1934533 (Refugee)

1934533 (Refugee) [2022] AATA 3159 (4 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Alkafaji (MARN: 1386318)
CASE NUMBER:  1934533
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Roslyn Smidt
DATE:4 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 4 August 2022 at 4:50 PM
CATCHWORDS
REFUGEE – Protection Visa – Iraq – involvement in treating Sunnis fleeing violence during the period of conflict with ISIS – membership of the particular social groups – medical professionals in Iraq – involvement in demonstrations against corruption in Iraq – effective protection measures not available – harm feared is systematic and discriminatory – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 December 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Iraq, applied for the visa on 26 September 2016. The delegate refused to grant the visa on the basis that he did not accept his claims regarding the specific threats he faced in Iraq or his claims regarding the targeting of medical professionals in Iraq, and found his failure to apply for protection immediately after his arrival in Australia indicated that he did not have a genuine fear of harm in Iraq.
The applicant appeared before the Tribunal on 20 July 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
The applicant is a [age] year old of Shia Muslim faith from Al Hilla, Babylon in Iraq. He obtained a medical degree from a university [in] mid-2012. Following this he did his internship at [a] Hospital in Basra. In mid-2014 he moved to Baghdad where he worked as a resident doctor in [a] department until May 2016 when he travelled to Australia to undertake a course in preparation for applying for recognition of his qualifications in Australia. He applied for protection on 26 September 2016.
In December 2017 the applicant was accepted into a training program at [a] Hospital in [Australia]. Since November 2018 he commenced work as a [Medical] Officer with [the health service]. In February 2020 he moved to [a city] to take up a position as Senior Resident Medical Officer in [specialty]. He worked in the [specified] units at [Hospitals]. Since 2021 he has worked at [another] Hospital in [Australia]. He has been in a relationship with an Australia woman for 12 months.
summary of claims
The applicant claims that he would be at risk of serious or significant harm from militia groups and others if he returned to Iraq because he is a medical doctor, because of his involvement in treating Sunnis fleeing violence during the period of conflict with ISIS and because of his involvement in demonstrations against corruption in Iraq.
Claims and evidence
The applicant claims that he and other medical professional at the hospitals where he worked in Basra and Baghdad were repeatedly threatened and abused by members of militias and relatives and associates of patients, many of whom were associated with militias or tribal groups. The militias had unfettered access to the hospitals, demanded that the needs of their members be attended to first, sometimes kidnapped and probably killed Sunni patients who they believed to be associated with ISIS and abused medical staff who treated these patients. Medical staff were also attacked by relatives and associates of patients who they believed were not being treated appropriately or who died due to what was seen as inadequate care.
The applicant states that after he moved to [Hospital 1] in Baghdad he worked in [a] section and also did about seven shifts a month in the emergency department as this was required of all doctors at the hospital. In addition, from about September 2015 he and several others volunteered to do extra shifts in the emergency department and he was often there after completing his normal duties. He was motivated to volunteer for this work largely because of his desire to ensure that Sunni patients, including those displaced from regions under ISIS control, received proper care, as this did not always occur.
The applicant mentioned two specific occasions on which he was personally threatened. The first occurred shortly after he began to work at [Hospital 1] in 2014. He was forced at gun point to sign a death certificate for a young woman who was dead on arrival at the hospital without going through the required procedures. The second occurred in May 2016 when he was working as a volunteer in the triage section of the emergency department when it was raided by a large number of militia men from Asaib Ahl al-Haq intent on removing Sunnis who were awaiting treatment. The applicant was the only doctor in the area at that time. He tried to reason with the militiamen without success. They demanded he cease treating Sunnis and accused him of being an ISIS supporter. He was pushed to the ground and one of the men took his name tag. Nothing further happened to him prior to his departure for Australia.
In submissions to the Tribunal the applicant said that he had also been involved in some demonstrations against the government in Iraq. At the hearing he said that he had attended some small demonstrations inspired by the Arab spring demonstrations in Hilla and also participated in demonstrations against corruption and the role of militias in 2015 in Baghdad. He has provided photographs of himself at these demonstrations. At the hearing he said that he had not mentioned this in his initial statement because he was not greatly concerned about the impact of these activities at the time, but when he read about what happened to many of those who participated in demonstrations after he applied for protection he realised that he would have been amongst the protestors if he had remained in Baghdad and that his involvement in earlier demonstrations could be relevant to his case. He said that he would feel compelled to participate in similar events if he returned to Iraq and noted that medical personnel were seen as leading participants in these protests and had been amongst those targeted because of this.
