1911358 (Refugee)

1911358 (Refugee) [2022] AATA 1549 (30 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1911358
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Amanda Paxton
DATE:30 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 30 March 2022 at 10:01am
CATCHWORDS
REFUGEE – Protection visa – Iraq – particular social group – secular professional – previous work with westerners and western companies – religion – Sunni – fear of Shia extremist groups – western sympathies – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40
MIEA v Guo (1997) 191 CLR 559
MIMA v Darboy [1998] FCA 931
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Iraq, applied for the protection visa on 4 October 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act.
The applicant validly applied for review of the refusal decision at the Tribunal on 6 May 2019 attaching the delegate’s notification of refusal of application for a protection (Subclass 866) visa and decision record.
The applicant appeared before the Tribunal on 9 December 2021 to give evidence and present arguments in relation to his application. The Tribunal exercised its discretion to hold the hearing by MS Teams video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.
The video was clear throughout the hearing and the applicant’s answers were appropriate to the Tribunal’s questions. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing. The applicant also indicated he was satisfied he was able to give evidence and present arguments.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘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–5LA, 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.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s identity and country of reference
The applicant stated in his application for a protection visa that he was born on [date] in the city of Baghdad in Iraq.[1] In addition to the information provided by the applicant in his application for a protection visa, the applicant provided the Department with a copy of his Iraqi passport[2] and National Identity Card confirming this information. The Tribunal accepts the applicant’s explanation at hearing that he has one alias, which, as confirmed at hearing, arose as a result of errors in nomenclature occurring when he obtained his most recent passport.
[1] [File number], Doc Id 5633371, 4 October 2017.
[2] [File number], Doc Id 5633372, 4 October 2017.
The applicant claims to be a citizen of Iraq and has provided a copy of the biodata page of his Iraqi passport to the Department.[3] There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.
[3] [File number], Doc Id 5633372, 4 October 2017.
The Tribunal finds that the applicant is outside his country of nationality.
There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided, the Tribunal finds that Iraq is the country of reference for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.
Written claims for protection and supporting documentation
The applicant’s written claims for protection are included in the application for protection visa Record of Responses and are summarised below: [4]
[4] [File number], Doc Id 5633371, 4 October 2017.
a)He will be killed, assaulted, harassed or kidnapped if he returns to Iraq by fundamentalist Shi’a militia because of his religion and real and imputed political opinion as a result of the time he has spent in a western country, his moderate religious practises, employment with western companies in Iraq, and as an educated, professional, secular Sunni. He believes he will be subjected to this harm because of his religion as a Sunni Muslim.
b)Due to the atrocities committed by Islamic State (IS – also referred to in country information reports by its Arabic language name, Daesh) throughout Iraq, Arabs who are Sunni Muslims are treated with suspicion and mistreated on account of presumed support for IS.
c)Both Shi’a and Sunni groups will regard him as a supporter of the US led invasion because he has worked for foreign companies.
d)As a result of the breakdown in law and order and lack of available protection in Iraq, returnees from the west are extorted by criminal gangs because of their perceived wealth from residing in a western country.
e)In support of his claims, the applicant states that he left Iraq in late December 2016 because he was personally threatened by members of a Shi’a militia through his work as an [Occupation 1] with [Company 1] on account of being Sunni. He states that this led him to be required to take time off from his job and return to his parents’ home in Ghazaliya, Baghdad. He claims that while he was in Ghazaliya there were numerous roadside bomb attacks and other terrorist attacks which killed numerous people, instigated by Shi’a militia in the area who target the Sunni population because they believe they all support IS and are a threat to the Shi’a population.[5]
f)The applicant claims that since the invasion by the IS in Iraq in June 2014 it has become very dangerous for Sunnis in Ghazaliya because Shi’a militia have set up checkpoints throughout the area for the purpose of checking ID cards and controlling the movement of people. They can differentiate Sunni people by their names, and many Sunni’s have been kidnapped, tortured, held to ransom and killed.[6]
g)When he was employed as [Occupation 1] by the [Country 1] company [Company 1], which operates in the [specified] sector, his work involved travel to various areas of Iraq, and in particular to Basra. While working in Basra, he would stay at a [hotel], where the majority of employees who worked for the company but who did not live locally would stay. In December 2016, as he was preparing to leave the hotel with his manager to attend work, three men approached his manager and asked to speak to him in private. His manager went with them, and when he returned, he told the applicant that they had threatened him not to bring any Sunnis to work for the company in Basra or they would be killed. He states that Basra is a Shi’a city, where 99% of the population are Shi’a. The local Shi’a militia do not want any Sunnis to live or work there. His manager took the threat very seriously and advised him to leave Basra and take time off work. The applicant took his advice and left immediately and returned to his parents’ home in Ghazaliya.
h)The applicant claims that having been personally threatened, and then being exposed to regular terrorist attacks in his home area, he feared for his life, and fled Iraq.
i)The applicant claims he could not obtain help from the Iraqi authorities because they were unable and unwilling to protect him. He claims that law enforcement in Iraq is not strong enough to protect the people from sectarian violence and the situation is only getting worse. In addition, many members of the Iraqi authorities have come from Shi’a militia groups. Because of this they have a natural dislike for all Sunni people, and they are extra suspicious of them because they assume that all Sunnis are followers of IS. They are infiltrated and effectively controlled by fundamentalist Shi’a militia. As a Sunni Muslim, he fears harm from Shi’a militia and tribal leaders who are able to use violence with impunity given their connection to the Iraqi authorities.
j)The applicant states he did not try to move to another part of the country to seek safety because as a Sunni Muslim who rejects the radical beliefs and practices of Sunni extremist groups he could not relocate to northern or western Iraq. He claims he is at risk of harm in the north and west of Iraq despite the fact that the population is predominantly Sunni. Sunni extremists, such as IS, are active in these areas and their reach extends all the way to Baghdad. He states he has no legal right to relocate to Kurdistan. As a Sunni Muslim he would also not be accepted in southern areas of Iraq where the population consists of mainly Shiites. He claims he cannot relocate to Baghdad or any other areas in southern Iraq because of the presence of fundamentalist Shi’a militia in these regions and the threats he has had from them in the past. They or their followers will harm him as a moderate, secular Sunni with links to a western country. They continue to attack anyone that does not support their cause or follow their extremist religious beliefs and activities in Iraq.
k)The applicant came to Australia because he reached the conclusion that he could no longer live safely in Iraq as a known well-educated, professional [Occupation 1] who has worked with international organisations, and as a secular Sunni Muslim.
[5] Ibid.
[6] [File number], Doc Id 5633371, 4 October 2017.
On 25 February 2019, the applicant’s representative lodged a document with the Department which provided submissions on behalf of the applicant in support of the protection claims he has raised.[7] It was submitted that in essence, he fears that he is at risk of persecution by fundamentalist Shi’a militia groups, particularly those that wield influence in the business sector, including the Popular Mobilisation Forces (PMF), the Asa’ib Ahl al-Haq, and others with links to the former Mahdi Army, the Badr Corps and Sunni extremist groups.
[7] [File number], Doc Id. 5633382, 25 February 2019.
It was further submitted that:
a)Genuine Fear – it is clear the applicant fears persecution as a result of his own religion, his imputed political opinions and his membership of the particular social groups identified in his claims.
b)Security situation in Iraq – country information provided demonstrates that Iraq’s security situation is volatile, and that refugee-related violence is uncontrollable and continues to occur at an unacceptably high rate.
c)Fear of harm from Shi’a militia groups – reputable country information continues to show that Shi’a militia have effective control of Baghdad and southern Iraq, with continued reports that they have increasingly come to dominate the security scene whilst increasing sectarian and religious tensions and targeting un-Islamic behaviour.
d)Fear of harm from Sunni extremist groups – country information shows that IS continues to launch attacks on Iraqi civilians, and evidence in the submission shows that: ‘As a consequence of this ongoing conflict, Iraq has experienced a dramatic increase in sectarian tension and a complete breakdown of civil society’.
e)Relocation – it is submitted that independent country information illustrates the real chance of encountering persecution exists in all areas of Iraq.[8]
[8] [File number], Doc Id. 5633382, 25 February 2019.
On 30 November 2021, the applicant’s representative lodged a pre-hearing submission with the Tribunal. The submission is made up of country information aligned with the applicant’s protection claims and concludes as follows: ‘It is our respectful submission that reputable country information in conjunction with the applicant’s history and profile demonstrate that there is a real chance he faces persecution in the reasonably foreseeable future. In the case of abduction for ransom by criminal gangs, he falls within the parameters of the complementary protection provisions, for the reasons canvassed above.’
On 16 December 2021, post-hearing, the applicant’s representative submitted that the applicant’s claims fall within the scope of s 5J(1)(a) of the Act by reason of his religion, his profession and work for international companies, and membership of a particular social group and political opinion.[9] It is submitted that the applicant holds a well-founded fear of persecution by reason of his religion as a Sunni Muslim and his profile as a known well-educated and secularised [Occupation 1] who is regarded by radical fundamentalist Islamists as kafir (apostate) and who refuses to bow to their religious and other dictates.
[9] AAT 1911358, Doc Id. 9244342, 16 December 2021.
In respect of the applicant’s claim regarding his political opinion, it is submitted that his political opinion is imputed to him by parties who believe him to be hostile to the Islamist goal of establishing Iraq as an Islamist State under either a caliphate or a theoretic Islamic regime based on Sharia law as a result of him being a secularised Sunni and a well-educated professional.
It is submitted that the applicant is thoroughly westernised and, in the circumstances, where he is educated, well-travelled and worked for foreign owned companies, he will be more likely than others to be targeted for kidnap and ransom.
It was submitted that the applicant’s profile and history, together with the country information canvassed in the various submissions, supports a conclusion that the applicant faces a real chance of persecution should he be forced to return to Iraq. His profile as a young, well-educated, professional [Occupation 1] who has worked with international organisations, and a secular Sunni Muslim who has lived in a western country constitutes the essential and significant reason for the applicant’s fear of persecution, and that the persecution he fears involves serious harm and constitutes systematic and discriminatory conduct against him. Therefore, it is submitted there is a real chance the applicant will suffer serious harm in Iraq by reason of him being an educated and secularised Sunni Muslim as claimed.
Post-hearing, the applicant submitted a personal statement indicating that since his arrival in Australia five years ago he has built a successful career, is in a serious relationship with an Australian girl and has integrated into the Australian lifestyle.[10] In this statement, the applicant states that all his siblings are Australian citizens residing in Australia and that since his father has died his mother has been sponsored to come as a permanent resident to Australia.
[10] AAT 1911358, Doc Id. 9244342, 16 December 2021.
Applicant’s evidence
The applicant gave evidence that he is of Arab ethnicity and of the Sunni religion, and that he speaks, reads and writes both Arabic (including Lebanese) and English. He told the Tribunal that he is unmarried and that his father recently died and his mother resides in Baghdad and that his three siblings, Australian citizens, and cousins live in Australia.
The applicant gave oral evidence that he lived in Baghdad until 2006, except for a period when young when he lived with his family in [another country] where his father, [details deleted]. The applicant then lived in [Country 2] for five years during the final years of the war in which time he completed his Bachelor of [Occupation 1], returning to Baghdad briefly before going to [Country 3] from 2011 to 2013 where he completed his Masters in [Occupation 1]. The applicant was offered a grant to do his PhD, but decided he wanted to work in the field as an [Occupation 1] rather than take a more academic route, so he did not pursue this and returned to Iraq. He travelled to [Country 3] again in 2014, and to Australia in 2016 for two weeks on a Subclass 476 (Temporary) Skilled – Recognised Graduate visa. He departed Iraq legally and arrived in Melbourne, Australia [in] February 2017 as the holder of a Subclass 476 visa.

Consistent with his written evidence, the applicant gave evidence at hearing that on return to Baghdad in 2014 he was employed [in a certain role], and for a brief period as [Assistant] Manager, with the [Country 4] company, [Company 2], which provided [services] to government, foreign entities such as embassies and foreign [companies]. In this role, the applicant looked after [details deleted]. [Company 2] had contracts with embassies including a contract to look after [a particular area] of the [Country 1] embassy within the international Green Zone in Baghdad. For security reasons, he was required to be registered as an employee with [Company 2] with government authorities and wear a badge. In this role he had regular meetings with senior, ‘sensitive’ personnel, such as people in government and embassies including the [Country 1] Ambassador and staff within [Country 5] Embassy.
The applicant’s evidence was that this job was not in his field of [Occupation 1], but it was the first job opportunity that arose for him and he remained there for almost one year before moving to [Company 1] as [Occupation 1] in 2015. The applicant confirmed that [Company 1] is a global [manufacturer], active in over [number] countries.[11] According to the applicant, [Company 1] has offices around the globe including Baghdad where [Company 1] had a lot of business and had a small but important and busy [office]. The applicant was particularly involved in providing clients with specialised [services]. [Details deleted]. At that time his manager reported to Headquarters in [Country 1].
[11] [Source deleted].
At hearing, the applicant told the Tribunal that much of his work as an [Occupation 1] with [Company 1] involved going onsite for jobs. [Company 1]’s contracts were largely with companies in the city of Basra and southern areas of Iraq. The applicant explained that [Company 1]’s main competitor was also in Iraq but their work was focused on different locations and they used different technology. He worked closely with colleagues but usually onsite rather than in the office.
As discussed further below, the applicant provided an account at hearing of an incident in late 2016 where he claimed to be threatened by men believed to be Shi’a militia when attending a site visit in Basra because he was identified as Sunni Muslim resulting in his employer requiring him to return to Baghdad, following which time the applicant decided to depart Iraq.
According to the applicant, some names in Iraq are identifiably Shi’a or Sunni and the construction of his name and his family name point to a person being of Sunni background.
As outlined in his application and as discussed at hearing, in Australia the applicant was successful in having his [Occupation 1] qualifications recognised, and he has undertaken short courses at [an Australian tertiary education institute] in 2017 in [technologies] used in [Occupation 1]. In 2018, he found employment in Melbourne with [Company 3], [details deleted]. He first provided [certain services] until he was promoted to the role of [Team] Leader in July 2021 where he works closely with clients such as [deleted].
At hearing, the applicant submitted that he is an advocate of western democracy, equal rights for women and acceptance of all religions and he is an opponent of a Sharia State and the direct involvement of religious leaders in the political system. He claimed that if he were to express those views in public in Iraq he would be at risk of persecution. He is accustomed to expressing his views in Australia and should not be constrained from expressing them in Iraq, particularly after Australia and other western countries have spent the past 18 years on a mission to introduce western values to Iraq. At hearing the applicant also provided evidence about his activities in Australia, including his participation in gym activities, and social and sporting activities with friends. The applicant claims that as a secular professional in the west he will be regarded as an advocate of western democracy in Iraq because he would not be able to hide his western views and he does not regard western organisations as occupiers, but as beneficial to Iraq. While he does not see himself as an activist, he would be viewed as such in Iraq owing to his profile as a young, well-educated secularised Sunni.
COUNTRY INFORMATION
The Tribunal has referred to the DFAT Country Information Report on Iraq dated 17 August 2020 (the DFAT Report).[12] In particular, the Tribunal has referred to those parts of the DFAT Report provided in Annexure A herein.
[12] DFAT Country Information Report, Iraq, 17 August 2020.
ASSESSMENT OF CLAIMS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Credibility
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible for or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[13] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[14]
[13] Section 5AAA of the Act.
[14] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[15] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[16] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[15] Guo Wei Rong and Pan Run Juan vMinister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445 at 482 per Foster J.
[16] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
Refugee considerations
Applicant’s relevant grounds
The applicant submits that his claims fall within the scope of s 5J(1)(a) of the Act by reason of his religion, membership of a particular social group or political opinion.
It is submitted that the applicant holds a well-founded fear of persecution by reason of his religion as a Sunni Muslim and his profile as a known well-educated and secularised [Occupation 1] who is regarded by radical fundamentalist Islamists as kafir (apostate) and who refuses to bow to their religious and other dictates.[17]
[17] AAT 1911358, Doc Id. 9244342, 16 December 2021.
The scope of ‘religion’ was considered in MIMA v Darboy,[18] within the context of the Convention and Protocol relating to the Status of Refugees (the Convention). In this case, the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40 at [14]:
The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.
[18] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22]).
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[19] as:
71. ‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.
72. Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.
73. Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.
[19] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, >
Therefore, the Tribunal is prepared to accept that his claim as a person regarded as an apostate by radical extremists, falls within the scope of s 5J(1)(a) of the Act.
In addition, the applicant claims that he falls within s 5J(1)(a) of the Act by reason of his imputed political opinion. It is not necessary that the political opinion is held by the applicant. It is sufficient for his political opinion to be imputed to him by the persecutor.[20] In respect of the applicant’s claim regarding his political opinion, the applicant stated he was not politically active, but he convincingly expressed support for western democratic ideals across a range of areas including gender equality and presented as being ‘thoroughly westernised’. It is submitted that his political opinion is imputed to him by parties, in this case Shi’a militia and or extremist Sunnis such as IS, who believe him to be hostile to the Islamist goal of establishing Iraq as an Islamist State under either a caliphate or a theoretic Islamic regime based on Sharia law as a result of him being a well-educated, professional secular Sunni having spent lengthy periods in western countries and working for foreign companies. The Tribunal considers it is open to the applicant to claim he holds a well-founded fear of persecution in Iraq on this basis and the Tribunal accepts that the applicant’s claim of having a well-founded fear of persecution because of this political opinion does fall within s 5J(1)(a) of the Act.
Applicant’s well-founded fear
[20] MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J.
Section 5J of the Act states that for the purposes of an application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
In Chan v MIEA[21] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[22]
[21] (1989) 169 CLR 379 at 396.
[22] Ibid. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.
In this respect, the Tribunal notes the Departmental delegate concluded that the applicant did not have a subjective fear of harm in Iraq on the basis that he applied first for a skilled visa on arrival in Australia but when he was unable to achieve the required points because of his level of English, he sought legal advice and decided to apply for a protection visa, and considered that had he had a genuine subjective fear of return to Iraq, it could be expected that he would have chosen the option of seeking protection in Australia as a first measure. The Tribunal has considered the applicant’s evidence at hearing and his submissions in this regard and accepts that as an [Occupation 1] with recognised skills in Australia he had a viable pathway to obtaining a permanent visa through a skilled visa application and the Tribunal accepts that it was reasonable for the applicant in these circumstances to explore this option to remain in Australia and that in the applicant’s case, this did not reflect the absence of subjective fear of threat to his life on return to Iraq. Nor does the Tribunal make an adverse credibility finding against the applicant on this basis. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted if he returns to Iraq.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[23]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[23] Chan v MIEA (1989) 169 CLR 379 at 397 per Dawson J.
In MIEA v Guo, the Court stated that:[24]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[24] (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below the Tribunal accepts that the applicant has a well-founded fear of persecution on both a subjective and objective basis if he is returned to Iraq.
Accepted facts
Based on the applicant’s evidence and the documentation provided to the Tribunal by the applicant the Tribunal accepts and finds that:
a)The applicant was born on [date] in the city of Baghdad in Iraq.
b)The applicant can speak, read and write in Arabic and English.
c)The applicant is of Arabic ethnicity and a moderate Sunni Muslim.
d)The applicant’s name is recognisable as a Sunni Muslim name.
e)The applicant is unmarried.
f)The applicant’s father is deceased, and his mother resides in Iraq.
g)The applicant’s siblings, Australian citizens, all reside in Australia.
h)The applicant completed his Bachelor of [Occupation 1] in [Country 2] during the final period of the Iraq war, and completed his Masters in [Occupation 1] in 2013 in [Country 3].
i)The applicant was employed by [Country 4] company [Company 2] in 2014, providing [services] to government and foreign entities such as embassies and companies.
j)The applicant was employed as a [Occupation 1] by the [Country 1] company [Company 1] from 2014 to 2016.
k)The applicant and his family reside in the Sunni district of Ghazaliya in Baghdad.
l)The applicant travelled to Australia on a provisional skilled visa (VF476 visa) [in] April 2016.
m)The applicant has undertaken [Occupation 1] courses in Australia and is currently employed as [Team] Leader with [Company 3], an Australasian based [company].
n)The applicant is a secular, professional person who lives according to western values.
Applicant as a Sunni Muslim and known profile as a well-educated secular, professional [Occupation 1] who has worked for foreign companies
The applicant claims he is at risk of being targeted for serious harm because he is Sunni, particularly in the context of his profile as a professional [Occupation 1] who worked for two foreign-owned business operators assisting in the rebuilding of Iraq following the US led invasion.
On the detailed evidence of the applicant, the Tribunal accepts that when he was working for [Company 2] he had regular meetings with people in government and foreign embassies, including [Country 5] and [Country 1] embassy. While this connection to [Country 5] is now dated, the Tribunal accepts that his details in connection with this role – registered to enter the Green Zone for security purposes – may remain recorded by the authorities.
At hearing, the applicant stated he has not been physically harmed in Iraq but that he was the subject of threats to his life as a Sunni Muslim from Shi’a militia when attending a site visit in Basra for his employer, [Company 1], and left his employment for fear of his life. In considering the credibility of this claim, the Tribunal acknowledges the applicant has provided a consistent account of this incident but notes that the applicant’s evidence at hearing lacked detail. The Tribunal observed that the applicant’s evidence appeared rehearsed at times as he used the same words as in his application to describe aspects of this incident, such as, ‘he was personally threatened’ and ‘the manager took the matter seriously.’ The applicant stated that his name is recognisable as Sunni, and they – people who appeared to be fundamentalist Shi’a militia because they ‘run the show’ in the southern areas and even in Baghdad – approached his manager as they left the hotel and threatened him not to bring Sunnis to the site. The applicant said the men identified the applicant as Sunni by his name but he ‘didn’t see the men’ and he doesn’t know who they were but they ‘kind of knew him.’ The Tribunal also discussed the response of his manager and the company to this incident, expecting that, given the applicant was an established professional [Occupation 1] in a responsible position in the organisation, there would be documentation if the applicant had been taken off a job and sent back to Baghdad. The applicant gave evidence that he returned to Baghdad as directed by his manager and took annual leave and that when he went home he was in a bit of shock. He made arrangements to go to Australia and it did not cross his mind to get documentation about the incident from [Company 1], he just wanted to be safe. Overall, the Tribunal considered the applicant’s evidence about this incident was limited, raising doubts about the veracity of his claims to have been targeted for harm by Shi’a militia in this way on account of his religion as Sunni.
However, in considering the credibility of the applicant’s claims, the Tribunal takes into account its assessment that the applicant was generally credible, providing open, direct and unembellished evidence. In this regard, the Tribunal also takes into account the country information discussed below and accepts the applicant’s claim to have been threatened by Shi’a militia as plausible. On this basis, the Tribunal is prepared to accept the applicant was threatened in Basra as he left for his worksite by Shi’a militia on the basis of his Sunni religion in 2016.

In assessing whether the applicant has a real chance of serious harm arising from his profile as a secular, educated Sunni Muslim with employment and other links to the west on return to Iraq the Tribunal has considered country information and notes first that DFAT information indicates that sectarian tensions/violence in Iraq and Baghdad have decreased over recent years, especially since the victory over IS.[25] However the Tribunal also takes into account DFAT reports that state the security situation in Iraq, while varying according to location, is highly unstable and fluid.[26] The applicant stated that the security situation could be reported as having improved a bit, but that this is inconclusive. He put the view that the main militia group of concern now is the PMF funded by the Iraqi government like a proper military and from trafficking oil, and in control of many areas. He described a recent PMF parade, showcasing Russian made tanks and drones. According to the applicant the PMF militia have checkpoints, combined with military personnel but they also take money from Sunni people to let them pass into and out of Baghdad.
[25] DFAT Country Information Report, Iraq, 17 August 2020.
[26] Ibid, [2.54].
The Tribunal has considered DFAT information that according to in-country sources, individual PMF elements exercise close control over many neighbourhoods, particularly in Shi’a areas.[27] DFAT advise that PMF groups effectively run these areas, providing a range of services that would normally be fulfilled by the state (particularly welfare and security). The manner in which PMF groups conduct themselves at the neighbourhood level depends upon the individual group. While, for example, some socially-conservative Shi’a PMF groups will punish anybody involved in the alcohol or drug trades, other groups reportedly run private nightclubs in which both alcohol and drugs are readily available. Many PMF groups have reportedly taken advantage of their freedom of action to establish local crime rings and mafia-like protection rackets. The Tribunal has noted that moves to integrate the PMF into the Iraqi Armed forces have not been successful in reining in many rogue PMF elements.[28]
[27] Ibid, [5.11].
[28] Ibid.
The applicant stated that in Iraq he had to be ‘hush hush’ about what he did for a living, but anyone could check easily. He put forward the view that the PMF are now part of the government, and his records will show he had a badge for the Green Zone, and his employment with [Company 1] will be recorded. If he returns to his field of work he will also have to register for permits again and will be identified as a person of interest as a Sunni and he will be imputed with adverse political interest as a secular, westernised person. The Tribunal accepts there are close links between the PMF and government authorities and that information about the applicant’s background as an educated professional with international companies could be obtained through these links.
The applicant claims that on return to his family home in Ghazaliya, Baghdad, his life was always in danger from roadside bombs, as Shi’a militia targeted the Sunni population in Baghdad as they believe that all Sunnis support IS and are a threat to the Shi’a population. The applicant claims that as a man of fighting age, he would be targeted in Iraq, and that he would be imputed with an IS affiliation. The Tribunal has also considered the applicant’s view expressed at hearing that Sunnis are helpless in a lot of areas where certain militias are running the show, e.g. Badr militia, a faction of PMF, has taken control of projects in Sunni areas, charging returnees whose land had been taken by IS, and imposing fees on families intending return to their lands. He claimed that in Baghdad there are still checkpoints and guards taking money and harassing others and still some chance of unauthorised kidnap.
In considering whether there is a real chance that the applicant will be subject to serious harm because of his profile as a well-educated, secular Sunni, the Tribunal accepts DFAT advice that the security situation in Iraq, while varying according to location, is highly unstable and fluid.[29] Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire, assassinations and kidnapping for ransom.[30] The Tribunal also notes DFAT information that:
Increasing tension between the US and Iran, and their actions within Iraq, has further complicated the security environment. Shi’a militias aligned to Iran in the Popular Mobilisation Forces want to expel US forces from Iraq and, as a result, have launched rocket attacks against the International Zone in Baghdad (formerly known as the Green Zone) and other locations in Iraq, relatively frequently. In a two-day period across the 2019-20 New Year, violent demonstrations by PMF elements caused damage to the external perimeter and guard houses of the US Embassy compound. The US subsequently killed Qasem Soleimani, head of Iran’s Islamic Revolutionary Guard Corps (IRGC). Iran responded with ground-to-ground missile strikes on a number of Iraqi military installations that hosted US troops.[31]
[29] Ibid, [2.54].
[30] Ibid.
[31] Ibid, [2.55].
DFAT also reports that:
In-country sources report most Iraqis who work with the international community, particularly western militaries or embassies, take substantial measures to mitigate the risks they face. This includes concealing their employment from their families and communities, avoiding speaking foreign languages (particularly English) at home, changing clothing at work, avoiding appearing in work-related photographs, not travelling with documentation that would identify their international connections, and deleting contact information from phones.
DFAT assesses Iraqis working with the international community are likely to face strong societal hostility, particularly in Shi’a areas, that may include violence or the threat of violence.[32]
[32] DFAT Country Information Report, Iraq, 17 August 2020, [3.75].
In country information submitted by the applicant’s representative on 30 November 2021, it is reported that relatively recent reports, such as in the article ‘Pope Francis in Iraq: visit highlights recent history of atrocities against Christians’ dated 6 March 2021, indicate that Iraq currently remains a country ruled by fear of daily attacks by militia, terrorists and insurgents.[33] A small number of individuals, operating in cells and groups, have consistently and deliberately targeted the unarmed population to spread fear and death. Insurgents have conducted attacks using guerrilla tactics designed to inflict ever-increasing losses on the government. The article notes that while there have been dramatic attacks killing hundreds, more frequently it’s smaller and less dramatic day-to-day violence that kills one or two people at a time. It is reported that in the first two months of 2021, 107 civilians and 218 combatants were killed.[34] It is also submitted that reputable country information states that sectarian attacks have plagued Baghdad and other cities with mixed populations.[35] Sectarian attacks occurred in March 2021 in which 40 Sunni people were killed in Baghdad by Shi’a militants loyal to Moqtada al-Sadr (known as the Mahdi army), in what was described as ‘one of Baghdad’s most deadly sectarian pogroms,’ and 17 Shi’a people were killed by two car bombs in northern Baghdad.[36] The Tribunal accepts that country information indicates that Iraq is predominantly Shi’a, its security apparatus is dominated by Shi’a militia and it is apparent that Sunnis who espouse ideologies or causes that are contrary to those of the militia that patrol the streets are at risk of attack.
[33] The Conversation, ‘Pope Francis in Iraq: visit highlights recent history of atrocities
against Christians’, 6 March 2021,
recent-history-of-atrocities-against-christians-156416
[34] Ibid.
[35] The Guardian Weekly, ‘40 die in Baghdad massacre as Shia militia go on rampage’, 29 April
2021,
[36] Ibid.
The applicant submits his employment history makes him easily identifiable as a person with a close association with both the Iraqi state and the foreign companies working in Iraq whom many Iraqis view as invaders and colonists. In this respect, the Tribunal accepts the applicant has a history of employment with international companies and that in his work as an [Occupation 1] he may be regarded by militia groups as a traitor for having worked with international companies in Iraq. In this regard, the Tribunal notes the US government’s Overseas Security Advisory Council (OSAC) annual report ‘Iraq 2020 Crime & Safety Report: Baghdad’[37] reports ‘persistent attacks on international organisations that present formidable obstacles to business’, which is relevant to the applicant’s profile as a well-educated Sunni who worked for international organisations in the position of [Occupation 1]. The Tribunal has also considered DFAT’s report that most Iraqis who work with the international community, particularly western militaries or embassies, take substantial measures to mitigate the risks they face. This includes concealing their employment from their families and communities, avoiding speaking foreign languages (particularly English) at home, changing clothing at work, avoiding appearing in work-related photographs, not travelling with documentation that would identify their international connections, and deleting contact information from phones.[38] The Tribunal also takes into account DFAT’s assessment that Iraqis working with the international community are likely to face strong societal hostility, particularly in Shi’a areas, that may include violence or the threat of violence.[39]
[37] DFAT Country Information Report, Iraq, 17 August 2020, [3.75].
[39] Ibid, [3.76].
The Tribunal accepts Shi’a militia groups are powerful and can act with impunity in Iraq and that the Iraqi authorities are not effectively in control, controlled by various radical villagers and political groups as described in the DFAT country information in Annexure A below. The current DFAT report observes that in-country sources report that those who fall foul of a PMF group in their local area have little chance of gaining recourse or justice through official means.[40] In relation to the applicant’s claim that he faces harm from Shi’a militia as a secular Sunni of his profile, the Tribunal has also considered submissions from the applicant that the United Kingdom Home Office reported in January 2021 that Sunnis are routinely suspected of being involved with IS largely as a way to use that suspicion to justify action against people without any basis in truth.[41] This report also references the US State Department’s annual report on religious freedom of June 2020 that some Shi’a militias, including some under the PMF umbrella, continued to commit physical abuses and were again implicated in several attacks on Sunni civilians, allegedly to avenge IS crimes against Shi’a.
[40] Ibid, [5.11].
[41]
The Tribunal has accepted above that the applicant has strong western sympathies developed through his employment with western companies and more recently in his life and employment in Australia with [Company 3]. The Tribunal has accepted that the applicant could be identified as being Sunni through his name and the Tribunal accepts that this, along with his other characteristics as a well-educated, professional man who has been employed with foreign companies, places him at risk of harm from Shi’a militia. On this basis, the Tribunal accepts there is a real chance the applicant’s attributes will become known to Shi’a militia and that there is a real chance that his profile will expose him to serious harm from the PMF groups or other Shi’a militia in Iraq for reason of his religion/imputed political opinion.
The Tribunal is satisfied that the persecution involves serious harm to the applicant, namely risk to his life and significant physical harassment, at the hands of the PMF seeking to harm him for his religious beliefs and imputed political opinion, and that this persecution is discriminatory in nature.[42]
[42] Sections 5J(4)-(5) of the Act.
In circumstances where the country information states that Shi’a militants are focused on expelling the US forces from Iraq, and the fact that the applicant has been identified as an educated and secularised person who had been working for a foreign company and harassed as claimed, then the Tribunal accepts he would be subjected to persecution in a systematically or discriminatory manner that would amount to serious harm if he is returned to Iraq.
Based on the country information which reports that the country continues to be ruled by fear of attacks by militia, terrorists and insurgents, and that the Shi’a militia continue to use violence with impunity in Iraq, the Tribunal finds that as an educated and secularised Sunni Muslim there is a real chance he will be seriously harmed in the event he returns to Iraq by reason of an attack by Shi’a militia as claimed. As discussed above, the Tribunal accepts that the Iraqi government has little, if any, control over its security forces and their associated militia, who are able to target and harm their real and perceived enemies with impunity. Therefore, based on the available country information the Tribunal finds that there is no effective protection measure in Iraq pursuant to ss 5J(2) and 5LA of the Act. Accordingly, the Tribunal finds that the real chance the applicant will suffer serious harm relates to all areas of the country.[43]
[43] Section 5J(1)(c) of the Act.
In reaching its conclusion that the applicant faces a real chance of persecution, the Tribunal finds that the applicant being a known well-educated, professional [Occupation 1] who has worked with international organisations and a secular Sunni Muslim, constitutes the essential and significant reason for the applicant’s fear of persecution,[44] and that the persecution involves serious harm[45] and that it constitutes systematic and discriminatory conduct against the applicant.[46]
[44] Section 5J(4)(a) of the Act.
[45] Section 5J(4)(b) of the Act.
[46] Section 5J(4)(c) of the Act.
Given that the persecution feared by the applicant arises from his religion and imputed political opinion, including established secular, western beliefs, the Tribunal does not consider that he could take reasonable steps to modify his behaviour so as to avoid a real chance of the persecution.[47]
[47] Section 5J(3)(c)(i) and (iii) of the Act
Having considered the applicant’s claims singularly and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution.
The Tribunal is satisfied that the applicant satisfies the definition of refugee in s 5H(1).
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection considerations
Given that the applicant satisfies the criterion in s 36(2)(a), it is unnecessary for the Tribunal to consider whether the applicant satisfies the criterion in s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Amanda Paxton
Member

ANNEXURE A
Demography[48]
[48] DFAT Country Information Report Iraq, 17 August 2020 [2.10–2.11].
International observers estimate that approximately 97 per cent of the population is Muslim (see also Religion). Shi’a Muslims, who are predominantly Arab but who also include members of other ethnic groups, constitute 55 to 60 per cent of the overall population, with Sunni Muslims comprising approximately 40 per cent. Around 60 per cent of the Sunni population is Arab, and around 37.5 per cent Kurdish, with the remainder Turkmen. In the Iraqi context, ‘Sunni’ is generally used as shorthand for Sunni Arab, with Kurds and Turkmen regarded primarily as ethnic rather than religious groups.
Shi’a are predominantly located in the south and east of the country and make up the majority population in Baghdad, although there are Shi’a communities in most parts of the country. Sunnis form the majority in the west and centre, while Kurds are the majority in the KRI in the north. The increase in sectarian tensions and a deepening focus on communal identity in the years following the March 2003 US-led invasion has seen a reduction in the number of ‘mixed’ areas in Baghdad. Mixed Sunni-Shi’a communities live in the districts of Rusafa and Karada, with smaller mixed communities also in the districts of Doura, Rasheed, Karkh, Mansour and Kadhimiya. Shi’a communities dominate suburbs such as Sadr City, Abu Dashir and Al Doura, while significant Sunni communities reside in Abu Ghraib, A’adamia, Rusafa, Za’farania, Doura and Rasheed.
SECURITY SITUATION[49]
[49] DFAT Country Information Report Iraq, 17 August 2020 [2.54–2.61].
The security situation in Iraq, while varying according to location, is highly unstable and fluid. Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire, assassinations and kidnapping for ransom. Targets include government security forces, government offices, diplomatic missions, coalition and Iraqi military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure.
Increasing tension between the US and Iran, and their actions within Iraq, has further complicated the security environment. Shi’a militias aligned to Iran in the Popular Mobilisation Forces want to expel US forces from Iraq and, as a result, have launched rocket attacks against the International Zone in Baghdad (formerly known as the Green Zone) and other locations in Iraq, relatively frequently. In a two-day period across the 2019-20 New Year, violent demonstrations by PMF elements caused damage to the external perimeter and guard houses of the US Embassy compound. The US subsequently killed Qasem Soleimani, head of Iran’s Islamic Revolutionary Guard Corps (IRGC). Iran responded with ground-to-ground missile strikes on a number of Iraqi military installations that hosted US troops.
Despite its territorial defeat in December 2017, Da’esh remains a major perpetrator of abuses and atrocities. These abuses are particularly evident in Anbar, Baghdad, Diyala, Kirkuk, Ninewah and Salah al-Din Governorates where Da’esh units have continued to attack electricity and water infrastructure, abduct and kill civilians and attack security forces. The group is consolidating its presence in Diyala, Kirkuk, and Salah al-Din provinces where it takes advantage of ungoverned spaces and the disputed areas between Federal Iraqi and Kurdish security forces. Improvised explosive device attacks in these areas target security forces’ vehicles. The US-led coalition temporarily suspended the anti-Da’esh campaign in January 2020 to focus on protecting itself from Iran-backed militias. Da’esh aims to exploit the confrontation between the US and Iran, attempting more complex attacks against security forces and energy assets in central and northern Iraq.
Large-scale violent protests in major cities have occurred since the beginning of October 2019 (see also Protesters and Demonstrators). Security forces have used tear gas, water cannons and live ammunition against protesters, resulting in hundreds of deaths. Most rallies and protests in Baghdad are held in Tahrir Square or around government buildings.
Although the KRI is generally regarded as a more benign security environment, its borders are insecure. Violent crime is common, and kidnappings, murders and robberies occur frequently. In July 2019, an unidentified gunman killed a senior Turkish diplomat and a civilian in a daylight attack at an Erbil restaurant in a case that remains unsolved.
Human rights observers report security conditions remain fraught in territories claimed by both the central government and KRG. Kirkuk Governorate has been identified as particularly dangerous due to a security vacuum caused by the expulsion of the Peshmerga by government forces in late 2017. Following the return of central government control to Kirkuk in late 2017, a number of ethnic and religious minority communities reported facing discrimination, displacement and occasional violence from PMF groups and government security forces. Media reported numerous incidents of Shi’a PMF groups invading, looting and burning the houses of ethnic and religious minorities across Kirkuk Governorate. The KRG has also claimed the absence of Peshmerga forces has enabled Da’esh cells to regroup in Kirkuk, citing as evidence incidents such as an attack in February 2020 on a village in Kirkuk Governorate. Security conditions in areas formerly under Da’esh control also remain poor.
Sectarian violence between Sunni and Shi’a has reduced substantially since the mid to late-2000s (see Recent History), but still occurs occasionally. International observers attribute the reduction in sectarian violence to an increase in self-segregation by communities (see Demography), and to conscious efforts by political leaders to remove sectarian slogans from public discourse after the military defeat of Da’esh. It was reportedly common during the lead-up to the May 2018 election to hear politicians and commentators emphasising the need to rise above sectarianism and revenge to stabilise the country. Some commentators also suggest the reduction in sectarianism reflects the Shi’a majority’s increased confidence and sense of security in the wake of victory over Da’esh.
Iraq is one of the world’s most heavily mined countries. There are reportedly more than 2,000 hazardous mine areas nationwide from various conflicts. While border areas are particularly affected, the areas that previously comprised the Da’esh caliphate have also been heavily mined, including with booby-trap devices. Explosive hazards affect farms, schools, hospitals, water treatment facilities, power plants, bridges and other infrastructure, and have prevented the safe return of displaced people. Religion
Article 2 (1) of the Constitution states that Islam is the official religion of the State and is a foundation source of religion, and prohibits the enactment of any law that contradicts the established provisions of Islam. The second part of Article 2 guarantees the rights to freedom of religious belief and practice of all individuals, specifically mentioning Christians, Yazidis and Sabean-Mandeans. A number of constitutional articles further guarantee freedom of religion. Article 14 guarantees that Iraqis are equal before the law without discrimination based on (among other things) religion, sect or belief. Article 41 guarantees that Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs or choices. Article 43 (1) guarantees that the followers of all religions and sects are free in the: a) practice of religious rites, including the Husseini (Shi’a) rituals; b) management of religious endowments, their affairs, and their religious institutions; and Article 43 (2) guarantees that the state shall guarantee freedom of worship and the protection of places of worship.
The following religious groups are recognised by the personal status law and thereby registered with the government: Muslim, Chaldean, Assyrian, Assyrian Catholic, Syriac Orthodox, Syriac Catholic, Armenian Apostolic, Armenian Catholic, Roman Catholic, National Protestant, Anglican, Evangelical Protestant Assyrian, Seventh-day Adventist, Coptic Orthodox, Yazidi, Sabean-Mandean and Jewish. Recognition allows groups to appoint legal representatives and perform legal transactions such as buying and selling property. The law does not specify penalties for the practice of unrecognised religious groups (with the exception of the Baha’i), but contracts signed by institutions of such groups are not legal or permissible as evidence in court.
…
Although there are no reliable statistics, religious minorities have reported that they are underrepresented in the ranks of national police, senior military, and intelligence and security services. Religious minorities also report being underrepresented in government appointments, in elected positions (other than reserved seats) and in public sector jobs, particularly at the provincial and local levels. This underrepresentation tends to limit the access of religious minority communities to government-provided economic opportunities.
There have been ongoing reports that non-Muslim minorities feel pressured by the Muslim majority to adhere to certain Islamic practices, such as wearing the hijab (traditional Islamic clothing) or fasting during Ramadan. Christians in the south and in PMF-controlled towns on the Ninewah Plain have reported that they avoid celebrating their religious festivals when they coincide with Islamic periods of mourning, such as Ashura (a day of historical significance and mourning for Shi’a, marking the murder of the Prophet Mohammed’s grandson Hussein). Non-Shi’a Muslims and non-Muslim women report feeling societal pressure to wear the hijab and all-black clothing during the holy month of Muharram, particularly during Ashura, to avoid harassment. According to representatives of Christian NGOs, some Muslims continue to harass women and girls, regardless of their religious affiliation, for refusing to wear the hijab, for dressing in Western-style clothing, or for not adhering to strict interpretations of Islamic norms governing public behaviour. Outside the KRI, numerous women, including Christians and Sabean-Mandeans, have reported opting to wear the hijab after continual harassment.
A number of religious minority communities (including Turkmen, Sunni and Shi’a Arabs, Yazidi, Shabak and Christians) have reported cases of discrimination from KRG authorities in territories claimed by both the central government and KRG, particularly in relation to land and property disputes. In one such case in the Nahla Valley area of Dohuk, a court sentenced Muslim Kurds convicted of taking Christian-owned land to a three-month suspended sentence, a token fine, and a requirement that they make a written pledge they would not encroach on the land again. Authorities made no attempt to follow up on the case, however, and some of the Kurds continued to occupy land the court had ruled belonged to the Christian community. A land dispute dating from 2003 – when the KRG seized 11,000 hectares (27,000 acres) of farmland near Ankawa owned by 220 Christian farmers for the construction of the Erbil International Airport– remains unresolved.[50]
[50] DFAT Country Information Report Iraq, 17 August 2020.
Political Opinion (actual or imputed)
Article 20 of the Constitution guarantees the right of Iraqi citizens (men and women) to participate in political affairs and to enjoy political rights, including the right to vote and run for office. Article 38 guarantees freedom of assembly, to be regulated by law, while Article 39 (1) guarantees the right to form and join associations and political parties. As noted in following sections, the extent to which these freedoms are respected is limited in practice.
Groups of Interest: Persons Working (or Who Have Worked) with the International Community[51]
[51] DFAT Country Information Report Iraq, 17 August 2020 [3.73–3.76].
A large number of Iraqis worked with the international community in the years following the US-led military invasion in 2003, particularly as translators for the international coalition and its military. Many were targeted during the insurgency period (2003-2006) by opponents of the military occupation: at least 60 translators who had worked for the United Kingdom were reportedly killed by 2007, along with many who had worked with the US military.
The threat to translators and others working with the international community reportedly reduced after the rise of Da’esh as all Iraqis redirected their attention toward the threat that Da’esh posed. However, translators and others working with the international community reportedly still face strong societal hostility, particularly in Shi’a areas. During increased US-Iran tensions in January 2020, Shi’a militia leaders vowed to target and kill Iraqi citizens who cooperated with foreign forces, describing them as enemies who will be ‘eliminated’. DFAT is not aware of this threat being acted upon. Civil society activists and human rights defenders have also reported that they feel themselves to be at risk from ‘known and unknown groups’ in relation to their ongoing professional contact with international organisations, particularly the US Embassy and UNAMI. UNAMI reports there is a pattern of activists being forced into vehicles by armed and masked men in or around the vicinity of demonstration sites, and being interrogated, tortured and told to cease all participation in the demonstrations.
In-country sources report most Iraqis who work with the international community, particularly western militaries or embassies, take substantial measures to mitigate the risks they face. This includes concealing their employment from their families and communities, avoiding speaking foreign languages (particularly English) at home, changing clothing at work, avoiding appearing in work-related photographs, not travelling with documentation that would identify their international connections, and deleting contact information from phones.
DFAT assesses Iraqis working with the international community are likely to face strong societal hostility, particularly in Shi’a areas, that may include violence or the threat of violence.
Popular Mobilisation Forces (PMF)
The Popular Mobilisation Forces (PMF) are a state-sponsored umbrella military organisation composed of approximately 60 militia groups operating nationwide. The PMF was formally established based on a 2014 fatwa (Islamic declaration) by Iraq’s Grand Ayatollah to assist in the conflict against Da’esh, and they played an important role in the eventual military victory. Most PMF units are Shi’a Arab and operate across Iraq, while Sunni Arab, Yazidi, Christian and other minority PMF units generally operate within or near their home regions. International observers place the numbers of those involved in the PMF at between 130,000 to 150,000 fighters, although precise figures are unclear. In the lower ranks, many of those involved in the PMF are reportedly motivated by financial considerations rather than ideology. In-country sources report that many PMF members ‘moonlight’ from other jobs including in the police.
In November 2016, the Iraqi parliament recognised the PMF as an official force. All PMF units officially report to the National Security Advisor and are under the authority of the Prime Minister, although this is not always the case in practice. On 1 July 2019, the Prime Minister decreed the PMF must fully integrate into the IAF by the end of the month, a move described by international observers as an unsuccessful attempt to rein in and assert control over the many rogue PMF elements. This move has not proven successful.
A large number of PMF elements reportedly answer directly to the Iranian government, and in particular to the Islamic Revolutionary Guard Corps. In-country sources have described some PMF groups as being essentially Iranian occupation forces. As noted in Recent History, a US drone strike in January 2020 assassinated both the commander of Iran’s elite Quds Force and the PMF deputy commander. In addition to other reported atrocities, civil society groups have identified Iran-aligned PMF groups as being responsible for various attacks against prominent women, including an activist shot and killed in Basra in September 2018 who had been participating in anti-corruption protests (see Protesters and Demonstrators). Civil society groups also believe an Iran-aligned militia was responsible for shooting and killing a female social media star and model in Baghdad in September 2018, as well as the owners of three beauty centres in August and October 2018. As outlined in Protesters and Demonstrators, human rights observers blame elements of the PMF for much of the violence committed against those demonstrating against the government in the protests that began in October 2019.
According to in-country sources, individual PMF elements exercise close control over many neighbourhoods, particularly in Shi’a areas. PMF groups effectively run these areas, providing a range of services that would normally be fulfilled by the state (particularly welfare and security). The manner in which PMF groups conduct themselves at the neighbourhood level depends upon the individual group. While, for example, some socially-conservative Shi’a PMF groups will punish anybody involved in the alcohol or drug trades (see Christians), other groups reportedly run private nightclubs in which both alcohol and drugs are readily available. Many PMF groups have reportedly taken advantage of their freedom of action to establish local crime rings and mafia-like protection rackets. Human rights organisations report that some PMF groups engage in killing, kidnapping and extortion throughout the country, particularly in ethnically and religiously mixed governorates. For instance, on 6 July 2020 a prominent political commentator, Hisham al-Hashimi, was fatally shot outside his home in Baghdad. Hashimi had commented on Iran-backed Shia militia groups and spoken out about the impunity with which these groups operated in Iraq. No group claimed responsibility for the killing, but for many political and security analysts in Iraq, it underscored the assassination campaign by militia groups against their critics. In-country sources report those who fall foul of a PMF group in their local area have little chance of gaining recourse or justice through official means.
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 1549

30 March 2022

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal