1916227 (Refugee)

1916227 (Refugee) [2022] AATA 553 (31 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1916227

COUNTRY OF REFERENCE: Iraq
MEMBER:Alison Murphy
DATE:31 January 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 31 January 2022 at 9:52am
CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Sunni – political opinion – high ranking Baathists – particular social group – academic – returnee from a western country – fear of killing – bomb attack on home – relatives returned to Iraq – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 20 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Iraq, applied for the visas on 16 February 2017. The delegate refused to grant the visas on the basis that they were not satisfied the applicants were owed protection by Australia.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether any of the applicants meet one or more of the alternative criteria in s 36(2)(a), (aa), (b) or (c); that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. A summary of the relevant law is attached at Attachment A.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have had regard to policy guidelines prepared by the Department of Immigration – the Refugee Law Guidelines and Complementary Protection Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the matter under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
It is not in dispute that the applicants are citizens of Iraq. The delegate records that each of the applicants produced copies of their Iraqi passports and identity cards and the delegate sighted the originals at interview. I find that the applicants are each citizens of Iraq and have assessed their claims against that country.
Background
The first and second named applicants are the applicant husband and applicant wife, parents of the third, fourth and fifth named applicants who are currently aged between [age range]. Protection claims are made on behalf of the applicant husband (the applicant).
The applicant was born in [District 1], in the Diyala Governorate of Iraq. He is part of the [Clan 1], which originates from the City of [City 1] in the Saladin Governorate. The applicant and his family are Sunni Muslims.
The applicant studied [occupation 1] at [University 1], completing those studies in [year]. He commenced as a volunteer [occupation 1] practitioner at [a local agency] soon afterwards, before commencing employment as [an occupation 1] practitioner at the [University 2] in November of that year.
In 2006, he started his own [occupation 1 business] in [City 1], later commencing work as an assistant lecturer in [subject 1] at the [University 2]. In June 2014, the [University 2] temporarily moved its campus to [City 3] because of the conflict with Islamic State of Iraq and Syria (ISIS, also known as Da’esh) in [City 2].
The applicant married the applicant wife, [occupation specified], in 2006, and their three children were born in [specified years].
The applicant arrived in Australia [in] May 2015 as the holder of a student visa and he has since undertaken a [higher qualification] at [an Australian institution]. At hearing, he gave evidence that he was hoping to submit his thesis and complete his studies in February 2022.
His wife and children joined him in Australia in October 2016 as dependants on his student visa.
I accept the above matters to be true.
The applicant’s claims for protection
The applicant has made detailed and complex claims for protection. The applicant claims he faces a well-founded fear of persecution in Iraq for the cumulative reasons of his actual and imputed political opinion, his Sunni Muslim religion and his membership of various particular social groups relating to his profession as [an occupation 1] and academic; his family links to the Ba’ath party and his profile as an Iraqi who has spent a significant period of time in a western country. At hearing before the Tribunal, he also claimed that he would be arrested on return to Iraq for breaching the contract with Iraq’s [Agency 1] relating to his scholarship for overseas studies.
The delegate’s decision records that she accepted that the applicant is a Sunni Muslim, that he is [an occupation 1] and former lecturer at [University 2] and that he is an Iraqi national who has spent time in a western country. However the delegate did not accept that the applicant’s family held political profiles in the former Baathist government, nor that they were high ranking Baathists. The delegate did not accept the applicant’s claims that the family’s home and [occupation 1 business] were bombed and used as a military base, nor that the applicant and his brother were shot at while driving from [District 1] to Baghdad. The delegate did not accept the applicant was targeted or threatened in the course of his employment at the [University 2].
The Tribunal has had regard to the particular concerns raised by the delegate about the credibility of the applicant’s claims. Firstly, the delegate did not accept the applicant’s family had significant political profiles or high ranking positions in the former Ba’ath regime. In making that assessment, the delegate noted DFAT’s advice that the systematic targeting of senior Ba’ath officials under the de-Ba’athification program ended in 2012 and that the high ranking members most at risk had either left the country or been dealt with by the authorities. The delegate noted that the applicant had identified 12 family members in his claims as high ranking members of the party and considered that if that were true, all of them would have by now left the country or otherwise been dealt with by the Iraqi authorities. The delegate notes that while the applicant claims some of those 12 persons had been killed or imprisoned, the applicant’s parents and siblings had since returned to Iraq where they apparently lived without restriction.
I do not consider that analysis fairly reflects the evidence produced by the applicant. He does not in fact claim that each of those 12 individuals including his siblings were high ranking members of the Ba’ath party or had significant political profiles, rather he states his family were members and supporters of the Ba’ath regime, as was well known in their area. While he lists a number of relatives of his father’s generation as holding senior positions in Iraq’s military and intelligence services, his evidence is that his siblings were educated professionals working in various arms of the Iraqi public sector during the Ba’ath regime. For example, his brother [Brother A] was a police officer and his [Sibling A] [an occupation 2] [who worked] at [University 3], while another [sibling] is [an occupation 1] like the applicant. The applicant’s evidence about his family’s membership of and support for the Ba’ath party is consistent with the DFAT advice cited in the delegate’s decision noting that between 1968 and 2003, Ba’ath party membership was a necessary precondition for government employment.
The applicant does claim that his father was a [Manager A] in the Iraqi intelligence service and a high-ranking Ba’ath party official until his employment was terminated in April 2003 as part of the de-Ba’athification process. DFAT reports that after the fall of Saddam Hussein’s regime, the US-led transitional administration established a High Commission for de‑Ba’athification to remove the influence of the Ba’ath party, leading to the dismissal of thousands of predominantly Sunni individuals from the public service and military and I consider this to be consistent with the applicant’s evidence. The delegate records that he accepts the war records submitted by the applicant in respect of his father to be genuine and those records confirm that the applicant’s father commenced his career in the Iraqi intelligence service in [year] aged [age]. He remained in that employment until it was terminated in April 2003 and I consider it credible he held a senior position at that time as claimed.
Further, the applicant’s evidence is that a number of his relatives were killed, imprisoned or harmed in Iraq in the years following the demise of the Ba’athist regime. In December 2006, the applicant’s [named Relative A], [an occupation 3], was abducted by militias as he left his employment at [an agency] in Baghdad. A ransom was demanded and his father delivered the ransom to his son’s abductors, who then killed both men after taking the money. Details of this incident including the names of the deceased are recorded in the UN’s Human Rights Report for Iraq in 2006, which also reported that attacks on professional groups continued unabated with executions, rampant and indiscriminate killings of civilians, particularly in Baghdad where insurgents remained active and unidentified bodies killed execution‑style were found in large numbers daily.[1]
[1] UN Assistance Mission for Iraq Human Rights Report 1 November–31 December 2006 [details deleted].
The applicant has given credible evidence that his [Brother A] was imprisoned for a year in 2010 and that a number of more distant relatives were harassed, interrogated, detained and harmed. A cousin of his father, [named], was imprisoned after the fall of the regime and died after his release. Further, as set out in detail below, the applicant’s parents and siblings did leave Iraq during the period when ISIS took control of large swathes of northern Iraq and returned only because they were unable to obtain rights of permanent residency in any other country or obtain travel documents allowing them to take their family members with them. The applicant does not suggest that his parents and siblings who have returned to Iraq live without restriction, rather they are registered as internally displaced persons (IDPs) in Kirkuk. DFAT reports that IDPs face confiscation of documents, forced encampment, detention, forced evictions and disproportionate restrictions on access to safety and freedom of movement.[2]
[2] DFAT DFAT Country Information Report: Iraq 13 February 2015 at 2.6; DFAT DFAT Country Information Report: Iraq 17 August 2020 at 2.13 – 2.14
The applicant also gave evidence that [specified relatives] remain in [Country 1] and that his parents and [siblings] would leave Iraq again if they were able to obtain travel documents allowing them to do so. Overall, I consider the applicant’s evidence about his family’s professional and political background to be consistent with the country information as to events occurring after the fall of Saddam Hussain’s regime and I accept his account of those events.
The delegate did not accept that the applicant and his brother were travelling to Baghdad in 2004 when their vehicle was sprayed with bullets, causing the car to crash. The delegate considered it implausible that the applicant would not be hit by bullets, when his brother was hit in the hand by a bullet and that the scars borne by the applicant could have been caused by something else.
The UNCHR reported in 2005 that following the invasion of Iraq by Coalition forces in March 2003 and the ensuing fall of the Ba’athist regime, Iraqis in all parts of the country were plagued by near daily incidents ranging from harassment, kidnapping, theft and looting to full‑scale attacks involving bombs and other explosives resulting in the death and injury of many persons. It noted the main victims were civilians, whose daily lives were severely affected with only the most spectacular attacks reported on by the international press. It reported that in particular members of the Iraqi police force were often the victims of such attacks.[3] The applicant believes they were attacked by Shia militants because of his father’s position in the Ba’ath party. The Tribunal accepts this attack occurred as claimed, considering there may be many potential reasons for the attack including the family’s Ba’athist background but also the fact that the applicant’s brother who was driving the vehicle was a police officer.
[3] UNHCR, 2004, Country of Origin Information – Iraq, 12 August, pp.1-2
The delegate did not accept the applicant’s account of events that occurred to his family during the period when Da’esh took control of large swathes of central and northern Iraq in 2014, nor the aftermath of Da’esh’s territorial defeat by Iraqi forces. The applicant claims that after his family fled their home in [City 1] in 2014 after Da’esh entered the city, their home was taken over as a military post and his [occupation 1 business] bombed and destroyed. The delegate did not accept this to be true, considering that such assets would be of little utility to the military and that it was implausible that the applicant’s house would be singled out for military use. The delegate further notes that the photographs do not set out the exact geolocation of the places shown in the photographs or the intent behind the bombings. Accordingly, the delegate did not accept that these events took place.
It is true that the exact location of the destroyed building shown in the photographs cannot be established, nor can those photographs establish the reasons the buildings were bombed. However DFAT confirms that in June 2014, Da’esh took control of large parts of northern and central Iraq including the governorates of Saladin, Diyala and Kirkuk. Conflict between the Iraqi central government and armed opposition groups led by Da’esh continued until Da’esh suffered a full territorial defeat at the hands of Iraqi forces in December 2017.[4] In such circumstances, it is entirely likely that empty residential homes were co-opted by fighters on both sides and buildings destroyed by the fighting. It does not necessarily follow that the applicant or his family were specifically targeted in these incidents.
[4] DFAT DFAT Country Information Report: Iraq 13 February 2015 at 2.6; DFAT DFAT Country Information Report: Iraq 17 August 2020 at 2.56
The delegate did not accept the applicant’s evidence that after [City 1] was liberated from Da’esh in 2015, the family were displaced to Kirkuk because the Saladin Governorate barred them from returning to [City 1] because of their perceived political affiliation with Da’esh arising out of their relationship to Saddam Hussain’s former regime; their Sunni religion and the fact they had fled Iraq instead of staying and fighting ISIS.
However DFAT reports that a significant proportion of Iraq’s 1.4 million displaced persons are Sunni Arabs from areas formerly controlled by ISIS/ Da’esh who are subject to local decrees and unable to return home due to ‘perceived affiliations’ with Da’esh:
3.96 … The UN uses the term ‘families with perceived affiliations’ to refer to a group that does not include people accused or suspected of extremism or committing a terrorism offence, but who are nevertheless stigmatised due to a tribal or family connection to a Da’esh supporter. In Iraqi culture, this could include anyone from a first degree to a sixth degree relative. Other factors that have led to a perception of affiliation include the timing of a decision to leave or remain in an area held by Da’esh, or the stage of the conflict when an IDP arrived in a particular camp. Some families have reportedly been falsely accused of being affiliated as a way of settling unrelated disputes between tribes.

DFAT reports that despite government and humanitarian efforts to facilitate the return of displaced persons to areas once held by Da’esh, local decrees and other preventative measures prevent individuals and families from returning to areas including the applicant’s family’s home areas of Diyala and Saladin. Such persons have also been denied security clearances necessary to obtain National Security Cards and other forms of civil identification preventing them from accessing government services and rights available to other Iraqis.[5]
[5] DFAT DFAT Country Information Report: Iraq 17 August 2020 at 3.96–3.101
The most recent UNHCR eligibility guidelines state that the conflict between 2014 and 2017 displaced nearly 6 million Iraqis (15% of the population), 1.65 million of whom remained displaced at the end of April 2019. The Saladin, Ninewa and Kirkuk governorates hosted the largest numbers of IDPs. New displacement continues to be reported, resulting from unsuccessful attempts to return to places of origin, continued attacks by Da’esh and reprisals against persons perceived to be supporting Da’esh. Obstacles to the return of IDPs to areas reclaimed from Da’esh include destroyed and damaged housing, unresolved housing or land disputes, continued attacks by Da’esh and the presence of government affiliated militias.[6]
[6] UN High Commissioner for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, HCR/PC/IRQ/2019/05_Rev.2, page 25-26 available at: >
UNHCR also reports that returnees must undergo security screening and obtain approval from various actors in the return areas, including military and security actors, local authorities and tribes. Such approval to return has reportedly been denied by these actors on the basis of discriminatory criteria, including ethnic/religious profile and their actual or imputed association with Da’esh members, leaving a significant number of IDPs involuntarily stuck in displacement.[7]
[7] UN High Commissioner for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, HCR/PC/IRQ/2019/05_Rev.2, page 28 available at: >
I consider the applicant’s evidence about his family’s profile and treatment to be consistent with the DFAT and UNHCR advice.
Finally, the delegate did not accept the applicant’s account of the threats from a local Shia militia he received while lecturing at the [University 2] in 2014. In considering the threatening letter allegedly sent to the applicant, the delegate noted that fraudulent documents are commonly and cheaply available in Iraq and for this reason gave it little weight. While the authenticity of that letter cannot be verified, DFAT reports that Shia militia groups were resurgent in 2014, sharing an anti-Sunni outlook and conducting attacks on Sunnis. Given the applicant’s profile and consistent statements about these events, I accept his evidence to be credible.
In assessing the applicant’s evidence more broadly, the Tribunal considers the applicant gave comprehensive and detailed evidence at hearing which was consistent with his earlier statements and other independent country information about the situation in Iraq. Further, the applicant has submitted a significant amount of documentary evidence in support of his claims and the Tribunal assesses him to be a credible witness. For these reasons, the Tribunal accepts the applicant’s account of his experiences in Iraq.
On the basis of the oral and documentary evidence presented to the Tribunal, the Tribunal finds as follows:
·The applicant was born in [District 1], in the Diyala Governorate of Iraq (as shown on his Iraqi national identification card). He is part of the [Clan 1], which originates from the [City 1] in the Saladin Governorate. I note the [Clan 1 name] appears on the family’s displaced person’s form submitted to the Department;
·The applicant and his family were members of the Ba’ath party and active in Iraq’s public service and military during the period of the former Ba’ath regime. The Ba’ath party was a secular but predominantly Sunni party which led an authoritarian government in Iraq under the leadership of Saddam Hussain from 1968 until its removal from power by the US and its allies in March 2003;[8]
[8] DFAT DFAT Country Information Report: Iraq 17 August 2020 at 2.1-2.3
·The applicant’s father was a [Manager A] in the Iraqi intelligence service. The applicant’s [Brother A] was an investigation officer at [a named] police centre and a number of his father’s [relatives] held senior positions in Iraq’s military and public sector. The applicant’s [Sibling A] is [an occupation 2] and academic and another [sibling] is [an occupation 1]. The applicant’s father’s employment was terminated in April 2003 as part of the de-Ba’athification process and one of his father’s cousins was imprisoned;[9]
[9] [Source deleted.]
·In 2004, the applicant and his brother were travelling by vehicle from [District 1] to Baghdad where his brother was reporting to work as a police officer. Their vehicle was shot at by an armed group causing the vehicle to crash and the applicant was hospitalised with injuries from the crash. The perpetrators of the attack are unknown;
·After graduating from his [occupation 1] studies in 2004, the applicant commenced work in [City 2], a city with a majority Sunni population. In May 2006, he opened a private [occupation 1 business] in [City 1] about [distance] north of [City 2], the city where his father was born and the [Clan 1] originated;
·The applicant’s extended family became displaced from [District 1], Diyala, to [City 1] in October 2006 as a result of the conflict in Diyala and a copy of their displaced families form is contained on the Departmental file. UNAMI reported that displacement was occurring on a continuous basis during this period as a result of terrorist acts, sectarian violence, threats, abductions and a general breakdown of law and order, including in Diyala.[10] The family moved in together and the applicant’s [Brother A] gave up his job as a police officer after two of his colleagues were killed in front of him;
[10] UN Assistance Mission for Iraq Human Rights Report 1 November–31 December 2006 [details deleted].
·In December 2006, the applicant’s [Relative A], [an occupation 3], was abducted by militias as he left his employment at [an agency] in Baghdad. A ransom was demanded and his father delivered the ransom to his son’s abductors, who then killed both men after taking the money. Details of this incident are recorded in the UN’s Human Rights Report for Iraq in 2006, which reports that attacks on professional groups continued unabated with executions, rampant and indiscriminate killings of civilians, particularly in Baghdad where insurgents remained active and unidentified bodies killed execution-style were found in large numbers daily;[11]
[11] UN Assistance Mission for Iraq Human Rights Report 1 November–31 December 2006 [details deleted].
·The applicant bought a house in [City 1] and applied for a leave of absence from the [University 2] where the conflict was very intense and roads were sometimes blocked for days. He was granted a leave of absence for six months which ended in November 2007. As the conflict was continuing, the applicant did not return to [City 2] and his employment was terminated. About four months later, the security situation had improved and the applicant’s employment with the university was reinstated after he hired a mediator to advocate with the university on his behalf;
·In November 2009, the applicant went to Baghdad to study [a qualification], staying in [specified] accommodation at the university. Upon completing his studies, he returned to his employment in [City 2];
·In 2010, the applicant’s [Brother A] was arrested without charge and spent one year in prison before mediators brokered a deal whereby the family paid US$[amount] for his release;
·In 2012, the applicant commenced his attempts to enrol in higher studies overseas, applying to study in [Country 2]. It was intended that his overseas studies be financed by a scholarship from Iraq’s [Agency 1]. His first offer of a place at [a Country 2] University was not accepted by [Agency 1] and he received a second offer from [another Country 2 university] in late 2013 which was accepted;
·The applicant’s [Sibling A] and [their spouse], both [occupation 2s] working at [University 3], were displaced from [their local area] after being threatened by Shia militias;
·In 2013, the applicant’s extended family built a new house in rural [City 1];
·In early 2014, a Shia student at the [University 2] complained about the applicant after he stopped him making a speech about Shia [issues] during class. The following day, the applicant was working at the [agency] in [City 2] when he received a call from security at the university advising him that people from a Shia militia were asking for him at the university and they were angry at the way he had dealt with the student. The applicant called a tribal leader who arranged a meeting with the student and members of the militia at [a named location], where the matter was resolved with undertakings from the applicant and tribal leader given to the militia;
·In June 2014, ISIS overran large swathes of northern and western Iraq and took control of a third of the country, including the cities of [City 1] and [City 2].[12] The [University 2] relocated to a campus in [City 3] for the period of the conflict;
[12] ISIS After the Caliphate | Wilson Center
·In early June 2014, the applicant went to [City 3] in the Kurdistan Region of Iraq to submit documents for his [Country 2] student visa. At the border, he was granted permission to enter for two weeks but returned to [City 1] immediately after submitting his documents. Days later, ISIS fighters entered [City 1]. The applicant and his wife and children were able to enter [City 3] on his existing entry permit but were unable to stay there because they didn’t have sponsorship and so the applicant sent his wife and children to [Country 3]. He was unable to travel with them because his passport had been sent to [Country 2] to have the visa attached for his [Country 2] studies, so he returned to the family home in [City 1];
·In August 2014, the applicant’s father and [named family members] left [City 1] for Kirkuk, where the [they had extended family]. They later left Iraq for [Country 1] without their [family members] who did not have passports;
·The applicant’s passport arrived back in [City 3] from [Country 2] but the applicant was unable to travel there from [City 1] to collect it because ISIS had blocked the roads. The applicant asked his cousin in Kirkuk to pick up his passport from the [specified] office, but by the time the applicant received it the offer from [Country 2] university had lapsed and his [Country 2] visa was cancelled;
·In September 2014, the applicant received an offer from [an Australian university] which was deferred for a year to allow him to do a language course. In January 2015, he travelled to the [Agency 1] in Baghdad to obtain a sponsorship letter for his visa but was told that the [Agency 1] would not give sponsorship letters to persons from [City 2] because of the fear that the university had been infiltrated by ISIS. As the applicant tried to leave the building, he was stopped by security who accused him of him of being affiliated with ISIS and questioned him about his activities in [City 2]. He told them he was born in [District 1] and was just working in [City 2] and showed them his identity card confirming this as well as providing the contact details of people who knew him from [District 1]. The security guards rang those contacts in [District 1] and accepted the applicant was from that city but threatened to kill him if they found out he was Sunni;
·The applicant returned to [City 3] where he paid an agent $15,000 to obtain a sponsorship letter. He travelled between [City 3] and [Country 1] on multiple occasions to avoid overstaying his tourist visa to [Country 1], which would have seen him incur a [term] ban in that country. He didn’t want to register with the UNHCR in [Country 1] because it would result in the loss of his student visa to Australia;
·His student visa was granted on 16 April 2015 and he entered Australia [in] May 2015, leaving his wife and children with her family in [Country 1]. It was a further year before they were granted visas to enter Australia as family members of the applicant;
·In June 2015, the applicant returned to [City 3] for three days in order to sign documentation relating to the change of his studies from [Country 2] to [Australia]. He departed and returned to Australia within five days;
·In September 2015, his parents and siblings returned to Kirkuk from [Country 1] in the hope that [City 1] would be liberated from ISIS. They returned at that time because they had been unable to get travel documents for [some family members] who were unable to join them in [Country 1]. [City 1] was liberated in 2016, but his family were banned from [City 1] by a Governorate decree because of their imputed support for ISIS arising out of their relationship to Saddam Hussain’s former regime; their Sunni religion and the fact they had fled Iraq instead of staying and fighting ISIS. The family’s home in [City 1] was taken over by the Saladin Operations Command;
·In December 2015, a threatening letter was delivered to the applicant’s employer at [University 2] by persons associated with the Shia militia Asa’ib Ahl al-Haq (AAH). The letter demands he cease his employment and return to the righteous Shia faith;
·The applicant’s parents, [and some family members] were able to get temporary permission and a security clearance to reside in Kirkuk because [extended family] originate from that city, but they are registered as IDPs and can be ordered to leave the city at any time. The men no longer have valid passports to leave Iraq and their children can’t get identity cards. They cannot relocate elsewhere in Iraq because of the security clearance process which they believe they will fail;
·The applicant’s studies in Australia were sponsored by a scholarship granted to him by the Iraqi government and the terms of that scholarship are set out in a contract signed by the parties in December 2014. In July 2019, the Iraqi government stopped paying the applicant’s tuition fees pursuant to that contract and the applicant has breached the contract by failing to return to Iraq;
·While in Australia, the applicant has written and published online a number of articles highly critical of the Iraqi government. Among other things, he accuses the Iraqi government of sectarian discrimination in the area of higher education and academic research and allowing Shia militias to murder and displace Sunnis in order to achieve demographic change in favour of the Shiite community in Sunni-majority provinces of Iraq.
Future risk of harm
As noted above, the applicant claims to have a well-founded fear of persecution in Iraq for the cumulative reasons of his actual and imputed political opinion, his Sunni Muslim religion and his membership of various particular social groups relating to his profession as [an occupation 1] and academic; his family links to the Ba’ath party and his profile as an Iraqi who has spent a significant period of time in a western country. At hearing before the Tribunal, he also claimed that he would be arrested on return to Iraq for breaching the contract with Iraq’s [Agency 1] relating to his scholarship for overseas studies.
The situation in Iraq has undergone significant changes over the period relating to the applicant’s claims. The attack on the applicant and his brother in 2004 took place in the aftermath of the fall of Saddam Hussain’s regime during a period of de-Ba’athification. After that incident, the applicant was able to complete his studies and commence a successful career working for both the public and private sectors. The applicant and his family were displaced by the conflict in 2006 and two of his extended family members were killed by insurgents, apparently for ransom. His brother was imprisoned in 2010 and I accept that other members of the extended family were targeted and harassed for their close association with the former Ba’ath regime.
The delegate cites country information indicating that systematic targeting of former senior Ba’ath party members had ended by 2012. This is consistent with DFAT’s most recent report indicating that the passage of time and the turbulence of more recent events has reduced the level of societal hostility against Ba’athists, with many Iraqis too young to remember the Saddam era.[13] However despite its loss of territorial control, ISIS remains active in the Kirkuk and Saladin governorates with the capacity to launch attacks including targeted assassinations, kidnappings and IED attacks targeting civilians and security forces.[14]
[13] Delegate’s decision at page 9; DFAT DFAT Country Information Report: Iraq 17 August 2020 at 3.79
[14] UN High Commissioner for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, HCR/PC/IRQ/2019/05_Rev.2, available at: >
I note that the applicant’s parents and siblings including his father, a senior member of and official in the former Ba’ath government, remain living in Kirkuk as internally displaced persons. While they are subject to forced evictions and disproportionate restrictions on their freedom of movement and a lack of opportunities as described by DFAT above, it is not suggested they continue to be targeted for serious harm. For these reasons, I am not satisfied the applicant continues to face a real risk of serious harm solely for reasons of his family’s association with the former Ba’ath regime.
However his family’s association with the former Ba’ath regime is only one factor in the applicant’s profile. He is also an academic and a [professional], both groups targeted by insurgents in Iraq in the past. DFAT reports that [large numbers of related professions] have left Iraq in the last 15 years out of fear of reprisals, kidnapping and violence.[15] During his time in Australia, he has written and published online a number of articles highly critical of the Iraqi government, accusing it of sectarian discrimination in the area of higher education and academic research and allowing Shia militias to murder and displace Sunnis in order to achieve demographic change in favour of the Shiite community in Sunni-majority provinces of Iraq.
[15] DFAT Country Information Report Iraq, 17 August 2020 [reference deleted].
Most significantly, I have accepted the applicant has previously come to the adverse attention of Shia militias in the past, including at the [University 2] in early 2014 and again in December 2015 when a threatening letter from persons associated with the Shia militia Asa’ib Ahl al-Haq (AAH) was delivered to his former employer. I have also accepted that the applicant’s family has been imputed with an affiliation with Da’esh and denied permission by the Saladin Governorate to return to their family home in [City 1].
I consider that cumulatively, these matters create a real risk of serious harm to the applicant for reason of his political opinion if he returns to his home areas of [City 1] or [City 2] in Iraq now or in the foreseeable future. In making that assessment, I have had regard to the following country information:
·Since the end of major military operations against Da’esh/ ISIS in late 2017, clearing operations and arrest campaigns against Da’esh suspects in areas retaken from Da’esh continue. The UNHCR reports that:
Persons suspected of involvement with ISIS, including persons who were not involved in violent acts, or who were forced to cooperate with ISIS, were economically dependent on keeping their job in the public sector (e.g. civil servants, doctors in public hospitals, teachers) under the ISIS administration, or who were merely living in an area while it was under ISIS control, are at risk of arbitrary arrest, enforced disappearance, torture and other forms of ill‑treatment, extra-judicial killings, and unfair trials that can result in the death sentence on account of their alleged affiliation or support for ISIS.[16]
·Despite the territorial defeat of Da’esh/ ISIS in Iraq in 2017, it retains thousands of active fighters engaged in a sustained insurgency who remain active in the areas of Kirkuk, Dalahuddin and Diyala, prompting revenge attacks by Shia militias. On 27 October 2021, 8 Sunni civilians were killed by Shia gunmen in an apparent revenge attacks after suspected Da’esh/ ISIS militants attacked the Shia village of al-Rashad, killing 15 and injuring 13 others.[17] On 21 January 2022, suspected Da’esh/ ISIS gunmen attacked an Iraqi army barracks in Diyala province, killing 11 soldiers.[18]
·As a result of their involvement in the defeat of Da’esh, Shia militias have increased their presence and influence in Iraq.[19] DFAT reports that up to 60 militia groups make up the state-sponsored Popular Mobilisation Forces (the PMF) operating across Iraq, most of them Shia. [20] Following the May 2018 parliamentary elections, some PMF groups have become part of the government, while some also operate both in the formal and informal economic sector. Different PMF factions are increasingly engaged in a competition over power and resources and some have been held responsible for a range of human rights abuses against alleged ISIS suspects, as well as the targeting of critics and those perceived to be contravening strict Islamic rules.[21]
·For the reasons set out above, I have accepted the applicant personally came to the adverse attention of the Iran-aligned PMF group AAH in 2014 and 2015 after a dispute with a Shia student at the [University 2].[22] AAH was established in 2004 as an elite militia within the Mahdi Army and was initially involved in sectarian killings, kidnappings and other human rights abuses with its main targets Coalition forces, Iraqi officials and Iraqi security forces.[23] It is considered one of the most powerful Shia militia in Iraq and seeks to promote Iran’s political and religious influence in Iraq, maintain Shia control over Iraq and cleanse any remaining western influences from the country. Its ideology emphasises its reverence for the Iranian Shia political system, and the group ultimately seeks to impose strict Shia Islamic governance in Iraq.[24]
·Since the US withdrew its forces from Iraq in December 2011, the AAH has expanded into politics, winning several seats in the Iraqi parliament. However the AAH’s involvement in politics has not stopped it carrying out sectarian violence and targeted attacks. Despite reports of sectarian atrocities and war crimes, AAH and other PMF militias were formally recognised by the Iraqi parliament in November 2016. Further, AAH has continued to expand its influence in Iraq during the fight against ISIS and since.[25]
·The US State Department designated the AAH as a Foreign Terrorist Organisation in January 2020.[26] An accompanying media release reports the AAH has claimed responsibility for more than 6,000 attacks against US and Coalition forces since its creation in 2006, including carrying out highly sophisticated operations.[27]
·DFAT reports that many groups who make up the Popular Mobilisation Forces have committed human rights abuses including extrajudicial killings and enforced disappearances,[28] and that there have been consistent reports government forces from a range of agencies and PMF groups regularly abuse and torture individuals – particularly Sunni Arabs – during arrest, pre-trial detention and after conviction. Those who fall foul of a PMF group in their local area reportedly have little chance of gaining recourse or justice through official means.[29]
·The US Department of State country report on human rights practices in Iraq in 2020 (published in March 2021) also reports that PMF militia groups engaged in killing, kidnapping and extortion throughout the country, particularly in ethnically and religiously mixed provinces.[30]
[16] UN High Commissioner for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, HCR/PC/IRQ/2019/05_Rev.2, at p 61 available at: 8 Sunni civilians killed in Shia revenge attack in Iraq's Diyala (aa.com.tr); IS extremists murder Iraqi police officer 2 weeks after kidnapping him (alaraby.co.uk)
[18] Suspected ISIL fighters kill 11 Iraqi soldiers ‘in their sleep’ | News | Al Jazeera
[19] Ranj Alaaldin, ‘Containing Shiite Militias: The Battle for Stability in Iraq’, Brookings Doha Center Policy Brief December 2017; and Ranj Alaaldin, ‘Fragility and Resilience in Iraq’, Istituto Affari Internazionali (IAI), November 2017 DFAT Country Information Report Iraq, 17 August 2020 at 5.8.
[21] UNHCR, United Nations High Commission for Refugees (UNHCR), International Protection Considerations with Regard to People Feeling the Republic of Iraq’, 3 May 2019, pp14, 15 [footnotes omitted].
[22] DFAT Country Information Report Iraq, 17 August 2020 at 3.142.
[23] Roggio, B 2008, ‘New Special Groups splinter emerges on Iraqi scene’, Long War Journal, 20 August, Wyer, S 2012, ‘The Resurgence of Asa’ib Ahl Al-Haq’, Middle East Security Report 7, Institute for the Study of War, December, pp.9-10, Standford University, Center for International and Security Cooperation (CISAC), ‘Asa’ib Ahl al-Haq’, last modified July 2018, Counter Extremism Project, ‘Asaib Ahl al-Haq’, Asaib Ahl al-Haq | Counter Extremism Project.
[26] Michael Knights, The Washington Institute for Near East Policy, ‘Profile: Asaib Ahl al-Haq, April 27, 2021, U.S Department of State, Media Note, State Department Terrorist Designations of Asa’ib Ahl al-Haq and Its Leaders, Qays and Laith al-Khazali’, January 3, 2020, State Department Terrorist Designations of Asa’ib Ahl al‑Haq and Its Leaders, Qays and Laith al-Khazali - United States Department of State.
[28] DFAT Country Information Report Iraq, 17 August 2020 at 4.1 and 4.7.
[29] Ibid at 4.18 and 5.11.
[30] U.S Department of State, 2020 Country Reports on Human Rights Practices: Iraq, March 30, 2021.

Considering the applicant’s circumstances cumulatively, including that he is a Sunni Arab who has previously come to the adverse attention of Shia militia AAH, that he is an academic and [professional] who has been resident in a western country for some years and who has published online articles strongly critical of the current Iraqi government and its enabling of Shia militias, I cannot dismiss the chance that the applicant would again suffer serious harm in Iraq as remote. Rather I find there to be a real chance the applicant will again experience serious harm amounting to persecution if he returns to his home areas of [City 1] and [City 2], now or in the foreseeable future. I find that harm will be the result of systematic and discriminatory conduct directed at him for the essential and significant reasons of his political opinion.
In order to meet the definition of a refugee, the applicant’s well-founded fear of persecution must apply to all areas of Iraq (s 5J(1)(c)). I am not satisfied this is the case. As discussed with the applicant at hearing, the applicant’s parents and siblings have been displaced to Kirkuk where they are registered as IDPs. While I have accepted that they are subject to restrictions, insecurity and a lack of opportunities there, it is not suggested they have been subjected to or targeted for serious harm in Kirkuk. For these reasons, I consider the applicant could rejoin his family in Kirkuk to avoid the serious harm he fears in [City 1] and [City 2]. As the applicant does not meet the requirements of s 5J(1)(c), he cannot meet the definition of a refugee.
However for the same reasons as those set out above, I accept there to be substantial reasons for believing that, as a necessary and foreseeable consequence of being removed from Australia to his home areas of [City 1] and [City 2] in Iraq, there is a real risk that the applicant will suffer significant harm as that term is defined in s 36(2A). In particular I accept there to be a real chance the applicant will be arbitrarily deprived of his life or otherwise subjected to cruel or inhuman or degrading treatment or punishment if returned to those areas of Iraq.
In considering whether the applicant could obtain protection from the Iraqi state such that there would not be a real risk of the harm that he fears in [City 1] and [City 2], the Tribunal has had regard to DFAT’s advice that the ability of the authorities to provide state protection varies, with several parts of the country not under the effective control of the state. State protection bodies are also heavily politicised and concerns are consistently raised that impunity for the abuses committed by security authorities remains the norm. As noted above, the applicant fears harm from AAH, which is itself a Shia militia forming part of the state‑sponsored PMF and recognised by the Iraqi parliament as an official force.[31] In these circumstances, the Tribunal accepts that the applicant cannot obtain protection from the Iraqi state which would reduce his risk of harm in [City 1] and [City 2] to something less than real.
[31] DFAT Country Information Report Iraq, 17 August 2020 at 5.1, 5.9–5.11
In considering whether it would be reasonable for the applicant to relocate to an area of the country where he would not be at real risk of significant harm from AAH, the Tribunal concludes that it would not. In making this assessment, the Tribunal has had regard to its findings that the applicant’s home areas of [City 1] and [City 2] were formerly controlled by ISIS/Da’esh and the applicant’s family has been imputed to be supportive of that group. DFAT reports that relocation by people from such areas is difficult, particularly for Sunni Arabs such as the applicant, with numerous reports that government forces, PMF groups and local authorities have imposed movement restrictions on persons perceived to have affiliations to Da’esh which sharply curtail their ability to reside and subsist in other areas of Iraq.[32]
[32] DFAT Country Information Report Iraq, 17 August 2020 at 5.31–5.37
Consistently with the applicant’s evidence at hearing, in order to relocate from areas formerly held by Da’esh or conflict areas of Iraq such as [City 1] or [City 2], the applicant would require a sponsor or recommendation from a local leader. The Tribunal accepts he would be unlikely to get one, given the family’s profile in their home area of [City 1]. As well, DFAT reports that non‑Shia persons may struggle to establish themselves in the south of Iraq and that successful relocation will typically be dependent upon the availability of access to social networks consisting of extended family or tribe:
To relocate beyond the reach of existing support networks is a difficult proposition, doubly so if it is the person’s tribe or extended family from which the person seeks to escape. In a time of a global recession caused by COVID-19, worsened by the dependence of the Iraqi economy upon oil, the capacity of someone to subsist in a different region of Iraq may be further diminished.[33]
[33] DFAT Country Information Report Iraq, 17 August 2020 at 5.31–5.37
The UNHCR has also recently published guidance on the ability of persons originating from formerly ISIS-held or conflict-affected areas to internally relocate within Iraq, reporting that valid civil documentation is needed, a sponsor may be required and a security clearance is needed in all areas. The UNHCR notes that Sunni Arabs from formerly ISIS-held or conflict‑affected areas may be denied security clearance or run the risk of arbitrary arrest and detention on the basis of broad and discriminatory profiling.[34]
[34] UN High Commissioner for Refugees (UNHCR), Iraq: Relevant Country of Origin Information to Assist with the Application of UNHCR's Country Guidance on Iraq: Ability of Persons Originating from Formerly ISIS-Held or Conflict-Affected Areas to Legally Access and Remain in Proposed Areas of Internal Relocation, 11 January 2021, available at: >
While the Tribunal is satisfied the applicant could potentially relocate to Kirkuk or the Kurdistan Region of Iraq to live as IDPs as the applicant’s parents and siblings do, it does not consider it reasonable in circumstances where his wife and children would have to accompany him. In making this assessment, the Tribunal has had regard to DFAT’s advice that protection risks for IDPs remain acute, with many suffering from confiscation of documents, detention, forced evictions and disproportionate restrictions on access to safety and freedom of movement.[35] Further, the Tribunal has had regard to medical evidence indicating the applicant suffers from post‑traumatic stress disorder, generalised anxiety and depression.
[35] DFAT Country Information Report Iraq, 17 August 2020 at 2.12–2.13
Finally, the Tribunal is satisfied that the real risk of harm is one faced by the applicant personally and not one faced by the population of Iraq generally. It follows that the applicant is not precluded from satisfying the provisions of s 36(2)(aa) by those of s 36(2B). For these reasons, the Tribunal is satisfied the first named applicant meets the criteria set out in s 36(2)(aa).
The other applicants
No claims are made on behalf of the applicant wife and children and the Tribunal is not satisfied that they are persons to whom Australia has protection obligations. However it is not in dispute that they are members of the same family unit as the applicant husband for the purposes of s 36(2)(c)(i). As such, the fate of their application depends on the outcome of the applicant husband’s application. As the applicant husband satisfies the criterion set out in s 36(2)(aa), it follows that they will be entitled to a protection visa provided they meet the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Alison Murphy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 553

31 January 2022

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