the Tribunal has found no persuasive information in any of the sources consulted to suggest that Iraqi citizens who are or are perceived to be of Iranian origin, regardless of the level of their Arabic language skills or accent, face discrimination or other harm amounting to serious harm or significant harm in Iraq.
103. On the basis of the evidence before it, the Tribunal finds that there is no real chance that the applicant will face serious harm in Iraq by anyone for being, or being perceived to be, Iranian or of Iranian origin. The Tribunal finds that there is no real chance that the applicant will face serious harm in Iraq because he will be perceived to be an Iranian spy or associated with the Iranian regime due to being born and having resided in Iran, his ‘escape’ from Iraq to Iran, or due to his poor Arabic language skills and speaking Arabic with a Persian accent. The Tribunal finds that there is no real chance that the applicant will face serious harm because he will be perceived to be ‘plotting’ or having ‘hostile goals’. The Tribunal does not accept that the applicant will be imputed with an adverse political opinion, including accusations of being a traitor, because his uncle had fought in support of Iran during the Iran-Iraq War, regardless of whether or not the community in Diwaniya is aware of his uncle’s involvement in the Iran-Iraq War. The Tribunal does not accept that he will be a target of revenge by those who might have lost someone or something during the Iran-Iraq war because of his uncle’s profile. The Tribunal finds that there is no real chance that the applicant will face serious harm in Iraq by militias or the local community in Diwaniya or anywhere else in Iraq as a result of his uncle having fought in support of Iran during the Iran-Iraq War, and for the reason of any adverse political opinion that may be imputed to him as a member of his uncle’s family or his membership of the particular social group of his uncle’s family.
104. The applicant acknowledged at the second hearing that his brother-in-law’s extended family reside in Diwaniya. Whilst the Tribunal is prepared to accept that the applicant may lack a tribal affiliation, it does not accept that he has no familial connections in Iraq. There was no persuasive evidence before the Tribunal to support the applicant’s claims that lack of tribal or familial affiliation in Iraq would render him vulnerable to harm due his family’s background and history, his linguistic profile and other characteristics, or any other reason. The Tribunal does not accept the purely speculative claim that the applicant’s lack of tribal affiliation would expose him to accusations that he is ‘potting’ or that he has ‘hostile’ goals’. There was also no persuasive or credible evidence before the Tribunal to support the view that lack of tribal or familial affiliation in Iraq would expose the applicant to potential risk of crime or criminal activity. The Tribunal does not accept that persons who have no familial or tribal connections in that country will be targeted for ‘criminal gains’. The Tribunal finds that the absence of tribal or even familial affiliations would not give rise to a real chance that he would face serious harm.
105. The applicant claimed in passing at the hearing that due to his uncle’s involvement in the Iran-Iraq War and his lack of tribal affiliations he will not be able to get married because nobody will be happy for their daughter to marry him. The Tribunal appreciates the applicant’s speculative concerns about his marital prospects. However, the Tribunal does not accept that any challenges faced by the applicant in finding a suitable bride for these reasons or any other reason amounts to serious or significant harm.
106. For the reasons set out in the paragraphs immediately above, the Tribunal finds that there is no real risk that the applicant will face significant harm in Iraq for reasons arising from his ethnic origins, Arabic language skills or accent, his family’s background and history, including his uncle’s role in the Iran-Iraq War and his lack of tribal affiliations.
Property claims
107. The applicant first raised the claims relating to his family’s properties in Iraq in the course of the first interview in 2017. Essentially, the applicant claimed that his father had returned to Iraq following the fall of Saddam Hussein to reclaim properties owned by the family before their exile from Iraq and confiscated following their relocation to Iran. His father was unsuccessful in reclaiming the properties and received threats in his attempts to do. Subsequently, in his evidence to the Department and the Tribunal in connection with his second TPV, the applicant reiterated these claims. He also claimed that his brother, [Brother A], encountered a similar experience to their father when he travelled to Iraq from Iran in October 2019 to reclaim the family’s properties.
108. The Tribunal is prepared to accept that the applicant’s family owned a number of real estate properties in Iraq before being displaced. The applicant told the delegate at the second interview that his father had left Iraq ‘empty handed’ and without any evidence of ownership of these properties. When his father had returned to Iraq following the fall of Saddam Hussein, he had lodged a complaint with the Iraqi authorities to assert his property rights. The Tribunal is also prepared to accept the applicant’s father had faced resistance and threats of harm by those had come to possess the properties. The Tribunal also accepts that the applicant’s [Brother A] had was threatened, assaulted and briefly kidnapped when he tried to pursue claims in relation to the family’s properties in October 2019.

109. The Tribunal, however, does not accept that the applicant’s father and brother were adversely treated for any reason other than attempting to reclaim properties from those who currently hold the ‘title deeds’ and consider themselves the legitimate owners.
110. In his first interview, the applicant told the delegate that when his father attempted to reclaim his properties, he was told that if he and his family members will be killed if he took any action in relation to the seized properties. He also stated that his father was accused of being an Iranian spy with no rights in Iraq. At the second interview, the applicant told the delegate that his father was threatened because he was trying to lodge a complaint and prove his ownership of the properties. He further stated that these people are aware of the family’s links with Iran. At the second hearing, the applicant also told the Tribunal that his father was threatened because he wanted to retake the properties from those claiming ownership. He added, however, that his father was also told that he is Iranian, an Iranian spy and that he had no rights in Iraq. With regard to his brother, the applicant claimed that the family’s perceived links with Iran was a factor in the treatment faced by his brother when he attempted to pursue the claim on the properties.
111. The applicant submitted a copy and translation of a purported police report, issued [in] October 2019 by [Police Station 1] in relation to his brother, [Brother A]. The copy appears to be a relatively poor photocopy of a photographic image taken of a document. The contents of the document, which relay a complaint made by the applicant’s brother to the police (in a mixture of third person and first person), states that when he ([Brother A]) returned to Iraq, he was beaten and kidnapped for two hours by a group of men. His assailants accused him of being loyal to Iran and named members of his family, including his father, the applicant and another brother as being Iran loyalists.
112. In his decision record of 1 June 2021, the delegate raised a number of concerns in relation to the genuineness of the document submitted by the applicant. The delegate noted that the contents of the police complaint do not match the claims that the threats and abduction were over the property dispute and that it lacked any security features. The delegate also referred to DFAT’s 2020 Iraq report, stating that ‘Fraudulent documents are reportedly commonly and cheaply available.’
113. At the first and the second hearing, the Tribunal informed the applicant that the Tribunal shares the delegate’s concerns in relation to these documents. In particular, it was put to the applicant that, despite his claims that his brother was targeted in Iraq as a consequence of pursuing the property claim, the document makes no mention of this. The applicant explained that his brother’s life was in danger and had he said anything to the police, those in possession of the properties would have been taken to court. The Tribunal finds this explanation unpersuasive. In his May 2021 submission, Mr Alkafaji had stated that the applicant’s brother was advised not to mention the armed group’s links with the government, but it does not appear that he was advised to conceal the reason behind the attack. Moreover, if the applicant’s brother was so concerned about his safety or the reaction of his assailants, why lodge a complaint at all, as opposed to making a complaint without truthfully disclosing relevant details or the primary reason behind his treatment. The Tribunal also discussed with the applicant its concerns about lack of security features and prevalence of fraudulent documents in Iraq. The applicant stated that the documents he has submitted have been stamped. Mr Alkafaji submitted at the hearing that Iraqi government’s administrative procedures are very poor, to the extent that genuinely issued documents cannot be distinguished from fraudulent ones. These explanations instil little confidence in the Tribunal’s mind as to the genuineness of the police report. In addition, the Tribunal considers it odd that, at least according to the applicant's brother’s purported account of the incident to the police, [Brother A’s] assailants had specifically named his father, the applicant and another brother who also resides in Australia, despite the applicant having two other brothers (besides [Brother A]) who reside in Iran. This self-serving aspect casts a shadow of doubt over the genuineness of the document. For all these reasons, the Tribunal has significant concerns regarding the authenticity of the police report and places little weight on it.
114. In his evidence, the applicant claimed that the properties were confiscated by ‘political parties’ in Iraq, with links to militias and the Iraqi government. At the second hearing the applicant stated that his father was targeted by persons who had taken possession of the properties and they are members of some political party. When asked which political party, he said he did not know. He also did not know if the party was a Shi’a or Sunni political party but made an assumption that it was a Shi'a political party. When asked how he knew these people were associated with a political party, he said an ordinary person would not make threats unless they are supported by some form of power. Also, his father told him that these people were connected with a party. The Tribunal found the applicant’s evidence in this regard vague and unpersuasive, rendering his claims in relation to the possible reactions of these unknown parties highly speculative and unreliable. In the absence of any meaningful information being put forward by the applicant about these purported ‘parties’, including status, ideology, political leaning, nature of links with the government, it is difficult to accepts his claims about their alleged anti-Iranian views or concerns about being the subject of legal proceedings.
115. In any event, the applicant’s evidence clearly indicates that the properties previously owned by the family are now valuable real estate in possession of others regardless of their political or religious affiliation. The applicant’s father and brother had been subjected to threats and other harm when they had attempted to reclaim the properties from their present owners. As discussed in detail earlier, the Tribunal has found no persuasive information in any of the sources consulted to suggest that Iraqi citizens who are or are perceived to be of Iranian origin or who have resided in Iran over a prolonged period of time face discrimination or other harm amounting to serious harm or significant in Iraq by anyone, including any militias or political parties. The Tribunal finds that the applicant’s father and brother were targeted for the essential and significant reason of having pursued a claim against the properties the family previously owned and threatening the financial interests of those now in possession of the properties. The Tribunal does not accept that the armed men who attacked the applicant’s brother named the applicant, his father and another brother; or that the armed men had connections to the Iraqi government. The Tribunal does not accept that these individuals had targeted the applicant’s father and brother for the reasons of their perceived links to Iran, including the applicant’s uncle’s role during the Iran-Iraq War.
116. Following the second interview, Mr Alkafaji submitted to the Department that the applicant does not agree with the delegate’s assertions that he will not pursue his family’s property claims if he were to return to Iraq. However, the applicant’s evidence to the Tribunal in this regard was ambivalent and equivocal. At no point the applicant ‘asserted’ that he would pursue the property claim. When asked what would happen if he did not pursue the claim upon returning to Iraq, he repeated the claim that he is considered an Iranian, he will be accused of being a spy, he has no tribal support and his uncle’s history would make matters worse. When this was discussed with him again later in the course of the second hearing, he stated they would not believe that he is not going to do anything, and he would not risk going back to Iraq regardless of whether a complaint is lodged or not.
117. On the basis of the applicant’s evidence, the Tribunal is not satisfied that he has a genuine commitment to pursuing or seriously intends to pursue any claims against his family’s properties in Iraq. The Tribunal finds that the applicant will not pursue any property claims if removed to Iraq.
118. The applicant’s evidence suggests that his fear of facing harm by those who are now in possession of the properties is a reason for not pursuing the claim. The Tribunal accepts that if the applicant were to pursue the property claim, there is a real chance that he will face serious harm at the hands of the current proprietors. The Tribunal has already found that, in the case of the applicant’s father and brother, the current owners were essentially and significantly motivated by protecting their own interest and financial position, and not for any other reason, including his perceived ethnicity, links with Iran, imputed political opinion or membership of his family. The applicant did not claim and there was no evidence before the Tribunal to suggest that there were further or ongoing threats or harm to family members outside of the isolated events in that arose directly from the attempts made by the applicant’s father and brother to reclaim the properties. The Tribunal finds that any harm faced by the applicant as a result of pursuing a claim against his family’s properties would be motivated by the same reasons and not for any reason referred to in s 5J(1)(a) of the Act. The Tribunal is further satisfied that the state would not hold protection from the applicant for the reason of his ethnicity, religion, imputed political opinion or membership of any particular social group arising on the face of the evidence if he were to pursue the property claim.
