1913372 (Refugee)

1913372 (Refugee) [2023] AATA 4847 (15 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Jennifer Claire Bardenhagen Boulebtateche (MARN: 1278277)
CASE NUMBER:  1913372
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Roslyn Smidt
DATE:15 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 15 December 2023 at 4:55 PM

CATCHWORDS
REFUGEE – protection visa – Iraq – viewed as traitors or opponents by Shia militias – applicant’s brothers’ work with US military – moderate Shia – hold anti-ISIS views – offended student with moderate views – son of leader of militia – childrens westernised – risk for women – credibility issues – applicant granted refugee visa in the US – residence in the US – Trump policies – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who are citizens of Iraq, applied for the visas on 1 March 2017. The delegate refused to grant the visas on the basis that she was not satisfied that [Applicant 1]’s claims were entirely credible.
The applicants appeared before the Tribunal on 4 October 2023 and 17 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Applicant 1]’s brother [Brother 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
[Applicant 1] is [an age] year old married woman of Shia Muslim faith. She married [Applicant 2] in September 1999. They have three children, [Applicant 3] aged [age], [Applicant 4] aged [age] and [Applicant 5] aged [age].They have all made claims for protection.
[Applicant 1] has seven siblings. Three of them are Australian citizens her sisters [Sister 1] and [Sister 2] who arrived in July 2008 and August 2013 respectively and her brother [Brother 1], who arrived in December 2014. Her brother [Brother 2]has resided in the USA since June 2016. Her mother is deceased. Her father suffers from [medical condition] and appears to be in [Country 1]. Her brother [Brother 3] worked as an [Occupation 1] in Karbala. He appears to be currently in [Country 1] with her father. Two of her siblings remain in Iraq.
[Applicant 1] received a Bachelor Degree in Education from a university in Baghdad in 2006. She was employed by the Department of Education as a [school] treacher in Karbala. She could read and write English when she arrived in Australia.
[Applicant 2] worked at a number of different jobs in Iraq.
[Applicant 3], [Applicant 4] and [Applicant 5] were at school prior to leaving Iraq.
The family resided in Karbala, a Shia majority city in central Iraq, prior to their departure.
On 20 November 2015 [Applicant 1] received an offer of admission from [University 1] for a course starting on 11 January 2016. She applied for a student visa on 5 October 2016. It was granted on 20 December 2016.
The applicants arrived in Australia [in] February 2017.
SUMMARY OF CLAIMS
It has been claimed that the applicants are viewed as traitors or opponents by Shia militias in Iraq because [Applicant 1]’s brothers worked as [Occupation 2]s for the USA military, because of her involvement in a discussion or dispute between two students at the school where she worked and because of the activities of some members of her family following her departure from Iraq.
It has been claimed that the applicants would be at risk of harm on return to Iraq because they hold anti-ISIS views.
It has been claimed or suggested that [Applicant 1] and her daughters would be at risk of harm because they are women. It has also been claimed that they and [Applicant 5] would be at risk of harm because of the manner in which they dress and behave and because of their values.
It has been claimed that the applicants would be at risk of harm on return to Iraq because of the years they have lived in Australia.
BEST INTEREST OF THE CHILD SUBMISSIONS
It has submitted that [Applicant 1]’s niece, [Brother 1]’s daughter and other Australian citizen children would suffer if she was not allowed to remain in Australia because they have a close relationship. It submits that in these circumstances best interests of the child as set out in the Family Law Act and Australia’s obligations under the Convention on the Rights of the Child should be considered,
An attached statutory declaration signed sets out the role by [Applicant 1] played in nieces’ lives.
These issues have no relevance to my consideration of the applicants claim for protection in Australia.
CLAIMS AND EVIDENCE
Evidence before the delegate.
[Applicant 1] lodged an application for protection In March 2017. She claimed that she and her family had departed Iraq [in] February 2017 and travelled directly to Australia. She provided Iraqi passports which contained stamps which appeared to confirm this. Her residential history in Iraq is set out in her application form. It states that she resided in Hay Alhur Karbala from September 1999 until February 2017.
In answer to the questions regarding her reasons for seeking protection on that application form [Applicant 1] said that she had received many telephone messages from unknown people threatening her life and the lives of her family. They moved to different areas but they had to give their details of the Muktar [local leader] who sometimes worked with militias and they continued to receive messages. Just before she and her family left Iraq, they received a bullet in an envelope. She took this to be a warning to leave Iraq or be killed by members of a militia who viewed her family as enemies. These militias worked with the government and cannot be criticised. They consider women to be pieces of furniture and will not tolerate an insult from a woman. She feared that she and her family would be killed or kidnapped if they returned to Iraq.
In July 2018 [Applicant 1] proved a copy of statement dated February 2017. She said that the statement had been submitted in February 2017, but the Department has no record of this. There appears to be some suggestion that the statement was not drafted until 2018. Nevertheless, I accept that it was prepared in February 2017 and omitted from [Applicant 1]’s original application by mistake.
In the statement [Applicant 1] said that six months earlier [in about July 2016] she had interrupted a discussion by two male students at her school about religion and the choices people make in relation to their beliefs. One of the boys was a strict Muslim. She tried to convince him that religion was a matter of personal choice, that all religions including Christian, Jewish, Shia, Sunni or Yazidi should be respected and that people’s loyalty should be to humanity and people should be valued humans. She saw this intervention as part of her role as a teacher.
That evening she got a call from someone who threatened her life and the lives of her children. He said that the boy was the son of the leader of the militia to which he belonged and as a woman she had no right to insult him. He told her to leave the school and the town. She refused to go. Members of the militia came to her school. They told the principal that she was a traitor and that her entire family worked for western institutions. Her two brothers had worked as [Occupation 2]s for the US army for long time and had left the country after being threatened.
Following this, militia members kept calling and sending messages to her house. She realized that her life and her children’s lives were in danger so she left that school and changed houses twice. The militia members kept following her. At the time she was preparing her papers to study in Australia. Fortunately, her visa was granted and she was able to leave.
On 27 December 2017 [Applicant 1] advised the Department that some of the information she had provided previously was incorrect. She said that she had been granted refugee status in the USA and resided in [City 1, State 1]from [October] 2016 until [February] 2017 when she came to Australia. According to an accompanying statement she was granted refugee status in the US because she had been threatened by militias because her brothers had worked as [Occupation 2] of the US army in Iraq. She left the USA because President Trump had decided to exclude refugees from many countries and Iraq was at the top of the list. Following this she and her family were exposed to a lot of extremist actions in the streets. They feared that President Trump would ‘terminate’ them from the USA. She felt that the only solution was to travel to Australia using her student visa.
[Applicant 1] spoke to an Arabic friend in [State 1] who suggested that she hide the fact that she had residency in the USA so her application to remain in Australia would not be rejected. He helped her to complete the protection application she lodged in Australia. After settling in Australia, she started to “think correctly” and approached some agents who advised her to correct her earlier evidence. She repeated this explanation in a statement dated July 2018.
According to the delegate’s decision the Department became aware that the applicants had resided in the USA after obtaining the following documents at some time before December 2017.[1]
·     Copies of documents issued by the US Department of State [in] September 2016 which authorises each applicant to travel to the USA and apply for admission. A wet stamp on each document states that they were admitted to the US [in] October 2016 as a “refugee/dependent of a refugee” for an indefinite period. It states that if they depart, they will need prior permission to return.
·     Documents which appear to have been downloaded from the US Customs and Border Protection website on 31 October 2016. It states that the applicants most recent date of entry to the US was the [October] 2016. According to US government information this is an entry/departure record issued to aliens who have been admitted to the U.S or who are adjusting status while in the U.S. or extending their stay, among other things. The person named in the document can obtain a copy online.[2]
·     US social security cards and documents issued by state authorities confirming that they are entitled to various benefits.
[1] It appears that these documents may have been provided to support [Brother 1]’s application. The applicant later provided a copies.
[2] Official I-94 Fact Sheet (ice.gov)..
During an interview on 9 July 2018 the delegate observed that [Applicant 1] had only corrected her travel history after she learned that the Department knew she had been in the US. She said that she had been in a harsh and difficult situation when she applied for protection. The delegate again observed that she appeared to have changed her evidence after becoming aware that the Department knew she had been in the USA. She said that she had not been aware that the Department had this information.
The delegate asked why the passports on which she and her family had entered Australia contained stamps which indicated that they had left Iraq [in] February 2017. She said that she did not know. She gave the passports to an Iraqi man and he did everything. She confirmed that she and her family had stopped in [another country] for 2 or 3 hours before travelling to Australia.
[Applicant 1] said that she had taught at [a] school in Karbala from 1999 until October 2016. She also taught at two other schools during that period. She stopped all of her teaching work about a week before she left Iraq.
[Applicant 1] confirmed that all of the claims on her US application related to her brothers’ work as [Occupation 2]s. She first received telephone threats in 2012 and at some time her house had been raided. She did not take these threats seriously to begin with, but later she felt that her life was in danger because there were kidnappings and the militias were doing “dirty things”.
[Applicant 1] stated that her brothers had worked as [Occupation 2]s in Karbala, but then said she did not know where they worked because they had never told her. She first became aware that they were working as [Occupation 2]s when she was threatened in 2012. After that she was estranged from them because of the problems they had caused.
The delegate advised her that he had information which indicated that her brothers had not worked as [Occupation 2]s in Karbala. She again stated that she did not know where her brothers had worked. Before coming to Australia, [Brother 1] mainly lived in Baghdad but also spent time in Karbala. [Brother 2] lived in Karbala before moving to the USA. She did not know how long [Brother 1] had worked as [Occupation 2]
[Applicant 1] said that when she began to receive threats, she told her father about her brothers’ work. He told them to stop doing that work, but it appeared that they did not do so.
[Applicant 1] said that she began to receive threatening calls from the militias in mid-2012. They accused her of being a traitor, threatened her children and told her to leave. On one occasion in 2012 when she and her husband went to Baghdad someone broke into her house and wrote messages accusing her of being a traitor. She continued to receive telephone threats one or twice a week until about September 2016. Sometimes the calls stopped for about a week, but then they continued.
[Applicant 1] repeated the claim that she had been threatened after she intervened in an argument between two students in September 2016. The militia accused her family of being betrayers. She took the threats seriously and moved elsewhere for about three weeks. When she returned home, she remained in hiding until her departure [in] October 2016.
[Applicant 1] said that she feared that she would be at risk of harm in Iraq because she is a woman, because she has moderate views on religion and because of the way she dressed. She said that while she wears the hijab, she would be expected to dress in black and cover herself completely. The delegate noted that she appeared to have travelled to Iran twice for religious purposes. She said her visits were partly religious and partly tourism.
[Applicant 1] claimed that Shia militias would know that she had resided in a non-believer country and she would be at risk of harm for that reason.
In a statement dated July 2018 [Applicant 1] said that she had decided not to travel to Australia when her student visa was granted in December 2016. However, President Trump announced that citizens of seven countries including Iraq would have to leave even if they were legal immigrants, so she decided to leave as soon as possible. She spoke to her sisters in Australia who strongly discouraged her from moving to Australia as she had been granted legal status in the USA. She did not take that advice. She spoke to an Iraqi friend in [State 1] who arranged everything.
On 10 January 2019 [Applicant 1] provided a further submission in which she said that the situation in Iraq had deteriorated especially for women. Women who disagreed with militias risked being killed. She also said that her visa for the USA had been cancelled so she had nowhere to go.
The delegate found many of [Applicant 1]’s claims lacked credibility. He accepted that her brothers had worked as [Occupation 2]s but did not accept that she had been targeted because of this. Nor did he accept that she had been threatened following an incident at her school. After reviewing the relevant the evidence and noting that [Applicant 1] wore the hijab and had family support, he did not accept that she would face a real chance of experiencing serious or significant harm because of her status as a moderate Shia woman. He also noted evidence from DFAT which indicated that Iraqi’s who had lived in western countries were not generally at risk of serious harm on return to Iraq and did not accept that she would be harmed because she had lived in the US and Australia.
With regard to [Applicant 1]’s ability to enter and reside in the US, he noted evidence that refugees in the USA were required to legally apply for permanent residence after twelve months and found that as she had not done so she did not have permanent residence or the right to enter and reside in the USA.
Evidence provided to the Tribunal
Submission dated 27 September 2023

