1917516 (Refugee)

1917516 (Refugee) [2021] AATA 3897 (12 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917516
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Rodger Shanahan
DATE:12 August 2021.
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 August 2021 at 4:44pm
CATCHWORDS
REFUGEE – protection visa – Iraq – fear of persecution from militants – father’s Ba’thist Party membership – Sunni religion – work for foreign company – credibility issues – failure to apply for asylum in other countries he visited – lack of corroborative evidence from siblings – divorced status as Shia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994
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 14 June 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 21 February 2018.
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 (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.
CLAIMS AND EVIDENCE
Protection Visa Application
The following statutory declaration was provided in support of his protection visa application:
[Details deleted].
[Details deleted]
[Details deleted]
[Details deleted]
[Details deleted]
[Details deleted]
AAT Hearing
The applicant requested a support person be present during the hearing. When he was asked why he needed the person (no advance notice had been given) he initially said it was for mental/psychological reasons and when he said that he had no evidence of any mental health condition that required support, he said that it was for moral support. The Tribunal did not allow the person to remain in the hearing. He also brought another person who he described as a witness but when she was questioned she said that she was not a first-hand witness but could recount what the applicant had told her. She was sworn in just in case she was required. The applicant was asked what the witness was supposed to tell the Tribunal and he said she had previous experience as a refugee and she had general knowledge of the situation in Iraq.
After the hearing preliminaries were completed, he was asked about some documents that had been requested from him prior to the hearing – this included a copy of the decision from [Country 1] authorities regarding his positive protection visa application. He said that he had not been able to obtain iot from his brother. It was put to him that this document was very important and the Tribunal had received them from [Country 1] previously.
The Tribunal may draw an adverse conclusion from his inability to provide this decision as there was a concern that the reason it was not given was because the claim made by the brother did not support the claim being made by the applicant today. If the claims were the same then it is reasonable to believe that the brother would be very keen to provide supporting documents. To date he had provided [Country 1] identity documents but not the decision record – this raised suspicions on the part of the Tribunal as to why it wasn’t being provided.
He was asked if he had requested the document from his brother and the Tribunal impressed upon him the importance of it to his case and he said that he had but all that he had been given he had passed onto the Tribunal. He claimed the brothers said they had sent all the documents they had. It was put to him that the Tribunal was aware that this was not all that [Country 1] authorities could provide regarding their asylum decisions. He said he was not responsible for what his brothers sent and he was told that it was strange the brother would only send a copy of the approval letter but nothing regarding the claim itself when they knew how important it was to supporting their brother’s claim in Australia. Their inability to assist their brother raised serious questions. He said they sent something form the UN and thought it would be enough. It was put to him they had been given two weeks to provide the document requested which was plenty of time.
He claimed that if he returned to Iraq he believed that there would be a risk for him from the Shi’a militias. They could kidnap or kill him. Asked if it was a particular militia, he said it was Jaysh al-Qadr but within them there is Hashd al-Shaabi. He was asked given Hashd al-Shaabi was the umbrella name. he then said within them there is the Jaysh al-Mahdi. They would target him mainly because of the history of his father who was in the Ba’thist Party. The applicant had also worked for [Company 1] previously which was an international company.
Within this group there are elements that target international companies. Asked if there were any other reasons besides these, he claimed that his brothers were currently political refugees. He said that he had been displaced from the country since 2005. Asked if he had any other claims, he said that his brothers had been subject to dangers – it was put to him that the Tribunal was interested in threats to him. He repeated that he worked for [Company 1] and the Sadrists were opposed to these international companies.
Asked how he came to Australia, he said he came here via his ex-wife. He got married [December] 2016 – his wife was an Australian citizen from Iraq. He met her through an Iraqi friend with whom he had gone to university in Baghdad. He had lived in Australia since that time and knew the family and he arranged an introduction for them. He first met her family in Iraq and then her. He met her in December 2016 and met her in person just before they married but they had spoken.
In Iraq they were married officially. Asked if it was religious, he said that it was religious [in] December. It was a Shi’a service as she was from a Shi’a family and her family imposed this. He registered the marriage in Iraq and was asked to provide a copy of it – he said it had been provided with his visa application. Asked if he had a marriage contract as well, he said that it was all one document and this was submitted. He said that the sheikh registered the marriage with the Iraqi government. He was asked if there was a contract and registration – he said the contract was just stamped at the registry. The contract just described him as Muslim. He said he was Sunni but was not following it strictly – asked if he was following it at all he said he wasn’t which was why his current marriage was only civil.
He was divorced in Australia and had submitted it to Immigration. He went to the sheikh to get a divorce and thought that was it. Asked which sheikh, he said it was [name deleted]. Asked if he was Sunni, he said he was a Shi’a, as he was married by the Shi’a. Asked why he didn’t just go to a Sunni sheikh to announce his divorce, he claimed that once the parameters for divorce are met then it was over. If he did it at a Sunni sheikh then she wouldn’t have come. It was put to him that she didn’t have to ne present when he divorced her Islamically. He said that he wanted a physical divorce as he could have done it over the phone.
He lived with his wife for three months in Iraq but not in Australia. He was separated from her for seven months before he came to Australia and then when he came to Australia he didn’t live with her. She refused to live with him because he was in a communal house. She wanted to live in a brand-new apartment. It was put to him that surely she would have sorted their accommodation out in the seven months before he came. He said there was an issue and she wanted to live in an expensive house near her family in [subrurb] as she was sensitive to dogs.
The divorce certificate that he had been provided was given to the interpreter and he was asked to read out certain parts – these indicated that both he and his wife weer Shi’a. He was asked why the sheikh would have described them both as Shi’a if he was actually Sunni. He claimed that the service had been Shi’a and he wouldn’t divorce them unless they were both Shi’a – it was put to him that the section didn’t describe the service, it asked both of their religions separately. He said because their marriage was registered as Shi’a they had to be divorced as Shi’a. He was asked if he told the sheikh he was Sunni or Shi’a and he said that this was none of his business. It was put to him that the sheikh had written it down so he must have gotten it from somewhere.
He was asked if [his name] was a Sunni or Shi’a name and he said [the first part] was Sunni and [the second part] was a Gulf name and meant [deleted] so was Sunni. He was asked if the names were Sunni then why the sheikh had written he was Shi’a, and he claimed the sheikh was from Lebanon and didn’t need to know the tribes. It was put to him that he still needed to know if the applicant was Sunni or Shi’a and he had written the applicant down as a Shi’a when he claimed he had never told the sheikh his religion. As a Shi’a sheikh he would be familiar with Sunni/Shi’a names so if the applicant had what he claimed was a demonstrably Sunni name then it was strange that the sheikh had described him as Sunni.
He said that in order to convince the girl’s family of the divorce then it had to be Shi’a as the marriage was Shi’a. It was put to him that the Tribunal was concerned not at the type of divorce but by the description of the applicant’s religion as Shi’a. He said that he didn’t know but believed it was part of the divorce. It was put to him that he would be given time after the hearing to provide a statutory declaration from the sheikh explaining why he wrote the applicant’s religion as Shi’a.
Asked why the Shi’a militias would target him, he said that he was a Sunni Ba’thist and his family was a member and they were displaced from [Location 1] and he has nowhere to live. Asked if he had evidence of his father’s Ba’thist history. He said he had provided photos previously and the member said he was looking at them and they just appeared to show half a dozen men around a table. He said they could be discerned as Ba’thists by the way they looked and their uniform – it was put to him that they were all wearing suits.
He said that generally someone had to be Ba’thists to reach this position – he was a [in a particular role]. Asked what this was, he said that he was [in a particular role] and sent reports to the minister but he had no documents. Asked if he had any media reports that would indicate that he was [in that role] to a Ba’thist minister or anything of the sort. He said that he used to have a VHS video of him with Saddam Hussein. He was told that unless he had a piece of evidence the Tribunal could lend no weight to it. He was asked again for any independent report or media entry that would show him in the Ba’th.
It was put to him that he had provided what he claimed was a photo of [Brother 1] as a young child with Saddam Hussein. It was put to him that it appeared to be from a newspaper but there was no caption so it could have been of any child. He was asked to provide a complete copy and he said he would ask [Brother 1] (who had provided it to him and was in [Country 1]). He was asked why [Brother 1] would provide him with this photo and of a copy of his [Country 1] visa and refugee approval letter but wouldn’t provide him with a copy of his refugee claim or the [Country 1] decision – he was asked what his brother was hiding.
The applicant said that he had requested this from his brother via his first agent. He was asked whether it struck him strange that he had been provided with, and passed on, a photo with no caption. He said the paper was kept with his mother as a memory and when he left he may only have taken the photo with him. He was advised the Tribunal was unlikely to be able to place much weight on the photo unless he could provide some caption with it that indicated it was his brother and he said he understood.
Asked if he any other evidence his father was a Ba’thist he claimed that he wasn’t able to take much with him when he left. It was put to him that country information indicated that low-level Ba’thists were not of interest to Iraqi authorities and neither were their families and he was asked why anybody would be interested in the applicant in 2021. He claimed his father was not a low level and he may be a supporter, He died in 2011. Asked what happened to him between 2003 and 2011 he said that he received a threat and his car was bombed. His father was in the clinic when his car was bombed – it was put to him strange that he wasn’t in his car when it was bombed. He said that he didn’t know much about the incident – the only information he had was his oral evidence. It was put to him that his brothers’ evidence may help in this regard and this reinforced the importance of his brothers’ decisions.
He was asked if he had any country information that the families of ex-Ba’thists were being targeted in Iraq in 2021, he said he had no evidence but he head heard on the news today that an ex-Ba’thist had bene killed, He was asked again if he had any evidence of ex-Ba’thists being targeted in 2021 and he said he didn’t. It was put to him that he had been for a number of years so he had plenty of opportunity to gather such information to support his claim and his inability to present any made the Tribunal believe this was because there wasn’t. He said he could provide evidence that Sunni ex-Ba’thists were being targted by Shi’a militias. He was asked if he was a Ba’thist and he said he wasn’t, so he was asked why the families were being targeted. He said the families were in fear. It was put to him that fear needed to be well-founded. He was told that he would be given time post-hearing to provide country information that families of ex-Ba’thists were targeted.
Asked what he meant by being displaced. He said their house was taken over in 2006 – he wasn’t sure the people who took it over were Shi’a but believed they were - the situation in [Location 1] was chaotic. Asked why he thought they were Shi’a, he claimed he was outside Iraq at the time so couldn’t be sure. It was put to him that he had his parents and siblings there so they could have told him who took their home. He said they had a displacement certificate which was all he knew. He was asked again and he said they were threatened and left but he didn’t know by who.
Asked who was in the house now, he said that he supposed the people who took it over in 2006 were. He had not tried to get the house back. It was put to him that he owned the house, and he said it was his parents. It was put to him that in the will he had given the Tribunal the parents had left all their assets to their children. This meant that he and his siblings each owned a part of the house. He said none of them had returned to get the house back. It was put to him that there were legal avenues to get it back without returning. He said that they were afraid to contact authorities because they were controlled by militias. Asked if he knew what the laws were in Iraq about property he said that he didn’t but his brothers might, although he didn’t know.
He was asked whether he had discussed the assets such as the property with his siblings after their parents died and he said that they hadn’t. They were all concerned about their lives. Asked where the siblings were, he said there was one in [Country 1], two in [Country 2], and one in [Country 3] but he may have returned to [Country 4]. He said they had a house in [Location 1] but hadn’t seen it since 2006.
He left Baghdad in 2005 and had been back four times and two transits. He returned in 2017 the last time to get married. He was there in 2005, 2007 and 2013 for about a week at a time. In 2017 when he returned he stayed with his ex-wife. He stayed at a transit hotel in 2013 and went straight to Erbil; in 2005 he stayed a few weeks in [Location 1] and in 2007 in [Location 2] for a week. When he was in Karad when he used the sim card he received threatening messages. He was asked to confirm that he went once in 2005 and once in 2007 and agreed – he did these trips to renew his [Country 4] visa. He had to do this every three months and would also go to Erbil or [city].
He received three threat message via SMS on his extra sim card that he used only when he was with his family. They said he would be killed as well as his family and that his end was near. No member of his family was killed. He was asked why his father survived six years in [Location 2] and said he received threat letters – one in 2007 left on the front screen. It threatened to kill him. He wasn’t killed – he claimed the threat at that time was more on younger people. He was asked why they sent a letter but did nothing. He said he didn’t understand why this happened.

It was put to him that there was no point in sending a letter threatening to kill someone and not killing them, or send them a letter and hence warn them. If they wished to kill him then they would just kill him. He said these were sometimes used to intimidate or force people to leave or get money for kidnapping. His father was never kidnapped. It was put to him that if they wanted to kidnap him then they would have done this and then sent a letter. If they wanted them to move then they would have killed someone and then told people to move. He said his family may not have given him all the details.
Asked why he believed he would be killed for working for [Company 1] and he said he worked for them for around three months from May 2005 to August 2005. He felt in danger because the glass panel fell twice due to explosions. He clarified that he was working for them in Iraq at this time. He was [doing a particular role in a] section and then he went to the [relevant] part. After August 2005 there were lots of news about explosions and his mother was afraid for him. He then travelled to [Country 4] and worked for three companies – none of them had any business in Iraq.
He was asked why he thought working for [Company 1] for three months in 2005 would be of any interest to Shi’a militia groups in 2021 and he claimed that there were people against the Americans and foreign companies. Because he was working outside of Iraq and was displaced these were also reasons. He was asked and said [Company 1] was [a Country 5] company – the US guarded the building they were in. Asked why he would be imputed with working for the US because of this brief experience, he said that only a few people were able to work in [Company 1] at that time. He was asked if he could provide any country information that short-term employees for [Company 1] were being targeted and he said he would.
He was asked how someone who worked [in that role] in 2005 would be known by anyone currently, he claimed that he did [deleted] and perhaps there were some people inside the company betraying his details. He may have been on a black list because of his job. It was put to him that there would have been other [people in those roles] and he was asked if he could provide evidence that [people in those roles] from 2005 were being targeted in 2021. He claimed that two of his friends had been killed and he was asked if he could provide evidence of their friendship and their connection to [Company 1].
He was asked why he would be targeted because his brothers were refugees, and he claimed that this meant they were against a certain entity which was the reason why they were accepted. It was put to him that the process was confidential so he was asked how anyone would know and he claimed that when people are asked to get documents one had to present documentation so they would know. He was asked why he wouldn’t just say they had emigrated via work or a spouse visa. He had come to Australia on a spouse visa for example and no one knew he was applying for protection.
He claimed that they would know as he believed their details were on the militias’ databases. It was put to him that the Tribunal didn’t understand how the Shi’a militias knew someone had applied for protection in [Country 1], [Country 2] or Australia. He said maybe they did or didn’t know and if they noticed someone was no longer there they would assume the person had been given protection. It was put to him that he had come to Australia on a spouse visa so the Tribunal didn’t understand why they would think he had applied for protection and wasn’t just married and living here. He had lived in [Country 4] and studied in [Country 6] – there were many reasons why he had been away from Iraq other than seeking protection.
He claimed they must have had basic information on their bases and when they request information about the residents they would know they were refugees. He then said there was a chance they may know they were refugees as they knew the people from the beginning. Asked where else had travelled to, he said he had been to [Country 3], [Country 7] and [Country 8]. He was in [Country 8] in August 2014. Asked why he didn’t apply for protection he said he was sponsored [and] he had a visa to reside in Erbil.
It was put to him that he left in 2005 because as a Sunni ex-Ba’thist child who had worked for a foreign company. These conditions were still valid in 2014 and he wasn’t guaranteed residence in Erbil – the fact he didn’t apply raised questions in the Tribunal’s mind as to how valid his claims were. He said he had promised the company he would return which was why they sponsored him.
Asked if he had any other issues he said that he now had a family in Australia that he had not previously mentioned. He had re-married to an Australian citizen.
He was then told about s 424AA and it was put to him that during his protection visa interview he told the Department that his house had been taken over by al-Qa’ida. Yet today he claimed that Shi’a militias had taken over his house which meant he was too afraid to approach the authorities. This was inconsistent with what he said today at the hearing. It was also put to him that if AQ took over the house in 2006 they wouldn’t still be there now which meant he wasn’t dispossessed currently.
He asked to respond later and was asked why he needed to delay his answer. He said the stress at the hearing may make him not precise. It was put to him that it was a simple question and what more information he needed to answer it. He said he had the response but thought he needed more time. It was put to him that he would be given some time with his adviser before he answered but there did not appear any reason why he couldn’t answer it currently.
The applicant’s wife then appeared as a witness. She was asked what she would like to say about his situation in Iraq. She stated that she had nothing to add. The applicant was given an opportunity to consult with his adviser. After the break he was asked to respond to the question put to him under s 424AA previously and he claimed that he must have made a mistake at the interview as he was under a lot of emotional stress and what is currently prominent are the Shi’a militias so he would expect as long as it was taken (the house) and they were in power then it must have been the Shi’a militia who took over the house. He formed this opinion when he realised the Shi’a militia defeated Da’esh after 2014. It was put to him that in his 2018 statutory declaration he said that he didn’t know who took over the house. He said that people who took over a house would not normally identify themselves.
It was put to him that he had previously claimed to fear harm based on being a Sunni and he claimed that it was because of his father’s profile as a Sunni Ba’thist. He agreed it was the combination of the two.
It was put to him that there was a concern about his inability to provide copies of his brothers’ refugee determinations which was a concern in the Tribunal’s eyes given they had given him a range of documents already. The concern was that this information was not being provided because they didn’t corroborate his claim. He said the information had been provided years before. It was put to him that the letter from his brother was only very recent so there was both old and new stuff. It was put to him they had been given two weeks to provide this information and the member had previous experience of individuals providing relatives’ [Country 1] refugee decisions as part of their claim so it was possible to access them.
There was also a potential issue about his religious identity and so the Tribunal required a statutory declaration from the sheikh. He said that he wasn’t religious so it didn’t matter to him. It was put to him that he had made a claim regarding his religious identity so the Tribunal needed to address it. It was put to him that he had provided a copy of a photo of his brothers’ house after it was bombed. It was put to him that there were no identifying features or date so it was difficult to apportion it ant weight as it could be of any house. There were also concerns about the legitimacy of his first marriage given they never lived together in Australia and was divorced by a Shi’a sheikh and there was a concern that the marriage may have been a way of entering Australia.
He was asked what occurred to his job in Erbil and he claimed he had applied for six months’ leave and was told that he had been dismissed – this was after KRG announced its independence. He didn’t know why he was sacked but he thought it was because they didn’t want any Arabs working for them. He had been there three years and they fired him. The message was sent via Viber and he may have a copy of it.
He claimed that he was from a community where marriage was taken seriously and divorce was seen as shameful on both sides. He was asked what the divorce rate in Iraq was and he claimed that it must ne a very minor percentage but he had left there years ago. It was put to him that there had been 60,000 divorces in 2009 and there were around 70,000 annually now – this appeared to be quite significant. There had been 700,000 divorces in the last ten years which appeared nit to be miniscule.
He said that he didn’t divorce directly as he was looking for solutions. He was asked and said he had not registered this divorce in Iraq as he didn’t know the procedures and that he might have to do that in the future. He was divorced in 2018. It was put to him that according to Iraq he was not divorced. He said that her family knew this – her family moved from Iraq to Australia in 2018. He said that he requested the divorce, not his wife. If he stayed with her he would be more likely to get residency than if he divorced her.
The applicant was also asked to provide any country information from media or databases tht may indicate there was a failed attack against his father that involved the use of a sticky bomb on a vehicle.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age] year-old married male. I accept that he is an Iraqi citizen and his claim will be assessed accordingly. He arrived in Australia [in] September 2017 on a spousal visa, has subsequently divorced and re-married. The applicant applied for protection on 21 February December 2018.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claim to generally lack credibility. For reasons set out below I did not find him to be a reliable, credible or truthful witness, and that he fabricated significant elements of his claim in order to be granted a protection visa.
There was a s 438 certificate on his electronic file however it referred to information related to the withdrawal of sponsorship for his spouse visa and the information was not relevant to his protection visa application hence it was not considered by the Tribunal in this matter. The applicant was informed of this by letter.
Ba’thist connections
I do not accept that the applicant’s father was a Ba’thist and was targeted or threatened because of it. As a consequence I do not accept the applicant will be targeted for being a family member of a Ba’thist. I have taken into account the evidence he provided in support of the claim however I lend it little weight. They consist of photos of men at sites and around a table, one of whom he claims to be his father. Even if I accept that this is true, it does nothing to indicate his position, title or role let alone that he was a Ba’thist.
He also provided a black and white photo of what he claimed was his father in a Ba’thist uniform. Again there is nothing to indicate who the photo is of and the uniform looks as though it could be an Iraqi army uniform rather than a Ba’thist uniform. He also provided a photo of a child next to a seated Saddam Hussein that he claimed was his brother – again there is no way of verifying this. The photo appeared to be from a newspaper, it could have been of any child, however the caption that could have identified the child was missing. The applicant stated that he would try and find the photo with the caption however he never provided it to the Tribunal.
All that is left then is the applicant’s oral testimony which is not sufficient to overcome my doubts. There are no media reports that could have supported his claim regarding his father, and I note that his father died after traveling to [another country] to seek medical treatment. Whilst sad it would appear strange that if he was such a target of the Shi’a militias as he claimed (and whom he also claimed ran the government), that he would be allowed to travel to [another country] to seek such treatment.
I also do not accept that his father was targeted with a sticky bomb placed on his car but that he was in the medical clinic when it exploded. If his father was a target it appears unusual that they would seek to blow up his car while he was inside a medical clinic rather than just shoot him. The timing is also very coincidental, the father allegedly being inside the clinic at the exact time the bomb detonated. There is no corroborative material such as media reports, witness statements or country information that could have given weight to this claim. Because I do not accept the father was an ex-Ba’thist I also do not accept that a threatening letter was placed under the windscreen of his father’s car in 2007.
Targeted as a Sunni
The applicant claimed to be a Sunni however the Tribunal has significant concerns that he is actually Shi’a. He was married in a Shi’a ceremony in Iraq. The Islamic divorce certificate from Australia he provided to the Tribunal described him as Shi’a. He claimed variously that the sheikh was Lebanese and didn’t know Iraqi names, or that the sheikh assumed he was Shi’a because his marriage in Iraq had been under Shi’a auspices. He was given the opportunity post-hearing to clear this up by providing a statutory declaration from the sheikh advising why he had inadvertently described the applicant as Shi’a however the applicant claimed that the sheikh would not do it and he could not compel the sheikh to do so.
The applicant claimed that his name was demonstrably Sunni as [it] was from [deleted]. He provided a Wikipedia entry to this effect as part of his protection visa application process and I note that the entry says the tribe is mainly Sunni but that there are minorities of the tribe that are Shi’a that live in several areas, one of which is Baghdad. I note that the applicant claimed he went to Sunni mosques in [Country 4], [Country 6] and Iraq but did not attend mosque in Australia, that his brothers told refugee decision-makers they were Sunni and that culturally he follows his father’s faith.
I place little weight on these claims, His brothers provided no corroborating evidence that they had claimed to be Sunni, his attendance at Sunni mosques in three countries relies on his uncorroborated claim and is inconsistent with his statement that he wasn’t religious. Regarding his father’s religion, I have already noted that the country information indicates the tribe contains Shi’a families within it (some of whom live in Baghdad) so there is nothing to indicate that the applicant’s father was Sunni.
I note that until 2006 they lived in [Location 1] which was a mixed Sunni-Shi’a area but in which Shi’a were targeted from 2005.[1] It is therefore plausible that they were forced to move because of the targeting of Shia – this would also explain why they chose to move to [Location 2], a Shi’a neighbourhood of Baghdad.
[1] [Deleted].
I do not accept that they moved there because his mother was Shi’a and the house was rented in his mother’s name – it makes no sense that an allegedly Sunni family with a senior ex-Ba’thist father would choose to move in 2006 to move to a Shi’a neighbourhood and stay there for several years. I am satisfied that they were able to live in [Location 2] because they were in fact Shi’a. The combination of the divorce certificate, the information provided by the applicant that says Shi’a members of the Dulaimi tribe live in Baghdad and their willingness and ability to live in a Shi’a area of Baghdad for years means that the Tribunal is satisfied that the applicant is actually Shi’a, not Sunni as he claimed.
Given this, it follows that the applicant is not, ever was nor would he be targeted by Shi’a militias because he is or was perceived to be Sunni (from an ex-Ba’thist family or not).
Targeted for working for a foreign company
While I accept that the applicant worked as [an] employee for [Company 1] for three months in 2005 I do not accept that he would be targeted for having done so. Although in his application statement he described [Company 1] as a US/[Country 5] company during the hearing he described it as [a Country 5] company. I am satisfied that is in fact [a Country 5 company][2]. Country information[3] indicates that Iraqis who work for foreign military forces or embassies or UNAMI may be targeted, however there is no indication people who worked for [a Country 5 company] 15 years ago would be of interest.
[2][Deleted].
[3] DFAT Country Information Report – Iraq, 17 August 2020, p 34.
The applicant was asked to provide country information that would support his claim and he provided media reports of attacks against [Company 1] employees although I note they were 15 years ago and applied to [Company 1] employees in the field rather than in an office role. I have taken the reports into account however given the length of time that has passed without any further targeting of [Company 1] employees I do not accept there is a real chance the applicant would be of interest to anyone because of his prior employment history.
Dispossession
I do not accept that the applicant’s family house had been taken over and that as a consequence he had nowhere to live. He was inconsistent in his account regarding who took it over. In his statutory declaration he claimed he did not know who took it over, in his DIBP interview he claimed that it was AQ, and at the hearing he claimed that it was Shi’a militias. I don’t accept that he claimed it was AQ because he was stressed at the interview. He didn’t claim to have made any other errors at his interview so it strikes the Tribunal as unusual that he would make such a strange mistake, given he could simply have said that he didn’t know or that it was Shi’a militias who had taken it over.
It also strikes the Tribunal as unusual that neither the applicant nor his family have taken any legal steps to sort out the situation with respect to their house although 15 years have passed since it was allegedly taken over. I do not accept that this was because it was his parents’ house – the applicant provided a copy of an Iraqi legal document that showed his parents’ assets were divided evenly between the children which meant they would all have a share in the house. As I noted above, it is possible that the family temporarily left [Location 1] in 2006 because of sectarian violence. However country information also indicates that there are legal avenues in Iraq to seek restitution or compensation for property destroyed, damaged or seized. This can be done either in person or via a third person using a power of attorney.[4]
[4] Property Compensation Guidelines, Global Protection Cluster, March 2020.
The fact that the applicant is unaware of any legal action taken by his parents between 2006 and when they died, or by his brothers in the past decade (or even what the laws were), does little to engender any confidence by the Tribunal as to the applicant’s truthfulness or the veracity of this claim. I also do not accept that they were afraid to contact the authorities because they were controlled by the militias. To begin with he didn’t know anything about the process for recovering property so his fear of having to deal with Shi’a-dominated entities is unconvincing. Second, given I have found the applicant to be Shi’a this also tells against his alleged fear of having to deal with Shi’a authorities. And finally, given the process could be done through third parties via a power of attorney there is no need to be physically present to initiate the process. The fear of this action being known by the Shi’a militias is also inconsistent with his previous claim that he didn’t know who was behind the housing takeover.

Given this, I am satisfied that the applicant has access to residential property in Baghdad in which he is at least part-owner. I also do not accept that he has no family there – he has advised the Tribunal prior to the hearing that at least one uncle and three cousins live in Iraq. Given this I see no reason why he would have to relocate elsewhere in Iraq as he has a residence and a family network in the country.
Other Issues
The applicant’s failure to apply for protection while he attended a course in [Country 8] in 2014 is also a further indication that the applicant does not fear serious harm on return to Iraq. If his claims were to be believed, by 2014 his father had been threatened and was the victim of an unsuccessful bombing attack, they had been dispossessed of their house, a bomb had been placed in the garden of their home, and he was wanted for being the Sunni son of a prominent ex-Ba’thist and for having worked for a foreign company. It lacks credibility that if this were true he would not have sought asylum in [Country 8] at the time simply because he had promised his employer that he would return. Rather, I find that he did not claim asylum in [Country 8] at this time because none of these claims were true.
I also do not accept that the applicant would face serious harm because his brothers had been recognised as refuges (and he himself had applied). I am not satisfied anyone would know they had applied as refugees in the first place as there were various ways of leaving Iraq and residing or being granted citizenship elsewhere. He provided no country information to support a claim that people who had done so would be targeted. Indeed, available country information indicates the exact opposite, that the practice of seeking asylum is well accepted and individuals who are granted asylum often return to Iraq shortly after.[5]
[5] DFAT Iraq Report, p 64.
The Tribunal also notes the lack of corroboration regarding the applicant’s claims from his siblings. One of them was accepted as a refugee in [Country 1], and the other as an asylum seeker by the UN in [Country 3]. Even if they were unable to get a copy of their protection decision neither of them provided anything by way of a statutory declaration or other correspondence when they would have been in no doubt as to the importance of any such corroborating material.
The applicant’s brother in [Country 1] provided the applicant with information such as a photo, letter of acceptance of his claim and copy of his passport and visa. The other also produced a copy of the letter from UNHCR in [Country 3]. Nothing regarding the nature of their claims they made could be discerned from what they provided.
I also do not accept that a bomb was placed in the garden of the family’s house. It relies on the applicant’s oral testimony which lacks credibility, I have found that the family were of no interest to any actor in Iraq at the time so the deliberate targeting also makes no sense. The timing of the blast, occurring as it did when nobody was at home is again coincidental in the same way as the sticky bomb on his father’s car exploding when he was in the clinic was coincidental – I believe neither account to be truthful and simply a way to explain the lack of casualties. I have taken into account a photo it is claimed was the damage caused by the explosion but lend it little weight. It is undated and could have been taken of damage suffered by any residence at any time.
Because I do not accept the applicant’s account regarding his religious identity or of his father’s background as a Ba’thist, I also do not accept that the applicant’s brother [was] targeted for killing or that the applicant received death threats on his mobile when he re-inserted it into his phone on his return to Iraq from overseas.
I have also taken into account a range of country information provided by the advisor post-hearing but lend it little weight. It is lengthy but largely dated and not relevant to the applicant’s claim in many cases. The section on the Iraqi security situation for instance uses mainly reports (many from the media) dating from 2014, when Islamic State burst onto the scene. Its relevance to the situation in 2021 is not made apparent to the Tribunal. Similarly in the section in which he argues the case for the persecution of Sunnis I can find no reference more recent than 2014.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is Sunni, that his father was a Ba’thist who reported to a minister, that his family was ever targeted, their house was taken over by any group, that he would be targeted because he worked for [Company 1] for three months in 2005, that he would be targeted because brothers had been granted asylum I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
I accept that the security situation in Iraq varies by location and can be unstable and fluid as per the latest DFAT country information report. I also note however that the applicant has the family house in Baghdad and family connection, and is not a person of interest to any armed group in Iraq. As a result I am satisfied that whatever risk the applicant may face from any incidental violence is faced by the population of the country generally and not by the applicant personally.
As a consequence of my findings above I therefore do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
…

[2021] AATA 3897

12 August 2021.

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice