1911532 (Refugee)

[2019] AATA 6563

1911532 (Refugee) [2019] AATA 6563 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911532

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Jason Pennell

DATE:12 August 2019

PLACE OF DECISION:  Melbourne

DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 August 2019 at 3.00pm

CATCHWORDS
REFUGEE – protection visa – Stateless – race – Faili Kurd – religion – Shia Muslim – social group – returnees from Western countries – people with disabilities – criminal convictions – immigration detention – evidence applicant Iraqi citizen – declared Iraqi citizenship in UNHCR application – Embassy letter recognised Iraqi nationality – will not be denied health services in Iraq – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424A, 499, 501
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
SZATV v MIAC (2007) 233 CLR 18

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 May 2019 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 November 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal on 12 June 2019 and 17 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

RELEVANT LAW

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

2. 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.

3. 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.[1] 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[2].

   [1] s.5H(1)(a) of the Migration Act 1958

   [2] s.5H(1)(b) of the Migration Act 1958

4. 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.

5. 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.

6. An applicant is considered not to be at a real risk of suffering significant harm in a country if:

   ·it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm;[3] or

   ·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]

   [3] Migration Act 1958 s.36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

   [4] Migration Act 1958 s.36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Home Affairs – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

1. The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicant’s migration history

1. The applicant’s claims and other information before the Tribunal indicate that the applicant is a Faili Kurd and that he was born in [Iraq]. In or about 1985, he was expelled from Iraq to Iran where he lived for approximately 16 years. In 2001 he traveled to [Country 1] where he lived for approximately eight years. While in [Country 1] the applicant married an [Country 1] citizen with whom he had two children.

2. While in [Country 1], the applicant registered with the UHNCR who assessed his claim and found that he did not have a well-founded fear of persecution.  However, [in] December 2008, the UHNCR granted him refugee status under its extended mandate, due to generalized violence in his home location.  The UHNCR referred the applicant to the Department of Home Affairs (‘the Department’). He was interviewed by the Department on 31 December 2008 and granted a [temporary] visa on 14 August 2009 (along with his wife and children). As a result, the applicant arrived in Australia, with his family, [in] September 2009.

3. On 9 June 2015 the applicant’s visa was cancelled under section 501 of the Act. [In] June 2015 the applicant was transferred from criminal custody and into immigration detention. The applicant remains in detention.

4. On 15 June 2015 the applicant applied for revocation of the cancellation of his [temporary] visa; the request was not successful. The applicant sought a review through the courts with the Minister withdrawing for the matter [in] September 2017. The revocation request was reassessed and the decision to not revoke the cancellation was made on 28 February 2018.

5. The applicant lodged his application for a Protection visa on 13 November 2018.

The Applicant’s Identity.

1. The applicant was held in criminal custody between [January] 2012 and [May] 2012. And then from [September] 2012 to [later in] September 2012 and then from  [November] 2012 until being transferred into immigration detention [in] June 2015 The applicant remains in immigration detention.

2. The Department has access to the applicant’s ‘Documents for Travel to Australia,’ his departmental and UHNCR application in relation to his 2009 humanitarian visa, and a letter from the Iraqi Embassy in [City 1], [Country 1] identifying him (and his children) as Iraqi citizens.[5] The documents were issued and processed in 2008 and 2009, nevertheless the Tribunal is satisfied that they are sufficient to identify the applicant. Accordingly, the Tribunal accepts and finds that the applicant is [Mr A] born on [date] in Iraq as claimed.

Summary of the applicant’s claims

[5] Delegate’s decision dated 6 May 2019, AAT File [number] redacted Humanitarian visa form Jakarta.

1. The applicant’s claims are detailed in his application for a Protection visa dated 14 November 2018 as follows:[6]

   [6] Department File No [details deleted].

   Why did you leave that country/those countries?

   ‘Iraq: As Feyily Kurds we were expelled by the Iraqi regime in 1980 to Iran. Iran: As a result of the substantial and severe discrimination practices by the Iranian authorities against us, I had to leave for [Country 1].

   [Country 1]: I was mandated by the UNHCR and came to Australia on [a temporary visa] . Being a Feyily Kurd we were subjected to severe discrimination with very limited and/or no basic rights and Iraq is sinking in two wars; one with various militants groups and the other with minorities of Sunnis, Kurdish and the Kurds. Iraq is also reported to be the least safest country with the presence of many factions and militants where killing, abduction and bombings are regular occurrences. Indeed Iraq is now a far more dangerous place to live that it was under Saddam Hussein’s regime!? Mr. [A] left that country for the following reasons

   ·      His Feyili Kurd Ethnicity

   ·      His Shia’s Religion

   ·      His membership of the particular social group of returnees from Western countries.

   ·      His membership of the particular social group of people with mental health issues/people with disabilities.’

   What do you think will happen to you if you return to that country/those countries?

   ‘I will certainly receive significant harm if not death in Iraq, in that I may be arbitrary deprived of my life or be subjected to torture, or cruel or inhuman treatment or punishment or degrading treatment or punishment. I submit this on the grounds of the US State Department report indicating that persons with disabilities continued to experience discrimination due to social stigma. I fear substantial harm arising from my religion, ethnicity Feyili Kurds and membership of particular groups of returnees from Western country and of people with mental health issues/people with disabilities. Being a non-citizen of Iraq and/or Iran, which both have bad track records for human rights, removed from Australia to a receiving country that I do not belong to, is a real risk that I will be subject to significant harm , this is mental health and disability issues on the one hand and being a non-citizen on the other.’

   Did you experience harm in that country/those countries?

   ‘Yes. In Iraq we suffered consequences of expulsion and deportation and deprivation from any basis human rights. We were oppressed as minority with civic rights, education rights and others. In Iran we suffered unfounded level of harsh treatment and discrimination by the Iranian authorities and the mainstream community.’

   Did you seek help within the country/those countries after harm?