[Applicant 1] continued to rely on her earlier claims. It was submitted that the fact that she and her family had been accepted by the USA and her siblings have been granted protection visas in Australia, supported the claim that they would be at risk of harm on return to Iraq.
The submission discusses the delegate’s findings at length and submits that errors of translation and other problems resulted in a credibility finding which was unfair. Most of these submissions relate to [Applicant 1] evidence regarding her failure to disclose her time in the USA when she first applied for protection.
The submission refers to a number of reports and other Tribunal decisions which include information or comment on the security situation in Iraq and the problems past and present faced by [Occupation 2]s.
The submission includes what appears to be an extract from a letter from the Department to [Brother 1] dated 26 March 2019 regarding problems in his application. It appears that he had claimed that [Applicant 1] had been granted refugee status in the US because of problems caused by this work as an [Occupation 2] and when the Department had credible evidence that she was not residing in the US [presumably because she was already in Australia]. The letter also suggests that [Brother 1] had provided contradictory evidence regarding his work as an [Occupation 2]. His statement indicted that he had worked part time as an [Occupation 2] between January and March 2011. A letter from the Department of the Army stated that he was released [in] March 2011 due to concerns about his personal safety but a reference from [deleted] stated that his job had ended in May 2011 when his position was eliminated.
The applicant’s representative submitted that the fact [Brother 1] had been granted protection suggested that an applicant could be granted protection even when there were serious credibility issues.
Submissions dated 27 September 2023 and 3 October 2023
These submissions repeat [Applicant 1]’s earlier claims. They submit that she failed to provide an honest account of her situation in her initial application because she was fearful and confused and suggest that some of her evidence was misunderstood or misinterpreted during her interview with the delegate leading to incorrect findings on credibility.
A copy of the Department of the Army letter mentioned above was provided. It was signed by [Mr A] and states that [Brother 1] has been released from his job as an [Occupation 2] due to concerns about his personal safety. The period of employment is not mentioned.
[Applicant 1] claimed that she had received threats by text message and [social media] [in] May 2022 because of activities of members of her family following her arrival in Australia. The submission is somewhat unclear but it appears to claim that the threat contained the words [deleted] and related to the fact that her brother met with Australian [official] and the [sister]’s work with recently arrived refugees in [Town 1] for which she won [an] Award. [Applicant 1] provided pictures of her bother and her sister which she claimed were attached to the threatening messages.
Hearing held on 4 October 2023
[Applicant 1], her husband and children were present at the beginning of the hearing. I was advised that none of them would be providing evidence. I invited them to remain in the room. Shortly after the hearing began [Applicant 1] said that she would be more comfortable if they were not present and they left the room.
[Applicant 1] confirmed that her sisters [Sister 1] and [Sister 2] and her brother [Brother 1] resided in Australia. [Sister 1] arrived in 2010 on a student visa. She returned to Iraq at some time and while there her children were bullied at school because they had been in Australia. She obtained protection because she had been threatened because of their brother’s work with the US forces. [Sister 2] arrived on a student visa in 2013 and obtained protection because her husband had worked with Australian forces in Iraq. She returned to Iraq when their father got [medical condition]. [Brother 1] arrived in 2014. [Applicant 1] said that he had worked as an [Occupation 2] with the US military in Iraq. She did not know when he did this work as these matters were kept confidential, but he ceased that work in 2011. She did not know anything about any problems he faced because of his work as an [Occupation 2] or why he had not applied for a visa for the US on the basis of his work. According to the evidence which [Brother 1] provided later in the hearing he was granted a visa to settle in the USA but was unable to travel there.
I advised [Applicant 1] that I did not have a copy of [Brother 1]’s protection visa decision but it appeared that he had been granted a visa as a dependent of his wife. She said that the threats which she received in 2012 named him which proved that he had worked in that capacity.
[Applicant 1] confirmed that her brother [Brother 2] had also worked for the US military and had arrived in the US in June 2016 on a visa issued to him because of that work. He worked in Baghdad but she was unable to provide any further information about his work as it was confidential and he did not tell anyone. She did not know when he stopped working as an [Occupation 2]. He experienced the same problems as other [Occupation 2]s, but she did not know any details.
I observed that it appeared that [Applicant 1] had obtained a visa for the US on the basis of her relationship to [Brother 2]. She did not dispute this. She said that she had lodged an application in 2015 and had spoken about the threats she had received. I observed that it appeared likely that the officials assessing her case would have wanted details of [Brother 2]’s employment with the US army. She said that he had given her evidence of his work and she had submitted these papers with her application, but they were in English and she could not read them. I advised her that I had difficulty accepting that she had not been able to read the documents or obtain information on their contents. She said that her English had improved since she arrived in Australia.
Later in the hearing [Applicant 1] said that her sister [Sister 1] had told her what to provide when she applied for a visa to the USA. This included proof that her brothers had worked as [Occupation 2]s and information about the threats she had received. Neither of her brothers had any involvement in preparing the application. I observed that it was my understanding that it was not easy to get a visa under the special US program for people who had actually worked as [Occupation 2]s and it seemed unlikely that she would have been able to obtain one without some support from her brothers. She said that the visas were for family members as well.
[Applicant 1] said that she had been interviewed twice at the US Embassy in Baghdad. The last interview was [in] May 2016. Following that there was an exchange of emails.
I asked [Applicant 1] if she had copies of her US visa application. She said that she had not been able to retrieve the application from her email. She contacted the IOM for information but they could not help. I noted that the visa had been issued by the US government and suggested that they could possibly provide the information. She did not comment.
I observed that the documents [Applicant 1] had provided stated that she had been granted permission to travel to the US [in] September 2016 and asked why she had applied for a student visa for Australia in October 2016. She said that she had been aware that she had been given a date to travel to the USA but she was not aware that she had been granted permission to live in the USA. I advised her that I had difficulty accepting this. I observed that her behaviour suggested that she had planned to find a way to come to Australia before she left Iraq and before the election of President Trump. She said that it had always been her dream to complete her education and maintained that her claims were true.
[Applicant 1] said that she travelled from Iraq to the US [in] October 2016 using the passport that she later used to travel to Australia. I noted that the passport she had used to enter Australia had the number [deleted] while the US Customs and Border Protection document headed most recent I-94 stated that her passport number was [a different number]. She said that she had only used one passport.
[Applicant 1] said she had asked to go to [City 1] because she had been told that a number of Iraqis lived there and it would be the most suitable place. [Brother 2] lived in [City 1] but she did not go there to join him and they had no contact while she lived in the US. The last time she saw hm was in 2012 and after that her only contact was through her sister [Sister 1]. They were not in contact because he and [Brother 1] had caused the humiliation faced by the family by working for the US.
I asked [Applicant 1] why she left the USA despite having permission to remain indefinitely. She said that President Trump had decided to return citizens from seven countries including Iraq to their homelands. I advised her that it was my understanding that President Trump had banned or attempted to ban people from some Muslim countries from entering the USA but he had not ordered the removal of those lawfully in the country and I found it highly unlikely that she would not have been aware of this. She said that she would not have left if she had not faced problems.
I noted that [Applicant 1] had claimed that she had been afraid there were extremists in the street in [City 1] and her children had faced problems. She said that there was chaos and there were people on the street telling them to go back to where they came from. Someone removed her younger daughter’s head scarf at school and her eldest daughter was stopped and spoken to in the street. I advised her that I found it difficult to accept that there was widespread extremist chaos in [City 1] because it was known for being a liberal, progressive city where the majority of the population had voted for Democratic candidates in Presidential elections for many years. [Applicant 1] then said that the problems were not widespread in [City 1], but her family had been involved in two incidents.
I noted that the visa which [Applicant 1] had been granted in the USA stated that she could travel outside the country and return without losing her status if she sought permission prior to her departure. She said that she had not been aware of this and had not sought or obtained permission to leave. She spoke to an Iraqi man and he had told her that she could leave. I noted that she had previously stated that her sisters had advised her not to leave the USA and asked why she had ignored that advice. She said that they had not lived through her situation and did not know what she had faced in the USA.
I noted that [Applicant 1] appeared to have taken steps to disguise the fact that she had been granted the right to reside indefinitely in the USA when she arrived in Australia. [Applicant 1]’s response was confused. In essence she claimed that someone else suggested she do this and had made the arrangements for her. I observed that she may have sought advice and assistance, but the responsibility was hers. She said that she had two options; to return to Iraq and face death or take steps to save herself and her children.
I asked [Applicant 1] who she feared would harm her if she returned to Iraq. She said that she feared she would be harmed by militias because her brothers had worked as [Occupation 2]s. They were considered traitors and if militias were unable to find them, they would attack members of their family. The militias had different names and she did not know which one might attack her.
I asked [Applicant 1] when she first experienced a problem which made her fear for her safety in Iraq. She said that in about May 2012 she began to receive calls from unknown people asking where [Brother 1] was. They threatened to harm her if she did not tell them. She told her father what had happened and asked him to tell [Brother 1] to stop his work or they would all be victims. Her sisters also received threats but they did not tell her anything about their problems. She then added that [Sister 1] had told her that militias had left threatening notes in the garden, but her other sister had not received any threats because she was married and lived elsewhere. Her father was not threatened because he was elderly.
I asked [Applicant 1] to confirm that her brothers were still working for the US in 2012. She said that she did not know, but even if they had stopped, the militias would still pursue them. I asked if she could provide any more information about her brothers’ work or the problems she had faced as a result. She said that the threats began in May 2012 and the last one was before she left for the US. She sometimes received calls twice a week, but sometimes she did not answer. Following a threat sometime in 2012 she and her family went to Baghdad for three days. When they returned the kitchen window was broken and someone had written you are traitors or collaborators on the house. It was signed [deleted]. Following that incident, she continued to receive threatening calls once or twice a week.
I asked if anything else had happened. [Applicant 1] said that she and her family had left their home on more than one occasion. In late 2012 they moved to stay with relatives in another house and remained there until mid-2013. She was on leave throughout that time. She continued to receive unidentified calls but usually did not answer them. When she answered thinking it might be someone she knew, the caller always asked for [Brother 1]. She returned to her home because she could not live with her relatives indefinitely and in any event, she believed the militia members could find her anywhere.
[Applicant 1] said that the calls continued until she left Iraq in October 2016. After she left, she changed her number and so she did not have any evidence of the calls. I asked why she had not changed her number in Iraq to stop the calls. She said that it would not have been easy because the number was known to people at her school. She did not tell anyone at the schools where she worked about the threats because she did not know their political affiliations and it would have been risky to do so.
I observed that it appeared that while [Applicant 1] had been repeatedly threatened between 2012 and 2016, she had never been approached or physically harmed and observed that it seemed unlikely that she would be of interest to any of the militias if she returned to Iraq now because of her brothers’ work as [Occupation 2]s. She said that she had taken measures to protect herself and the militias continued to seek revenge against those they saw as traitors.
I observed that she had not mentioned any problems relating to her brothers’ work as [Occupation 2]s in the application lodged in March 2017[3]. She said that she had been frightened and had relied on assistance and advice from an Iraq person she knew or met in the USA. He advised her that if she said that she had been in the USA she might be sent back to Iraq where she would face death. Her also told her to concentrate on her most recent claims and helped her to complete her application. She added she had not been aware that he was going to have false stamps placed the passports belonging to her family. I observed that it was her application and her responsibility to ensure that it was correct.
[3] . In fact, this is not correct. While there was no mention of her brothers work in the answers to questions regarding her problems on the application form, her brothers were mentioned in submission the dated February 2017.
Later in the hearing [Applicant 1] said that she had faced a problem at one of the schools where she worked when she intervened in an argument between two students aged about [age]. She initially said that she had intervened because she was concerned that the discussion might lead to extremism, but then said it was an ordinary discussion after class about what is halal [permissible] in Shia ideology. She told them they should not disagree about religious issues because people should be governed by humanitarian values, not religion. She did this because she was open and secular while they were hardliners.
When she returned home that evening, she received a call from someone who told her that she had insulted the son of a militia leader. She did not know which militia. The caller told her to leave the school. She did not leave and two days later members of the militia stormed into to the school and entered the principal’s office. She told the principal what had happened. The men told her and the principal they should both leave. The principal said that the problem was not serious enough for this course of action. The men said that it was a final warning and left after breaking a door and turning over some furniture.
[Applicant 1] did not return to the school after that, but she continued to work at the other school which employed her. She moved away from her home for about three weeks, then returned home for about a week before leaving for the USA. She did not receive any further threats during that period, but she believed that the militia would have sought her out and harmed her if she had remained in Iraq. I advised her that even if I accepted that claim at face value it seemed unlikely that the militia leader would have any interest in her if she returned to Iraq now because of her involvement in this relatively minor incident many years ago. She disagreed and said that she knew how the militias thought.
I asked [Applicant 1] if she had lived anywhere else in Iraq before leaving for the USA. She said that she moved to an area on the outskirts of Karbala for about 3 or 4 months because of the continuing threats. There was no particular incident which caused her to do this and she continued to work throughout the period. When she was at home in Karbala she rarely went out. She stayed somewhere else for three weeks immediately before leaving Iraq.
When asked if she feared harm for any other reason [Applicant 1] said that members of her family in Australia were known to the militias as people who cooperated with foreign forces. Her sister [Sister 2] worked with recently arrived refugees in Australia and her photograph had been posted online. Because of this extremist Shia militias considered the entire family to be traitors. I asked if she had any evidence or examples of family members of people working with refugees outside Iraq being targeted because of these kinds of activities. She said that she did not know of any particular people but she knew she would be killed.
I asked [Applicant 1] for more information on the claim that one of her relatives had met [an Australian official] in Iraq. She said that her brother [Brother 3] was an [Occupation 1] he had visited a project in Karbala with local Iraqi officials and Australian diplomats. Militias considered this to be collaboration and saw the entire family as responsible for his actions. As the family was already known to the militias they had sent her a photograph of her brother with the officials and photographs of her sister with a message that it was obvious that they were still cooperating with infidels. The message said that it was sent by Al Fatah Al Mobeen. It appears that these are religious words from the Koran, not the name of a group.
I advised [Applicant 1] that it was my understanding that many diplomats and business-people visited Iraq and I was not aware of any evidence which suggested Iraqis who associated with them were generally at risk of harm. I also advised her that I had great difficulty accepting that any militia group would have expended time and resources to track her down in Australia and threaten her because her brother had some association with foreign diplomats during visits to [work] projects. She maintained that her claims were true.

[Applicant 1] said that her daughters were on [social media] and dressed in a manner which would not be acceptable if they returned to Iraq. She said that she could not insist that they changed the manner in which the dress and they would be killed if they returned to Iraq. I asked if she could provide any examples of people being harmed for these reasons. She said that some people had been harmed for these reasons, but she did not know them.
[Applicant 1] said that she believed that she and her family would be targeted because they have lived in Australia for some seven years. I advised her that it was my understanding the many Iraqi lived or studied abroad and travelled back to their homeland and I was unaware of any evidence which suggested that they were at risk of harm from militias or anyone else merely for this reason. I noted that she had stated that her sisters had travelled to and from Iraq. She said that her sisters had travelled to Iraq on a number of occasions for compassionate reasons, but they had remained hidden.
I advised [Applicant 1] that I was aware that militias had targeted [Occupation 2]s and others who worked for the US and other foreign interest in the past and that people currently working for US interests might still be at risk. I advised her that I was also aware that militias had targeted other groups at different times, for example some professionals or gay people and some of these groups appeared to remain at risk of harm. However, it was my understanding that the militias were more interested in matters such as gaining and maintaining political power or control of particular areas or criminal activities and it was not my understanding that she would be targeted for any of the reasons she had claimed if she returned to Iraq now. [Applicant 1] maintained that she would be at risk of harm if she returned to Iraq and that she also feared that her children would be killed.
I noted that [Applicant 1] had claimed that her daughter would be at risk of harm because of the way they dressed, but no submissions had been provided in relation to this. I advised her that I wished to talk to her daughters about their fears and that I also wanted to discuss some of the claims she had made with them. She said that they did not have information about her claims as she had tried to avoid telling them about these difficulties. I advised her that I accept that this might be the case but advised her that nevertheless I would like to talk to them. I advised her that her daughters were not obliged to come to hearing, but she had made claims on their behalf and they needed to be aware of this and have the opportunity to provide evidence about their situation and their fears.
Submission dated 14 November 2023
This submission repeats many of the claims and submission made previously.
[Applicant 1]’s representative made a number of submissions relating to earlier decisions which I and other Tribunal Members had made and country information on the current situation in Iraq. She included part of the reasoning of a differently constituted Tribunal which refers to a number of reports on the situation for [Occupation 2]s in Iraq. She also referred to a number of historical and recent reports including information on the activities of Shia militias, information on the possible resurgence of ISIS and information on the risks faced by US citizens in Iraq. She submitted that this information supports a finding that [Applicant 1] and her family would be at risk of harm on return to Iraq because of her brothers’ work as [Occupation 2]s and their perceived support of the USA.
[Applicant 1]’s representative noted that in January 2020, Shia militia leaders vowed to target and kill Iraqi citizens who cooperated with foreign forces, describing them as enemies who will be ‘eliminated’. She also noted a Washington Post article from 2020 which stated that Shia militias have been given the names, address and numberplates of some people who have worked with the US military. She also noted a February 2021 PBS report which stated that when the reporter began exposing Shia militia abuses in 2016, they were still very much seen as heroes by the Shia community. However, that had changed by 2021 as they were no longer just terrorising Sunnis, but were also targeting Shia’s who criticise them, particularly young Iraqi’s exercising their democratic rights. These people began to receive threatening phone calls and messages on [social media]. People became very fearful of talking about the militias.
[Applicant 1]’s representative submitted that it was clear that Shia militias could closely monitor Shia Iraqis and identify those who behaved in a manner contrary to their agenda. She submitted that this was in keeping with [Applicant 1]’s evidence that she had been threatened by mobile phone and [social media]after being identified as supporting democratic beliefs due to the humanitarian work of her sister [Sister 2] and [Applicant 3] which was reported online, her association with [Brother 1] who had worked for western forces and her expression of democratic beliefs when she intervened in the dispute between students at her school in 2016. She also submitted that as a result of the time the applicants have spent in Australia, they have developed a deep respect for democratic beliefs.
[Applicant 1]’s representative submitted that the following “cohorts” were relevant to her application for protection:
·     People who have collaborated with Western forces at any time since 2011 to current (including those who ceased collaboration in 2011)
·     People associated with persons who have collaborated with Western forces at any time since 2011 to current (including those who ceased collaboration in 2011)
·     People who are associated persons who hold democratic beliefs/anti-ISIS/Iranian-backed militias sentiments.
[Applicant 1]’s representative submitted she had a well-founded fear of persecution on return to Iraq for reasons of her membership of the particular social group of persons who are family members of former [Occupation 2] for the U.S. forces in Iraq. She also submitted that all of the applicants shared the characteristics in that they support collaboration with U.S. forces who aim to control growth of ISIS and anti U.S. Iranian-backed militia. Finally, she submitted that the applicants would be treated with suspicion because they have lived in a Westernised country.
[Applicant 1]’s representative said that she had clarified that the discussion at her school in 2016 ended in a heated argument.
In support of these submissions the applicant provided copies of some documents previously provided and:
·     A statutory declaration from [Brother 1] which states that he did not mention his work with the US army prior to being interviewed in relation to his application for protection in Australia because he lacked legal understanding of the process and because he believed he should prioritise the most recent events, namely his marriage. He said that he submitted evidence from the US army and [organisation] confirming his work as an [Occupation 2]. He said that from the US invasion in 2003 he had a passion for helping to develop the country and applied for a job as an [Occupation 2].
·     A letter from [Mr A] dated 14 November 2023 confirming that [Brother 1] had worked as an [Occupation 2] for the US Army for an unspecified period prior to March 2011. It also states that in [Mr A] opinion the applicant’s would be at risk of harm on return to Iraq because of their association with [Brother 1].
·     Pictures of [Applicant 3] participating in [Town 1]to assist refugees and working for homeless people.
Statutory declarations from [Applicant 2], [Applicant 3], [Applicant 4] and [Applicant 5] were provided.

100. [Applicant 2] said that [Applicant 1] had not intended to disrespect migration laws when she entered Australia, but she had been desperate. She had not told other members of the family everything about the application she lodged in Australia because she wanted to protect them from the fear of not being able to remain and being forced to return to Iraq. He added that [Applicant 1] often forgot things he believed some of her evidence to the Department had been misunderstood or misinterpreted. In relation to the passport number on the I-94, he said that his wife had forgotten that they had entered the US using that document. She also forgot to mention that their US visa had be sponsored by a friend called [Friend 1].
101. [Applicant 2] said that he had experienced a number of problems and traumas including being arrested and detained for two days in 1991 which had impacted on his mental health and memory. He said that he remembered the day his brothers in law disobeyed their father and continued with their work as [Occupation 2]s. He said that his life and the lives of his family changed on that day.
102. [Applicant 2] said that he had held several different jobs in Iraq and believed he would have problems finding a job if he returned due to the high level of unemployment and the fact that the family would have to keep moving to avoid the militias who would have their names and would seek to kill them because of [Brother 1] and [Brother 2] had worked as [Occupation 2]s and because [Sister 2] was well-known in Australia for supporting some democratic beliefs.
103. [Applicant 2] said while his family were Muslims, they were against the extremist views held by ISIS and many of the actions of militias in Iraq. The militias would know that they did not support them and as they would not be able to keep their presence in the country or their views secret and they would not be safe anywhere.
104. [Applicant 3] said that she had sent a significant period of her life in Australia and this had shaped her personality, her ethics, morals and beliefs. She had become an independent woman with freedom to live her life without social restrictions and to express herself without fear of criticism from the broader society. She could wear what she wanted in Australia and while she wore head scarf, her dress would not be suitable to strict Muslim rules. She also had piercings which were culturally unacceptable in Iraq. She understood that in Iraq women seen as westernised had been threatened and sometimes killed. She also noted that the situation in Iraq was dangerous as the militias were targeting American bases and anything related to the USA which placed her and her family at risk of harm. In Australia she could go for drives at night with her friends, which she would not be able to do in Iraq without risking being kidnapped or killed. She said that she believed she would suffer physical, mental or psychological harm if she returned to Iraq. She said that she had been making a valuable contribution in Australia as [an occupation] and through her volunteer work with homeless people. She provided photographs of herself at work and with her fellow volunteers helping the homeless.
105. [Applicant 4] said that she had arrived in Australia as at young age and had developed an open minded and tolerant mindset which could result in conflict and violence and other threats to her personal safety. English is her main language and she struggles to speak Arabic. She said that she feared that her piercings and the way dressed would not be accepted in Iraq. Returning to Iraq would cause her great distress. She said that she would be at particular risk of harm because she is a woman.
106. [Applicant 5] noted that he had come to Australia at a very young age. He had integrated into the values and norms of Australia’s diverse and inclusive society and would not be able to adjust to life in Iraq where society would put many pressures on him which may have a long -term effect on his well-being and mental health. He was also concerned that his sisters may face problems because of their views and the way they dress. If this happened, he would need to defend them.
Submission dated 17 November 2023
107. The applicant’s representative provided evidence that [Applicant 1] owned property in Karbala as confirmation that she resided in that city. She advised that [Applicant 1]’s cousin had been killed by ISIS in an area southwest of Baghdad. She submitted that while this may not be directly relevant to [Applicant 1]’s current situation it could contribute to her future risk of harm. She also provided:
· A letter from [Mr A] dated 14 November 2023 which confirms that [Brother 1] worked as an [Occupation 2] until 2011 and sets out deals of his work and the risks that involved at the time. It also states that in [Mr A] opinion [Brother 1] and his family remained at risk of harm if they returned to Iraq.
· A copy of a notice of eligibility for resettlement dated [September] 2013 from the US Citizenship and Immigration Services. There is no name on the letter but at the hearing [Applicant 1]’s advised that it was sent to [Brother 1].
Hearing held on 17 November 2023
108. I noted that it had been submitted that a significant portion of [Applicant 1] evidence had not been accurately interpreted. She confirmed that was correct. I advised her that in order to take this into account I would need specific details. No further submissions have been received.
109. [Applicant 1] confirmed that a man called [Friend 1] had sponsored her application for protection in the USA. She said that he was a friend from Kabala who lived in [City 1]. When asked if she could provide more information about his role, she said that she was no longer in contact with him and did not have any other records apart from an email from IOM which confirmed his role. I asked her to provide a copy.
110. [Applicant 1] said that her children had not been aware of the threats she had received in Iraq as she had not told them. To begin with she did not tell her husband either but he found out when someone broke into the house in 2012 and wrote on the walls. She did not tell him about the problem she faced at school at the time of the incident. However, about six weeks before they left Iraq he returned from work and found an envelope with a bullet inside. She told him she did not know why this had happened and he assumed that it was related to the problems caused by her brothers. She then told him about the incident at the school.
111. [Applicant 1] confirmed that neither of her brothers had played a role in her application for protection in the USA apart from providing some documents and that she had not been in contact with her brothers after 2011. I advised her that I had difficulty understanding how she had obtained refugee status in the USA. She maintained that her claims were true.
112. I advised her I had some concerns about the credibility of her claims, but even if I accept them, it seemed unlikely that she would be of interest to the militias if she returned to Iraq now. She maintained that she would still be at risk of serious harm.
113. Later in the hearing I took evidence from [Brother 1]. He said that he had only worked as an [Occupation 2] for 2 months in 2011 and that nobody in the family was aware of his work until after he left the job. Following this I advised [Applicant 1] that his evidence appeared to be at odds with her statement her family had been aware of his job while he was still working and had her father had asked him to stop, but he had not done so. She said that she first learned about his work when she received a threatening telephone call.
Evidence from [Applicant 2]
114. I asked [Applicant 2] to tell me about any threats or problems which he or [Applicant 1] had faced in Iraq. He said that the first threat was a telephone call in 2012. [Applicant 1] did not tell him about this because such things were normally kept secret. There was a second threat when they visited Baghdad and someone wrote on their walls. It was at that time that he learned that his brothers in law had worked as [Occupation 2]s. Following that the family went to live in Najaf for a year. I noted that the claim that his family had lived in Najaf for a year had not been mentioned in the application lodged in 2017 which made doubt that it was true. He maintained that they had lived in Najaf for a year. He said that they went during school holidays and that his wife also took sick leave. I asked if his family had experienced any problems during that time. He said that [Applicant 1] had received some threats but he had health issues so she had not told him about them. His evidence regarding when he learned of these threats was confused and unclear.
115. I asked [Applicant 2] to tell me about any threats which his family had received between 2012 and 2016. He said that [Applicant 1] had had a problem at school in late 2016. About three days after the incident, he found an envelope at their house. He asked his wife if it was related to [Brother 1]’s work. She told him about the incident at her school. After that they immediately moved somewhere else. They left Iraq a week or two later.
116. I asked [Applicant 2] if there were any other problems he would like to tell me about. He said that he had been arrested in 1991 as a result of mistaken identity. I acknowledge that this would have been a frightening experience but it was a long time ago and did not seem to be relevant to his current circumstances. He said that he had witnessed fatal attacks in Iraq. He became visibly upset, so I took a short break.
117. I asked [Applicant 2] what he knew about the visas which the family obtained for the USA. He said that his wife had made all the arrangements and he knew nothing. They were told that they needed a sponsor so they asked a friend who had previously lived in Karbala. That man told them it would be a good idea to live in [City 1], so they went there because it was a good place and many Iraqis lived there. I noted that his family had been given permission to remain indefinitely in the USA and had permission to work and access to other rights and asked why they had left. He said there were afraid after President Trump said that he would return certain people to their countries of origin. I acknowledged that it would have been a difficult time for Muslims in the USA but advised him that it was not my understanding that Muslims who had residence in the USA were at risk of being removed. I noted that [Applicant 1] had stated that her sisters in law had advised her not to leave the USA. [Applicant 2] said he did not know that had occurred.
118. I noted that [Applicant 1] had applied for a student visa for Australia after the family had been granted visas for the US which suggested that she had intended to come to Australia before the problems with President Trump arose. [Applicant 2] said that he and [Applicant 1] had been afraid.
119. I asked [Applicant 2] if he was aware that there was a false stamp on his passport which indicated that he had come to Australia directly from Iraq and that there was mention of the family’s time in the USA in the application lodged in 2017. He said that [Applicant 1] had given the passports to someone who made the arrangements. I observed that it was clear that [Applicant 1] had provided incorrect information when she arrived in Australia and advised him that this caused me to have doubts about her overall credibility. [Applicant 2] repeated that his wife had not been aware that the man was going to place false stamps in their passports. I asked if he had been aware that his wife had provided false information in her initial application. He said that she had corrected that information after receiving advice from a lawyer.
120. I asked [Applicant 2] if he would like to add anything. He spoke about his mental health issues but provided no further evidence regarding his problems or fears in Iraq.
Evidence from [Brother 1]
121. I took evidence by telephone from [Brother 1]. I noted that much of his statement related to perceived problems with his application and advised him that these problems were relevant to me.

122. [Brother 1] said that he had little or no contact with any member of his family except his brother [Brother 2] for a prolonged period. This was because his family was upset about his work as an [Occupation 2] for the US army. He worked as an [Occupation 2] for the USA for 2 months in Baghdad in 2011. His family remained in Karbala and he moved between the two cities. He faced many threats while he was working as an [Occupation 2], so he left the job. The worst incident occurred after he stopped working as an [Occupation 2]. He was chased for some distance by a car which eventually crashed into his car. That was the only time he had direct contact with the people who were threatening him. Nobody in his family was aware of his work until after he stopped working as an [Occupation 2]. They became aware of his work when they started to receive threats. After that he had a number of angry discussions with them.
123. I asked [Brother 1] what he knew about the problems faced by [Applicant 1]. He said that he was aware that she had received some threats, but he did not have any further information about these threats and he could not recall when they began.
124. I asked [Brother 1] what he knew about the application which [Applicant 1] had lodged for a visa in the USA. He said that he had no knowledge of that application. He did not know whether [Brother 2] was involved.
125. [Brother 1] confirmed that he had been granted a visa to reside in the USA. He said that he been given tickets to fly there in 2014, but he was unable to fly due to flight cancellations. After that the Embassy said that they would try to reschedule. I observed that his failure to travel to the USA in 2014 suggested that he was not at risk of harm in Iraq. He said that because of ISIS activity the Embassy was closed for two years and the program was suspended. In the meanwhile, he arranged to come to Australia.
Evidence from [Applicant 3]
126. I noted that [Applicant 3] had been very young when she left Iraq and may not recall much about her life there. I advised her to answer my questions to the best of her recollection. She said that she had lived in Karbala and gone to school there apart from a period in 2012 when the family sent some time to Najaf. She said that her mother had told her that she had been threatened because of [Brother 1]’s work after the family arrived in the USA. Before then she felt that there was something wrong, but she did not know why. She knew nothing about how her family had obtained visas for the USA. She only learned that they were going to the US shortly before they left Iraq. Her parents knew someone in [City 1] who had helped them. She did not have any contact with her uncle [Brother 2] because her family does not have a relationship with him. She added that her family had limited contact with any of her relatives. [Brother 1] visited from time to time, but she rarely spoke to her aunts.
127. [Applicant 3] said that she had expected to remain permanently in the USA.   However, one day when she was walking to the school bus someone driving by yelled at her with an angry voice. She could not understand what he said, but she could tell that it was racist. Nothing else happened to her, but her sister also had a problem. I advised her that while I accept that there were racists in [City 1] it was my understanding the [City 1] was generally a liberal city and it seemed unlikely that these problems would have been widespread or that she would not have been able to seek assistance from the local authorities. [Applicant 3] said that during the time of President Trump it was different. People were against Muslim and President Trump was threatening to remove people from Iraq. I noted that this was not my understanding. She said that there were rumours and her family believed this might happen and would not have left if they had not been fearful.
128. I acknowledged that many Muslims particularly those who had recently arrived in the USA would have been concerned about their future in the USA given the announcements by President Trump. However, I noted that [Applicant 1] had applied for a student visa in Australia after the family was granted visas to resettle in the USA which suggested that she had a longer-term plan to come to Australia. [Applicant 3] said that she had not been aware of this. I also noted that [Applicant 1] had not mentioned the fact that the family had been granted refugee status in the USA in her initial application for protection which suggested she had not been completely honest in her dealings with the Department. [Applicant 3] said that she had also been unaware of this. She believed that her mother was afraid for her life and the lives of other members of the family. She had understood that the family was going to be able to live in Australia.
129. I asked [Applicant 3] to tell me why she feared returning to Iraq. She said that she was aware that her family had been threatened by militias in the past and the situation was even worse now so she would be at risk of harm on return. I advised her that while I was aware that people currently working with the USA and some who had worked with them in the past might be at risk of harm, it was not my understanding that her family would be at risk of harm on return to Iraq because her uncles had worked for the US Army until 2011. [Applicant 3] said that she believed their lives would be in danger.
130. [Applicant 3] said that society in Iraq was very strict and she and her family were very open minded. Even before they left Iraq, they had been afraid to fully express themselves because they were afraid. When asked for specific examples of the problems this would cause, she would not be able to dress in the same manner as she did in Australia. While she wore a scarf, she believed that to avoid criticism or problems she would need to wear something longer and dress in a more conservative manner. I acknowledged that modest clothing was required in Iraq and advised her that it was not my understanding that she would need modify her dress in a significant way. [Applicant 3] said that she was not claiming that she would be killed because of the way she dressed, but she believed that she would face problems with militias.
131. I noted that [Applicant 3] had been involved in some public activities in Australia some of which appeared to involve her aunt. She said that she had little contact with her aunt who lived in [Town 1] but on one occasion she had a stall at event organised by her aunt. In addition, once a month she and some friends went out to provide support to homeless people. When asked if she had been involved in any other groups or had been involved in any political activities in Australia, she said that she had not been involved in any political activities and had no intention of becoming involved in anything political in Iraq.
132. [Applicant 3] said that she had no longer had any links to Iraq and she was in a relationship with an Australian citizen. I observed that while this may give her some options in future it was not relevant to her application for protection. She said that she understood this.
Evidence from [Applicant 4]
133. [Applicant 4] said that she was very young when she left Iraq and remembered very little about her life there. I noted that her family had had permission to remain indefinitely in the USA in 2016 and asked if she knew why they had left. She said that they were unsafe in the USA. On one occasion someone at her school had pulled her scarf off her head while she was waiting in line at the school cafeteria. She said that nothing else happened to her in [City 1], but she was scared. I asked what her parents had told her about the decision to come to Australia. She said that she had not been told anything.
134. I advised [Applicant 4] that the fact that [Applicant 1] had arranged for false stamps to be placed in passports which she and other family members had used to travel to Australia and had failed to disclose that the family had been granted refugee status in the USA when she applied for protection in Australia caused me to doubt her ([Applicant 1]’s) evidence. She said that she understood that her mother had been fearful and desperate.
135. I asked what [Applicant 4] feared would happen to her if she returned to Iraq. She said that she did not know a lot about Iraq, but she had grown up in Australian and had a different mindset and she spoke differently and she would not be understood and might be harmed. In addition, she would not be able to chase her dreams. I observed that while I understood that it would be very difficult for her to adjust to life in Iraq, this did not appear to amount to serious or significant harm. She said that she was very fearful of returning to Iraq because she would not fit in or be accepted.
Evidence from [Applicant 5]
136. I noted that [Applicant 5] had been very young when he left Iraq and it was likely that he did not know or remember much about his life there but invited him to tell me anything he wished to about that time. He said that he could not remember much. I asked if he had any problems while he was in the USA. He said that he could not recall any problems in the US. He did not know why his family left the USA. He heard that there were problems, but he does not know what they were.
137. I advised him that there were some problems with the information [Applicant 1] had provided on arrival which could cause me to doubt some of her claims. He said he was not aware of anything to do with the application.
138. I asked [Applicant 5] why he did not want to return to Iraq and what harm he feared on return. He said that he had integrated quickly into Australian life and he would have difficulty completing his education in Iraq because he would be at a different level. He added that his had different values and could have problems because of his western appearance.
Other matters
139. I advised the applicants that I had difficulty accepting that they would face problems on return to Iraq because [Brother 1] and [Brother 2] had worked their as [Occupation 2]s. I noted that tens of thousands of Iraqis had worked for the US military and other international forces and organisations before and after 2011 and while it was true that some had been targeted because of this, it was not my understanding that relatives of someone worked briefly for the US in 2011 would be at risk of harm now. [Applicant 1] said that the militias would not forget that her brothers’ involvement for decades and the fact that the US forces had left meant that there was less protection.
140. I advised the applicants that I had doubts about [Applicant 1]’s claims regarding the incident in 2016, in part because of her failure to provide an honest account of her situation on arrival in Australia. However, even if I accepted this claim at face value it was a relatively minor incident and was unlikely to cause her any problems if she returned to Iraq now. She said that it might appear to be a minor incident, but the militias would see it as part of the overall profile of her family.
141. I noted that [Applicant 3], [Applicant 4] and [Applicant 5] had expressed concern that they would face problems on return to Iraq because they had lived in Australia and adopted an Australian lifestyle and values. I acknowledged they would have difficulty adjusting to life in Iraq given that they had lived in Australia for a number of years but observed that as I had pointed out to them individually the evidence did not suggest to me that they would face serious or significant harm for these reasons. I observed that they were observant Muslims, that [Applicant 3], [Applicant 4] wore the hijab and there did not appear to be any suggestion that they would be denied the rights or face other significant problems because of the way they dressed or behaved. None of them made any further comments.
Submission dated 22 November 2023
142. In this submission that [Applicant 1] maintained that she intended to remain permanently in the USA prior to the problems associated with Donald Trump’s attempts to ban Muslims from entering the country. She submitted that the fact that she and her family had obtained range of documents including a social security card, arranged to be vaccinated and enrolled her children in local schools demonstrated that she intended to remain there permanently.
143. [Applicant 1] provided a copy of a letter of offer from [University 1] dated 20 November 2015. She said that she applied a student visa on 5 October 2016, which was only 8 days after she was accepted as a refugee in the USA. She had not applied before that time because she had to collect the relevant documents, obtain translations and open a bank account. She noted that student visas issued to people in Iraq were subject to greater scrutiny than most.
144. [Applicant 1] provided
·     a copy of a letter of eligibility for entry to the USA from the IOM [January] 2014 addressed to [Brother 1]
·     a letter of recommendation dated [April] 2004 from [named] Authority in Iraq which states that [Brother 2] had worked for [named organisation] and recommended him for future employment with the Coalition or at the US Embassy.
145. The applicants’ representative advised that [Applicant 1] had told her that [Brother 2] had worked for the US for a year. She said that she had been advised that the IOM program was available to Iraqis who had worked for the US for less than a year. She cited section 1059 of FY 2006 National Defence Authorisation Act. even a brief period to work for the US[4]. She submitted that the length of time someone served with the US forces did not reduce the level of risk they and their families faced, nor did the fact that their service ended in 2011. She noted the opinion of a British politician that assessment of risk not length of service should be used to determine who should be granted a visa.
[4] It appears to suggest that applicants who are eligible for an immigrant visa for reason other than the provisions relating to special immigrant visa may be granted a special immigrant visa.
146. The applicants’ representative report from STARTTS dated 26 August 2019 and a GP’s certificate dated 22 November 2023 have been provided. They state that [Applicant 2] suffers from a range of medical issues and PTSD because he witnessed the murder of a close friend and other acts of violence..
CONSIDERATION OF THE APPLICANTS’ CLAIMS
The applicants’ status in the USA and decision to travel to Australia
147. It is clear that [Applicant 1] came to Australia with the intention of applying for a protection visa. It is also clear that she sought to conceal that fact that she and her family had been recognised as refugees by the USA because she was aware that her application was almost certain to be refused if her status in the USA was known. This clearly demonstrates a willingness to provide false evidence in order to achieve her goal of remaining in Australia.
148. [Applicant 1] sought to explain her decision to provide false evidence by claiming that she initially planned to remain permanently in the USA, but left because she believed that she was at risk of being deported from the USA and because President Trumps orders had resulted in significant problems for her family in [City 1].
149. As pointed out at the hearing, the bans which President Trump sought to impose related to people intending to travel to the USA, not those had legal status and were residing in the country. They were met with widespread protests with hundreds and sometimes thousands of people going to airports to show their objections and protect the rights of people arriving from the affected countries. There were protests at all major airports in [State 1], including [City 1][5]. This ban overturned by the Court on 3 February 2017, nearly three weeks before [Applicant 1] left the country.[6] President Trump later imposed new entry restrictions on people from a number of countries, but this did not include Iraq and occurred after the applicants left for Australia.
[5] Thousands protest against Trump travel ban in cities and airports nationwide | US immigration | The Guardian
[6] Executive Order 13769 - Wikipedia and A licence to discriminate: Trump's Muslim & refugee ban | Amnesty International UK
150. While I acknowledge that President Trump’s attempts to ban Muslims from entering the USA would have caused concern for many Muslims in the USA, I have great difficulty accepting that [Applicant 1] would have believed that she and her family were likely to be deported from the USA and that her only option was come to Australia and conceal her status in the USA.
151. [Applicant 1] also claimed that she was afraid to remain in the USA because there were problems with anti-Muslim elements in the streets in [City 1] and she feared for the safety of her children. At the hearing she initially described the situation as chaotic, but when I observed that [City 1] was known to be a liberal city[7] and expressed doubt that this had occurred, she said that the situation was not chaotic, but said her daughters had both experienced a problem. [Applicant 3] and [Applicant 4] confirmed that they had each encountered a racist incident while living in [City 1]. I accept that this occurred and that it would have been very distressing. However, I do not accept that these isolated incidents were the reason [Applicant 1] decided to leave the USA and apply for protection in Australia.
[7] SEE FOR EXAMPLE, POLITICS & VOTING IN AUSTIN, TX (BESTPLACES.NET) AND HOW THE US ANTI-MUSLIM MARCHES WERE DEFEATED | ISLAMOPHOBIA | AL JAZEERA WHICH INCLUDES A REPORT ON THE FAILURE OF ANTI-MUSLIM DEMONSTRATIONS IN AUSTIN.
152. As noted above, [Applicant 1] applied for a student visa for Australia after she was advised that she had been accepted for settlement in the USA. At the hearing she said that she lodged the application because while she been given a date for travel to the US, she was not aware that she had been accepted as a refugee. I find this claim far-fetched and implausible. It note that letters which [Brother 1] received from the US Citizenship and Immigration Services and the IOM regarding his application in 2013 clearly indicate that applicants where advised that they had been accepted as refugees well in advance of the time that they are issued with a documents for travel to the USA.
153. In my view the evidence strongly indicates that [Applicant 1] had long intended to come to Australia to seek protection and that she applied for a student visa after being accepted as a refugee in the USA with this in mind. In any event, it is clear that she knowingly concealed her status in the USA when she applied for protection in Australia to avoid the problems which she understood this was would cause. This shows a willingness to provide false evidence in order to further her goal of obtaining residency in Australia which does not reflect well on her credibility.
154. It is clear that the applicants were accepted as refugees or refugee dependents by the USA. [Applicant 1] claims that they were accepted under the special visa program for [Occupation 2]s who worked for the USA and their dependents. There a number of matters relating to this claim which I find concerning or at least puzzling.
155. Apart from two documents which confirm that the applicants were granted refugees or refugee dependent status, no documentary evidence has been provided regarding [Applicant 1]’s application to the US and very little information regarding the nature of her claims. I have difficulty accepting that she was unable obtain and provide copies of any of the statements or documents that she previously provided in support of that application. I also had difficulty accepting that she was able to obtain a US visa without some support or assistance from her brothers, given that her claims relied entirely on problems she faced because of them and the claim that she knew very little about their work or the problems they themselves had experienced. In addition, according to reports, the programs for those who worked as [Occupation 2]s for the USA were intended for people who had worked for the US for over a year and faced problems because of this.[8] The Special Immigrant Visa (SIV) program for Iraqis ended in 2014 after which [Occupation 2]s under the Direct Access Program. In fiscal year 2016 (October 2015 to September 2016), only [number] Iraqis who had been employed as [Occupation 2]s were admitted into the United States.[9]

219. After considering all of the relevant evidence, I am not satisfied that [Applicant 3] faces real chance of experiencing serious or significant harm because of the manner in which she dresses or behaves if she returns to Iraq now or in the reasonably foreseeable future.
Conclusions in relation to [Applicant 3]’s claims
220. After considering [Applicant 3]’s claims individually and cumulatively, I am not satisfied that she faces a real chance of experiencing serious or significant harm for any reason if she returns to Iraq now or within the reasonably foreseeable future. I am therefore not satisfied that she has a well-founded fear of persecution for any other reasons set out in s 5J(1) or that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iraq, there is a real risk that she will suffer significant harm.
[Applicant 4]’s claims
221. It has been claimed that [Applicant 4] would be at risk of harm on return to Iraq because her family was threatened by militias prior to their departure from Iraq. She herself had no knowledge of these matters and did not make any claims or provide any evidence relating to this claim. In any event, as discussed about in relation to [Applicant 1] and [Applicant 3]’s claims, I do not accept that [Applicant 1] was threatened by members of a militias at any time for any reason. It follows that I do not accept that [Applicant 4] faces a real chance of suffering serious or significant harm on return to Iraq because her family has been targeted by members of a militia.
222. While not as detailed [Applicant 4]’s claims are broadly similar to those made by [Applicant 3] regarding the possibility of harm because of the manner in which she dresses or the views and values she had adopted in Australia. Like [Applicant 3] she is still a follower of the Muslim faith, she wears hijab and dresses in a modest manner. As set out above, I acknowledge that she may be pressured to modify remove evidence that she had piercing and to her dress in minor ways and that she may not be able to socialise with her friends in the manner she has become accustomed to in Australia. However, there is nothing in the evidence which suggests that she has or would behave in a manner likely to cause her serious problems with members of militias or the broader community if she returns to Iraq.
223. In considering her case I have also had regard to the advice from DFAT and UNHCR regarding the problems faced by women in Iraq as they provide some insight into the kinds of circumstances in which a young woman might face problems. As noted in relation to [Applicant 3]’s case, these reports suggest that many of the problems faced by women occur within the family or to women who lack family support or protection. [Applicant 4] clearly has support from her family and there is no reason to suppose this would not continue if she returned to Iraq. Furthermore, the evidence which suggests that she would engage in activities in the public sphere which would cause her problems or that she would face discrimination amounting to serious or significant harm.
224. In considering [Applicant 4]’s claims I have noted [Applicant 1]’s claim that she is on [social media]. No evidence of this has been provided, nevertheless I accept that she is on [social media]. However, no evidence has been provided which suggests that she had posted photographs or messages which would cause her problems with anyone if she returned to Iraq. I am not satisfied that she faces a real chance of experiencing serious or significant harm on return to Iraq because she has an [social media] account.
225. [Applicant 4] has also expressed concern about her limited Arabic and the difficulty she would have adapting to life in Iraq after living in Australia. While I acknowledge that it would be a difficult for [Applicant 4] to adjust to life in Iraq, this is the experience of many migrants and returnees and does not in my view constitute serious or significant harm. . I also the advice from DFAT which states that many Iraqis return to Iraq after living abroad and do not generally face serious harm because of this.
Conclusions in relation to [Applicant 4]’s claim
226. After considering [Applicant 4]’s claims individually and cumulatively, I am not satisfied that she faces a real chance of experiencing serious or significant harm for any reason if she returns to Iraq now or within the reasonably foreseeable future. I am therefore not satisfied that she has a well-founded fear of persecution for any other reasons set out in s 5J(1) or that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iraq, there is a real risk that she will suffer significant harm.
[Applicant 5]’s claims
227. It has been claimed that [Applicant 5] would be at risk of harm on return to Iraq because his family was threatened by militias prior to their departure from Iraq. He has no knowledge of these matters and did not make any claims or provide any evidence relating to this claim. In any event, as discussed about in relation to [Applicant 1] and [Applicant 3]’s claims, I do not accept that [Applicant 1] was threatened by members of a militias at any time for any reason. It follows that I do not accept that [Applicant 5] faces a real chance of suffering serious or significant harm on return to Iraq because her family has been targeted by members of a militia.
228. In essence [Applicant 5] fears he had difficulty integrating as he has adopted Australia values and norms and he would not be able to adapt to life in Iraq and this pressure would have a long-term effect on his well-being and mental health. He was also concerned he would face problems because of his western appearance and because he would have to defend his sisters if they faced problems.
229. It is clear from photographs and reports which regularly appear in the media that many men in Iraq wear clothes similar to those worn in western countries. [Applicant 5] was dressed in what is generally referred to as a smart casual fashion at the hearing. No evidence has been provided which suggests that he usually dressed in a manner likely to cause offence or place him at risk of harm in Iraq. No evidence has been provided which suggests that [Applicant 5] would face problems on return to Iraq because of his values. And as discussed above, in my view neither [Applicant 3] nor [Applicant 4] face a real chance of being threatened or harm in a manner which would require [Applicant 5] to protect them.
230. In considering his case I have noted the claim that the pressure he would face on return to Iraq might have a long-term effect on his well-being and his mental health. While I acknowledge that it would be difficult for him to adjust to life in Iraq and this could cause him some emotional distress, on the evidence currently before me I am not satisfied that he would suffer mental or psychological problems amounting to serious or significant harm because of the pressures he would face adapting to life in Iraq. I also the advice from DFAT which states that many Iraqis return to Iraq after living abroad and do not generally face serious harm because of this.
231. [Applicant 5] has also expressed concern the difficulty of completing his education in Iraq after studying under the Australian system for so many years. While I acknowledge that this could be a difficult for him, it is the experience of many migrants and returnees and does not in my view constitute serious or significant harm.
Conclusions in relation to [Applicant 5]’s claims
232. After considering [Applicant 5]’s claims individually and cumulatively, I am not satisfied that he faces a real chance of experiencing serious or significant harm for any reason if he returns to Iraq now or within the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution for any other reasons set out in s 5J(1) or that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iraq, there is a real risk that he will suffer significant harm.
CONCLUSIONS
233. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
234. The Tribunal affirms the decision not to grant the applicants protection visas.
Roslyn Smidt
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

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

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

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

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

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

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

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

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

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

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

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

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

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

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

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

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4847

15 December 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies