1917647 (Refugee)

The applicant, an Iraqi national, sought a protection visa. The dispute concerned whether the applicant met the criteria for a protection visa, specifically the refugee criterion under section 36(2)(a) and the complementary protection criterion under section 36(2)(aa) of the *Migration Act 1958* (Cth). The matter was before the Tribunal for reconsideration.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as defined by section 5J of the Act. Additionally, the Tribunal had to consider whether, as a necessary and foreseeable consequence of removal to Iraq, there was a real risk that the applicant would suffer significant harm, as defined by section 36(2A) and further elaborated in section 36(2B). This involved assessing the applicant's claims of threats from a guarantor, potential detention for government debt or due to an arrest warrant, and the conditions within Iraqi prisons.

The Tribunal found that the harm the applicant might face upon return, specifically detention and potential imprisonment, did not meet the threshold for persecution under section 36(2)(a). This was because the potential detention and punishment arose from laws of general application (debt and threats) and not from discriminatory conduct based on protected grounds. However, the Tribunal found that the applicant did meet the criteria for complementary protection under section 36(2)(aa). This conclusion was based on the assessment that while the applicant would likely be detained upon return, and while Iraqi prison conditions were harsh, the specific risk of significant harm, particularly through the actions of a guarantor and the potential for extrajudicial harm within the prison system, constituted a real risk. The Tribunal noted that the applicant could not relocate within Iraq and could not obtain protection from the state.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the *Migration Act 1958* (Cth), meaning Australia has protection obligations towards the applicant under the complementary protection criterion.