   Yes. Our ethnicity is of the minorities in Iraq with no citizenship; hence it is subject to substantial level of discrimination and oppression. That is the result of the government non-recognition of the Feyili Kurds ethnicity on the one hand and Iraqis very unstable country and marred with various wars and struggles with various militants and religious groups. Iraq is a lawless country and unable to protect its own citizens let alone the minority groups. Abduction, Killing bombing and suicide operations are happening daily. So safety is of a rare commodity and priceless worlds and UN authorities are unable to protect the citizens.’

   Did you move, or try to move, to another part of that country/those countries?

   ‘Yes. We had no opportunity to canvas and/or explore any other area as a result of the severe discrimination we were experiencing; where I was finally deported with my parents and siblings to Iran when we lived for a good period of time in refugee camp before settling in [City 2], Southern Iran. I then travelled to [Country 1] in 1999 where is lived for around ten years before I mandated by the UNHCR to come to Australia in 2009 with my wife and two children on [a temporary visa].’

   Do you think you will be harmed or mistreated if you return to that country/those countries?

   ‘Yes. In the late 1970’s and early 1980s a large number of Iraqi Feily Kurds were stripped of the Iraqi nationality and expelled to Iran. The client strongly believes that he has a well-founded fear of persecution in Iraq. He fears that this life and freedom will be in great danger in Iraq, where he has no meaningful links any longer, due to the chaotic insecurity in that country on the one hand and of his Feyily ethnicity, his Shia religion and his membership to certain group on the other. He will certainly be subject inhuman treatment and punishment and torture in the current circumstances where there no security and protection in that count ry. On the other hand and due his status in Iran, the Iranians treat Feiyili Kurds very harshly. Being a stateless person with no basic rights in either Iraq or Iran is very difficult.’

   Do you think the authorities of that country/those countries can and will protect you if you go back?

   ‘No. I am a non-citizen of both countries Iraq and Iran; hence I do not have the basic rights for living with dignity. Both Iraq and Iran have strict and corrupt regimes where they have no consideration to human rights and are marred with bad and dangerous affairs, in that it does not have the means and abilities to care and/or protect its citizens let alone the non-citizens. Iraq for example is lawless country and run by corrupt politicians and bureaucrats. Indeed, it is further marred by abduction, killings and murder. It is really dominated by many different political, social and religious and sectarian factions including militants and undercover ISIS.

   Do you think you would be able to relocate within that country/those countries?

   ‘No.’

2. The applicant’s claims are also detailed in the delegate’s decision dated 6 May 2019[7]  and confirmed to the Tribunal by the applicant at the hearing. He states that he was born in Iraq and lived there until about the age of six years. He claims that he is a Faili Kurd and that as a result he is not a citizen of any country and stateless.

   [7] AAT File 1911532 @ f.8

3. The applicant claims that he is not a citizen of Iraq and as such does not have the right to enter Iraq. He claims that there is a real chance or real risk that he will be seriously harmed or significantly harmed in the event that he is returned Iraq by reason that:

   (a)he is a Faili Kurd and therefore stateless.

   (b)he is a Shia Muslim.

   (c)he has medical conditions, including mental health issues.

   (d)he has a substance addiction.

   (e)he would be considered a returnee for a western country.

   (f)he has been convicted of crimes in Australia.

4. For the following reasons, the Tribunal has concluded that the applicant is not stateless and that the decision under review should be affirmed.

Evidence and Findings of Fact

1. By the applicant’s application for a protection visa and his evidence to the Tribunal, the applicant claims that he is born [in] [City 3] in the Republic of Iraq. He states that he is a Shia Muslim and that his ethnicity is as a Faili Kurd. The applicant claims that in or about 1980 he and his family were stripped of their Iraqi citizenship and forced to migrate to Iran. He claims that initially they spent approximately [a number of] years [at a] refugee camp in  [Iran], after which his family moved to [City 2] in Iran. The applicant claims that his mother passed away in 2016 but that his father continues to live in [City 2]. He stated that he has [a number of siblings]. The applicant’s protection visa application states that his [sibling] is an Australian citizen but that he does not know his [sibling’s] country of residence. Nevertheless, the applicant’s evidence to the Tribunal was that [his siblings] remain living in [City 2]. He said that he attended the local school in [City 2] until [a certain level] and that he did not attended College or University. He claims that in Iran he was not formally employed but rather [worked] in [Location 1] He states that he can speak, read and write Persian and Arabic.

2. The applicant’s evidence was that in or about 2001, when he was [a certain] age, he travelled to [Country 1]. The applicant claimed that he travelled to [Country 1] because he ‘could not have a life in Iran.’ The applicant claimed that he initially travelled to [Country 2] on a fake Iraqi passport. He said that he had obtained the passport from [Location 2] in Tehran for an amount of approximately [specified amount]. The applicant did not provide any supporting evidence in relation to his claim that he obtained a fake passport.

3. The applicant claims that he then disposed of his passport and travelled to [Country 1] by boat. His protection visa application states that he commenced a relationship with and married his wife, [in] [Country 1] [in] January 2003. The applicant confirmed in the hearing that that in or about 2003 he married his wife in [Country 1] and as a result he has three children [to] the marriage. He has [8] [Child 1] and [Child 2] and a son, [Child 3].[9]  Both [Child 1] and [Child 3] were born in [Country 1] while [Child 2] was born in Australia.[10] The applicant’s evidence was that he has not seen them or had any contact with them for a long period of time. The applicant’s protection visa application states that both [Child 1] and [Child 3] have their own permanent residence visas and that [Child 2] is an Australia citizen. As such, the applicant’s children are not parties to his protection visa application as members of the same family unit.

   [8] [Details deleted]

   [9] [Details deleted]

   [10] [Details deleted]

4. On 14 August 2009 the applicant was granted a [visa] to enter Australia with his family. The applicant arrived in Australia on [in] September 2009. In 2011 the applicant became estranged from his wife and children. Criminal offences committed by the applicant against his wife resulted in him being imprisoned. The applicant’s criminal convictions and imprisonment resulted in his visa being cancelled pursuant to the Mandatory Visa Cancellation provisions under the Act.

5. The applicant claims that his wife and children continue to live in Australia. His evidence to the Tribunal was that want to resume an ongoing relationship with them but had not been able due to being held in detention.

COUNTRY INFORMATION

1. In accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade.[11] In particular, the DFAT report on Iraq dated 9 October 2018 (‘the DFAT Report’) notes the following:

   [11] DFAT Country Information Report- Iraq 9 October 2018

   Faili Kurds

   3.4 Most Faili Kurds are Shi’a, unlike most other Kurds who are Sunni. Previous (Sunni-dominated) governments treated Faili Kurds with suspicion and hostility. In the 1970s and 1980s, the (Sunni) Ba’ath Party stripped tens or perhaps hundreds of thousands of Faili Kurds of their citizenship and expelled them from Iraq, mainly to Iran. Since 2003, Faili Kurds have returned from Iran to Iraq, and mainly live along the border with Iran, including in the provinces of Basrah (where an estimated 10,000 Faili Kurds live), and eastern parts of Diyala, Wasit and Maysan. Faili Kurd communities also live in Baghdad and may live in other areas. While most were initially stateless on their return to Iraq, many have now been able to regain their citizenship. Legislation to return citizenship is now in place, although the process can be administratively complex if an individual lacks sufficient documentation to demonstrate Iraqi origin.

   3.5 Many Faili Kurds who have not regained their citizenship fear official discrimination based on their lack of documentation. Local NGOs attribute this fear to a lack of awareness amongst Faili Kurds of their rights. The federal government and the KRG have taken numerous steps to protect Faili Kurds, including provision of financial compensation and restitution of employment (although the deteriorating economic situation has affected this). Recovery of property that was confiscated or occupied when Faili Kurds were expelled is administratively complex, but legal processes exist to facilitate this. Courts have approved the return of properties, although opposition from current occupants has prevented some Faili Kurds from actually reclaiming their property.

   3.6 Local sources claim that societal discrimination against Faili Kurds continues to occur, and that communities dominated by other ethnic or religious groups do not welcome Faili Kurds. This ostracism is also faced by other groups in areas where they are the ethnic or religious minority. The current number of Faili Kurds is difficult to estimate as many do not readily identify themselves by their ethnicity.

   3.7 DFAT assesses that Faili Kurds face a low risk of official discrimination, although this risk rises for Faili Kurds who remain stateless. DFAT assesses that Faili Kurds face a low risk of societal discrimination.

   Shi’a

   3.32 Shi’a have traditionally lived across Iraq. The sharp increase in sectarian violence since 2003 has seen some Shi’as leave Sunni areas. The rise of ISIL in 2014 led many Turkmen and Shabak Shi’a to relocate to other areas. As the majority community in Iraq with a dominant role in the government, Shi’a face little or no official discrimination. DFAT assesses that reported instances of societal discrimination, particularly in relation to economic and employment opportunities, are likely to be associated with patronage and nepotism, such as not having the right contacts to secure access to jobs or housing. In areas where Shi’a are not the majority religious group, employment discrimination is likely to be more pronounced, but still closely linked to patronage and nepotism. Relocation to Shi’a areas substantially reduces the risk of discrimination, but relocation is difficult in the absence of familial or other links at the destination (see Internal Relocation).

   3.33 Anti-Shi’a violence has reduced in 2018 following the defeat of ISIL (see Security situation). However, isolated incidents of violence in Shi’a dominated areas of Iraq, claimed by ISIL, continue to occur. Violence between opposing Shi’a militias (including those in the PMF) also occurs, more often in Shi’a areas, such as Baghdad and southern Iraq. Intra-Shi’a violence is often linked to other criminal activities, including robbery and kidnapping. Local sources report that those who are actively involved in a militia group face a greater risk of intra-Shi’a violence than ordinary civilians, who may be perceived to be part of a militia or tribal group’s constituency.

   3.34 DFAT assesses that Shi’a do not face official discrimination. DFAT further assesses that Shi’a do not face societal discrimination in Shi’a areas, although they face a moderate risk of violence during significant Shi’a religious festivals and pilgrimages.

   Treatment of Returnees-

   Exit and entry procedures

   5.20 On arrival at Baghdad International Airport, all passengers irrespective of nationality have their identity information recorded. This process occurs at all international airports in Iraq, including the Kurdistan Region. Authorities will arrest an Iraqi on return if they had committed a criminal offence and a warrant had been issued for their arrest. Others, even those who had left illegally, would not be subject to arrest on arrival.

   5.21 Valid documentation (usually a passport) and appropriate approval (such as a visa) for entry to the intended destination is required in order to exit Iraq. Irregular exit from Iraq (including through use of fraudulent documentation) is unlawful. DFAT understands that an individual caught exiting illegally may be detained and charged. DFAT is not aware of any prosecutions of individuals for irregular exit.

   5.22 Iraqis who have lost, or do not have, an Iraqi passport must apply for a laissez passer at an Iraqi embassy or consulate abroad. To issue a laissez passer, the Iraqi post: verifies the identity and nationality of the returnee against source documents in Iraq; confirms the person is returning to Iraq voluntarily; and checks for outstanding criminal actions against Ministry of Interior records in Iraq.

   5.23 Upon arrival in Iraq, border officials check the details of the laissez passer and re-confirm that the individual is entering voluntarily. Officials record the details of the laissez passer along with the name and date of birth of the bearer. The border officer will then inform the bearer that the laissez passer is not valid for further travel. According to the UK Home Office, border officials can issue a letter at Baghdad Airport in order to facilitate movement to an individual’s place of origin or relocation within Iraq. Laissez passers are common and individuals who enter on laissez passers are not questioned about how they exited Iraq, nor asked to explain why they do not have other forms of documentation.

   Conditions for returnees

   5.24 DFAT is aware of considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. However, local sources have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of life.

