1917647 (Refugee)

[2024] AATA 4091

1917647 (Refugee) [2024] AATA 4091 (11 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Latifa Al-Haouli (MARN: 1175724)

CASE NUMBER:  1917647

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Denis Dragovic

DATE:11 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 11 July 2024 at 8:09am

CATCHWORDS
REFUGEE – protection visa – Iraq – member of a well-known Baath Party family – Sunni religion – academic – returnee from West – request an extension of scholarship term denied applicant’s failure to return – salaries of guarantors subjected to garnishment – threats from one guarantor – family’s relocation – arrest warrant – complementary protection criteria – detention by Iraqi state upon return – significant harm upon incarceration – unable to relocate – decision under review remitted

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

CASES
Applicant A v MIEA (1997) 190 CLR 225
SZTAL v MIBP (2016) 243 FCR 556

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Iraq. He applied for the visa on 9 September 2016. The delegate refused to grant the visa on the basis of the applicant’s original claims which were amended after the Departmental decision due to changing circumstances. The original claims were that he feared harm for reasons of being a member of a well-known Baath Party family, a Sunni, an academic and a returnee from the West. The delegate refused the visa on the basis of finding the claims did not reach the threshold level of risk based on the available country information.

3. The applicant appeared before the Tribunal on 28 May and 3 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing. I want to thank the representative, Ms Latifa Al-Haouli, for the detailed submissions and deeply thought through contributions to this case.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant made an application for protection in 2016 on a limited basis shortly after beginning his doctorial studies at the [University 1]. The claims included being a member of a well-known family tied to the Baath Party, a Sunni, an academic and a returnee from the West.

13. In summary, relating to these claims, he stated that following the United States invasion members of the majority Shia community moved into the area where his family and other Sunnis lived leading to them being forced to move out following generalised threats. He claimed that his brothers were targeted as a part of their work because they are Sunni. He described being harassed at check points because he was Sunni. He claimed that in 2015 an official at the university advised him not to continue in his role as there were people who wanted to kill him. He said that a threat letter was conveyed to him. He described a general level of insecurity facing academics.

14. His circumstances changed drastically in 2019 as additional risks emerged which are at the heart of his current claims, and I will engage with these first.

15. The applicant started his doctoral studies in [Course 1] in 2016 by way of a scholarship from the Iraqi government. The applicant explained at the hearing that the scholarship was fully funded for three years. He claimed that the [University 1] doctorate in [Course 1] is a four-year degree course, a claim backed by information from the University’s website.[1] He claimed that it was standard for scholarship recipients to request an extension of the term of the Iraqi scholarship so that students can remain to complete their studies. The process, he explained, was managed via the Iraqi Embassy in Australia.

    [1] [Deleted].

16. This claim is supported by a document found in his student visa file, a letter from the Ministry of Higher Education and Scientific Research, Scholarships and Cultural Relations Directorate, Studies Abroad Department, dated May 2014 in which it states that the applicant is sponsored for a three-year PhD program which, ‘might be extended according to the student academic progress report and the approval of the host university.’

17. The applicant claims that he approached the Iraqi Embassy to extend his contract including by having sourced funding for the final year from the [University 1]. He said that he was refused support for an extension even though it was at no cost to the Iraqi government. Select email correspondence was provided as summarised below. Other email correspondence was available for the Tribunal to request but had not been translated:

    a.Letter dated [February] 2019: The applicant receives a letter from the Iraqi Embassy acknowledging that they have referred the request for an amended period to the relevant Department in Iraq. A list of names was provided to the Department including the name of the applicant.

    b.Letter dated [February] 2019: A letter from the Iraqi Department not approving the amended period.

    c.Letter dated [March] 2020: A letter from the Iraqi Embassy asking the applicant why he was absent from studies for a period of two months in 2020 without the approval of the Embassy.

    d.Letter dated [October] 2020: Notifying students who have not had their study period modified from 3 to 4 years that consultation is being undertaken with the relevant Iraqi finance sections regarding availability of financial allocations for scholarship students ‘who wish to modify their study period from three to four years.’

    e.Letter dated [November] 2020: This letter notifies the applicant ‘it has been decided to close your academic/study file and implement the terms of the contract against you, making you liable for all financial and legal consequences. This is due to the exhaustion of all legal deadlines granted to you, and your failure to achieve the study certificate.’

    f.Letter dated [February] 2021: This letter is from the applicant requesting that his request for reconsideration be forwarded to the relevant Department in Iraq for the second time arising from correspondence dated [January] 2019 pertaining to requests to amend study periods from three to four years.

    g.Letter dated [February] 2021: A letter from the Iraqi embassy notifying affected students that their file is now closed.

18. As his request for an extension was denied, he had to abide by the terms of the scholarship which was to return to Iraq. Problematically, according to the applicant, as he had not been able to complete his studies in the timeframe allowed by his Iraqi scholarship contract (i.e. 3 years), he was now liable to repay the entire cost of the scholarship, which amounted to three years of fees to the university, stipend, and his ongoing salary as a lecturer at his Iraqi university and then to further deter recipients from remaining abroad the obligation included doubling the final figure. In the applicant’s case he claims that this amounted to AUD$950,000.

19. The contract was provided to the Tribunal. There is no figure included but it states at ‘Secondly’ and paragraph [4]:

    If he did not comply with the terms stated in this contract or if he was convicted with a criminal offence, then the minister will terminate his scholarship and oblige him to return to Iraq and repay double of the amounts spent on him.

20. While the applicant does not dispute that these were the terms that he signed, he has concerns that the decision by the Embassy official was discriminatory because he is Sunni. He explained that he knows many other Iraqis who have had extensions granted and notes that his course at a top tier university is known to require more than three years and yet an extension at no cost to the Iraqi government was not approved.

21. The applicant claimed that there were only three scholarship students in [University 1], and they were all Sunnis and all were denied extensions. He said that there were Sunnis who had their visas extended giving the example of some at [another] University, but he noted that the reason for this was that they had come on the same list as other Shia students and hence they all had to be extended or none would be extended. I suggested that this was unlikely, noting that if there was going to be discriminatory treatment at the level being suggested by the applicant then some administrative process of separating out Shia from Sunni students would not be an impediment.

22. I suggested that the reason for the three Sunnis not being granted their extensions at the [University 1] could be for other reasons such as the size of the fees. He said that the process of obtaining a scholarship involves upfront knowledge of the fees and as such the Iraqi government was aware of the costs. He claimed that the support letter that was received at that time from the Embassy for the administrative purposes of the [University 1] indicated a willingness to extend to four years if required.

23. Adding to the applicant’s concerns over his debt is that to obtain the scholarship he was required to have three guarantors who committed to cover the expenses if the applicant did not return to Iraq. As the applicant has not returned nor has he paid the debt, he claims that the salaries of his guarantors have been subject to garnishment.

24. The scholarship contract provided to the Tribunal by the applicant states at ‘Thirdly’ and paragraph [3]:

    If the second party did not comply with the terms and conditions of this contract, he is then liable to repay all the amounts due. The amounts must be repaid by the second party or his guarantor in a one-deal process pursuant to Debts Act number 56-year 1977, with their fixed and movable assets are to be a security for debt collection.

25. The third guarantor was his aunt. A document dated [October] 2023 conveyed to his aunt from the Ministry of Higher Education and Scientific Research was provided to the Tribunal which was headed Subject/Order to Seize Assets. The document identifies the two guarantors who are associated with [University 2] and states that as the money owed has not been repaid ‘We have ordered the seizer of their movable and immovable assets that are equivalent to the amount mentioned above. This order has been allocated to executive officer for execution.’ The amount listed is 833,043,386 Iraqi dinars.

26. The applicant explained that his aunt received the letter directed at the other two guarantors as she is one of the three and so the same seizure letter that went to her employer was provided to the other guarantors as well. This is plausible.

27. The applicant claims that one of the guarantors has sought to harm him because the only solution for the guarantors to exit the predicament of having their salaries seized is that either the money is repaid or that the scholarship holder passes away. Oral evidence was given by the applicant that he had already attempted suicide as a solution.

28. But noting that the seizure order was dated October 2023 and nearly a year has passed, I asked the applicant whether there was any practical benefit in his death considering that the assets were seized in a ‘one-deal process’. The applicant explained that the wages have been seized for his guarantors and the law allows for the seizure to be lifted if the debtor dies.

29. Upon the request of the Tribunal the representative provided a submission supporting the applicant’s claims regarding the annulment of a debt under Iraqi law:

    a.Article 42 of the constitution: ‘The government debt owed by the debtor shall be written off if it is proven that he died without leaving any assets. If he left any assets, the shares of the minor heirs shall be excluded from it and the government debt shall be paid from what remains of the estate. If the remainder is not sufficient to pay the debt, the excess shall be written off.[2]

    b.A publicly available direction from the Acting Director General of the Legal Department of the Ministry of Culture which oversees the scholarships program: ‘Paragraph (1) of Resolution No. (129) of 1982 stipulates: “The government shall write off any debts owed by a person who dies without leaving any assets. If there are some assets left behind, the debts will be paid from remaining assets after paying the shares belonging to minor heirs. If the net amount of the said assets (after excluding the minor heirs' share) is not sufficient to pay the whole government debt, the remainder of the debt shall be written off).’[3]

    [2] الم توفي بذ % 20 مة حك % 20 ومي دي% 20 ن .pdf

30. The applicant claimed that during tribal mediation the guarantor who wants to harm him demanded that either the money be paid or that the applicant return to Iraq.

31. It is claimed that on two occasions in July 2022 armed men came to the applicant’s family house in Baghdad. On the first occasion it was claimed that the armed men engaged with his father and told him that the applicant had to return otherwise they would kill one of his other sons. Three days later the same vehicle came, and the same man again asked for the applicant and as his father explained that he was not home, another man in the vehicle started firing shots. On this occasion they also said that unless the applicant came out, they would kill another sibling. As a result of these threats, the applicant’s family in Iraq are claimed to have relocated to Kirkuk and are currently living in a poor neighbourhood with the support of a family friend. He claims that his brothers are working without any contracts and are not registered with any government official. He said that the only official that knew of their move to Kirkuk was the local village chief (mokhtar) of their originating area.

32. The applicant believes that the guarantor who wants to harm him, who he has known for a number of [years], has connections to militia and that he would be able to fulfil the threat of having him killed. The applicant explained that the guarantor lived in [a] predominantly Shia area, and knew Shia militia.

33. I noted to the applicant that Kirkuk is a mixed ethnicity and sect city[4] and as such Shia militia would be able to reach his family there and yet they haven’t been harmed. I put to him that the most obvious course of action for the guarantor was to arrange for the militia to detain one of his relatives and send a message that either he returns to Iraq or the relative will be harmed. I noted that this had not happened even to his sister who continues to live in [location] where the applicant was originally from and as such she would be known as being the sister of the applicant.

    [4] >

    The applicant acknowledged that his sister is in touch with his family but claimed that she does not know their whereabouts and as such could not reveal the information. He suspected that no one has sought her out because she is married to a man from a different tribe.

34. The applicant provided a warrant for his arrest which was signed [September] 2022. It lists his name, his father and two brothers. The warrant references s 432 of the Iraqi Criminal Code as the basis of the investigation. This section states:

    Article 432 - Any person who threatens another by word or action or in a written or spoken reference or through another person or in circumstances other than those mentioned in Articles 430 and 431 is punishable by a period of detention not exceeding 1 year or by a fine not exceeding 100 dinars.

35. The applicant believes that this is a surreptitious way of the guarantor using the state to find the applicant or one of his male siblings and parents. He believes that once found by the state then he could be easily killed by the guarantor’s proxies.

36. The applicant explained that he received the warrant by way of his family who in turn received it from the mokhtar (mayor) of their previous residence in Baghdad. He said that the mokhtar is known to the family and that his father has contact with him but that the mokhtar does not know specifically where they are living.

1. I asked how the family could be in hiding if both the mokhtar and the sister knew where they were. He said that it is common that the mokhtar would have the phone numbers but not knowledge of the specific location. That the mokhtar from their former area of residence knew that they had moved to Kirkuk but not where in Kirkuk is plausible.

2. In considering the applicant’s narration I asked him to explain what his plans were when he first applied for protection in 2016 noting that this was shortly after he arrived in Australia and in particular that he would have known then that his guarantors would have been liable were he to be successful. He said that he knew that his guarantors would be obligated to repay the debt and that he planned to work and repay the debt. He said the guarantee was for 140,000,000 dinars in total across all three guarantors. He said that he was surprised that the guarantors were subsequently asked to repay the entire debt that he owed rather than what they had committed to back. He believed that the doubling of the debt was limited to him alone and not to the debt to be repaid by the guarantors.

3. He said that he didn’t have an agreement with the guarantors to repay them but rather that he intended to repay them if he was successful in his attempt to stay in Australia. He said that he felt that he didn’t have an option, as he felt threatened were he to return. He referenced the threats from militia arising from him being a Sunni academic as being the reason for fearing returning. Detailed information about this was provided by the applicant to the Tribunal both in written and oral form but is not repeated at this stage of the decision.

4. I asked for an update on the outcome of the asset seizure noting that the seizure notice was dated October 2023, nearly a year before the hearing. He said that regarding his aunt, her salary [was] seized in November 2023 and that she has survived as her husband works.

5. I find the applicant to be credible. I accept the central elements of the applicant’s claims, namely that his studies were guaranteed by three people, that they received seizure notices and that there is an arrest warrant in his name. I also accept that threats were made as described above and the family including the males in his family moved to Kirkuk. I now turn my mind to considering the implications of these circumstances.

   Considerations

6. In considering the circumstances to which the applicant would be returning to I first consider what would happen upon arrival to Baghdad airport. I requested information from the representative as to whether immigration control would have access to arrest warrants issued by the various police forces of the country.

7. The representative referenced Article 94 of the Iraqi Code of Criminal Procedure No (23) 1971 which states:

   A- The arrest warrant shall be effective throughout Iraq and must be executed by whoever it is directed to and shall remain in effect until it is implemented or cancelled by whoever issued it or by a higher authority authorized by law

8. There is evidence that the US government supported the development of a national criminal records database between 2001 and 2009.[5] In addition, it is logical to assume for the effectiveness of arrest warrants authorities need to be able to identify individuals. It would be impractical for a national warrant to exist without an effective database for law enforcement.

   [5] >

   As such I accept that the applicant will be apprehended for one or both of two reasons. Firstly, with regards to the government debt owed. Country information was provided by the representative with regards to the Debts Act Number 56 (1977). The relevant information is that the creditor may request the imprisonment of the debtor for up to a maximum of 4 months. The creditor in this case being the Iraqi state. The second reason for his arrest would be the arrest warrant, which is presumed to have been sought by one of the guarantors.

9. In such a situation the applicant would be detained.

10. I find that detention amounts to what would be considered serious and significant harm based on the country information detailed further below. But there are provisions under both s 36(2)(a) and (aa) that engage with the concepts of laws of general application and lawful sanctions respectively which may limit the applicant’s circumstances meeting the threshold in the Act.

    Laws of General Application

11. In the context of the refugee threshold in the case of Applicant A Dawson J agreed with the observations of the Full Federal Court in MIEA v Respondent A and B[6] that,

    Since a person must establish [a] well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.

    [6] Applicant A v MIEA (1997) 190 CLR 225 at [245]

12. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook) similarly but more succinctly states:

    56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.

13. The harm the applicant faces arising from his detention appears not to be for any other reason than a breach of a contract that led to the applicant owing a debt to the state or following a possible finding by a court that he had threatened another person.

14. These are not discriminatory laws targeting people on the basis of refugee nexus traits nor is there evidence to suggest that they would be selectively applied by the judiciary against the applicant.

15. With regards to the breach of contract, the applicant had claimed that the reason why he ended up in the situation he faces is because the Iraqi authorities were treating him and his Sunni colleagues at the [University 1] discriminatorily. He claimed that all three scholars at the [University 1] had their requests for extension blocked. But as noted above, other Sunnis in other institutions according to the applicant’s evidence had their requests for an extension approved. It is highly unlikely that the Iraqi government only targeted Sunnis at the [University 1] for reasons of the administrative complexity of separating out those who came in the same intake as other Shia, as the applicant had claimed. For this reason, I do not accept that the treatment the applicant received was discriminatory.

16. As such, I find that the punishment of imprisonment for not paying a debt or for reasons of threatening another by word or action arises from a law of general application as anyone who transgresses it is liable to being punished.

17. For this reason, were the applicant to be arrested at the airport, charged, and convicted with a sentence including incarceration, I find that such harm does not meet the threshold requirements of s 36(2)(a).

    Lawful Sanction

18. I now turn my mind to consider whether the applicant’s incarceration would lead to the applicant meeting the criteria in s 36(2)(aa).

19. The applicant will be imprisoned. The Tribunal must consider the country information regarding prison conditions in Iraq and treatment of prisoners and assess whether the applicant would be tortured, treated in a cruel or inhuman way, or suffer degrading treatment or punishment as per s 36(2A). In doing so there needs to be evidence of intentionality to inflict harm upon the applicant as per SZTAL v MIBP.[7] 

    [7] SZTAL v MIBP (2016) 243 FCR 556 at [61]–[62]

20. The most authoritative information on prison conditions in Iraq by a non-Iraqi body can be found in the United States Department of State Human Rights Reports. The information in the 2023 report states:

    Prison and Detention Center Conditions

    Prison and detention center conditions were harsh and occasionally life threatening due to food shortages, gross overcrowding, physical abuse, inadequate sanitary conditions and medical care, and the threat of communicable illnesses.

    Abusive Physical Conditions: The number of alleged ISIS members detained by the government exacerbated systemic overcrowding in government-run prisons…In April, the Ministry of Justice confirmed that government prisons were at 300 percent of capacity. The Ministry of Justice announced the dismissal of the director of Rusafa prison after acknowledging the prison was at 400 percent capacity.

    …

    Reports alleged an estimated 60 adult inmates died…Amnesty International reported courts imposed long prison terms and death sentences in ISIS-linked cases “following convictions based primarily on torture-tainted confessions.” Human Rights Watch reported 13 prisoners were executed on December 25 in Nasiriyah prison. According to Human Rights Watch (HRW), most of the men were convicted of terrorism and executed without transparency, advance notice, and the inability to call their families or lawyers. HRW cited this as the first “mass execution” since the practice was largely halted under the previous government in 2020.

    In September, Musab al-Alusi, a fellow at the Gulf International Forum, reported authorities kept inmates in detention for long periods before their sentences were issued, and security guards exposed detainees to various types of torture.

    …

    In July, the Ministry of Justice acknowledged the spread of diseases in prisons due to overcrowding and stated it would coordinate with the Ministry of Health to improve the health conditions of prisoners. The ministry explained “the health situation inside prisons” was “one of the most prominent obstacles facing the ministry’s work,” as “diseases have spread among inmates” as a result of overcrowding.

    International and local human rights groups reported authorities in numerous instances denied family visits to detainees and convicts. In many cases, the families of inmates had to pay large bribes to visit their relatives in person. Guards allegedly demanded bribes or beat detainees when detainees asked to call their relatives or legal counsel.

21. The Iraqi NGO, Justice Network for Prisoners (JNP) in Iraq, has an extensive and long held role of investigating the conditions of Iraqi prisons. The latest report that I could find was Submission to the UN Universal Periodic Review of Iraq, For consideration by the Office of the UN High Commissioner for Human Rights for the 34th session of the UPR Working Group in November 2019. The report details its areas of concern which, relevant to the applicant’s case include:

    3. The Iraqi prison system is still limited to providing all the detention facilities with libraries that help the prisoner to educate himself and fill the leisure time with what is useful and to learn about life in the outside world. However, the teams noticed the availability of libraries in a very few numbers of reformatories.

    4. Medical and health equipment’s: - the detention facilities and the prison system in Iraq vary in the level of medical services. The levels of equipment for these medical institutions vary in terms of availability of laboratories, dental equipment and ambulances.

    5. Overcrowding in prisons and detention facilities in Iraq; the size of the overcrowding experienced by the prison system in Iraq and all ministries is noticed. The overcrowding results in negative effects, which are summarized as follows: - Lack of land space that preserves the dignity of the prisoner…Malnutrition…The spread of diseases, especially infectious ones.

    9. Only 42% of the prisons and reformatories buildings are in bad condition, to 32% of the building has minimum and 26% in very good condition.

    12. Only two third of the prison buildings enjoy a favorable environment in terms of ventilation and exercise, while these requirements are not available in the rest third of them

    13. Only two third of the prison institutions provide bedding for the prisoners, such as beds, bed sheets and blankets, Lack of initial bed forces some prisoners to sleep on the ground or in the entrance of the rooms they are jailed in.

    19. JNP teams have monitored numerous allegations of torture and ill-treatment of prisoners and during tours and field visits to prisons and detention centers.

    25. Attempts to commit suicide (26%), which means that the rate is lower than last year by 3%.

22. The report notes that most prisons have an Office of Human Rights situated within the facility and that UN and ICRC teams have access to the majority of detention and reform facilities.

23. With regards to overcrowding a UN group of Experts from the Committee Against Torture after reviewing the second periodic report of Iraq raised questions of overcrowding with the official response in 2022 being:

    The State was in the process of building new prisons and expanding existing prisons to solve the problem of overcrowding.[8]

    [8] >

    Dr Masaab Al-Aloosy, a scholar on Iraq, writing in an undated article circa 2023 on prison conditions describes some events that have occurred in Iraqi prisons:

    Despite the constitutional prohibition of torture, it is widespread in Iraqi prisons. The courts effortlessly accepted forced confessions from inmates, and 42 inmates died in one prison from torture and malnutrition within 5 months.

    One inmate was hung for many hours several times while being beaten by the prison guard. He did not reveal to the judge the cases of torture for fear of reprisal from the guards. Other inmates faced an even grimmer outcome. A prisoner in Basra was arrested because he shared the same name of a criminal and died under torture. Another inmate was tortured and forced to confess to the killing of his wife on a television program. Six months later the wife returned and he was released afterward. Another prisoner in Kirkuk was arrested on charges of terrorism and was tortured by the federal police. Still he was released because he only had a similar name to a terrorist. Two security officers in the same prison stated that some colleagues enjoy practicing torture, and they considered it a hobby.[9]

    [9] >

    It is clear from the above country information the situation in Iraqi’s prisons is harsh but for prison conditions themselves to amount to significant harm in the context of s.36(2)(aa) an element of intentionality to cause significant harm is required.

24. As prisons intentionally deprive inmates of their liberty, and limit prisoners’ ability to access their own food or clothes, there is an inherent intentionality behind some harm that impacts prisoners. But being deprived of liberty and having to wear prison clothes and eat prison food, in of itself does not amount to significant harm. Nor is there evidence to suggest that any such harm arises from an intentionality in the design of the Iraqi prisons (i.e., reducing lighting, making cells particularly small, removing outdoor activity space), or that the lack of upkeep or the management approach of the prisons is being manipulated to intentionally inflict significant harm on prisoners as opposed to being simply a factor of a limited budget and few resources.

25. There is, though, clear evidence that torture occurs, and overcrowding is widespread in Iraqi prisons. Both can lead to significant harm depending upon certain factors. It is relevant to note that the presence of these two characteristics of life in Iraqi prisons is widely known because of the work of the local Iraqi NGO the Justice Network for Prisoners and, as noted in the US State Department report, because the director of Rusafa prison was fired after acknowledging, presumably publicly, that the prison was at 400 percent capacity. As such judges who sentence people to terms of imprisonment are intentionally committing them to circumstances that may amount to torture, cruel or inhuman treatment or punishment or degrading treatment.

26. As there is an intentionality that ties the significant harm the applicant could face I now turn my mind to consider whether the harm he faces would amount to a real risk of significant harm.

    Are the conditions in Iraqi prisons such that they amount to significant harm?

27. For the applicant to be found to face significant harm arising from prison conditions the Act requires that the circumstances he faces would be such that they impose an act or omission by which either:

    (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;

    Or

    that causes, and is intended to cause, extreme humiliation which is unreasonable

    Or

    by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person [for particular reasons defined as torture]

28. In addition, the Migration Act specifically defines these forms of significant harm as being acts or omissions that must not be ‘inconsistent with Article 7 of the Covenant’ referring to the International Covenant on Civil and Political Rights (ICCPR).

29. Article 7 of the ICCPR states ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’

30. The Department of Immigration’s Complementary Protection Guidelines engage with the question of whether detention, imprisonment and prison conditions can amount to significant harm. The Guidelines describe instances that the United Nations Human Rights Committee have found breaches of Article 7 including:

    ·extremely cramped, overcrowded or unsanitary conditions

    ·exposure to cold

    ·inadequate ventilation or lighting

    ·lack of adequately nutritious food or water, adequate clothing or a separate bed, or opportunity for adequate exercise

    ·threats of torture or death

    ·prolonged solitary confinement or total isolation, including being held incommunicado

    ·denial of medical treatment

    ·inadequate medical services

    ·harsh rules of conduct and discipline restricting fundamental rights of prisoners, for example: the use of harsh punitive measures such as frequent resort to solitary confinement or being forced to maintain a certain position for prolonged periods of time, unfair procedures for deciding on disciplinary measures, inadequate protection against reprisals by warders, lack of a credible complaints mechanisms and frequent use of protective measures such as leather handcuffs

    ·violent treatment in detention, including acts such as beatings or assaults by prison warders, mock executions, theft or destruction of personal possessions, or displaying prisoners in a cage to the press.

    In the context of detention, force may be used by authorities to enforce discipline, but that use of force must be proportionate in light of the circumstances.

31. The reference case for extremely cramped, overcrowded, or unsanitary conditions is a 1984 case in which Views of the Committee were that the Dominican Republic had breached Article 7 when the alleged victim was:

    taken to a cell at the secret service police headquarters, from where he was transferred to another cell measuring 20 by 5 metres, where approximately 125 persons accused of common crimes were being held, and where, owing to lack of space, some detainees had to sit on excrement. He received no food or water until the following day. On 16 June 1984, after 50 hours of detention, he was released.[10]

    [10] UN Human Rights Committee, Views: Communication No 188/1984, 31st sess, UN Doc CCPR/C/31/D/188/1984 (5 November 1987) (‘Martinez Portorreal v Dominican Republic’) [9.2]. See type="1">

    As a reference to inadequate ventilation and lighting the matter of UN Human Rights Committee, Views: Communication No 577/1994, 61st sess, UN Doc CCPR/C/61/D/577/1994 (6 November 1997) (‘Polay Campos v Peru’)[11]:

    The author further submits that her husband is held in a subterranean cell where sunlight only penetrates for 10 minutes a day, through a small opening in the ceiling. During the first year of his prison sentence, he was not permitted visits by any friends or relatives, nor was he allowed to write to anyone or to receive correspondence. A delegation of the International Committee of the Red Cross has been allowed to visit him.

    The Committee finds that the conditions of Mr. Polay Campos' detention, especially his isolation for 23 hours a day in a small cell and the fact that he cannot have more than 10 minutes' sunlight a day, constitute treatment contrary to article 7 and article 10, paragraph 1, of the Covenant.

    [11] >

    There is scant evidence to suggest this is a current issue in Iraqi prisons.

    As an example of a finding of a breach of Article 7 with regards to a lack of adequate nutritious food or water, adequate clothing or a separate bed, or opportunity for adequate exercise the Guidelines reference UN Human Rights Committee, Views: Communication No 458/1991, 51st sess, UN Doc CCPR/C/51/D/458/1991 (21 July 1994) (‘Mukong v Cameroon’) [9.4]

    He was continuously held in a cell…measuring approximately 25 square metres, together with 25 to 30 other detainees. The cell did not have sanitary facilities. As the authorities refused to feed him initially, the author was without food for several days, until his friends and family managed to locate him.[12]

    [12] >

    In the matter of Mukong v Cameroon the committee notes that certain minimum standards of detention must be observed and specifically references Rules 10, 12, 17, 19 and 20 from the UN Standard for the Minimum Rules for the Treatment of Prisoners. In summary, the document states that accommodation should meet the requirements for health including minimum floor space, lighting, heating and ventilation; that sanitary installations shall be adequate; that appropriate clothing is accessible; that each prisoner shall have their own bed; and that the food provided should have a sufficient nutritional value.

    In considering the applicant’s case and specifically whether detention in Iraqi prisons meets the threshold of significant harm, I note that this is a highly subjective assessment with incomplete information available to the Tribunal. Unlike matters considered by the UN Human Rights Committee, this Tribunal does not have the benefit of responses to questions by the state party. Instead, I am limited to the information that is publicly available.

    I note that the Departmental Guidelines and the views of the Human Rights Committee are only guidelines and views. I do not place any greater weight on them than that. Nevertheless, the Act specifically references Article 7 of the ICCPR in that it cannot be breached and as such the views of the Human Rights Committee on what constitutes breaches of Article 7 are informative. The examples of breaches of Article 7 include situations in which there is targeted ill-treatment which is compounded by poor facilities or extremely poor conditions.

    The circumstances that the applicant faces would be harsh and as such challenging for him. There is evidence of some instances in Iraq’s prisons that would amount to breaches of Article 7, but the occurrence of such instances is described by the US State Department as ‘occasional’ and the examples relate overwhelmingly to ISIS prisoners.

    One source noted that 100 detainees died from torture and described it as ‘systematic’. The same report noted how each of the major factions within Iraq controlled their own prisons creating a sectarian prison system.[13]

    [13] >

    I acknowledge that the large influx of ISIS prisoners has contributed to the overcrowding in the overall prison network. In such cases does the harm arising from the spread of diseases, lack of bedding and limited food[14] amount to significant harm? Having reviewed the views of the above-mentioned Human Rights Committee for context and the referenced country information, I find that while there are reasons for serious concern about prison conditions, the situation in Iraqi prisons is not consistently uniform such that every prisoner in Iraq simply by being incarcerated has their Article 7 rights breached.

    [14] Additional reference: >

    In some instances, some profiles of prisoners, would lead to them facing discriminatory treatment and a higher risk of harm such as torture for former ISIS fighters or sexual assault for women. There is no evidence to suggest that Sunnis, academics, or people who lived in the West are treated more harshly. As such, I find that the laws that would lead to the applicant being imprisoned are lawful sanctions.  

    For these reasons, I find that the applicant does not face a real risk of significant harm as defined in the Act for the purposes of s 36(2)(aa).

    The guarantor’s attempts to harm the applicant.

    The applicant fears that during court proceedings or if he is released on bail, he will be exposed to the mercy of his guarantor who he fears will arrange for someone to kill him.

    Accepting that he is required to attend at a particular time and place and the guarantor is made aware of it as the complainant in the case, the question is whether there is a real chance that the guarantor would go through with the demand to have him extrajudicially executed noting that the basis of any motivation to harm the applicant is claimed to cease the garnishment of his salary.

    As noted above, the evidence before me indicates that the death of the debtor would eliminate the debt which I read to extend to the debt owed by the guarantor without any other information indicating otherwise.

    Whether the guarantor has the motivation to order him to be killed is difficult to ascertain. Even accepting that the two incidents at the applicant’s family home were instigated by the guarantor, the people did not harm any of the applicant’s siblings even though they had promised that they would despite returning a second time.

    As noted to the applicant, kidnapping in Iraq is not an unusual occurrence. The option, were the guarantor serious about harming the applicant, would be to kidnap one of his siblings and demand that he returns to Iraq. Something akin to such a threat appears to have occurred as they threatened to kill one of the siblings if he didn’t return. But ultimately, the applicant didn’t return, and the sibling wasn’t killed. Instead, the applicant has claimed that the family relocated to Kirkuk and has not been found despite the sister living in [location] and the mokhtar knowing their general whereabouts.

    Could the guarantor have lost his nerve? Maybe he didn’t have the money to pay for an assassination or a kidnapping but only for threats. Maybe the militia he engaged didn’t want to act extrajudicially without greater justification. These are all possible explanations as to why the family hasn’t been harmed.

    On the other hand, the situation may be different for the applicant. If the applicant were present in Iraq, would the guarantor find the resources or the motivation to kill him? If the militia had previously hesitated, would they now not hesitate considering that the applicant was directly responsible for the misfortune?

    In considering this issue I reflect on the family’s move. That they went into hiding would indicate that there was a genuinely held fear. But the test that applies in these circumstances is not necessarily the same as what a family would apply in their own circumstances. It may be that what I, as a decision maker, consider to be less than a real chance or real risk is nevertheless not a risk that a family is willing to take. As such, while I accept the family’s move to Kirkuk, it does not necessarily mean that the applicant faces a real chance or a real risk of the harm he and they fear but it does lend credence to the threat.

    It’s also relevant to consider the broader context. A person living in Australia may not see violence as a viable pathway but were they to have been inured to violence through years of witnessing it as an Iraqi would have, whether in the immediate past due to the rise and fall of ISIS, the chaos accompanying the US invasion or the repression of Saddam’s regime, leveraging threats and using violence may be a bridge more easily crossed.

    The applicant is Sunni, this is also relevant. With victor’s justice prevalent in Iraq, whereby the Shia now ascendent over the Sunni who had under Saddam controlled the government, there is a risk to Sunnis making attacks upon Sunnis easier. In addition, his family is from Falluja which is an area of Iraq where ISIS had a presence. Country information indicates that Sunni Arabs from formerly ISIS controlled areas are suspected of being collaborators and supporters.[15] This context exposes the applicant to being more easily targeted and treated harshly.

    [15] UNHCR, ‘International Protection Considerations with Regard to People Fleeing the Republic of Iraq’, 2019 p59

    Without the opportunity to hear from the guarantor who has threatened the applicant, not knowing his background and connections, but recognising the circumstances that have shaped the norms of Iraqi society and accepting the applicant’s evidence that on two occasions militia have threatened his family that they assessed the risk as serious enough to flee and an arrest warrant has been filed, I find that the risk to the applicant of him being targeted by the guarantor for the purposes of being killed so as to relieve him of the debt burden is a real chance and a real risk.

    I find that the most likely pathway to harm is that while incarcerated the applicant will be harmed by either prison officials or other prisoners at the instigation of the militia acting on behalf of the guarantor. This is because the guarantor and the militia may hesitate to kill an Iraqi citizen in the community for fear of retribution from tribes or the state. But as noted in the above sections, life for prisoners in Iraqi is tenuous, different factions control the prisons as fiefdoms, prison guards are poorly paid, and investigations of complaints are rare. A Sunni who dies in an Iraqi prison would hardly be noticed and would garner little response from the community.

    I now turn my mind to consider whether there is a refugee nexus based upon the targeted harm that will lead him to face a real chance of serious harm.

    The harm the applicant faces does not arise for reasons of a political opinion, religion, or nationality. While the applicant’s death would go unnoticed because he is Sunni, the harm he faces is not because he is Sunni and as such there is no religion nexus. What remains is whether the applicant is a member of a particular social group.

    Section 5L of the Act defines a particular social group and includes those that have a characteristic is shared by each member of the group and the person shares, or is perceived as sharing, the characteristic and either of the following:

    (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

    The characteristics cannot be fear of persecution.

    I have considered characteristics such as debtors and those who breach unwritten obligations/agreements. While these are characteristics true of the applicant, the harm he faces is not harm for those reasons. The guarantor is not targeting him because he is a member of a group of debtors and would equally target other debtors, rather he is being targeted because through his death, the guarantor’s seized assets will be released.

100.   As there is no refugee nexus, I find that the applicant does not meet s 5J(4)(a) and as such he does not meet s 36(2)(a).

101.   I now turn my mind to consider whether the harm the applicant faces meets the complimentary protection criteria.

102.   Considering that I have found that the Iraqi state upon return through the airport will detain the applicant which will being his journey through the judicial system and into a prison that in turn will be the place where he will face significant harm, I find that he cannot relocate (s 36(2B)(a)).

103.   As the state is detaining him and the state is corrupted such that militia factions control prisons and the prison officials themselves are involved in extrajudicial harm, I find that the applicant cannot seek protection from the state (s 36(2B)(b)).

104.   The risk the applicant faces is specific to the applicant and is not a risk faced by the population of the country generally (s 36(2B)(c)).

105.   I have also considered whether according to s 36(3) the applicant has a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Iraq such as the applicant have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.

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

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

   DECISION

108. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Denis Dragovic
Deputy President

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.

…