1917840 (Refugee)

[2023] AATA 2471

1917840 (Refugee) [2023] AATA 2471 (15 May 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Heidi Vrachnas (MARN: 5511316)

CASE NUMBER:  1917840

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Jason Pennell

DATE OF DECISION:  15 May 2023

DATE CORRIGENDUM

SIGNED:20 June 2023

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

• At paragraph [14], replace the word ‘Nigeria’ with ‘Iraq’.

Statement made on 20 June 2023 at 8.56am

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Heidi Vrachnas (MARN: 5511316)

CASE NUMBER:  1917840

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Jason Pennell

DATE:15 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 15 May 2023 at 9.30am

CATCHWORDS

REFUGEE – protection visa – Iraq – political opinion and membership of particular social group – former supporter of political party and elderly, educated, secularised returnees from western country – physical and mental health and limited economic resources – participant and speaker at recent protests – kidnapped, extorted and threatened, and home searched while in Australia – country information – member of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (2), (4)(c), 5L, 5LA, 36(2)(a), (b), 65, 91R(1)(c)

Migration Regulations 1994 (Cth), r 1.12(1)(a), Schedule 2,

CASES

Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Murugasu v MIEA (1987) 217 ALR 17
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Ram v MIEA (1995) 57 FCR 565
V v MIMA (1999) 92 FCR 355
VSAI v MIMIA [2004] FCA 1602

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 24 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Iraq, applied for the visas on 22 February 2017. The delegate refused to grant the visas on the basis that basis that the applicants are not people in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and are not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).

3.The [primary applicant] (‘the applicant’) appeared before the Tribunal on 6 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant’s son, [Mr A]. [The second applicant] (‘the second applicant’) appeared before the Tribunal but did not give evidence.

1. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. As such, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

2. The applicants were represented in relation to the review by legal practitioner Mrs Heidi Vrachnas of Vrachnas and Co.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

APPLICANTS Claims and evidence

Applicants’ Identity and Country of Reference

1. The first applicant claims he was born on [Date] in [Location], in the Basra provience of Iraq. The applicant has provided a copy of the biodata page of his Iraq passport[1] and a copy of his Identity Card issued by the Republic of Iraq.[2] There is no evidence to suggest these are bogus documents and, as such, the Tribunal accepts the applicant’s identity.

   [1]    Applicant’s Passport Dept File [Reference] Doc ID [Number 1]

   [2]    Applicant’s Identity Card issued by the Republic of Iraq; Dept File [Reference] ID Doc: [Number 2]

2. The second applicant claims that she was born on [Date]. The second applicant provided a copy of the biodata page of her Iraq passport[3] to the Department together with her Identity Card issued by the Republic of Iraq.[4] There is no evidence to suggest these are bogus documents and, as such, the Tribunal accepts the applicant’s identity.

   [3]    Second Applicants Passport Dept file [Reference] Doc ID [Number 1]

   [4]    Second Applicants Identity Card issued by the Republic of Iraq; Dept File [Reference] Doc ID [Number 1]

3. There is no evidence to suggest that the applicant or the second applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided by the first and second applicant, the Tribunal finds that they are both citizens of Iraq and as such their protection claims will be assessed against Nigeria as the country of reference and ‘receiving country’ respectively.

Migration History

1. Both applicants have travelled to and from Australia twice before their most recent entry into the country.[5] The applicants’ migration history is as follows:

   [5]    Movement record of primary applicant, Tribunal File 1917840, Doc ID [Number 3]; Movement record of secondary applicant, Tribunal File 1917840, Doc ID [Number 4].

Date	Event
19/12/2006	Applicants granted Sponsored Family Visitor Visa Subclass (UL-679)
[02]/2007	Applicants arrived in Australia as holders of Sponsored Family Visitor Visas Subclass (UL-679) [6]
[05]/2007	Applicants departed Australia[7]
13/09/2010	Applicants granted Sponsored Family Visitor Visa Subclass (UL-679) [8]
[11]/2010	Applicants arrived in Australia as holders of Sponsored Family Visitor Visas Subclass (UL-679)
[02]/2011	Applicants departed Australia[9]
28/10/2016	Applicants granted Visitor Visas Subclass (FA-600)
[12]/2016	Applicants arrived in Australia as holders of Visitor Visas Subclass (FA-600) [10]
22/02/2017	Applicants applied for Permanent Protection Visas (XA 866)[11]
24/02/2017	Applicants granted Bridging A Visas (WA 010)

[6]    ibid.

[7]    ibid.

[8]    ibid.

[9]    ibid.

[10]  ibid.

[11]  Protection visa decision record dated 24 June 2019, Department File [Reference 2]; Movement record of primary applicant, Tribunal File 1917840, Doc ID [Number 3]; Movement record of Secondary applicant, Tribunal File 1917840, Doc ID [Number 4].

Member of the same family unit

1. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse or de-facto partner of the family head.[12]

   [12] Reg 1.12(1)(a) of the Migration Regulations 1994

2. In this case the first and second applicant were married in Basra Iraq [in] June 1955.[13]   Based on the documentation provided, the Tribunal accepts and finds that the applicant and second applicant are married.  In this case the second applicant did not give evidence to the Tribunal. It was the evidence of the applicant and [Mr A] that she was too ill to attend the Tribunal hearing, and that she had no evidence of her own to provide and relied solely on the applicant’s claims as a member of the same family unit.  As such the Tribunal accepts and finds that the second applicant is a spouse of the applicant and a member of the same family unit and the applicant.

Applicant’s claims for Protection.

[13]   Applicants Certification of Marriage; Dept File No [Reference] ID Doc [Number 5]

1. The applicant’s claims for protection are detailed in the applicant’s statutory declaration dated 20 February 2017,[14] attached to their application for a protection visa dated 23 February 2017.[15] The delegate summarised the applicant’s claims as follows:[16]

   [14]  Applicant’s statutory Declaration dated 20 Feb 2017; Department File [Reference] Doc [Number 6]

   [15]  Part C - Application for a protection visa application form of primary applicant dated 23 February 2017, Department File [Reference]; Part C - Application for a protection visa application form of secondary applicant dated 23 February 2017, Department File [Reference].

   [16]   Department of Home Affairs Protection Visa Decision record refusal, Tribunal file 2003049, doc ID [Number 7].

   ·He was a member of the Communist Party during the late 1950’s and early 1960’s.

   ·     He was not an active member, but he attended some meetings and rallies, and he was a supporter of the Prime Minister Abd Al-Karim Qasim.

   ·     He ceased following the Communist Party when Prime Minister Abd Al-Karim Qasim was killed by the Ba’athists in 1963.

   ·     He has not had a connection with the party since then and in general has not expressed any political allegiance.

   ·     He did not have any significant problems when Saddam was in power, as he kept a low profile, and he did not express political views.

   ·     After Saddam was deposed, Shia political and religious groups took power in Basra.

   ·     As a Shia the applicant was happy to see the end of Saddam.

   ·     He avoided the excesses of the extremist militia connected with Moqtada Al Sadr and the Madhi Army.

   ·     When the Al Malaki government took power and forced the Mahdi Army to leave Basra in 2008, they became oppressive, and violence ensued as other groups were competing for power.

   ·     It appeared Iraq would become a democratic and free state until 2014 and the advent of ISIS in Mosul and the north of Iraq.

   ·     The call of Jihad resulted in the re-emergence of Shia Militia onto the streets of Basra.

   ·     Shia militia took over all security apparatus when the government forces were sent to fight in the north of Iraq and in effect took control of the government.

   ·     Basra experienced a rapid descent into chaos with crime and drug problems increasing, lack of jobs, utilities ceased working and public servants were not being paid.

   ·     The situation witnessed the opportunity for strong tribes to emerge creating new conflicts that affected citizens.

   ·     Citizens became upset and started to demonstrate against the government.

   ·     Like many other citizens the applicant joined the demonstrations as life was getting difficult.

   ·     In the meantime, the applicant and his wife applied to travel to visit their children in Australia.

   ·     He openly raised his concerns during a demonstration in October 2016 with other attendees.

   ·     He spoke about how the government obtained vast amounts of money from oil and misused this their connections with militia and how bad he felt things had become.

   ·     A few days later militia connected with Moqtada Al Sadr visited the applicant’s home and told him that if he ever expressed his opinion about state affairs, they would kill him.

   ·     The following week men wearing police uniforms visited the applicant’s house and put a bag over his head, tied his hands and kidnapped him.

   ·     He was kept in a dark room for seven days.

   ·     The men told the applicant that they were from Al Sadr and Karamshah tribe they knew he was a Communist, he had no religion and he criticised Islamic parties and was opposed to the government.

   ·     The men also told the applicant they knew his children were overseas and demanded $US50.000.

   ·     He was released only after his family arranged for the funds to be paid.

   ·     A few days after the applicant’s release, the same men returned to his home requested more money whilst repeating the threats about the applicant being a communist infidel.

   ·     He told the men he would arrange to pay them immediately before he and his wife fled to stay with relatives until they departed for Australia.

   ·     Since arriving in Australia the applicant’s neighbours have informed the applicant the police have visited their home and searched it.

   ·     He fears being harassed physically assaulted or killed by influential militia if forced to return to Iraq.

   ·     They will seek to extort more money from the applicant as they have in past.

   ·     The Iraqi government is unable to protect any citizens in Iraq and the siltation is getting worse.

   ·     He will have the same problems wherever he relocates to in Iraq.

   ·     He cannot relocate to the north of Iraq where the population is predominately Sunni and he cannot remain in the south because militia and tribal leaders will always be able to locate him.

Applicant’s evidence.

1. The applicant’s evidence was that he was born on [Date] in Basra, Iraq. He claims that he is an ethnic Arab and a Shia Muslim. He claims to speak, read and write Arabic.[17]The applicant’s parents are deceased. His evidence was that he has two brothers who continue to live in Iraq and are now retired.

   [17] ibid.

2. The second applicant did not give evidence to the Tribunal but by her application for a protection visa she claims she was born on [Date] in [Location], Basra province, Iraq. She states that her ethnicity is Arab, and her religious identity is Shia Muslim.[18] She speaks, reads and writes in Arabic[19] and claims that she has not commenced or completed any education.[20] The applicant’s evidence to the Tribunal was that the second applicant is very sick, suffering from arthritis.

   [18]  Part C - Application for a protection visa application form of secondary applicant dated 23 February 2017, Department File [Reference].

   [19]  ibid.

   [20]  Part C - Application for a protection visa application form of secondary applicant dated 23 February 2017, Department File [Reference].

3. The applicant and [the second applicant] were married in 1955 Basra, Iraq and had eleven children. They have four children (three sons and a daughter) who now live in Australia, one child who lives in [Country] and two children (one son and one daughter) who remain in Iraq. The applicant’s evidence was that one child has passed away in Iraq.   

4. The applicant attended school in Basra, Iraq and completed his secondary school at [High School] in [Year]. The applicant then commenced work as [an Occupation] at [Workplace].  In [Year] the applicant obtained a Bachelor of [Subjects] from the [University]. The applicant attended the University from [Year] to [Year] while working for [Workplace].

5. The applicant’s evidence was that during the late 1950's and early 1960's, he was an active supporter of the Communist Party.[21] The applicant’s evidence was that he was not a member of the party, rather he was an active supporter, having attended meetings and rallies. His evidence was that he was a supporter of the Prime Minister, Abd Al-Karim Qasim because he overthrew the ruling Royal dynasty and was sympathetic to many of the party’s goals. When Qasim was killed by the Baathists in 1963, he stopped following the Communist Party because many leaders and active members of the party were killed by the new government. His evidence was that he has not had a connection with the Party or expressed any political opinion since that time.

   [21]  Applicant’s statutory Declaration dated 20 February 2012

6. The applicant’s evidence was that during the reign of Saddam Hussein he kept a low profile and didn't express any political views. As a result, he did not experience any harm during that time.

7. However, the applicant’s evidence was that as a Shia, he was happy to see the end of Saddam. After Saddam was deposed, Shia political and religious groups took power in Basra. The applicant continued to practice his religion as he had always done and avoided the excesses of the fundamentalist militia connected with Moqtada Al Sadr, the Mahdi Army. He did not give the militia any reason to accuse him of opposing them.

1. In 2007 the British Army left Basra allowing the Mahdi Army to exercise their power in the absence of the British. The Mahdi Army become oppressive and instigated violence with other groups with whom they were competing for influence and power. In 2008 the government of Noori Al Maliki forced the Mahdi Army out. At that time the applicant believed that Iraq may become freer and more democratic.

2. The applicant’s evidence was that despite the level of corruption and friction between certain groups competing for power, the general population was not targeted or attacked as before. However, the applicant claims that the situation changed in 2014 when ISIS took over Mosul, in the North, and Ayatollah Ali Sistani called for jihad to protect the country and Shia sacred places against the Sunni terrorists. As a result, the Shia militia re-emerged in Basra, taking over all security and took effective control in the absence of government forces who had left to fight ISIS in the North.

3. The applicant’s evidence was that Basra rapidly descended into chaos with crime and drug abuse becoming major issues. The utilities stopped working, young people had no work and public servants were not paid. The city was left without water and electricity, the sewerage system did not work, and rubbish was not collected.

4. In addition, the applicant’s evidence was that the Iraq government allowed foreign troops to establish bases in the North, giving strong tribes an opportunity to emerge and create new conflicts. As a result, the local population became angry and started public demonstrations against the government about the fact that there was no reliable services or effective government despite the money collected from oil in Basra.

5. The applicant’s evidence was that he joined the demonstrations because life was becoming too difficult. He claims that the gains that had been made in the previous 6 years had disappeared with the militia and some of the strong tribes acting with impunity.

6. In September 2016 the applicants applied to travel to Australia to visit their children.

7. The applicant’s evidence was that in October 2016, he attended a demonstration at which he expressed his views about the government with other demonstrators, some of whom the applicant knew from his area. The applicant’s evidence was that at previous demonstrations he had merely attended. However, on this occasion he explained to them he was a former [Occupation] in response to which they asked him his opinion of the government. The applicant explained to them how government had misused a vast amount of money it had obtained from oil and its connections with the militia. The applicant explained that at the time he did not think much of his conversation. However, a few days later members of the militia connected with Al Sadr came to his house and threatened to kill him if he expressed any further opinion about state companies. The applicant claims that he told his friends from the demonstration, what had happened.

8. The applicant’s evidence is that the following week some men wearing police uniforms came to his house, put a bag over his head, tied his hands, kidnapped him and kept him in a dark room for seven days. His evidence was that they came from the Karamshah tribe and Al Sadr. They accused him of being a communist and being opposed to Islam and the government. In addition, they accused him of raising infidel children because his children had gone to Western countries. As a result, they demanded USD $50,000.00 from his family to have him released. The applicant’s evidence was that his family arranged to pay the money and he was subsequently released by having a bag placed on his head and left in the street near his home.

9. The applicant claims that a few days later the men returned to his home and repeated the threats about being a communist and infidel and demanded that he pay a further USD$25,000.00. The applicant’s evidence was that he told them he would arrange for the money straight away and that they needed to return him to receive the money. The applicant claims that he and the second applicant fled to a relative’s house until they travelled to Australia. After his arrival in Australia the applicant claims that he has been informed by his neighbours that the police have visited their home and searched it but found it empty.

10. The applicant claims that if he is returned to Iraq, he will be seriously harmed by the Shia militia, government officials and members of the Karamshah tribe because they know about his political history, his employment as [an Occupation] and his views about the corrupt government and militia in Basra. Having previously extorted money from the applicant he claims they will continue to do so because they know he has children living and working in Western countries.

11. The applicant claims that the Iraqi Government is not able to protect any citizens in Iraq as they are the problem rather than the solution. The applicant claims the situation is becoming worse as they are motivated by self-interest and greed. They work to increase their own political power and influence and not to protect the Iraqi population.

Applicants’ documents

1. The applicants provided the following material in support of their claims:[22]

   [22]  Department File [Reference].

   a)Certified copies of their passports

   b)Letter of Support from [Mrs A] of [Health Service 1]

   c)Form 80 - Personal particulars for assessment including character assessment

   d)Certified copies and translations of applicants’ Iraqi identity cards

   e)Certified copy and translation of the applicants’ Certificate of Registration of Marriage

   f)Statutory declaration of the primary applicant dated 20 February (no year).

   g)Letter of support from [Dr B] of [Health service 2] dated 12 November 2021, describing the primary applicant’s medical condition.

   h)Letter of support from [Dr B] of [Health service 2] dated 15 September 2022, describing the primary applicant’s deteriorating medical condition.

   i)Letter of support from [Dr B] of [Health service 2] dated 17 November 2022, describing the primary applicant’s deteriorating medical condition.

   j)Letter of support from [Dr C] of [Hospital] dated 18 November 2022, describing the primary applicant’s medical condition.

   k)Medial Report in relation to second applicant [Dr B] of [Health service 2] dated 24 February 2023.

   l)Applicant’s Submissions dated 1 February 2023.

   m)Applicant’s Submissions dated 25 February 2023.

COUNTRY INFORMATION

1. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has referred to the latest DFAT report on Iraq dated 17 August 2020 (the DFAT Report’) marked as ‘Annexure A’ to this decision.

CONSIDERATION OF CLAIMS AND FINDINGS

1. The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration

Credibility

1. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, as well as cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[23] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[24]

   [23]    Section 5AAA, the Act.

   [24]    MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70].

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[25] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

   [25]    Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p.482.

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[26] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

Accepted Facts

[26] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

1. Based on the applicant’s evidence and the document’s provided by the applicant, the Tribunal accepts and finds:

   (a)the applicant was born on [Date] in Basra, Iraq.

   (b)the applicant is an ethnic Arab and a Shia Muslim.

   (c)the applicant speaks, reads, and writes Arabic.[27]

   [27] ibid.

   (d)the applicant has two brothers who continue to live in Iraq.

   (e)the second applicant was born on [Date] in [Location], Basra province, Iraq.

   (f)the second applicant is an ethnic Arab, and her religion is Shia Muslim.[28]

   [28]  Part C - Application for a protection visa application form of secondary applicant dated 23 February 2017, Department File [Reference].

   (g)the second applicant, reads and writes in Arabic.[29]

   [29]  ibid.

   (h)the second applicant has no formal education.[30]

   [30]  Part C - Application for a protection visa application form of secondary applicant dated 23 February 2017, Department File [Reference].

   (i)the second applicant suffers from arthritis.

   (j)the applicant and the second applicant were married in [Year] Basra, Iraq.  They have four children who now live in Australia, one child who lives in [Country] and two children have remained in Iraq. One child passed away in Iraq.  

   (k)the applicant attended school in Basra, Iraq and completed his secondary school at [High School] in [Year].

   (l)the applicant then commenced work as [an Occupation] at [Workplace]. 

   (m)the applicant obtained a Bachelor of [Subjects] from the [University] in [Year].

   (n)the applicant’s evidence was supporter of the Communist Party in the late 1950's and early 1960's.[31]

Applicant’s claims as a refugee

Applicant’s claim within s 5J(1) of the Act

[31]  Applicant’s statutory Declaration dated 20 February 2012

1. The applicant did not specifically state that he had a well-founded fear of persecution for those reasons set out in s 5J(1)(a) of the Act. That is his race, religion, nationality membership of the particular social group (PSG) or political opinion. However, it was open to the applicant to claims that he does hold a well-founded fear of persecution by reason of his political opinion as a former member of the communist party in Iraq and being imputed with antigovernment views by reason of his involvement in the 2016 protests. In addition, it was open to the applicant to claim that he is a member of a PSG, being an elderly returnee from a western country.

2. In relation to the applicant’s political opinion, it is not necessary for the applicant to hold an actual opinion; rather, it is sufficient for his political opinion to be imputed to him by the persecutor.[32] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[33] provides that it is necessary for an applicant to show that they have a fear of persecution for holding a political opinion as ‘[H]olding political opinions different from those of the Government is not in itself a ground for claiming refugee status.’

   [32]    MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at [416] per Gaudron J and at [433] per McHugh J.

   [33]    UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80–86]; Chan v MIEA (1989) 169 CLR 379 at [392].

3. The Full Federal Court in V v MIMA[34] observed in relation to a person’s political opinion that:

   (a)it is enough that a person holds (or is believed to hold) views opposed to the government and is persecuted for that reason;[35]

   (b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[36]

   (c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[37]

   (d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform, or implicitly by reference to acts reflective of an unstated political agenda, will be the holding of a political opinion;[38]

   (e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society.[39]

   [34]    V v MIMA (1999) 92 FCR 355 at 363. The Court’s observations were made in the context of dealing with the Convention.

   [35] Ibid at 363.

   [36] Ibid.

   [37]    V v MIMA (1999) 92 FCR 355 at 367.

   [38]    V v MIMA (1999) 92 FCR 355 at 367.

   [39]    V v MIMA (1999) 92 FCR 355.

4. In this case the applicant claims that he will be persecuted if he is returned to Iraq because of his political opinion. He claims that as a former member of the communist party and as a person who had participated in the 2016 protests in Bagdad he will be harmed if he returned to Iraq as being opposed to Islam and the government. Based on the applicant’s evidence, the Tribunal accepts that his claim of having a well-founded fear of persecution because of his political opinion falls within s 5J(1)(a) of the Act.

5. In addition, it was open to the applicant to claim that he has a well-founded fear of persecution within the scope of s 5J(1)(a) of the Act by reason of his membership of the PSG as an elderly person with limited economic resources returning from a western country. As an elderly person who has limited economic resources, no family remaining in Iraq capable of caring for him and no property or income, it was open for the applicant to claim that he would suffer significant economic hardship to the extent that would threaten his capacity to subsist.[40] Alternatively, as an elderly person returning from a western country there is a real chance, he would be targeted by Shia fundamentalists because his imputed sympathy with western secular society.

   [40]  Section 5J(5)(f) of the Act

6. Section 5L[41] of the Act states:

   [41]   Section 5L of the Act.

   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.

7. To be considered a member of a PSG it is necessary for the applicant to share (or be perceived to share) an innate or immutable characteristic with each member of the group or it must be fundamental to a member’s identity or conscience or distinguish the group apart from society.[42] In this case, the Tribunal accepts that the applicant as an elderly person with limited economic resources and a returnee from western society. As such, it accepts that he is a member of a PSG pursuant to s.5J(1)(a) of the Act.

Applicant’s well-founded fear

[42]    ibid.

1. Section 5J of the Act states that for the purposes of an application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.

2. In Chan v MIEA[43] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[44]

   [43] (1989) 169 CLR 379 at 396.

   [44] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

3. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted if he returns to Iraq.

4. However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [45]stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [45]          Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.

5. In MIEA v Guo, the Court stated that: ^[46]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [46]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

1. Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below, the Tribunal accepts that the applicant has a well-founded fear of persecution on both a subjective and objective basis if he is returned to Iraq as a member of a PSG. 

Systematic and discriminatory conduct

1. Pursuant to section 5J(4)(c) of the Act, persecution must involve systematic and discriminatory conduct. The issue of systematic conduct involved in the persecution claimed was considered in Chan v MIEA[47] in reference to the Convention. McHugh J stated:

   The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention.

   [47]   Chan v MIEA (1989) 169 CLR 225 at 429–430. His Honour supported this proposition by reference to Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at 23 ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances.

2. In VSAI v MIMIA[48] Crennan J, when considering section 91R(1)(c) of the Act, stated that where conduct is shown to be serious harm when assessing if it is ‘systematic conduct’, it would be wrong to require the applicant to show anything more than the act is deliberate or pre-meditated. It would not be necessary to show that the conduct is widespread or frequently recurring. Nevertheless, the frequency of an act may be relevant in determining whether conduct amounts to ‘serious harm’ if the isolated incidents can be described as involving minimal or low-level harm.[49]

   [48]  VSAI v MIMIA [2004] FCA 1602 at [53].

   [49] Ibid.

3. In addition, pursuant to s 5J(4)(c) of the Act, it is generally considered that the discriminatory element of persecution involves an element of motivation on the part of the persecutor. In Ram v MIEA[50] , Burchett J said:

   Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

   [50]  Ram v MIEA (1995) 57 FCR 565 at 568.

4. However, it has been held that while persecution will necessarily involve an element of motivation on the part of the persecutor, and will often be motivated by enmity,[51] it is wrong to require an attitude of ‘enmity’ or ‘malignity’ before persecution can be made out.[52]

The applicant’s political opinion

[51]          MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [72].

[52]   Chen Shi Hai v MIMA (2000) 201 CLR 293 at [33]–[35], [60]–[61]. While the words ‘enmity’ and ‘malignity’, or ‘hostility’, appear in some dictionary definitions of persecution (see for example the Oxford English Dictionary (2nd edition, 1989, vol 11), as cited by Gummow J in Applicant A v MIEA (1997) 190 CLR 225 at 284; also the Australian Concise Oxford Dictionary (Oxford University Press, 3^rd edition, 1997), and the New Oxford Dictionary of English (Clarendon Press: Oxford, 1998), these notions have not been carried forward into some of the modern dictionaries (for example the Macquarie Dictionary (Macquarie Library, Revised 3rd edition, 2001). Indeed, Kirby J, although acknowledging his own reliance on dictionaries in Chen Shi Hai v MIMA (2000) 201 CLR 293 at 312, has cautioned against using dictionary definitions of the word ‘persecuted’ in the Convention definition: see MIMA v Khawar (2002) 210 CLR 1 at [108].

1. The applicant claims that there is a real chance he will be seriously harmed if he is returned to Iraq by reason of his political opinion. The applicant’s evidence was that in the late 1950's and early 1960's, he was an active supporter of the Communist Party, having attended party meetings and rallies.[53]  However, the applicant stopped supporting the Communist party in 1963 when Prime Minister, Abd Al-Karim Qasim was killed by the Baathists during the Ramadan Revolution. The applicant’s evidence was that many leaders of the party were killed at that time. The applicant claims that he has not had any connection to the Party or expressed any political opinion since that time.

   [53]  Applicant’s statutory Declaration dated 20 February 2012

2. The country information reports that Iraq Communist Party (ICP) was established in 1934 by Yusuf Salman Yusuf and is the oldest active political party in Iraq.[54] It’s reported that generally communism was rejected in Iraq as being contrary to both Islam and Arab nationalism.[55] It’s reported[56] that in the 1940’s and 1950’s the ICP was the most notable opposition against the monarchy being responsible for major demonisations including the revision of the treaty with Britain in January 1948 (al-Wathba), the strike in the oilfields leading to the march on Baghdad later that year (al-Masira al-Kubra), and the student demonstrations in Baghdad in November 1952. The distribution of communist theory to the armed forces or the police was outlawed by the Hashimite monarchy and punishable by death or life imprisonment.[57] Nevertheless, it’s reported that the ICP was able to use the army to promote its goals and to organize opposition to the monarchy.[58]

   [54]   Country Studies, ‘The Iraqi Communists and Baathist Iraq;’   ibid

   [56]  Peter Sluglett ‘The Iraq Communist Party1934-1979’, Middle East Online Series 2: Iraq 1914-1974, Cengage Learning EMEA Ltd, Reading, 2006,   Country Studies, ‘The Iraqi Communists and Baathist Iraq;’   ibid

After the revolution in 1958 the ICP was closely aligned with the Qasim regime, which used the communist militia organization to suppress its traditional opponents brutally. Nevertheless, it’s reported[59] that few ICP members held positions of power, with only one ICP member and two leftists being appointed to minor cabinet posts between July 1959 and May 1961. In February 1963 Qasim was overthrown by a coup. In a carefully coordinated campaign the new Baathist leaders carried out a purge of individual leaders and supporters of the ICP by which thousands of supporters of Qasim were executed.[60]  

[59]  Peter Sluglett ‘The Iraq Communist Party1934-1979’, Middle East Online Series 2: Iraq 1914-1974, Cengage Learning EMEA Ltd, Reading, 2006, Country Studies, ‘The Iraqi Communists and Baathist Iraq;’ >

Nevertheless, it’s reported[61] that in the mid 1960’s the ICP had approximately 15,000 members. In August 1968, after the two coups of 17 and 30 July, the ICP was offered three ministerial portfolios by the Ba’ath party. [62]  However, the ICP refused to be involved in the government unless full civil liberties were restored, political parties legalised, and democratic elections held which not agreed to by the Ba’ath party.[63]

[61]   Benjamin, Roger W.; Kautsky, John H. Communism and Economic Development, in The American Political Science Review, Vol. 62, No. 1. (Mar. 1968), pp. 122.

[62]   Peter Sluglett ‘The Iraq Communist Party1934-1979’, Middle East Online Series 2: Iraq 1914-1974, Cengage Learning EMEA Ltd, Reading, 2006,  ibid

In 1973, following a visit from Alexei Kosygin, the ICP improved it relationship with the Ba’ath Party and was permitted to operate as a legal political party. Two members of the ICP were given cabinet positions and repression of the ICP ended. However, in 1978 Saddam Hussein initiated a new campaign of repression against the party, including the execution of large numbers of party members. In 1979 the party broke ties with the Iraqi government.

It’s reported[64] that the ICP was opposed the US invasion of Iraq in 2003 but did join the US-installed Iraqi Governing Council (IGC). While supporting the removal of Saddam Hussein, the ICP opposed the war arguing that not all diplomatic means had been exhausted.[65] In addition the ICP argued against a prolonged occupation by the US Forces, calling for an interim government to be set up soon after the invasion to prepare quickly for elections. In 2003 the ICP was invited to be part of the US-installed Iraqi Governing Council (IGC).[66]

[64]  Aljazeera ‘Iraqi communists celebrate change’ 1 July 2004; Washington Post ‘Iraqi Communists make a Comeback’ 29 January 2004 by Pamela Constable. http/:   ibid

[66]   ibid

In May 2018, the ICP joined the Sairoon alliance of Shia leader Muqtada al-Sadr to compete in the Iraqi parliamentary elections. The coalition performed beyond expectations winning 54 seats out of 328 seats.[67] The alliance was criticised as a sell out to Islamism by the by the secular communists, however the ICP defended the move on the basis that the groups seek to represent the poorest and most marginalised groups in society.[68]  However, in response to the government’s fierce response to protests in which approximately 355 people were killed and thousands injured, the ICP withdrew from parliament.[69]

[67]   Aljazeera, ‘Communists leader: Iraqis to decide who controls Iraq, nobody else’ 25 May 2018 by Osama Bin Javid http:/  Middle East Eye ‘Iraqi’s communists given new life by protests’ 1 December 2019 by Alex Mc Donald http/;  ibid

The ICP was supportive of the Iraqi protests from 2019 to 2021, a series of demonstrations and other forms of civil disobedience protesting corruption, unemployment political sectarianism and foreign intervention.[70] In 2021, the ICP boycotted the Iraqi parliamentary elections citing the monopolising of political power in the country together with the level of corruption and lack of protection for working people as the reason for its withdrawal.[71] 

[70]   ibid; Aljazeera, ‘Iraq: HRW denounces lethal force against protestors, urges probe’ 10 October 2019  http:/ ICP, ‘Statement of the central Committee of the Iraqi Communist Party: No Participation in Elections that is not gateway to Desired Change.’ http/:/>

More recently it has been reported[72] that the ICP is existing on the margins, with only a few thousand members. Despite moments of glory in the past, the ICP had only two MPs in the previous parliament.[73] While Iraq's political parties generally represent religious and ethnic groups (i.e. Shiite Muslims, who hold the prime ministership, Sunnis who have the parliamentary speaker's post, and Kurds who control the presidency) the ICP advocates a political system independent of religion. It’s reported[74] that such an ideal is a remote prospect in the country of 40 million in which even minority groups, such as Christians and Turkmen, have their own small parties.[75] Nevertheless, as part of its platform of a separation of religion and state the ICP has recently advocated for the rights of women in Iraq. The ICP has vowed “to promote women’s participation and economic empowerment, ensuring their safety and providing protection for them within the family and society.”[76] Nevertheless, despite such progressive ideas it’s reported that the ICP is seen as part of the old guard of politics. It’s reported that it has lost the opportunity to capitalise on a wave of anti-Islamicist sentiment and failed to position itself as the ‘torchbearer’ for a liberal and secular community.[77] 

[72]  France 24 ‘Iraqi Communists raise flag for women’s rights secular politics’ 29 April 2022; http:/ The Arab Weekly ‘Iraqi Communists raise flag for women’s rights secular politics’ 29 April 2022 http:/thearabweekly.com/iraq-communists-hope-comeback-over-womens-rights-secular-politics

[73]   ibid

[74]   ibid

[75]   ibid

[76]   ibid

[77]   ibid

Based on the available country information, as the oldest established political party in Iraq, the ICP has been a part of the political landscape in various forms for some time. While the members of the party were persecuted during the Ba’ath regime in the 1960s and later under Saddam Hussein, it has been able to operate freely in Iraq since the fall of Saddam Hussain. Albeit that the ICP has a limited membership, its members appear to be able to associate with the ICP in Iraq without fear of being seriously harmed. In this case the applicant claims that he was merely a supporter, and not a member, of the ICP in the 1950’s and early 1960’s. The Tribunal accepts that he was an active supporter of the ICP as claimed. However, his evidence was that he has no connection with the Party or expressed any political opinion since the Ba’athist’s coup in in 1963 until his attendance at the protest in 2016 There was no evidence that he has been harmed while an active supporter of the ICP. Therefore, based on the applicant’s evidence and the available country information, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he returned to Iraq because of him having been a supporter of the ICP as claimed.

Attendance at the 2016 protest.

1. The applicant claims that in or about October 2016 he attended a protest rally in Bagdad at which he expressed his views about the government with other demonstrators, some of whom the applicant knew from his home in Basra. While the applicant had attended previous demonstrations, he had not expressed his opinions. On this occasion he claims that the protest commenced in the morning and continued for the day. He did not stay for the entire demonstration.  He claims that in response to being asked his opinion of the government he expressed his view that the government had misused the money it received for oil and its connections with the militia. As a result, the applicant claims that a few days later members of the militia connected with Al Sadr came to his house and threatened to kill him if he expressed any further opinion about state companies.

2. The country information confirms that from 2015 to 2018 protests occurred in Baghdad and southern Iraqi cities such as Najaf, Nasriyah and Basra, over state corruption, poverty, unemployment, power shortages, water shortages around Basra, failing public services. However, the Tribunal was not able to find any reference to protests having occurred in Bagdad in October 2016. Nevertheless, it’s reported[78] that in April 2016 thousands of Sadr-followers gathered in Tahrir Square in Baghdad and marched towards the fortified Green Zone, as a protest corruption and the government’s failure to provide basic services such as water and electricity. The applicant’s evidence in relation to the protest was vague and lacking in detail. The applicant stated that he had travelled from Basra to Bagdad by car with other demonstrators, including the leader of the ICP in his local province. However, the applicant was not able to recall the name of anyone he travelled with including the ICP local leader who he claimed was part of the group. In addition, the applicant was not able to identify those people to whom he expressed his views. While the Tribunal accepts that given the applicant’s age and medical condition his recollection of events will have been affected. Nevertheless, in circumstances where the applicant claims to have travelled from Basra to Bagdad to attend the demonstration as part of a group and it was the reason that he was threatened by the militia connected with Al Sadr, the Tribunal would have expected the applicant to have a much clear recollection of the people he travelled with to the demonstration, the events that occurred at demonstration and the people he spoke with at the demonstration.  As a result, based on the available country information and the applicants own evidence the Tribunal does not accept that he attended the demonstration as claimed and as such was not threatened by members of the milia as claimed.

   [78]  Middle East Eye, ‘Water bottles thrown in Iraqi parliament as thousands take to the streets’ dated 26 April 2016; Vox ‘The political crisis rocking Bagdad and why it matters for the war on ISIS’ by Jennifer Williams 19 April 2016, >

   Nevertheless, even if the applicant did attend the demonstration as claimed (which the Tribunal has found he did not) the opinion he expressed to his fellow demonstrators was consistent with grievances expressed by the protesters at the demonstration. That is, corruption and the misappropriation of money.  As such, the Tribunal does not accept that the applicant was subsequently singled out and threatened in his home in Basra because of what he said to his fellow demonstrators at the protest in Bagdad as claimed. On the applicant’s own evidence, having practiced his religion he had not given the militia connected with Moqtada Al Sadr, the Mahdi Army, any reason to accuse him of opposing them. As such, the Tribunal does not accept that applicant’s evidence that he was threatened by members of the milia as claimed.

The Applicant’s abduction.

1. The applicant claims that there is a real chance that he will be seriously harmed if he is returned to Iraq because of him being accused by members of the Karamshah tribe and Al Sadr of being a communist and opposed to Islam. The applicant claims that he was abducted by men wearing police uniforms who came to his house, put a bag over his head, tied his hands, kidnapped him, and kept him in a dark room for seven days. They accused him of raising infidel children because his children had gone to Western countries. As a result, they demanded USD $50,000.00 from his family to have him released. The applicant’s evidence was that his family arranged to pay the money and he was subsequently released by having a bag placed on his head and left in the street near his home. He claims that a few days later the men returned to his home and repeated the threats about being a communist and infidel and demanded that he pay a further USD$25,000.00.

2. The applicant’s evidence in relation to his abduction and the demand for a ransom was vague and lacking in any detail. Based on the available country information as referred to above there appears no basis upon which the applicant would be abducted or threatened due to him being a communist. On the applicant’s own evidence, he was a mere supporter and not a member of the ICP. His evidence was that after the 1963 revolution, save for his attendance at the demonstration, he had not express a political opinion and was not a member of a political party.

3. The applicant did not say how he was aware that the men were members of the Karamshah tribe and Al Sadr. In addition, he was not able to say how many men abducted him. Despite claiming that he was held for 7 days in a dark room, he did not provide any evidence as to the conditions in which he was held, the routine he was subjected or the types of interrogation he was subjected to. While the Tribunal accepts that being abducted is a stressful and traumatic experience and as such the applicant may not have a complete recollection of events, nevertheless, given the circumstances the Tribunal expects that he would have a clear recollection of something of his abduction, such as smell, a sound in the background or the tone of his abductors voice. In this case the applicant did not provide any such evidence.

1. The applicant claims that his abductors demanded the amount of USD$50,000. However, the applicant did not provide any independent evidence of the money having been paid to as claimed. The applicant’s evidence was that his family raised the money and paid the ransom. Nevertheless, the applicant did not provide any independent evidence of the ransom demand or proof of payment by his family as claimed. In addition, the applicant was not able to provide any independent of a further $25,000 having been demanded by his abductors as claimed. The applicant evidence in relation to the further claim was vague and lacking in any detail. He did not provide any evidence of the circumstances surrounding the further demand being made including the identity of the person making the claim, how many made the claims against him and where the claim was made.

2. Therefore, based on the available country information and the applicants own evidence that Tribunal does not accept that he was abducted as claimed. In addition, the Tribunal does not accept that a ransom of USD$50,000.00 was demanded by his abductors as claimed or that a further ransom of $25,000.00 was demanded from the applicant as claimed. Accordingly, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Iraq by reason of him having been abducted and a ransom demanded for him as claimed.

Applicants’ health

1. The applicant claims that if he and the second applicant are returned to Iraq, they will suffer serious harm because they both suffer from serious medical conditions for which they will not be able to receive proper treatment in Iraq. The applicant provided the Tribunal with medical reports[79] that state he suffers from Parkinson’s disease. The report states that the prognosis of his condition is poor and that he requires supervision and assistance in performing daily activities. Based on the medical evidence provided the Tribunal accepts he suffers from Parkinson’s disease and that his condition is poor.  

   [79]   [Dr B] medical report dated 17 November 2022 and 12 November 2021, 15 September 2022; AAT file No 1917840 Doc ID: [Number 8]

2. In addition, the Tribunal was provided a medical report in relation to the second applicants physical health[80] that states she suffers from diabetes and dementia. The report stated that she suffers progressive cognitive and functional decline resulting in her needing assistance to perform daily activities. As a result, based on the information provided to the Tribunal, it accepts that the second applicant suffers from diabetes and dementia. 

   [80]  [Dr B] medical report dated 24 February 2023. AAT file No 1917840 Doc ID: [Number 8]

3. The applicant and second applicant claim that the Iraq health care system is in a state of collapse, and as a result they will not be able to receive adequate treatment upon their return to Iraq. The country information[81] notes that Iraq’s health services have suffered and that the sector faces shortages in drugs and other supplies. The DFAT Report notes that the population’s access to basic health care services has become increasingly impaired as many health professionals have left the country for security reasons. It refers to a report by the International Committee for the Red Cross and the Ministry of Health that found that approximately 20,000 doctors left Iraq in the last 15 years and around 70 percent of health care workers were considering leaving the country due to fear of reprisals, kidnapping or violence. It’s reported[82] that doctors and other health care workers are being targeted in revenge attacks in relation to families and tribes of patients who died even if the patient was critically ill or near death on arrival. 

   [81]   DFAT Report at p.15.

   [82]   DFAT Report at p.15.

4. While the Tribunal acknowledges that health care is under-resourced in Iraq, there is nothing to suggest that as an Iraqi citizen, the applicant would be denied medical care or that he would be denied access to health care at a different rate to any other citizen of the country. As a result, the Tribunal finds that the applicant would be able to access health care in Iraq at the same rate as other Iraqi citizens. Accordingly, while the Tribunal accepts that the applicants are suffering from significant health issues as claimed, there is no evidence that they would be denied access to such care on a systematic and/or discriminatory basis as required by s 5J(4)(c) of the Act.  Accordingly, the Tribunal finds that the applicant’s feared persecution because of medical condition as claimed does not involve systematic or discriminatory conduct pursuant to s 5J(4)(c) of the Act.   

5. Nevertheless, based on the country information referred to below, the Tribunal notes that the applicants, as elderly people who suffer from significant health conditions, are particularly affected by the continuing violence and mass displacement that occurs in Iraq. As a result, the Tribunal finds that that the applicants health, on a cumulative basis, together with their age, poor financial resources, inability to work and the presence of continuing general violence would contribute to the applicants suffering serious harm to the extent that they would not be able to subsist if they are returned to Iraq.

The Applicants as elderly secularised people

1. The applicant claims that because of his age and deteriorating health he will suffer serious harm if he is returned to Iraq.  In addition, the applicant claims that he is returning from a western country he will be seen to hold secular views that are not acceptable to the authorities and Shia militias in Iraq. In this regard the Tribunal notes the applicant’s evidence that he has three children living in Australia and another child living in [Country]. The applicant and the second applicant have been living with their children in Australia, relying on them for their economic security and general welfare. As a result, the applicant claims that of he is returned to Iraq he will be seen as holding western views that are not acceptable to the Shia militias in Iraq. 

2. It’s reported[83] that in 2021 Iraq remains a country ruled by fear of daily attacks by militia, terrorists and insurgents. A small number of individuals, operating in cells and groups, have consistently and deliberately targeted the unarmed population to spread fear and death. Insurgents have conducted attacks using guerrilla tactics designed to inflict ever-increasing losses on the government. It’s noted[84] that while there have been dramatic attacks killing hundreds, more frequently it’s smaller and less dramatic day-to-day violence that kills one or two people at a time. In the first two months of 2021, 107 civilians and 218 combatants were killed.[85] In March 2021[86] Da’esh fighters killed all seven members of a family in northern Salahuddin province, prompting widespread shock and anger among locals. In response, the relatives of the victims refused to bury the remains of the victims until they received answers from the government over “continued security breaches” in the area. It’s reported that people perceived to harbour western values or to transgress moral codes are at an increased risk of harm.[87]

   [83]  The Conversation, ‘Pope Francis in Iraq: visit highlights recent history of atrocities against Christians’ dated 6 March 2021, ibid

   [85]    Ibid.

   [86]VOA News, ‘Iraq in Shock After Islamic State Massacres Family of Seven’ Namo Abdulla

   dated 12 March 2021,   European Union Agency for Asylum, ‘Common Analysis: Iraq (June 2022), pp 110-113.

3. The country information[88] states that sectarian attacks have plagued Baghdad and other cities with mixed populations. Sectarian attacks occurred in March 2021 in which 40 Sunni people were killed in Baghdad by Shia militants loyal to Moqtada al-Sadr (known as the Mahdi army), in what was described as ‘one of Baghdad's most deadly sectarian pogroms,’ and 17 Shia people were killed by two car bombs in northern Baghdad. A car bomb killed three and wounded seven in Baghdad's central Karrada district and a suicide bomber blew himself up outside the fortified Green Zone on the western bank of the Tigris, killing five and wounding 10 Shia, as parliament prepared to meet a few hundred metres away.[89] The DFAT report[90] notes that according to the Office of UN High Commissioner for Refugees (UHNCR) that around 6 million people have been displaced across the country since 2014. In July 2020 Iraq had approximately 1.4 million internally displaced, 70 percent of whom had been displaced for more than three years.[91]

   [88]    THE GUARDIAN WEEKLY, ‘40 DIE IN BAGHDAD MASSACRE AS SHIA MILITIA GO ON RAMPAGE’ DATED 29 APRIL 2021,    Ibid.

   [90]  DFAT Report at p.11

   [91]  ibid

It’s reported[92] that continuing violence and the consequent mass displacement has had a debilitating effect on the health and psychological conditions of the elderly in Iraq. It’s reported[93] that the elderly are at risk of abuse and neglect as they are outside the social and legal security sphere. While their rights are recognized by the Constitution, the current laws and regulations are not effective to protect them to ensure their needs and concerns are met.[94] While there are no reliable statistics available for the number and conditions of elderly people in Iraq, aid agencies report[95] that it is the elderly who find it most difficult to cope with displacement. They develop illnesses which, with a lack of medical assistance, can lead to death. Fatah Ahmed, of the Iraq Aid Association (IAA) has reported that Elderly people, like children, require special care. He states that without a proper diet, medical assistance, pension and welfare payments, aged people are indirectly targeted by the violence in Iraq.  It’s reported that by constantly moving to flee sectarian violence, the elderly have difficulty receiving their pension and food rations.[96]

[92]   Reliefweb, ‘Iraq: Elderly most vulnerable to insecurity’ 12 March 2007; http:/reliefweb.int/report/iraq/iraq-elderly-most-vulnerable-insecurity

[93]  Journal of Legal, Ethical and Regulatory Issues, Vol 25 Issue 3, 2022 ‘Protection of Rights of Older Persons Iraq: Towards Enactment of legislative Framework,’ by Esraa Mahmood Badr Alsamee, University of Kufa; ibid

[95]  Reliefweb, ‘Iraq: Elderly most vulnerable to insecurity’ 12 March 2007; http:/reliefweb.int/report/iraq/iraq-elderly-most-vulnerable-insecurity

[96]   ibid

As referred to above, the DFAT report[97] notes that the health system in Iraq has suffered from decades of conflict, economic sanctions, and ‘chronic’ underinvestment. It’s reported that because of widespread corruption, the sector faces continual shortages of drugs and other supplies.[98] In addition, it’s reported[99] that doctors and other health personal are subjected to reprisals, kidnapping and violence. They are targeted for revenge attacks by families and tribes of patients who die even if the patient was critically ill or near death at the tome of arrival at the hospital access to health services is increasingly difficult due to the number of health service professionals departing the country because of security concerns.[100] Its estimated that approximately 20,000 doctors have left Iraq in the last 15 years.[101]

[97]  DFAT report at p.15

[98] ibid

[99] ibid

[100] ibid

[101]  ibid

The country information[102] reports that years of repression due to strong conservative culture, loss of access to basic services and armed conflicts have led to the deterioration in the lives of women in Iraq. It’s reported[103] that the violence and lack of security and stability has constrained Iraqi woman to family roles, limiting their access to education and employment. Only 14 percent of women are working or actively seeking employment. This is compared to 73 percent of males. In addition, 21 percent of active women are unemployed compared to 11 percent of active males.[104] It’s reported that of those women in the workforce, the overwhelming majority are in the public sector in education, public finance and the banking sector due to its stability.[105] The enforcement of labour laws is not guaranteed in the private sector.[106] While cultural and social factors prevent women from participating in the private sector, there is also a range of obstacles, including access to health, legal rules and processes and barriers to participation.[107] The DFAT report assesses that most women in Iraq, regardless of ethnicity or socio-economic status, face a risk of official discrimination and a high risk of societal discrimination.[108] The DFAT Report assesses women and girls face a high risk of gender-based violence, including sexual assault. It’s reported that those women working to advocate for women rights face a high risk of violence, including targeted killing.[109]

[102] DFAT Report at p.43.

[103]  ibid.

[104]  ibid.

[105]  ibid.

[106]  ibid.

[107]  ibid.

[108]  DFAT Report at p.46.

[109]  ibid.

Based on the available country information the Tribunal accepts that as a woman the second applicant would face systematic and discriminatory conduct if she was returned to Iraq.  

The country information reports that the security situation in Iraq is highly unstable and fluid. Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire, assassinations and kidnapping for ransom.[110] It’s reported that the Iraqi Security Forces (ISF) consist of security forces administratively organised within the Ministries of Interior and Defence, the PMF and the Counterterrorism Service. Human rights groups regularly issue reports of the ISF committing human rights abuses including arbitrary and unlawful detention, enforced disappearances, and abusing and torturing individuals.[111] The PMF was originally established to assist in the conflict against the Da’esh.[112]  However, it’s reported that many of the members of the PMF are motivated by financial considerations and ‘moonlight’ from other jobs, including the police, resulting in many rogue elements within the PMF. ^[113]  Individual elements of the PMF have control over many areas of Iraq, particularly Shia neighbourhoods. They effectively provide services which would otherwise be provided by the government (i.e. welfare and security). The way each PMF group conducts itself in relation to each neighbourhood depends on the individual group. It is reported that many are socially conservative and will punish individuals who may be more liberal or secular in their behaviour and views.[114] It’s reported by human rights organisations that PMF groups regularly engage in killings, kidnapping and extortion throughout the country. Those who fall foul of the PMF have little chance of gaining recourse or justice through official means.[115]  Finally, the Iraqi Police Service (IPS) has historically been regarded as a secondary service.[116] It is under resourced and underpaid. As a result, many of its members resort to corruption to supplement their income.[117]  It’s reported that surveys have determined that one third of Iraq’s population reported paying a bribe to the IPS. Poor training and lack of resources has meant that the IPS is inefficient and unable to carry out the normal functions of a police service.[118] Therefore, based on the available country information, the Tribunal finds that there is no effective protection measure in Iraq pursuant to ss 5J(2) and 5LA of the Act. Accordingly, the Tribunal finds that there is a real chance that the applicant and the second applicant, will suffer serious harm if they are returned to Iraq and that this risk relates to all areas of the country[119]

[110]  DFAT Report.

[111]  DFAT Report at p.56.

[112] ibid at p.57.

[113] ibid.

[114]  Ibid.

[115]  Ibid at p.58.

[116]  Ibid.

[117]  Ibid.

[118]  Ibid.

[119]  Section 5J(1)(c), the Act.

In this case the Tribunal has accepted and found that both the applicant and the second applicant are elderly and suffer significant health issues. The country information notes that the health system suffers from chronic underinvestment and that health workers are specifically targeted for revenge attacks and reprisals. Both the applicant and second applicant are elderly, unable to work, and have no economic resources in Iraq. The applicant’s evidence was that he did not have any financial resources in Iraq. In addition, he was not able to rely on any family members remaining in Iraq as they were too old and not in the financial or social position to help them.  Based on the applicant’s evidence to the Tribunal, it accepts that he and the second applicant are not in the financial position to support themselves in Iraq.

1. The applicant claims that he was accused of being an infidel because he has children living in western countries. The Tribunal did not accept that the applicant had been abducted as claimed. However, it does accept that as people with children living in western countries and having lived in Australia for a long period, there is a real chance they will be seen as having secular views and beliefs contrary to the regime if they are returned to Iraq.  The Tribunal has accepted that the applicant was a supporter of the communist party in Iraq. Accordingly, the Tribunal finds that as an elderly, educated and secular Shia Muslim, there is a real chance he will be seriously harmed[120] if he is returned to Iraq. The Tribunal accepts that as an educated secular person the applicant would face systematic and discriminatory conduct[121] if he was returned to Iraq and that it is the essential and significant reason for his fear of persecution.[122]

   [120]  Section 5J(4)(b), the Act.

   [121]  Section 5J(4)(c), the Act.

   [122]  Section 5J(4)(a), the Act.

2. Therefore, based on the applicant’s evidence and the available country information, the Tribunal finds that on a cumulative basis given the applicants age, health condition, poor financial resources, inability to work the presence of contuse violence and their secular views there is a real chance the applicant and the second applicant will be seriously harmed in the event they are returned to Iraq.  

CONCLUSIONS

1. Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that, if the applicant and the second applicant are removed from Australia to Iraq, there is a real chance they will suffer serious harm. The Tribunal is satisfied that the applicants are non-Australian citizens in respect of whom Australia has protection obligations as refugees. The Tribunal is therefore satisfied that the applicants do satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant and second applicant satisfy s 36(2)(a) of the Migration Act.

Jason Pennell

Senior 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.