   5.25 Large numbers of Kurds (mainly single males) return voluntarily to the Kurdistan Region, particularly from the UK and European Union countries. The region’s relative security compared to other areas of Iraq has encouraged returns. As with other areas of Iraq, familial connections are important in the Kurdistan Region. Reintegration, and particularly access to employment and housing, is easier for those who have maintained connections in the region.

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility

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

2. The mere fact that a person claims fear of persecution for a particular 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 of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[12]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[13]

   [12] s.5AAA Migration Act 1958.

   [13] 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.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[14] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [14]    Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[15] 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]    The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

5. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.

Statelessness

1. The applicant claims that he is not a citizen of Iraq. The applicant claims that as a Faili Kurd he and his family were evicted from Iraq to Iran in or about 1981 under Saddam Hussain’s regime and stripped of their Iraqi citizenship.

2. The applicant claims that he initially travelled to [Country 2] on a fake passport purchased by him at the [Location 2] in Tehran.  The DFAT report notes that the ‘S’ series passports (issued between 2003 and 2006) are vulnerable to fraud and that inexpensive counterfeiting versions are available in Iraq.[16] While there is not direct country information in relation to passports issued prior to 2003 (such as the applicant’s), the Tribunal accepts that they would be as vulnerable to fraud or counterfeit as the ‘S’ series passports. The applicant’s evidence was that when he arrived in [Country 2] his passport, together with his [temporary] visa, was stamped by the [Country 2] authorities without question. The Tribunal notes, however, that a [Country 2] [visa] is not required for citizens of Iraq for periods less than 30 days.[17] 

   [16]    DFAT Report @ p.32

   [17]    Visa HQ passport and visa services, >

   During the course of the hearing it was put to the applicant that there was information which indicated that he was in fact a citizen of Iraq. Specifically, at the time of his application for refugee status with the UHNCR in [Country 1] the applicant declared to the UNHCR that he and his children were Iraqi citizens. A document entitled ‘Document for Travel to Australia’ lists the applicant’s citizenship as Iraqi (‘the UHNCR Document’). In addition the applicant provided the UNHCR with a document from the Embassy of the Republic of Iraq, [City 1] (‘the Embassy letter’) which states that [Child 1] and [Child 3] are ‘the children of Mr [A], Iraqi national, and thus they are automatically granted their fathers nationality.’[18] Pursuant to s.424A of the Act by a letter dated 31 July 2019 the Tribunal invited the applicant to comment on the Embassy letter and the UHNCR Document. The Tribunal has not received correspondence for the applicant in response to the Tribunal’s letter.    

   [18]  Letter from Embassy of the Republic of Iraq, Jakarta dated 5 September 2008; [Department file]

3. The applicant’s evidence to the Tribunal was that he obtained the Embassy letter for the purposes of receiving aid money from the UHNCR in [Country 1]. By a statutory declaration dated 12 February 2019 and his oral evidence to the Tribunal, the applicant claimed that the UNHCR asked him for the identity of his children. As result, he went to the Iraqi Embassy in [City 1] and requested he be provided with proof of their identity. In circumstances where he claims to be stateless, it was not made clear to the Tribunal why he required his children to be Iraqi nationals for the purposes of receiving aid.

4. It was put to the applicant that to have his children recognised as Iraqi nationals he would have had to demonstrate to the Embassy that he was an Iraqi citizen. The applicant claims that he returned to the Embassy five or six times demanding that he was born in Iraq and that his children be identified as Iraqi citizens. The applicant’s evidence to the delegate was that the only document he provided the Embassy with his father’s Iranian ‘green card.’

5. The Embassy letter indicates that the applicant is recognised by the authorities as an Iraqi national. The applicant says that the letter has no legal weight and was only provided for the purpose of him being able to access aid for his family. However, the advice provided by the Department indicates that appropriate checks are required to be done prior to confirming the identity of any person as an Iraqi citizen. The checks include the application being made to the Embassy in person, that appropriate identification documents be provided and that an interview be conducted before a person’s identity is confirmed.  In the event that a person is not a citizen then no identification document of any kind will be issued by the Embassy.[19]

   [19]  Department file [number], Departmental advice on letter of nationality from the Embassy of Iraq in Jakarta.

6. The applicant’s evidence as to how he obtained the Embassy letter without being a citizen of Iraq was implausible.  His evidence that the document was provided without him providing any specific evidence of his or his father’s Iraqi citizenship is not supported by the Department’s advice in relation to the required checks to be performed by the Embassy prior to any kind of document being issued. While the Tribunal accepts DFAT’s advice that genuine documents obtained through fraudulent means are common, they advise that such documents are obtained by paying bribes to officials.[20] While the applicant’s evidence was that he pleaded on many occasions to be provided evidence of his children’s Iraqi citizenship he did not give any evidence of having paid any bribe to any official in order to obtain the Embassy letter.

   [20]  DFAT Report @ p.32

7. In addition, the document entitled ’Document for travel to Australia’, which includes the applicant’s [temporary] visa, states that he is a citizen of Iraq. As such, it appears for the purpose of obtaining the [temporary] visa, the applicant represented himself as a citizen of Iraq.

8. By a letter dated 31 July 2019, pursuant to s.424A of the Act, the applicant was invited to comment on or respond to the contents of the Embassy letter and the ‘Document for travel to Australia.’ The applicant was advised that, subject to his comment or response, the contents of the documents would be, or be a part of, the reason for affirming the decision under review. In response, by a letter dated 7 August 2019, the applicant’s representative referred to the applicant’s response to the delegate in relation to each document. The applicant provided an affidavit sworn 6 August 2019. By the affidavit, the applicant states that he asked his father for documentation for proof of his Iraqi citizenship so that he could obtain financial assistance from the UHNCR. The applicant states that his father provided the documents, but the applicant did not ask how he obtained them. Nevertheless the documents were adequate for the Iraqi Embassy to confirm the applicant’s nationality as Iraqi and for him to claim on the ’Document for travel to Australia’ that he is an Iraqi citizen.

9. As a result, the Tribunal does not accept the applicant’s evidence that he is stateless. Based on the information provided by the Iraqi Embassy, the Tribunal does not accept the applicant’s evidence that he was provided the letter without providing some proof that he is an Iraqi citizen or that he was entitled to Iraqi citizenship.

10. The 2005 Iraq Constitution[21] provides that:

    Anyone who is born to an Iraqi father or to an Iraqi mother shall be considered an Iraqi. This shall be regulated by law.

    An Iraqi citizen by birth may not have his citizenship withdrawn for any reason. Any person who has a citizenship withdrawn shall have the right to demand its reinstatement. This shall be regulated by law.

    [21]    The Constitution of Iraq, 13 January 2005 Articles 18(2) and 18(3)(a)

11. In addition, the 2006 Iraqi Nationality Law[22]  provides that:

    A person shall be considered Iraqi if he/she is born to an Iraqi father or an Iraqi mother. [23]

    And:  

    Any Iraqi, who was denaturalised on political, religious, racist or sectarian grounds, shall have the right to restore his Iraqi nationality, subject to submission of an application to this effect. In the case of his death, his children, who have lost their Iraqi nationality consequent to his father’s loss of nationality, shall have the right to submit an application to restore Iraqi nationality. [24]

    [22]    Iraqi Nationality Law (Iraq) 7 March 2006

    [23]    Iraqi Nationality Law (Iraq) 7 March 2006 Article 3(a)

    [24]    Iraqi Nationality Law (Iraq) 7 March 2006 Article 18(1))

12. The country information refers to the fact that the Constitution states that citizenship is the right of every Iraqi and is the basis for nationality, noting that anyone born with an Iraqi mother or father are Iraqi. In addition, it notes that the Nationality Law (2006) is more progressive and inclusive than previous legislation having removed previous distinctions between Arabs and non-Arabs for the naturalisation process and repealing legislation that revoked the citizenship of the Faili Kurds.[25]

    [25]   DFAT Report @ p.31

13. A Landinfo report[26] confirms that Faili Kurds stripped of their citizenship during the period of Saddam Hussein in the 1980’s have the right to get their Iraqi citizenship reinstated. The right to demand citizenship also applied to descendants of Faili Kurds born outside Iraq. The report indicates that reinstatement of a person’s citizenship can be applied for through embassies outside Iraq and can be granted to both former citizens and their children. As such, it appears that the applicant was entitled to apply for and be granted Iraqi citizenship through the embassy in [City 1].

    [26]   ‘Iraq: Travel documents and other identity documents’, Landinfo- Country of Origin Information Centre 23 January 2014 CIS28535 p.22

14. The Tribunal notes the country information that states that many Faili Kurds who have returned to Iraq have been able to regain their citizenship. Despite the legislation being in place to return a person’s citizenship the process can be administratively complex if a person lacks sufficient documentation to demonstrate their Iraqi origin. Therefore, the Tribunal recognises and accepts that many Faili Kurds who have not regained their citizenship fear official discrimination due to their lack of documentation. However, local NGO’s attribute this fear to a lack of awareness amongst Faili Kurds of their rights. The Federal government and the KRG have taken numerous steps to protect Faili Kurds, including provision for financial compensation and restitution of employment.

15. From the information provided to the Department the Tribunal finds that the applicant would not have been issued the Embassy letter certifying that he is an Iraqi national without him having produced the necessary evidence to show that he was in fact an Iraqi national.  In circumstances where the applicant has the Embassy letter, which states that he is an Iraqi national and, as such, his children are entitled to be Iraqi citizens and he has cited his nationality in the ‘Document for travel to Australia,’ the Tribunal  finds that the applicant is a national of Iraq and not stateless as claimed. As a result, the Tribunal finds that the applicant’s receiving country for the purposes of the definition of refugee pursuant to s.5H(1) of the Act and complementary protection pursuant to s.36(a)(a) of the Act is Iraq. 

Country of Reference

1. As referred to above the applicant was born in Iraq but lived in Iran for approximately 16 years from 1985 until 2001. He then lived in [Country 1] from 2001 until arriving in Australia in September 2009. He was married in [Country 1] to an [Country 1] citizen with whom he had three children. The applicant claims that he did not receive citizenship from Iran or [Country 1] and that he does not have the right to enter or reside in either country. There is no evidence to indicate that the applicant has the right to enter or reside in either Iran or [Country 1].

2. The Tribunal has found that the applicant is not stateless, as claimed, and that he is a citizen of Iraq. As a result, the applicant’s protection claims will be assessed against Iraq as the country of reference and 'receiving country' respectively.

3. The Tribunal is therefore satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s36(3).

The applicant’s protection claims

Applicant’s Relevant Grounds

1. The applicant submits that his claims falls within the scope of s.5J(1)(a) of the Act by reason of his ethnicity and religion as a Faili Kurd and a Shia Muslim. The Tribunal  accepts the applicant’s evidence in relation to his ethnicity and religion and finds that he is a Faili Kurd and Shia Muslim. As such, it accepts that his claims fall within s.5J(1)(a) of the Act.

2. In addition the applicant claims to be a member of a particular social group by reason as a returnee from a western country or as a person with mental health issues. To be considered as a member of a particular social group it is necessary for the applicant to share certain characteristics or elements which unite him with a particular group that sets it apart from society at large. That is to say, not only must the applicant with his group exhibit some common element, it must also unite them, making them a cognisable group within their society.[27]

   [27]    Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.

3. While the Tribunal has some reservations that the applicant being a returnee from a western country or a person with mental health issues constitutes membership of a particular group within the scope of s.5J(1)(a) of the Act, for the purposes of this decision the Tribunal is prepared to accept, and as such finds, that the applicant is part of a particular social group.

Applicant’s well-founded fear.

1. In Chan v MIEA[28] 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.[29]

   [28] (1989) 169 CLR 379 at 396.

   [29] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. 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 case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being harmed or being persecuted in the event that he returns to Iraq.

3. However, to hold a ‘well found 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 [30]stated:

   “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.

   [30]   Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that: ^[31]

   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.

   [31]    MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. The applicant claims that if he is returned to Iraq there is a real chance he will suffer serious harm by the authorities by reason of ethnicity and religion and as a member of a particular social group and as such claims that he is a person who has a well-founded fear of persecution, pursuant to s.5J(1) of the Act. While the Tribunal accepts that the applicant has a subjective fear of being persecuted for a reason mentioned in s.5J(1)(a) of the Act on his returned to Iraq, based on the country information and the evidence available to it as detailed below, the Tribunal finds that the applicant does not have a substantial basis for such fear and as such finds that his fear is not well founded.  

Faili Kurd

1. The applicant claims that he will be persecuted in the event that he returns to Iraq by reason of the fact that he is a Faili Kurd. However, the DFAT report[32] notes that many Faili Kurds have returned to Iraq and regained their citizenship. The country information acknowledges that societal discrimination against Faili Kurds continues to occur. However, it notes that other groups also face such ostracism in areas where they are the ethnic or religious minority. As a result, DFAT assesses that Faili Kurds face a low risk of official and societal discrimination.[33]

   [32]    DFAT Report @ p.12

   [33]    DFAT Report @ p.12

2. The applicant claims that having left Iraq as a young boy, he has no family or social connection to Iraq and that he does not speak the language. While the Tribunal recognises that having no family or social connections within Iraq will be difficult for the applicant, the Tribunal notes that he has displayed a significant amount of courage and a willingness to overcome such difficulties in traveling to countries, such as [Country 1] and Australia, were he had no connections and where it was not his natural language. Nevertheless, he claims that as a result of not having any social or family connections in Iraq together with claimed language difficulties, there is a real chance he will suffer serious harm by not being able to support himself upon his return to Iraq. The Tribunal acknowledges and accepts that the applicant fears that he will not be able to find paid employment. However, the applicant has shown that he is resourceful and capable of adapting to unfamiliar circumstances, particularly where he has not had any family or social support. In [Country 1], for example, the applicant married and was able to support his wife and family before coming to Australia.  

1. The country information reports that instances of societal discrimination, particularly in relation to economic and employment opportunities are likely to be associated with patronage and nepotism, such as not having the right contacts to secure access to jobs or housing.[34] Nevertheless, the DFAT report states that in regards to access to services and employment, Faili Kurds who are Iraqi citizens are able to access services and employment on the same basis as other Iraqis. DFAT assesses that while Faili Kurds who have not been able to regain their citizenship may continue to face bureaucratic complications in accessing services, those who are Iraqi citizens face little or no discrimination in access to health, education and other services.[35] 

   [34]    DFAT Report @ p.16

   [35]    DFAT Thematic Report, Faili Kurds in Iraq and Iran, 3 December 2014 @ p.14

2. The Tribunal has found that the applicant is an Iraqi national and as such, based on the available country information, the prospects of finding work in Iraq based on the applicant’s circumstances does not amount to him facing a harm that will amount to serious harm, in the sense that the applicant will experience significant economic hardship or deny him the capacity to earn a livelihood that may threaten his capacity to subsist or that he will be denied access to basic services, where the denial threatens the person’s capacity to subsist.[36] In this case, the Tribunal has not treated the instances of serious harm under section 5J(5) of the Act as definitive.

Applicant as a Faili Kurd and Shia Muslim.

[36]    The instances of serious harm as referred to in section 5J(5) of the Act are not s case the instances of harm

1. The Tribunal has accepted that the applicant is Shia Muslim. He claims that as a Faili Kurd and a Shia Muslim that there is a real chance that he will suffer serious harm in the event that he returns to Iraq. The country information[37] refers to the fact that Shi’a have traditionally lived across Iraq. It notes that a sharp increase in sectarian violence occurred after 2003, which caused some Shi’as to leave Sunni areas and the rise of ISIL in 2014 led many Turkmen and Shabak Shi’a to relocate to other areas. Generally, Faili Kurds are not welcome into communities dominated by other religious and ethnic groups.[38] Nevertheless DFAT assess that the risk to Faili Kurds experiencing societal discrimination is moderate.[39]

   [37]   DFAT Report @ p.16

   [38]  DFAT Report @ p.16

   [39]  ibid

2. However, given that the majority of the population in Iraq is Shia and with Shia dominated governments in place throughout Iraq, Faili Kurds are at little or no risk of official discrimination or violence on the basis of their religion.[40]  DFAT assesses that Shi’a do not face official discrimination and further assesses that Shi’a do not face societal discrimination in Shi’a areas, although they face a moderate risk of violence during significant Shi’a religious festivals and pilgrimages.[41] As such, based on the available country information, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that he returns to Iraq by reason of him being Faili Kurd and a Shia Muslim.

Medical Needs.

[40]  DFAT Thematic Report, Faili Kurds in Iraq and Iran, 3 December 2014 @ p.5

[41]   DFAT Report @ p.16

1. The applicant claims that as a result of his medical conditions there is a real chance he will suffer serious harm in the event that he is returned to Iraq, particularly by reason of the fact that he will not be able to access appropriate medical treatment in Iraq. He submits that he needs to remain in Australia so that he is assured of receiving medical treatment. By his written claim, the applicant states that he suffers form medical conditions, including mental health issues, disabilities and other health complaints. The applicants evidence to the delegate was that he suffers from [numerous medical conditions] and that he requires treatment for all these conditions.[42] The applicant provided a print out of his clinical [record].[43] The record shows that the applicant is on [specific] treatment for [a certain problem] that he [has several medical conditions]. His medical records indicate that he has been taking illicit drugs while in detention and he is regularly treated for [a certain problem] and other minor issues. Other than those medical conditions and health complaints contained in the [record], the applicant otherwise did not provide any evidence of any further mental health issues, disabilities or health complaints from which he suffers.

   [42]   [Document number], Natural Justice Letter response- Submission, court orders medical reports letters to embassies

   [43]  [Document number], Natural Justice Letter response- Submission, court orders medical reports letters to embassies (Clinical record)

2. The applicant submitted that the [clinical record] reports listed [numerous] incidents that relate to the applicant harming himself. The majority of such incidents were said to have occurred in 2015 and 2016 with the most recent [in] April 2018.[44] On that occasion, the [report] indicates that a fellow detainee reported that the applicant was going to self-harm unless he got the bottom bunk in his room, a fact which was denied by the applicant. The applicant supplied a report from [an organisation] dated 14 June 2016 which does not provide any insight into the applicant’s medical needs. The applicant has not provided any medical or psychological report that would assist the Tribunal in determining his current condition and if he requires ongoing treatment.

   [44]   [Document number], Natural Justice Letter response- Submission, court orders medical reports letters to embassies (Clinical record) [April] 2018

3. While the [clinical record] indicates that the applicant suffers from [mental health issues] there is no evidence that the applicant requires ongoing medical treatment for those conditions. The applicant did not provide any medical or psychological report in relation to his current condition. The Tribunal accepts that by being held in detention the applicant may become depressed and suffer from anxiety. However, given the lack of medical evidence, it is not able to assess the level of care required by the applicant. However, it notes that the [clinical record] reports more recent consultations have involved the administration of [specific] treatment and more general health care rather than ongoing mental health or psychological treatment. As such, there is no evidence that the applicant suffers from ongoing mental health issues that would significantly differentiate him from Iraqi society.

4. The country information reports that mental health care services are available in Iraq. The bulk of those services are located in Baghdad,[45] close to the applicant’s previous home in Waist. There are also services located in the southern governorates.[46] The reports do indicate however, that the level of mental health care is limited in Iraq as against the size of the population. However, the Tribunal has found that the applicant is an Iraqi national and as such there is no evidence that he would be denied mental health services. He would be entitled to such services commensurate with other citizens of Iraq and as such does not face real chance of being seriously harmed on account of his mental health needs.

   [45]   Bulletin of the Board of International Affairs of the Royal College of Psychiatrists ‘Mental health services in Iraq: past, present and future’ Sabah Sadik1 and Abdul-Monaf Al-Jadiry Isolated angry, anxious and stressed- mental health in Iraq and  >

   The applicant claimed that he suffers [several medical conditions] for which he requires treatment. However, the applicant did not provide any medical report as evidence that he suffers from each condition as claimed and to what degree. The applicant did not claim that he would be denied medical treatment in Iraq by reason specified in s.5J(1)(a) of the Act or a convention reason. He has, however, claimed that he will not be able access appropriate medical treatment and psychological treatment in Iraq due to a general shortage of medical care. However, the country information indicates that Iraq has a mixture of public and private hospitals, and primary health care is provided by both private and public clinics.[47] While it states that health infrastructure suffered from decades of conflict, it notes that even before the rise of ISIL, many primary health care facilities were under-resourced.[48] Nevertheless, the Tribunal has found that the applicant is an Iraqi national and as such there is no evidence he would be denied medical care in Iraq. As a result, the Tribunal finds that the applicant would be able to access health care in Iraq at the same rate as other citizens. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of being denied access to health care services in Iraq.

Drug and Alcohol Abuse

[47]  DFAT report @ p.8

[48]    ibid

1. The applicant claims that as a result of his criminal offending and subsequent imprisonment and the subsequent cancellation of his visa he has suffered from a drug and alcohol abuse. It is submitted that the applicant requires support for his drug and alcohol abuse when he returns to the community. The applicant has undertaken drug and alcohol dependency programs and it is claimed that his ‘drug and alcohol problems and dependency seem to be treated and resolved hence the expectations are much better behaviour and conduct.’[49] The tribunal notes that the [clinical] report notes that he has regularly returned positive results for illicit drugs and that he is receiving  [treatment] for [drug] dependency.

   [49]          [Source deleted]

2. The country information indicates that drug use in Iraq using has increased since 2003. An Asian Times[50] article reports that after the invasion in 2003, the security apparatus collapsed, and Iraq’s borders in all directions became open for the trafficking of all kinds of drugs, to be transported to Gulf countries using different methods, some of them comical. In mid-2017, Kuwaiti customs authorities busted a trafficking network that transported drugs to Kuwait using bags tied to the legs of homing pigeons. In December 2018, Kuwaiti authorities intercepted a drone coming from Iraq carrying pills.

   [50]          Asian Times ‘After Isis: Iraq Has A Drug Problem’ By Omar Al- Jaffal

3. It is reported[51] that the response to the problem has been led by the Iraq Ministry of Health with close collaboration with National Mental Health and Substance Abuse Council. The response has been to conduct a nationally representative survey of mental health and substance use conditions nationwide. A number of targeted prevention efforts, such as educational programs for teachers and physicians working in primary health care centers, have been completed and a number of nongovernmental organizations are active in Iraq providing services and training on substance misuse and related issues, including torture-related trauma, forensic psychiatry, and children’s issues. However, the city of Basra in southern Iraq is at the forefront of a nationwide spike in drugs sales and consumption, with arrests nearly doubling since late 2014. Al-Sabbagh, who heads the psychiatry department at Basra General Hospital, said the country lacks specialised rehabilitation centres and medicine and suffers from a severe shortage of psychiatrists, psychologists and social workers. Nevertheless, Iraq is set to open its first specialised mental health and rehabilitation centre in Basra in 2019 with about 40 beds.[52]

   [51]          Inforrma Health Care ‘Responding to Rising Substance Misuse in Iraq’ Rawnak Aqrawi & Keith Humphreys The New Arab, ‘Basra- the Epicenter of Iraq’s drug problem. >

   While there may be limited mental health and drug rehabilitation services available in Iraq as already noted, the applicant would have access to medical services and other services like drug rehabilitation programs at the same level as other citizens in Iraq. The applicant would not be denied the services for reasons of his ethnicity. As a result, the Tribunal finds that the applicant does not face a real chance of serious harm on the basis of his past or possible future use of illicit drugs and/or alcohol.

As a returnee from a Western Country with criminal convictions.

1. The applicant claims that he would experience harm as a result of his ethnicity and the fact that he would be seen as a returnee from the West with a criminal record. The Tribunal notes that the applicant has informed the Iraqi Embassy in Canberra of his criminal convictions in Australia by a letter dated [in] January 2019[53]  and as result accepts and finds that the Iraqi authorities have been notified of the applicant’s criminal offences in Australia. The applicant has convictions in Australia for [numerous offences].

   [53] [File number]

2. The country information indicates that double jeopardy is prohibited under Iraqi law. The Constitution of Iraq 2005[54] states that double jeopardy is prohibited unless new evidence is produced. It also indicates that offences committed overseas can only be tried inside Iraq in limited circumstances. Iraq’s 1969 Penal Code[55] states that no legal proceeding can be brought against a person who commits an offence outside Iraq except by permission of the Minister of Justice. In addition it states that states that a person cannot be tried if (a) a foreign court has made a final decision to acquit or convict a person, and any imposed sentence has been served in full; or (b) if the proceeding or sentence has been annulled or quashed in the final sentence or annulment or trial or quashing of the sentence falls within the jurisdiction of the law of the land where the judgement was made. There are exceptions to this rule that relate specifically to offences that affect the security of the State.[56]

   [54] The Constitution of Iraq 2005 republic of Iraq 13 January 2005 Article 19(5) p.7

   [55] Iraq Penal Code No 111 of 1969 (amended march 2010) republic of Iraq 14 March 2010 Article14 p.3

   [56] Op Cit Articles 9 and 12 pp.2-3

3. The applicant has been convicted of crimes in Australia and has served the imposed sentence. He is not subject to any ongoing criminal charges. Therefore, in circumstances where double jeopardy is generally prohibited in Iraq (subject to certain exceptions of which the applicant would not face as he was convicted of crimes in Australia), there is no real chance the applicant will suffer serious harm in Iraq as a result of having been charged and convicted of crimes in Australia.

4. Iraqis who possess the required identity documents would not be arrested on return to Iraq even if they had left illegally. Iraqi nationals require a valid passport, an expired Iraqi passport, or a laissez passer (an emergency travel document issued by an Iraqi Embassy) to return to Iraq.[57] The authorities will arrest an Iraqi person on return to Iraq if they have committed a criminal offence and a warrant had been issued for their arrest.[58] Others, even persons who left Iraq illegally, would not be subject to arrest on arrival. Although irregular exit from Iraq, including through the use of fraudulent documentation, is illegal, DFAT has stated it is not aware of any prosecutions of individuals for irregular exit.[59]

   [57] Country Policy and Information Norte0 Iraq: Internal relocation, civil documentation and returns’ UK Home Office 19 February 2019 section 4.1.1 p.17 20190220115949.

   [58] DFAT Report 9 October 2018 p.30

   [59] Ibid

5. The country information reports that failed asylum seekers would not be harmed following the return to Iraq. However, it is acknowledged that returning to Iraq may be difficult for those who do not return to the original community and who may have no familiar support.[60] As already noted, the applicant is a member of the Shia Muslim majority.  There are Faili Kurds living throughout Iraq, including the applicant’s home location of Wasit. While there are strict sponsorship requirements for people wanting to relocate to Southern Iraq, the Kurdistan Region of Iraq and Baghdad, particularly for Sunni Muslims, the applicant would not face such barriers upon his return to his home location of Wasit. DFAT advises that the practice of people departing Iraq to seek asylum overseas and then returning once conditions permit is one that is well accepted by Iraq. The reasons for returning vary but include reuniting with family, establish and manage business or to take up employment.[61]  

   [60] EASO Country of origin Information Report- Iraq Key socio-economic indicators’ European Asylum Support Office (EASO) 4 February 2019 p.103-105

   [61] DFAT Report 9 October 2018 p.30

6. While the applicant has not lived in Iraq since 1981 [and] his return would not be without difficulties and would include a period of significant adjustment, the country information indicates that he would not face a real chance of serious harm upon his return to Iraq or in the foreseeable future by reason of his criminal convictions outside Iraq.

7. Therefore, having assessed all of the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a),(b) or (c), if he is returned to Iraq and as such does not satisfy the criterion in s.36(2)(a).

Complementary Protection Criteria

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

2. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment.  In particular, the applicant claims that there is a real risk he will suffer significant harm in the event he is returned to Iraq by reason that he is a Faili Kurd and a Shia Muslim, that he will suffer for not being able to access proper medical and psychological care, that he suffers for drug and alcohol abuse and that that he will be a returned asylum seeker from a western country with criminal convictions.

3. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[62] The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.

   [62] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

1. It therefore follows that the Tribunal does not accept and finds that there is no real risk that the applicant will suffer significant harm in Iraq by reason of him being and Faili Kurd and as a Shia Muslim.

2. The applicant made a general claim in relation to the general violence that Faili Kurds suffered under the regime of Saddam Hussein. However, based on the reasons detailed in paragraphs 63 to 68 in these reasons and the relevant country information, the Tribunal finds that there is no real risk of the applicant being significantly harmed by reason of being Faili Kurd or a Shia Muslim upon his return to Iraq. In addition, for the reasons detailed above, the Tribunal finds that there is no real risk of the applicant suffering significant harm by reason of him being deprived of medical treatment, psychological care or treatment for his drug and alcohol dependence or as a returnee from a Western Country with criminal convictions as claimed. Finally, the applicant referred to other disabilities in his claim but did not provide any specific evidence of such disabilities. As a result, the Tribunal finds that there is no evidence to support such a claim and finds that there is no real risk that the applicant will suffer significant harm on his return to Iraq as a result of the disabilities as claimed.  

3. At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

4. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no 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 he will suffer significant harm as required by s36(2)(aa).

CONCLUSION

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) the Act.

2. 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 the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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 criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell

Senior Member