119. As the Tribunal has found that the applicant would not pursue any claims against his family’s properties if he were to return to Iraq, the Tribunal also finds that the there is no real risk that the applicant will face significant harm upon his return to Iraq at the hands of the current proprietors of the properties. In any case, the applicant’s motives for not pursuing the land claim are not relevant to the Tribunal’s assessment under s 36(2)(aa) (see DQU16 v MHA [2021] HCA 10).
Religion
120. In a statement submitted in support of his first TPV, the applicant had claimed that he is a ‘secular’ man who hates religious fanaticism and rigidness. He is open to all religions and principles. In supporting submissions by his former representative, it was further claimed that the applicant has embraced the ‘Christian way of secularism’, he has become secularised in Iran and in Australia and would be perceived as ‘hostile’ by both Sunni Islamists and Shi’a fundamentalists. He has an ‘independent mind’ and would be regarded as a kafir. These claims were also subsequently expressly abandoned by the applicant.
121. In his submission of 28 April 2022, Mr Alkafaji stated that that the applicant had never mentioned to his former representative that he embraces secularism or ‘the Christian way of Secularism.’ These claims can be attributed to misunderstanding by his former migration agent and the applicant’s Arabic language skills. At the second hearing, the applicant told the Tribunal that he considers himself a practicing Shi’a Muslim. He prays sometimes, but he is unable to fast due to the adverse impact of fasting on his eyesight. He added that he also ‘sometimes’ attends the mosque for ‘social’ reasons.
122. On the basis of the evidence before it, the Tribunal finds that the applicant considers himself a moderate Shi’a Muslim and that he is committed to his beliefs. The Tribunal finds that the applicant will continue to identify as a Shi’a Muslim and believer if he were to return to Iraq. The Tribunal does not accept that the applicant will be perceived to be a kafir or an apostate or a ‘secularised’ returnee, or that he will be perceived to be anything other than a follower of Shi’a Islam, regardless of the fact that he has resided in Iran and Australia. The Tribunal finds that there is no real chance that the applicant will face serious harm in Iraq for the reason of his religion. The Tribunal finds that there is no real risk that the applicant will face significant harm for any reason related to or arising from his religious beliefs.
Forcible recruitment
123. In the first TPV application, it was claimed that Shi'a militia leaders would force the applicant to join them for training or to fight against Da’esh. In his submission of March 2022, Mr Alkafaji stated that the militias are ‘very active’ in Qadisiya province where the applicant’s father was born and DFAT has reported that Shi'a militias are engaged in forcible conscription of minors. This is relevant as it shows the prevalence of the Shi'a militias in Qadisiya. He asked the question, if this is the case for minors, then how would it be for the someone like the applicant. At the hearing, the applicant and his representative did not press the claim that the applicant will be forcibly recruited by Shi’a militias in the south. As discussed with the applicant, there is no persuasive evidence before the Tribunal to suggest that Shi’a militias forcefully recruited or are recruiting adult Iraqi nationals to fight Da’esh or in relation to any other cause. The Tribunal finds that that the applicant will not be forcibly recruited or conscripted if he were to return to Iraq. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm in this regard. The Tribunal finds that there is no real chance or a real risk that the applicant will be forcefully recruited by Shi’a militias in Iraq for any purpose.
124. In the submissions provided by the applicant’s representative in support of first TPV application, it was claimed that Iraq is now a violent country and ‘embroiled in sectarian turmoil’ due to Da’esh and foreign jihadists invading the country. The applicant subsequently did not pursue this claim. As discussed with him at the hearing, Da’esh was defeated in December 2017[22]. The applicant’s evidence at the second hearing suggested that he feared being forcibly recruited to fight Da’esh, a claim the Tribunal also already addressed. In any event, the Tribunal finds that there is no real chance that the applicant will face serious harm and there is no real risk that he will face significant harm at the hands of Da’esh, foreign jihadists or any Shi'a militias.
[22] DFAT, n8, above.