The applicant claims that while it was always his goal to migrate to Australia, he had intended to return to Iraq after completing his course in 2016. However, in late July or early August 2016 he received news from his family and colleagues, who told him that members of the Asaib Ahl al-Haq had visited [Hospital 1] looking for him and had warned one of his colleagues that he was a traitor and would be killed if he returned to Iraq. In addition, his brother told him that members of the group had been asking shopkeepers in the area where his parents lived for his address. He said that he did not know why the group had taken this action two or three months after his departure from Iraq and some five months after the incident in the triage room, but suggested that they may have learned about the extent of his volunteer work helping Sunnis from the north and his involvement in anti-corruption demonstrations.
The applicant also claimed that other members of his family, some of whom are medical practitioners and all of whom are professionals, had also been threatened and harassed by militias. In February 2019 armed militia men came to his parents’ home and demanded money or they would burn down their house and kill his brother. His parents asked for time to arrange the payment and then left for Baghdad. His brother reported the incident to the police, but they said that they could do nothing. He then fled to [a country] where he obtained protection in 2021. A copy of his claims and notice of his grant of asylum have been provided. It does not mention the threat to burn down his family home, but suggests that militia men continued to make threats against his parents after February 2019.
At the hearing I advised the applicant that I had some concerns about his claim that members of the Asaib Ahl al-Haq had a continuing interest in him after the May 2016 incident as they had not sought to harm him further during the incident or during the period he remained in Iraq following the incident. I also advised him that I found it unlikely that the militia would have later become aware that he had volunteered in the emergency department or that he had participated in demonstrations against corruption some time after he left Iraq, or that they would have been so concerned about this that they had attempted to locate and harm him. He said that he could not be sure why members of Asaib Ahl al-Haq had made threats against him after he had left Iraq, but maintained that this had occurred.
Findings of fact
I accept that the applicant worked in hospitals in Basra and Baghdad prior to coming to Australia, including volunteering for extra work in the emergency department. I accept that he was personally threatened by people associated with militias at least twice while working in Iraq. I accept that he observed numerous incidents of threats, intimidation and violence against medical staff by members of militias and others. As discussed below, numerous reports and articles confirm that doctors working in Iraq have been subjected to this kind of treatment for many years.
I accept that the applicant is dedicated to his work as a medical doctor and that he is committed to the belief that treatment should be given to all those in need without regard to issues such as religion. I accept that he would continue to work as a doctor and perform that role in keeping with these views if he returned to Iraq.
I accept that the applicant attended several demonstration in Baghdad in 2015. I accept that he is concerned about the level of corruption and the role of militias in Iraq and that he would likely express these views, including by participating in protests or demonstrations if he returned to Iraq and the opportunity arose.
I have concerns about the applicant’s claim that members of Asaib Ahl al-Haq sought to locate and harm him after he left Iraq. If his role in the attack in March 2016 had incensed them to the extent that they wished to kill or seriously harm him, they had ample opportunity to do so before he left Iraq. And I am unaware of any independent evidence which suggests that his work as a volunteer in the emergency department or his involvement in demonstrations in 2015 would have caused members of Asaib Ahl al-Haq to search for him as far afield as Hilla several months after he left Iraq. The information I have read does suggest that the demonstrators were protesting against the government and had the support of some militias. I believe that the applicant may have sought to embellish his claims in the mistaken belief that this would enhance his chance of obtaining protection.
Claims and evidence
Country information
In essence the applicant claims that he is at risk of serious or significant harm from militias and others in Iraq because he is a medical doctor and because of his views on corruption and the role militias, and his past and future participation in protests about these issues. The following overview is intended to provide a context for the assessment of these claims.
The role of Shia militias
Sunni insurgents and Shia militias have both targeted civilians since shortly after the overthrow of the government of Saddam Hussein in 2003. In 2006–2007 sectarian violence saw Shia militant groups conduct a campaign of kidnappings and killings against Sunni rivals and in some cases impose their views on appropriate behaviour in southern cities and parts of Baghdad with a Shia majority, sometimes violently. Security operations saw Shia militias pushed out of many areas after about 2007 and while the political parties with which many were affiliated were active in the political arena, militias were largely dormant from about late 2011 until late 2013. Sectarian tensions and the rise of Sunni extremist group ISIS in the north of the country led to a resurgence of Shia militias in about 2014. These militias cooperated with government forces and played a significant role in the defeat of ISIS. In 2016 many of them were legally incorporated into Iraq’s security forces, but retained their autonomy. By December 2017 government forces had retaken all of the territory which had been occupied by ISIS. Since that time Shia militias have continued to have significant military capabilities and to play a significant role in Iraq. Some control local areas or government facilities. Their behaviour has varied considerably; some provide welfare and security services in the areas they control, some seek to enforce what they see as moral behaviour and a significant number have become involved in criminal activities, often using religious arguments to justify these acts.
Targeting of hospitals and medical personnel
Militias have targeted and controlled hospitals and health facilities from time to time for many years. According a report in the Huffington Post[1], in 2006 Al Yarmouk Hospital was under the control of the Mahdi Army Militia, which maintained a presence inside the hospital. The report states that the Mahdi Army also had significant influence over the Ministry of Health and used hospitals and health clinics as bases for their operations. Information on the situation between then and 2012 was not sought and it appears unlikely that the Mahdi Army Militia continued to exercise this level of control over hospitals throughout that period.
[1] 'Diary of an Iraqi ER Doctor Turned Journalist - Where Western Media Could Not Travel', Huffington Post, The, 25 January 2008, CXAB8B92D24322 and ‘The Next Iraqi War? Sectarianism and Civil Conflict’, International Crisis Group, Middle East Report N°52, 27 February 2006, p.19, Footnote 128, CIS14760
According to information for the period between 2012 and the final defeat of ISIS in December 2017, doctors frequently experienced physical and verbal abuse, assaults and revenge attacks by grieving relatives as well as tribal and militia leaders while working in Iraq’s health care [system]. Militia members committed acts of violence against doctors, including abductions and killings. Information also indicated that armed groups in Iraq, including the Shia militia group Asaib Ahl al-Haq, engaged in the practice of taking over hospitals to use them for the treatment of their injured fighters. In July 2014, Human Rights Watch reported that ‘Government-backed militias, in particular Asaib Ahl al-Haq have been controlling access to hospitals and kidnapping and killing Sunni civilians throughout Iraq’s Baghdad, Diyala and Hilla provinces.[2] In 2017 there were reports of what was described by some as a crime wave of murders and kidnapping of medical professionals in Baghdad, which occurred almost daily. The motive for these attacks is unclear. Suggestions included criminal gangs seeking financial gain, a wave of terrorism targeting doctors and negative coverage of the health ministry in the media resulting in hostility towards doctors.
[2] 'Violence against doctors in Iraq', Sadeer Al-Kindi, The Lancet, 13 September 2014, 20220531160558; 'Iraq: Pro-Government Militias’ Trail of Death', Human Rights Watch, 31 July 2014, pp.9-10, 20220609165125; 'Between Daesh and a hard place: A doctor’s struggle to save and survive in Iraq', Ali Jassim, Middle East Eye, 9 November 2015, 20220609153116; 'Medical Doctors in Iraq Vilified, Hunted and Killed ', Global Research, 17 December 2015, CXBD6A0DE17722; 'Iraq’s Doctors Face Threats of Violence', Wall Street Journal, 1 May 2016, CX6A26A6E20484; ‘No Protection, No Respect: Health Workers and Health Facilities Under Attack 2015 and Early 2016', Safeguarding Health in Conflict Coalition, 23 May 2016, CIS38A80128248; ‘Medical Murders: Crime Wave Targets Baghdad Doctors, Whose Only Choice Is To Emigrate’, Niqash, 3 August 2017, CXC90406611842; C90406614549 58; ‘Alarming wave of assassinations hits Iraqi doctors’, Rudaw, 8 August 2017, CXC90406614549
Some of the violence faced by doctors prior to December 2017 was related to the ongoing conflict with ISIS. However, it is clear that conflict with ISIS was not the only reason for violence against medical professionals and according to more recent reports attacks on doctors remained a common occurrence throughout Iraq.

An International Committee of the Red Cross (ICRC) report on a government campaign to raise awareness of the issue of violence against medical professionals issued in November 2018 notes that statistics revealed that the medical profession is the most exposed to violence of all professions. It observes threats and violence affecting health workers go beyond violence directly linked to armed conflict and includes reprisals in the form of verbal and physical abuse, threats, kidnapping or even killing. According to a survey conducted by the ICRC at the time, 70 per cent of health personnel expressed the wish to emigrate due to these problems, while 98 per cent responded that the number of health professionals leaving the country would decrease if a secure working environment could be guaranteed.[3]
[3] 'Health Care in Danger campaign: Stop violence against medical personnel and facilities in Iraq', International Committee of the Red Cross (ICRC), 12 November 2018, CXBB8A1DA38351
In 2020 DFAT observed that the health of Iraq’s population has suffered from decades of conflict and economic sanctions, combined with chronic underinvestment. Health services have deteriorated and the sector faces continuous shortages in drugs and other supplies, in part due to corruption.
In March 2019 The Arab Weekly[4] news agency reported that attacks targeting doctors from grieving families, powerful tribes and militia leaders were a major factor in a massive brain drain within the medical profession n Iraq. It quotes a local surgeon who said that dozens of highly qualified physicians have fled Iraq in the past few years because of kidnapping and assassination threats by militias and armed gangs. He observed that doctors were suffering in large degree because tribal customs and laws override state laws that are supposed to protect all citizens.
[4] 'Medical doctors, a disappearing profession in Iraq', Oumayma Omar, The Arab Weekly, 31 March 2019, 20190401123147
On 29 July 2020, the online news magazine Inside Arabia reported that Iraq’s doctors and medical workers were blamed for the mismanagement of medical care and that violence towards medical staff is almost a daily reality. Many doctors face systematic violence, harassment, assassinations, and kidnappings from vengeful relatives and even militia gangs with connections to patients have killed medical personnel in “revenge attacks.” The article noted that ‘even if they are not killed, violence toward medical staff is almost a daily reality. Armed groups have often stormed hospitals to target doctors while they are working, while others have been targeted on their way to work.’
A Reuters news article dated 23 September 2020 described a violent attack on a doctor by a dozen relatives of a patient who had just died of COVID-19. He filed a complaint with police but received threats from the people who beat him up to drop the case. According to the article, doctors and human rights activists say the state is so weak that it cannot bring doctors’ assailants to justice, especially if they come from a powerful tribe or belong to a militia, and doctors who have filed complains often drop the case after receiving threats.[5]
[5] 'Violence mounts against Iraqi doctors as COVID cases spike', Amina Ismail, Reuters, 23 September 2020, 20200924090735
A survey of 505 doctors working in hospitals in Baghdad conducted in mid-2021 found that 87 per cent had experienced violence in the previous six months. Patients were responsible for about 21 per cent of this violence, and about 72.4 per cent was committed by family or relatives of patients. The majority of attacks were verbal assaults or superficial contact, though fractured bones, lacerations, dislocations, contusions and residual psychological trauma occurred. No female doctors reported being physically attacked though one in five male doctors were struck by patients or family members during incidents. A number of respondents were aware of kidnapping or deaths resulting from violence. Most doctors who took part in the survey felt that little assistance could be expected from local authorities to reduce hospital violence.[6]
[6] 'Violence against doctors in Iraq during the time of COVID-19', Riyadh Lafta, Noor Qusay, Meighan Mary and Gilbert Burnham, PLOS One, 6 August 2021, 20220531163957
The report states that the violence worsened during the COVID-19 pandemic, but also notes that violence against doctors is not new, with earlier studies suggesting that over 75 per cent of doctors in Iraq are exposed to violence of some form.
According to the report, the most common reason given for the high level of violence was the perception that the quality of health care being provided was poor. Continuing armed conflict and popular unrest such as demonstrations against corruption and dysfunctional governance were also mentioned as contributing factors. A medical student survey in 2018 noted that relationships between patients and hospital staff in hospitals was one of mutual mistrust.
Political opinion and demonstrations[7]
[7] Department of Foreign Affairs Country Reports, Iraq, 13 February 2015, 26 June 2017, 9 October 2018 and 17 August 2020; European Union Agency for Asylum, Iraq - Targeting of Individuals, Country of Origin Information Report, January 2022, pp 30-37; ‘In Iraq, powerful militias kill protesters with impunity’ - The Washington Post, 12 May 2021, and Human Rights Watch World Report Iraq 2022
From mid-2015 onwards demonstrations increased, with protestors demanding better services and an end to corruption. Major protests in Baghdad breached the International Zone and occupied the Parliament. Generally speaking, these demonstrations were relatively peaceful and local authorities did not interfere. However, large protests near the international zone in Baghdad in February 2017 resulted in the deaths of at least five protesters and two police after security forces fired tear gas and rubber-coated bullets at protesters who were reportedly supporters of Shia cleric Muqtada al-Sadr calling for electoral reforms.
Large scale and violent protests demanding that the government address concerns about youth unemployment, infrastructure and public health concerns occurred in Basra in 2018. A number of protestors were killed during these protests. In October 2019 large-scale violent protests began to occur regularly in major cities, including Basra and Baghdad. Security forces used live ammunition against protesters, resulting in hundreds of deaths. Some militias, notably al-Sadr’s Mahdi Army, initially supported the demonstrators, but masked men who were widely assumed to be from other militias committed acts of violence against demonstrators. In late January 2020 al-Sadr withdrew his support and called for the demonstrations to be “cleansed”, and the authorities launched a coordinated campaign to end the occupation of city squares in Baghdad, Basra, Najaf and elsewhere. This involved considerable violence and there were numerous reports of security forces and militias firing live ammunition into crowds. A medic in Baghdad reported that his medical team transported 13 gunshot victims to hospital during the protests.
There were numerous reports that armed militia groups had abducted and arbitrarily detained high profile demonstrators and activists. Activists were reportedly often beaten, held incommunicado for several days, and then released. Human rights observers reported cases in which militias recorded the names of hospitalised protesters, presumably for potential later reprisal. Medical personnel also reported being threatened. Security forces and some militias systematically targeted anyone speaking out against the conduct of the security forces during the protests. Medical personnel also reported being threatened.
In August 2020 DFAT assessed that protesters and demonstrators face a high risk of being subjected to arrest or abduction, violence or the threat of violence from both state authorities and militia groups. This risk is higher for those identified or perceived as being in leadership positions, or those providing medical services to protesters or demonstrators.
The same report noted that a government investigation into the 2019 protest events found excessive force by security forces had killed 149 protesters and eight members of security forces. It further found high-ranking commanders of security forces did not order the use of excessive force, but lost control of their forces. A number of these commanders were removed from their positions, and other measures to address some of the concerns of protestors were promised. According to DFAT’s August 2020 report the impact of these measures remained unclear as a result of COVID-19 dampening the protest movement. However, later reports indicate that little has changed in relation to issues such as corruption and service delivery and that the government failed to deliver on its promise to hold accountable those responsible for the abuses during the demonstrations. In addition, militia groups associated with Iran, which had been briefly removed from cities such as Basra, had largely regained their former power and influence and have been targeting people who had been involved in the earlier demonstrations or who were openly critical of the government or armed groups which support them.
Elections were held in Iraq October 2021, but a new government has yet to be formed. Followers of Moqtada al Sadr won the largest number of seats, but not a majority if seats. After failing to form a government his followers withdrew from the Parliament. Since then they have engaged in ongoing protests against others in the political process who they see as corrupt and too close to Iran. They are currently occupying the Parliament and calling for the dissolution of parliament and early elections. The current protests have no real connection to the protests of 2019 which lost momentum for a range of reasons leaving including violence from militias. Some commentators believe that further popular protests such as those which took place in 2019 are possible, but it appears that many of those involved in the 2019 are pessimistic about the possibly of real reform.[8]
[8] See for example, Iraq’s al-Sadr demands dissolution of parliament, early elections | Protests News | Al Jazeera and Will Iraq slide into civil strife? | Politics | Al Jazeera
CONSIDERATION OF Claims and evidence
The applicant claims to fear persecution in Iraq because of his status as a medical doctor and because of his opposition to the corruption and the role of militias in Iraq.
Particular social group of doctors in Iraq
It is clear from the evidence set out above that doctors in Iraq face a strong likelihood of experiencing threats, harassment or abuse in Iraq today. While not all of the harm is physical, it is clear that this is not uncommon. It is also clear that doctors have been victims of targeted killings and abductions. Reports suggest that some doctors suffer from emotional distress or psychological trauma because of this ongoing situation. And while it appears that much of the abuse occurs in hospitals or clinics, this is not always the case as doctors have been targeted or pursued elsewhere. It appears that the level and nature of violence against doctors in Iraq has varied over time in response to developments in the situation in Iraq. However, it is clear from the evidence that major underlying causes such as the poor state of Iraq’s medical health infrastructure and the power of militias and tribal groups remain significant problems, which suggests that the problems faced by doctors are likely to continue in the foreseeable future.
I accept that the applicant has a genuine fear that he would suffer serious harm if he returned to Iraq because of his status as a doctor. In the circumstances set out above I find that there is a high likelihood that he would experience some level of harassment or abuse if he returned to Iraq and continued to work as a doctor. Furthermore, in my view his demonstrated commitment to providing care to all patients regardless of their background and in the face of threats and aggression by militias members increases the possibility that he will face repeated harassment including physical harm. After considering all of the relevant evidence, it is my view that while the chance that the applicant would face significant physical harassment or ill-treatment amounting to serious harm may not be high, it is not remote or insubstantial or far-fetched. I am therefore satisfied that there is a real chance that he would suffer serious harm because of his status as a doctor if he returned to Iraq within the reasonably foreseeable future.
Furthermore, I find that doctors who practise medicine in Iraq form a particular social group. They clearly share the characteristic of being medical doctors. This is not to suggest that any occupational group should be viewed as forming a particular social group in Iraq or any society. However, the nature of the role played by medical doctors in Iraq, as in most other societies, includes constant professional interaction with broader society, which in my view results in them being generally recognised as sharing a characteristic which distinguishes them from broader society, namely their status as doctors.
The questions which remain to be determined are whether the applicant’s membership of the particular social group of doctors in Iraq is the essential and significant reason for the harm he fears he would experience if he returns to Iraq and works as a doctor, and whether the harm he fears involves systematic and discriminatory conduct.
With regard to the first issue, it is clear from the evidence set out above that doctors in Iraq have been targeted for a range of reasons, some of which have involved elements of revenge and criminality. In my experience, it is not unusual for people who are at risk of persecution to be targeted for a range of often confused and interlinked reasons. For example, sectarian and political violence may involve aspects of revenge or crime. In such cases, it is necessary to look at the underlying reasons for the conduct of the agent or agents of persecution.
The reasons for the violence against doctors are not always clear. Prior to the removal of ISIS from the areas in control in northern Iraq, some of the violence was carried out by militias motivated by the desire to take control of medical facilities for the treatment of their fighters or to remove Sunnis suspected of involvement in ISIS. Doctors who resisted were sometimes viewed as traitors or opponents of the militias and sometimes as supporters of ISIS. In these cases the essential reason for the harm could be characterised as political opinion. However, the evidence strongly suggests that while specific events such as the death of a patient may trigger harassment or violence, the underlying reason for most of the current violence is the fact that there is a general distrust of all medical practitioners because they are viewed as responsible for, or at least complicit in, the many problems besetting Iraq’s health sector. In these circumstances I am satisfied that their status as medical doctors has resulted in them experiencing harassment and abuse and am therefore satisfied that the applicant’s membership of the particular social of doctors is the underlying and essential and significant reason that he faces a real chance of suffering serious harm if he is returned to Iraq.
With regard to the latter issue, it is clear from the evidence that attacks on doctors are not random events, but part of a pattern of harassment and abuse involving frequent incidents of abuse. In these circumstances, I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct.
I have considered whether effective protection measures are available to the applicant from the persecution he would face in Iraq. Many applicants seeking protection fear the government or authorities in their country of origin. The applicant fears private citizens and militias, many of which are legally part of the Iraqi security forces and some of which have close ties to or influence over the Iraqi authorities and are therefore able to act with impunity. As noted above, huge numbers of doctors have left the country in recent years, citing lack of security. It is clear from this and other evidence set out above that the authorities have failed to take adequate measures and lack the ability to protect doctors from abuse or attack. I am not satisfied that effective protection measures would be available to the applicant if he returned to Iraq.
I have also considered whether the applicant could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Iraq. While the applicant could avoid further problems by ceasing to work in his chosen profession, his commitment to his work as a doctor and to providing care to all who may need it suggests that it is a vocation or calling that is fundamental to his identity and conscience rather than a mere occupation or means of earning a livelihood. In these circumstances, I am not satisfied that he could avoid persecution in Iraq by modifying his behaviour.
I have considered whether the applicant faces a real chance of persecution because of his membership of the particular social group of doctors throughout Iraq. In my view the evidence indicates that medical doctors face a real chance of persecution throughout Iraq with the possible exception of the Kurdistan Region of Iraq. No specific information on the treatment of doctors in that region was located, but as the region has fared somewhat better than the rest of Iraq in terms of development and violence, it appears unlikely that they would face the same problems as those faced by doctors elsewhere in the country.
However, while the Kurdistan region remains part of Iraq, it is an autonomous region ruled by local authorities. Iraqis who reside in other parts of the country cannot enter or reside in the region without the permission of these authorities who have established checkpoints on the border to ensure that their rules of entry are enforced. Entry rules have changed over time. In the past only those with a local sponsor could enter. Currently, it appears that non-resident Iraqis can usually obtain a one month permit for temporary entry for purposes such as medical care or business with relative ease. These permits do not allow the holder to rent a house or seek regular work. Permits for stays of between six and 12 months may be granted to people who have a local sponsor. According to UNHCR, due no doubt to the large numbers involved, displaced people in Iraq often face significant pressure to return to their place of origin from local and central authorities.[9]
[9] UN High Commissioner for Refugees (UNHCR), Iraq: Relevant Country of Origin Information to Assist with the Application of UNHCR's Country Guidance on Iraq: Ability of Persons Originating from Formerly ISIS-Held or Conflict-Affected Areas to Legally Access and Remain in Proposed Areas of Internal Relocation, 11 January 2021
In the circumstances set out above, it appears that any protection relocating to the Kurdistan region might provide to the applicant would be short lived as it is likely he would be forced to leave when his temporary permit expired or in order to find employment and support himself and that the real chance of persecution relates to all areas of Iraq.
After considering all of the relevant evidence, I am satisfied that the applicant has a well-founded fear of persecution in Iraq for reasons of his membership of the particular social group of doctors in Iraq.
Political opinion
The applicant claims, and I accept, that he attended several demonstrations protesting corruption and other matters in Baghdad in 2015. However, there is no suggestion that he played a significant or leading role in these events and while many of the people who participated in later demonstrations were targeted by the authorities and some militias, there is nothing in the evidence before me which suggests that ordinary participants in these events were of continuing interest to the authorities or anyone else in Iraq. I am not satisfied that there is a real chance that he would be of adverse interest to the authorities or a militia or anyone else in Iraq if he returned to Iraq now because of his participation in these events.

The applicant also claims that he is deeply concerned about official corruption and the role of militias in Iraq and that he would participate in demonstrations or other activities protesting these matters if he returns to Iraq. I accept that the applicant is deeply concerned about official corruption and the role of militias in Iraq. His participation in demonstrations in 2015 suggests that he may engage in similar activities on his return to Iraq if the opportunity arises. However, the protests which took place in 2019 have ceased and it is unclear whether they or similar activities by those who share the applicant’s views on the situation in Iraq will resume, at least within the reasonably foreseeable future, and unclear what the reaction of the authorities might be In these circumstances the possibility that the applicant would become involved in demonstrations or other political activities which would mean he faced a real chance of experiencing serious harm is no more than speculation.
After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm on return to Iraq because of his involvement in demonstrations or other political activities if he returns to Iraq within the reasonably foreseeable future. That said, I believe that his political views which include opposition to the role of militias and to corruption mean that he is likely to take a stand against militias or corrupt individuals when they interfere with his work as a doctor and that this could contribute to the likelihood that he would face serious harm on return to Iraq.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Roslyn Smidt
Member

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

[2022] AATA 3159

4 August 2022

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