Other challenges and discrimination
125. In his evidence to the Department in support of both his first and second TPV applications, the applicant had consistently claimed that he had never travelled to Iraq. At the second hearing, he claimed for the first time that he had travelled to Iraq on one occasion, staying for a few days in the months before he came to Australia. He explained that he had entered northern Iraq illegally from Iran with the intention of obtaining an Iranian visa on his Iraqi passport in order to re-enter Iran and then fly out of Iran legally to travel to Australia. He stated that he had an Iranian ID card at that time and by exiting Iran his ID card would have been ‘cancelled’. When asked why he had previously mentioned his trip to Iraq, he claimed that he had mentioned it in his entry interview and perhaps his intention had been to say that he had never lived in Iraq. In view of the fact that the applicant had previously expressly denied any travel to Iraq, the Tribunal finds these explanations highly unpersuasive. This belated revelation casts a shadow over the applicant’s credibility. Nevertheless, the Tribunal is prepared to accept that the applicant had travelled to Iraq on one occasion.
126. The applicant has repeatedly claimed that he has never lived in Iraq and he will face hardship because of his Arabic language skills, Persian accent, lack of tribal and familial connections and lack of property. Mr Alkafaji submitted that these factors would render the applicant more vulnerable in the context of Iraq’s poor economic situation and high unemployment. The Tribunal has also considered Mr Alkafaji’s references to segments of DFAT’s Iraq report in relation to potential challenges faced by Iraqi nationals who may seek to internally relocate within Iraq.
127. The Tribunal accepts that the applicant’s limited Arabic literary skills and having not lived in the country in the past may result in him facing challenges in adjusting to life and the environment in Iraq, including in relation to finding suitable employment. However, the Tribunal has found no evidence in any of the sources consulted to suggest that the applicant will face discrimination amounting to serious harm or that he will not have access to any form of employment as a consequence of his inability to read and write Arabic, not having lived in Iraq, absence of tribal connections or not having any assets. The delegate found in his decision record of 1 June 2021 that the applicant has established extended family networks in Iraq. The Tribunal has also found that the applicant has in fact familial connections in Iraq, who he can rely on to reintegrate into the community. He is relatively young, he has some Arabic language skills, and was able to find employment in both Iran and Australia. Whilst he claimed that he is currently unemployed due to a work-related injury, he did not claim to have been permanently incapacitated or that he would be prevented from obtaining employment in Iraq in the reasonably foreseeable future. He has at least some skills and experience that would assist him in accessing employment in Iraq.
128. On the basis of the evidence before it, the Tribunal does not accept that he would be unable to find employment without the payment of bribes, without being a member or supporter of any party or group or because corruption is so widespread as to prevent any Iraqi from finding employment. The Tribunal does not accept that the challenges the applicant may face in Iraq amount to serious harm for any of the reasons outlined in s 5J of the Act or any other reason. The Tribunal does not accept that there is a real chance that the applicant will face serious harm, including significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist. For the same reasons, the Tribunal does not accept that there is a real risk that the applicant will face significant harm, including severe pain or suffering, extreme humiliation or pain or suffering that could reasonably be regarded as cruel or inhuman in nature arising from his limited literacy skills, the economic situation or not having lived in Iraq in the past.
129. The Tribunal has also considered the applicant’s more general references to sectarian and general violence and Iraq still being a dangerous country. However, there is no persuasive information before the Tribunal to suggest that any risks associated with the general security situation giving rise to these concerns are faced by the applicant personally. The Tribunal is not satisfied that the general security situation in Iraq would expose the applicant to a real chance of persecution.
130. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the lack of general security and the dangers referred to by the applicant are faced by the population generally and not by him personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Iraq as a result of sectarian or general violence or lack of general security.

Conclusions
131. After considering all of the applicant’s claims, both individually and cumulatively, for the reasons set out above, the Tribunal finds that there is no real chance that the applicant will face serious harm in Iraq for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
132. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
133. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
decision
134. The Tribunal affirms the decision made by the delegate of the Minister on 3 March 2017 not to grant the applicant a protection visa.
135. The Tribunal affirms the decision made by the delegate of the Minister on 1 June 2021 not to grant the applicant a protection visa
Shahyar Roushan
Senior Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3567

25 August 2022

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