2001165 (Refugee)

2001165 (Refugee) [2020] AATA 1008 (16 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2001165
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Jane Marquard
DATE:16 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 April 2020 at 10:13am
CATCHWORDS
REFUGEE – protection visa – Iraq – imputed political opinion – father closely associated with a public figure – father’s protection visa and applicant’s and other family members’ humanitarian visas – applicant’s trip to home country – kidnapped, beaten and robbed – criminal convictions and imprisonment in Australia – immediate family in Australia and extended family in home country – no ties to extended family or country – security and general conditions – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 501
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
AGH15 v MIBP [2015] FCCA 1797
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Ram v MIEA (1995) 57 FCR 565
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZRSN v MIAC [2013] FMCA 78
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

The applicant is a [age]-year-old Kurdish man from [Location 1], Erbil in the Kurdistan Region of Iraq (KRI).
He arrived in Australia [in] March 2007 as a dependent on his mother’s Global Special Humanitarian Visa (Offshore) (XB202). He travelled to Australia to join his father who had been granted a protection visa in Australia and was accompanied by his mother and siblings. He attended high school in Australia upon arrival.
[In] January 2012 the applicant was arrested in relation to a large number of [offences]. [In] December 2012 he pleaded guilty to a number of the charges. [In] September 2013 he was convicted and sentenced to nine years imprisonment with a non-parole period of six years. His visa was cancelled on 17 May 2017 under s.501 of the Migration Act 1958 (the Act), on the basis of his conviction on these charges. Upon release from prison in January 2018 he was taken to Villawood Detention Centre, where he has remained since.
He applied for a protection visa under s.65 of the Act on 13 December 2019. A delegate of the Department of Home Affairs (the Department) refused to grant the visa on 23 January 2020.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
The Tribunal must determine whether the applicant meets the refugee criteria or the complementary protection criteria set out in the legislation.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears 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–5LA, 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 there are 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.
CLAIMS AND EVIDENCE
The evidence taken into account
In making its findings the Tribunal has taken into account information provided by the applicant to the Department, as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Iraq.
Summary of evidence before the Department
The applicant made claims in his application forms and provided evidence at an interview with the Department. A summary of his evidence follows.
The applicant is of Kurdish ethnicity and speaks English, Arabic, Kurdish and Persian.
He provided a copy of an Iraqi passport, which was issued [in] 2005 and expired [in] 2007, as well as a copy of his Iraqi identity card.
At the Department interview he told the delegate that he has two sisters, a grandmother, and other family members in the KRI. He said that he has not spoken to his Iraqi relatives since 2011.
His parents, two brothers, a sister, two uncles and two cousins all born in Iraq, now live in Australia.
He attended primary and high school in Erbil, then completed high school in Australia.
In his application forms, he claimed that if he returned to Iraq, he may be abducted because he comes from a well-known Kurdish family. His family was ‘under a lot of pressure’ prior to leaving Iraq in 2007. He also faced some ‘serious issues’ when he returned to Iraq in 2011. There are groups that are ‘against’ his family. He claimed that he would be tortured and executed. He said that he was not safe anywhere in Iraq. He indicated that he would provide more information at his interview.
At his interview the applicant provided further information. The applicant said that after his father left for Australia, he remained in Iraq with his mother and siblings until 2005, and then they travelled to [Country 1] for two years while they waited for their visa to Australia. The applicant, his mother and siblings arrived in Australia in 2007. In 2011 he returned to Iraq with his mother, father and sister for a holiday, because they thought it had changed for the better, after watching Kurdish news. They also had sisters and cousins they wanted to visit. But when they got back to Iraq, they had to ‘look over their shoulders’, because people commented on them and gave them death stares. They stayed about an hour and a half away from their home area. They did not feel safe. The applicant said that Iraq is a small country and people were talking about them and treating them with disrespect. They threw stones at his family. His father worked for, and was a close friend of [Mr A], [a public figure in] the KRI. He and [Mr A] were always together. His father was [an Occupation]. He worked at [Location 2], an area on top of a mountain, with many checkpoints with soldiers. He said that people were jealous of this close relationship, and wanted to have the applicant’s father killed. The people who wanted to kill him were people close to his father but he was not sure exactly who they were. As a result of threats, the applicant’s father left Iraq in approximately 1999/2000 and travelled to Australia. After his father left, the rest of the family remained in Iraq for five years. The people who had wanted to harm his father did not harm his family during this time, as they may have felt sorry for them. His family only went out at night-time.
The applicant said that in about the first or second week of the trip back to Iraq in 2011, a person he went to school with called [Mr B], took him down a dead end in a place called [Location 3]. He had set him up. Two four-wheel drives blocked the front and rear of their vehicle. About ten armed men came out of each vehicle. One sat beside him and another one opened the door. He was surrounded by ‘boys’ with AK47s and other guns. They hit him with the back of the AK47 on his shoulders and head. One of them was recording the beating. The incident lasted ten minutes. They told him to return to where he had come from. [Mr B] then took him to a taxi. The applicant believes that it was a message for his father and that the people who beat him up were people who had worked with his father. They spoke Kurdish. The delegate of the Department asked the applicant why these people targeted the applicant, as opposed to his father, who was also in Iraq. He said that it was because he was not staying at home as directed by his father and instead he was out seeing people with whom he had previously played soccer or school friends. He said he was ‘pretty much showing off that he came from Australia’. He said that he did not tell his father about it until much later, as he was too scared to tell his father.
The applicant claimed he stayed in Iraq for another three months. When leaving the country, airport employees laughed at him and made derogatory comments such as referring to him as an Australian and told him not to return to Iraq.
The applicant fears that he would not be able to return to Iraq due to the security situation. He referred to the Islamic State, and Shi’a militia groups as being of particular concern. He said that Iraqis, Turks and Iranians cannot stand Kurdish people. He said that he does not have family who could protect him in Iraq. He said that he does not understand the language and does not have a high level of education or work experience. He also claims that he would be discriminated against due to his criminal history.
He fears being detained, tortured, persecuted and executed by those who intend to harm the applicant’s father because of his close relationship to [Mr A].
He was asked at the Department interview if his father or mother had returned to Iraq in the few years prior to the interview. He said that he did not know if his father had returned, but his mother had a couple of years prior to drop off her mother. The Department put to him that his father and mother had returned to Iraq on multiple occasions, including a stay for his father of over 14 months from 2014 to 2015. His mother had returned in 2019. He said that he did not know about it.
The Department also put to the applicant that his brother, [Mr C] had put a photograph on social media of his father in Iraq in a Peshmerga uniform holding weapons, which did not correlate with his story that he was fearful in Iraq. He said it was probably to show he was Kurdish.
The applicant said that he had signed a request to return to Iraq as he wanted freedom. However now he knows that he cannot do it.
A letter of support dated 3 October 2018 from [Mr D], MP for [Electorate] was provided. The letter stated that he knew some of the applicant’s relatives who were long-term residents of his constituency. He said that the Iraqi government did not accept the deportation process. He said that whatever hope he had for rehabilitation was in Australia.
A letter of support dated 24 September 2018 from [Mr E], the President of the [Organisation] was also provided to the Department. The writer stated that the applicant has nowhere to go as Iraq will not accept him, and his family is in Australia. The [Organisation] would work hard to reintegrate him in the community and show him the right path to serve the Australian community.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 7 April 2020 via video link from Villawood Immigration Detention Centre. The applicant’s representative attended by telephone.
The applicant confirmed that he was born in Erbil, which is in the Kurdistan Region of Iraq (KRI). His grandparents and parents come from this region. His paternal grandmother is still alive, living in Erbil. He does not know who lives with her. Two sisters, two brothers, two paternal aunts and their families live in Erbil as well. He does not consider his brothers as siblings as they are married and he has no contact with them. He is the youngest. He has no idea of what they are doing. He thinks one is living in a village. They all sound like they are happy and live a good life.
He said that he has not spoken to any of his family for many years now. This is because he is not on good terms with them after his ‘kidnapping’ in 2011. His aunts and sisters ‘could have stopped it’, so he stopped talking to them. The Tribunal asked him how his family could have stopped the kidnapping and he said that they could have told him not to go out. He said everybody told him to stop worrying about what had happened to him, and nobody was shocked. He felt like his aunts, sisters and cousins were ‘against him’. He could not understand that they told him not to worry. He felt that they should have made a bigger deal of it. He said that it is difficult to explain but he was traumatised by the kidnapping. He felt that his family there did not care about him. This was one of the reasons his family came to Australia.
He said that he feels uncomfortable with his Iraqi heritage and does not want to call himself by his first name. He gets called [Nickname], as he does not like his original name and does not like the people from his homeland. He struggles to speak Kurdish, and his parents laugh at him, because he is so Australian. He has two brothers, a sister and his parents in Australia. His older brother is in Queensland and has little to do with them.
He confirmed that his father worked for [a public figure in] at a ‘checkpoint on the top of the mountain’, where the [public figure] lived. Some days the applicant’s father would go there and some days he would not. Asked what his father’s job was, he said it was ‘like [an Occupation]. He [did a job task]. He also cooked for the [public figure] sometimes in his ‘big kitchen’, as his father liked cooking. The [public figure] loved his father and trusted him by allowing him to cook for him. They came from the same village, but they did not grow up together. His father was well-respected, and everyone trusted him. There were no banks at the time. His father had a good car and came home with bags of cash. They had an easy life. His father worked exclusively for the [public figure]. The applicant did not know the [public figure] as he was too young. His father was successful, and they owned a house, where they all lived together. His father was not involved in [public life], he was ‘just a friend of the [public figure]’.
His mother looked after the children. She had to take medication for a number of medical issues.
The applicant claimed that people his father worked with started having ‘so much hate towards him’. They were planning to kill his father. Asked who these people were, he said that it was other people who worked for the [public figure]. It was a group of them, but he does not know how many. His father just left the country suddenly, in 1999 or 2000 without telling his family, because of these threats. Asked what his father had said about why he had left, he said that his father does not talk much. He said that it is wrong what they did. Asked if his mother had told him why his father left, he said that she had, and this is what he has told the Tribunal. His father left the country because of threats to kill him. He said that there is a great deal of corruption in the country. The Tribunal asked him if his father could have spoken to the [public figure] to seek help. He said that it would have got him killed, and he did not know who to trust. He had other relatives in Australia, who told him to leave and bring his family to Australia.
The applicant said that after his father left Iraq, his family ‘went through a lot’. They remained in Iraq for five years and then went to [Country 1] for two years. They had to live in a one- or two-bedroom house and had ‘nothing’. His brother found a job but it only had a small salary. They had no one to assist them.
The applicant started Year 8 in high school after arriving in Australia. The neighbours helped him study and learn English. He then studied [Subject] at TAFE. However, this is when he ‘went bad, for a short period’. He does not know what happened to him. He had ‘bad friends’, he was young and ‘went the wrong way’ and made mistakes. He has learnt from his mistakes and from spending six years in gaol. He ‘became a man’. Back then he ‘was a child’. He said that he has done his time and learnt so much from it. He finished his sentence in January 2018 and a van came and took him straight to immigration detention.
The applicant confirmed that he returned to Iraq with his family for the first time in 2011. He does not believe that his parents had been back to Iraq prior to this visit. They decided to go to Iraq for his grandfather’s funeral for three months, staying with extended family (aunt and cousins) in a village about one and a half hour’s drive from the place where they had lived. They did not travel around much but enjoyed the village which had a river and waterfall. Asked about whether they visited their three brothers and two sisters, he said they did see the other brothers and sisters and their children, and his father’s other sister, who visited with quick drives from the city, then returning to the city. His father was a bit worried and afraid, so they mostly stayed indoors.
The applicant said that he did not want to be in Iraq at all, particularly as he had a girlfriend in Australia. He did not enjoy Iraq and could not wait to return to Australia. He was young, and although his father told him not to go out, he wanted to do so, and he called old school friends to see if they wanted to go out in the city. His friend, [Mr B], came to pick him up and told him they would go out and have fun. However, [Mr B] had set him up. He parked his car on a dead end in the city saying there was a beautiful view. Suddenly, a lot of people came from two cars which blocked the road. There were more than 10 men and they had AK47s, knives and handguns. They hit him with a gun on the head. He does not know why there were so many weapons. He said that ‘anything could have happened to him’. They took his watch, jewellery and wallet and told him not to come back to Iraq and said that the country was ‘not for him’. He said it was a message to his father to get out of the country. Since that day the applicant could not wait to return to Australia. He thinks that the attack was a message to scare his father. The attackers left him and his friend in the car in the dead end. His friend had his head down and could not look at the applicant. The applicant then jumped out of the car and walked until he could find a taxi which drove him all the way back to the village. He had a lump on his head but he was not bleeding, as they had only ‘given him little taps on the head with the gun’. His injuries were not bad enough that he needed to see a doctor. He did not tell his family about what had happened, as he was worried about his parents saying, ‘I told you so’, and giving him a lecture. ‘Slowly’, he told his mother then later he told his father, who was disappointed in him. He cannot remember when he told his parents, but it could have been hours, days or weeks later. He was asked why he would not tell his father straight away if he thought that the attackers were trying to warn his father. He said he was more worried about being lectured.

The Tribunal asked the applicant if this attack could have been a random criminal attack as they took his watch, jewellery and wallet. He said that in Iraq there is not random crime. He said that everyone is well-off and working and there are no drugs. Furthermore, he arranged the trip to the city with his friend, who knew his parents. The Tribunal asked the applicant if he was being targeted for being Australian or Western rather than because the attackers wished to send a message to his father. He said that he does not think so as the attackers were older.
He said that he did not report his friend [Mr B] to the police because the country was corrupt and the police could not help. He also never contacted [Mr B] to ask him why he did it. He said that when they lived in Iraq, people mocked them and somebody threw rocks at the house, and they did not know who it was. He said he is a ‘mummy’s boy’ as he is the youngest, and it upset him to see people making comments to his family when they went shopping for fruit and vegetables. This was because there were rumours about his father running off with another woman and leaving his family behind. Even the neighbours asked how he could do this. The Tribunal asked if he suffered any other harm while visiting in 2011. He said that he did not.
The Tribunal asked the applicant why people would want to harm him if he were to return in the reasonably foreseeable future, given that he had left the country 15 years ago, and now that Marzani was no longer president of KRI. He said that these people are his father’s enemies. He would not have a job when he returned, and he could not live. He would rather die than go back. He said that his family has gone back to Iraq to visit since 2011 but he cannot. He was asked how he envisaged that he would be harmed. He said that people would pick on him. When they lived there, his brothers would often come home with a black eye or broken nose. He would have no one to support him if he returned. He said that Marzani was no longer president but the people who hated his father have good positions and good jobs under the new regime.
The applicant also claimed that he would be discriminated against on the basis of his criminal history. He said that people do not do robberies in Iraq as there are severe penalties. People will look at him and spit on his face because of his crimes. He said that in Australia he had a beautiful cell in gaol and he had good food and took classes. He learnt so much and it was ‘not like gaol’. While in gaol, he took the right path rather than mixing with bad people and knows that he could turn his life around in Australia.
As discussed in the Department decision, his brother [Mr C] had posted photographs of his father wearing the Peshmerga (KRI Security Forces) uniform in Iraq indicating that he had joined the Peshmerga. He said that he has spoken to his father about this. His father said it was just a private photograph and made him delete it. He was angry with his brother about showing this photograph. His father wore the uniform before he came to Australia as did everyone working in that area, around the checkpoint.
The Tribunal discussed with the applicant country information about Iraq, the applicant’s parents’ visit to Iraq since 2011 and other concerning aspects of his evidence. This is referred to in the findings below.
[Mr F], the applicant’s representative, said that there is a real risk of significant harm for the applicant. He has lived in Australia for 14 years, arriving in Australia when he was [age] years old. He cannot read or write Arabic or Kurdish well. His Iraqi family is not in contact with him. His criminal history would mean that people in Iraq would think of him as a criminal. He would not be able to survive. He is unfamiliar with Iraq and it would be difficult to live there.
Asked if there was anything further he wished to submit, the applicant said that he did not ‘come off the boat’. He said that he has a beautiful life in Australia, and he made mistakes, and has learnt from them. He has helped people in gaol resolve conflict. People trust him and honesty goes a long way. He was very childish and has now grown up. He said that he only needs one chance. He could work for his father if he got out of detention. He wants to hold his mother and be with her. She has lots of medical issues and he wants to be there for her. He ended a relationship with a girlfriend because she had criminal connections. His family support him totally. He would rather stay in detention than move to Iraq.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
DECISION OF THE DEPARTMENT
The Department was not satisfied that there were people wanting to kill his father or the applicant himself. The Department was not satisfied therefore that the applicant met the criteria for a protection visa.
FINDINGS AND REASONS
Relevant legal principles
The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.
The mere fact that a person claims fear of persecution for a particular 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 sufficient 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: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (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).
The Tribunal is not bound by legal forms and technicalities or rules of evidence, in reaching a decision although is guided by them. The Tribunal may take into account any matter relevant to the issues to be determined and considers all of the evidence before it in order to make the correct or preferable decision. The Tribunal must determine the weight to be given to evidence before it.
The findings of the Tribunal, based on the evidence provided, are set out below.
Nationality/receiving country
The applicant provided a copy of his Iraqi passport and identification card. The Tribunal is satisfied on the basis of these documents that the applicant is a citizen of Iraq, and that Iraq is the receiving country for the purposes of the legislation.
Findings of fact
The reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘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’.[1] The benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where 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’.[2]
[1] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
[2] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204
This approach is supported in numerous judgements and commentaries. As Burchett J said in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Further, there may be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[3]
[3] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
The Tribunal is guided by these decisions and commentaries and is mindful of the difficulties faced by refugee applicants, 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, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[4] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal notes that the applicant was in prison for six years and has been in immigration detention for two years. These are difficult environments and stress and anxiety may well have impacted on his ability to recall events. If the assault in 2011 did occur, it could have caused significant trauma to him. The Tribunal acknowledges that psychological research on memory of trauma[5] indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. Psychological research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[6]
[4] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, Conway, M, ‘Episodic Memories’, 47 Neuropsychologia 2305, 2009; Herlihy, J, Jobson, L and Turner, S, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’, 2012 26 Applied Cognitive Psychology 661, Brewin, C, The nature and significance of memory disturbance in posttraumatic stress disorder, (2011) 7 Annual Review of Clinical Psychology 203
[6] Cameron, H.E., Refugee Status Determinations and the Limits of Memory,2010, International Journal of Refugee Law 469
However the Tribunal must consider the evidence in its entirety and not in isolated parts, Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997). In this case, the Tribunal after considering all the evidence and taking into account the impact of a long period of detention and prison, as well as possible trauma from the alleged assault, is not satisfied that the applicant was the victim of a set-up by his friend in 2011 which was meant as a message to his father or that there are people trying to harm him or his father.
Truthful witnesses often present generally coherent, consistent and detailed accounts of events. The applicant’s evidence about the assault in 2011 was very general and did not contain the kind of detail often commensurate with telling the truth. For example, the applicant said that the people who assaulted him were people who wanted to harm his father prior to his father’s departure in the year 2000, and who wanted to send a message to his father. However he did not know the names or any details of the people who wanted to harm him or his father, or how many there were, suggesting they were a ‘group’. He did not explain why these people wanted to harm him so long after his father’s departure, when the motivation for the harm to his father was allegedly jealousy, and his father had long been out of the country and his job. When asked what his father had told him about these people, he said he had not discussed it with him, which appears unusual if his father left Iraq because of them, leaving behind his other family members who presumably could have faced ongoing threats or harm. Furthermore, the applicant claimed that he had been attacked in 2011 as a warning to his father, and if there were ongoing threats, it would have been expected that his father would have provided some details as to who they were, particularly as they were in the country for another three months. Another example of the generality of his evidence is he said that he could not remember if he told his parents hours, days or weeks after the assault in 2011. Again it would be expected that he would have some general idea of when he told his parents given that there could have been significant repercussions for them if indeed the assault was a warning to his father as claimed by the applicant.
There were also some differences in evidence provided to the Department and Tribunal. For example, the applicant told the Department that after the assault in 2011 his friend, who had been out of the car, jumped back in and took the applicant to a taxi. However he told the Tribunal that after the assault his friend sat in the car with his head down, and then the applicant got out of the car and walked to a taxi. When asked about this difference, he said that the evidence was ‘close’, he made an oath and was telling the truth but sometimes it is difficult to remember exactly what happened. The Tribunal does appreciate that these events took place nine years ago and if true, there would be associated trauma. However, it would be expected that a person could remember if his friend, who he said had set him up, took him to a taxi, or if he got out of the car at the scene of the assault and walked to a taxi. This inconsistency is not a reason on its own for finding that the assault did not take place as claimed. Other factors have also been taken into consideration. This includes his description of what took place after the assault. He said that when he returned to the village where his family was staying, he did not tell his parents about the assault as he feared being lectured at by his parents who had told him not to leave the house. This is entirely understandable at one level, as it is a common reaction of young people to hide non-compliance with their parents’ wishes. However it is difficult to accept that the applicant would not have told his father that he had been attacked if he thought that the attack was a message to his father, given that there could have been ongoing threats to him, his father and the rest of the family.
Furthermore, no real explanation has been provided by the applicant as to why if these people wanted to harm his father, they did not approach his father in 2011 rather than assault his son. He also did not suggest that they specifically mentioned his father. Additionally, if they wanted to harm him or his family, they could have done so in the years 2000 to 2005 when the applicant and his family were living in Iraq, rather than six years later when they were in Iraq for a short visit. They could also have harmed other family members who remained in Iraq. When asked about this the applicant agreed that the perpetrators could have sought them out in those five years if they had wished to do so, and is not sure why they were not harmed then, although it could have been that they were living in a village rather than in the city as previously.
Taking all these factors into account, the Tribunal is not satisfied that the applicant was ambushed and attacked in 2011 by a group of persons who wanted to send a message to his father. The Tribunal accepts that the applicant’s father was friends and worked with [Mr A], as he was able to give a detailed description of the place of work and his father’s connection to [Mr A]. The Tribunal accepts on his evidence that there may have been people who were jealous of his father at the time, but does not accept that there has been any ongoing threat to the applicant or his family since then. The Tribunal accepts the applicant’s evidence that between 2005 and 2007 people mocked them and once threw stones at their house because they believed his father had left them for another woman. The Tribunal is also satisfied that he and his family suffered some ostracism from locals when they returned in 2011 although the applicant was unclear of the reason for this, suggesting it may have been jealousy or because they came from Australia. However, the Tribunal is not satisfied that people from his father’s previous employment attacked the applicant in 2011.
Does the applicant have a well-founded fear of persecution from people who used to work for his father?
Under s.5H(1) of the Act, a person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of their nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that 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, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and
·     the real chance of persecution relates to all areas of a receiving country.

For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’ Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.
The Tribunal is not satisfied that there is a real chance of serious harm if the applicant returned to Iraq, for the following reasons.
Firstly, the Tribunal is not satisfied that in 2011 the applicant was attacked by people who used to work with his father who wanted to send a message to his father. The reasons for this finding are set out earlier. The Tribunal is not satisfied therefore that the applicant suffered any harm while living in Iraq or on his return in 2011, except for some economic difficulties after his father left in 2000, and some ostracism.
Secondly, the applicant’s parents have returned to Iraq on numerous occasions since they arrived in Australia, and since 2011. This included a lengthy visit by the applicant’s father from October 2014 to December 2015, and a recent visit by his mother in 2019. As discussed with the applicant at the Tribunal hearing, the Tribunal is of the view that these visits indicate that his parents do not have a genuine fear of harm from the people that the applicant claims want to harm his father or for any other reason. While the applicant’s father may have had a close relationship with [Mr A], and some people may have been jealous about this, the Tribunal is not satisfied that the applicant’s parents still have any concern about harm from such a group of people. Furthermore, even though they may have suffered some ostracism in the past because the applicant’s father left the country, and then the rest of the family followed, they have returned to the country on a number of occasions such that they do not appear to have a genuine fear of harm from such ostracism.
When asked about these visits, the applicant said that he understands that the Tribunal could conclude that they had no fear of harm, but he cannot stop his family from returning and he was in gaol during some of these visits. The applicant reiterated that he does not like Iraq and feels no connection unlike his brother in Queensland who sings in Kurdish. He said his parents’ visits are ‘nothing to do with him’ and they have had their reasons to visit, such as seeing family and his aunt’s sickness. His father changed his name to make it safe for himself when he returns. He said that sometimes his parents do things without thinking and it does not change the fact that if he goes back no one will look after him.
The Tribunal acknowledges that his parents make their decisions separately to him and there may be valid reasons for their visits, and they may have taken some measures to protect themselves. However, the Tribunal is of the view that if they did return on a number of occasions for lengthy visits then they do not have a genuine fear of serious harm from the people that the applicant claims want to harm his father or for any other reason.
Thirdly, the Tribunal notes that the people who allegedly want to harm his father have not threatened or harmed his father in any way during any of his visits, including the three-month visit in 2011 and the year-long visit in 2014/15. Nor have they harmed other family members who remain in Iraq. At the Tribunal hearing the applicant confirmed that this is the case. He said that notwithstanding this, it is always a worry about ‘who is coming from behind, who is going to do this and do that’. He said that he would respect the Tribunal decision whatever the outcome. He also referred to the fact that he was attacked in 2011 because he left the house, whereas his father stayed in the house. However he did concede that his father could have been found if the perpetrators had wanted to harm him. The Tribunal is satisfied that if the people who want to harm the applicant’s father wanted to do so, they could have done so on his visits, notwithstanding that he took some measures to protect himself.
Fourthly, the applicant has been very vague about who the people are who want to harm him. He has said that they are people who used to work with his father. The applicant’s father left the country in 2000, so it is twenty years after they allegedly wished to harm his father. The Tribunal is not satisfied that they have any reason to harm the applicant so long after the applicant’s father worked with them, particularly in light of the fact that they have not harmed him in the past.
The Tribunal is not satisfied therefore, taking all these factors into account cumulatively, that the applicant has a well-founded fear of persecution if he returned to Iraq from persons who worked with his father.
Does the applicant have a well-founded fear of persecution in the form of being unable to subsist?
The applicant claimed that he would not be able to survive in Iraq as he is unfamiliar with the culture and language.
The refugee criteria in the Act require that there be a real chance of serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that the economic or social hardship which the applicant may experience would be for one of the reasons set out in the legislation. Instead, economic or social hardship would be for reasons of unfamiliarity and economic or cultural circumstances.
In any event, the applicant has some familiarity with Iraq as he went to primary school in Iraq and visited for three months in 2011. He has been exposed to some Iraqi culture through his family in Australia. Importantly he has brothers, sisters, a grandmother and extended family in Iraq. His parents visit Iraq sporadically. DFAT has reported that familial connections are important for reintegration into the KRI, and access to employment and housing is easier for those who have maintained connections in the region.[7] He has completed some courses in prison and can speak English, and some Kurdish, Persian and Arabic.
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
DFAT reports that it is aware of considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. Some local sources have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community, integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of life. DFAT has stated that there is limited evidence that voluntary returnees face difficulties, and large numbers of Kurds, mainly single males, return voluntarily to KRI, particularly from the UK and European Union countries, encouraged by the region’s relative security.[8]
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
Thus although the applicant has his immediate family in Australia and clearly it would be easier for him to reintegrate into Australia after his prison sentence than it would be in Iraq, the Tribunal is not satisfied there is a real chance that he will be unable to subsist in Iraq.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution in the form of being unable to subsist.
Does the applicant have a well-founded fear of persecution because of his criminal record and/or his Australian background?
The applicant claims that if he returns to Iraq, he will be ostracised or discriminated against because of his criminal record and/or his Australian background. The Tribunal acknowledges that people all over the world sometimes discriminate against ex-criminals, and this may well be the case in Iraq, although no particular evidence has been provided in this regard. The Tribunal also accepts that sometimes returnees are subject to some ostracism, although the fact that his family has returned on a number of occasions does indicate that they do not have a genuine fear of serious harm from it.
The legislation requires that the harm an applicant would suffer must amount to serious harm and sets out a number of indicative examples to indicate that the harm must reach a certain level of seriousness. The Tribunal is not satisfied that the ostracism or discrimination the applicant may experience, while unpleasant, would reach the level of serious harm as required by the Act.
While not specifically raised by the applicant as an issue, in order to thoroughly canvas all possible claims, the Tribunal has also considered the issue of double jeopardy. Country information indicates that double jeopardy is prohibited under Iraqi law. The Constitution of Iraq 2005[9] states that double jeopardy is prohibited unless new evidence is produced. It also indicates that offences committed overseas can only be tried inside Iraq in limited circumstances. Iraq’s 1969 Penal Code[10] states that no legal proceeding can be brought against a person who commits an offence outside Iraq except by permission of the Minister of Justice. In addition it states that a person cannot be tried if (a) a foreign court has made a final decision to acquit or convict a person, and any imposed sentence has been served in full; or (b) if the proceeding or sentence has been annulled or quashed in the final sentence or annulment or trial or quashing of the sentence falls within the jurisdiction of the law of the land where the judgement was made. There are exceptions to this rule that relate specifically to offences that affect the security of the State.[11]
[9] The Constitution of Iraq 2005 Republic of Iraq 13 January 2005 Article 19(5) p.7
[10] Iraq Penal Code No 111 of 1969 (amended March 2010) republic of Iraq 14 March 2010 Article14 p.3
[11] Iraq Penal Code No 111 of 1969 (amended March 2010) republic of Iraq 14 March 2010 Articles 9 and 12 pp.2-3
The applicant has been convicted of crimes in Australia and has served the imposed sentence. He is not subject to any ongoing criminal charges. Therefore, in circumstances where double jeopardy is generally prohibited in Iraq (subject to certain exceptions of which the applicant would not face as he was convicted of crimes in Australia), there is no real chance the applicant will suffer serious harm in Iraq as a result of having been charged and convicted of crimes in Australia.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution because of his criminal or Australian background.
Does the applicant have a well-founded fear of persecution because of general violence in Iraq?
In his application to the Department the applicant expressed a fear of persecution due to general violence in Iraq. He referred to Islamic State and Shi’a militia groups as being of particular concern. He said that Iraqis, Turks and Iranians cannot stand Kurdish people. At the Tribunal hearing he was asked if he still has concerns about security in Iraq. He said ‘yes and no’ and that Iraq is a ‘wreck’. He had experienced the war between Iran and Iraq, with ‘fireworks overhead’, and ongoing conflicts. He said the security situation is unpredictable.
While it is true that Iraq has had a history of conflict and volatility, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for one of the reasons set out in the legislation. Fear of harm from generalised violence does not amount to fear of persecution for the essential and significant reason of race, religion, nationality, membership of a particular social group or political opinion. Such harm is by its nature random and non-discriminatory, rather than being ‘for one of the reasons’. Further, such persecution would not be systematic and discriminatory as required by the legislation. The Courts have held that as persecution must involve systematic and discriminatory conduct, the definition of ‘refugee’ does not encompass those fleeing generalised violence, internal turmoil or civil war.[12]
[12] Ram v MIEA & Anor (1995) 57 FCR 565
Additionally, the Tribunal is not satisfied that there is a real chance, in the sense of a substantial or non-remote chance[13] of serious harm in his region, near Erbil. DFAT reports that ethnic Kurds can return to KRI with relative administrative ease,[14] and that KRI has experienced lower levels of insecurity than other areas of Iraq and the Kurdish security forces are in control of the KRI.[15] The United Nations High Commissioner for Refugees (UNHCR) reports that the security situation in the KRI remains relatively stable, although there is a risk of attack by Islamic State[16] (also known as IS, ISIS, ISIL and Daesh). UNHCR states that Kurdish security forces are vigilant to the presence of home-grown Islamic State sleeper cells and other armed groups.[17]
[13] Chan v MIEA (1989) 169 CLR 379
[14] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
[15] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
[16] United Nations High Commission for Refugees, International Protection Considerations with Regard to People Fleeing the Republic of Iraq, 2 May 2019
[17] United Nations High Commission for Refugees, International Protection Considerations with Regard to People Fleeing the Republic of Iraq, 2 May 2019
A more detailed analysis of the security situation in Iraq, and more specifically Erbil is set out in the DFAT report as follows:
In December 2017, Prime Minister Haider al-Abadi declared final victory over ISIL after Iraqi forces recaptured the last areas still under their control along the border with Syria. ISIL continues to commit small attacks mainly on government forces and security personnel at road checkpoints.
On 25 September 2017, the Kurdish Regional Government (KRG), which was established under the 2005 constitution held a non-binding referendum on independence for the Kurdistan Region of Iraq as well as disputed territories under KRG control. The referendum passed, leading to federal government demands to Kurdish and other disputed areas’ authorities to annul the results. Federal troops subsequently occupied the city of Kirkuk, taking control of valuable oil fields. Long-term Kurdish President Masoud Barzani resigned ahead of regional parliamentary elections, which occurred on 30 September 2018.The KRG is an autonomous regional government recognised under the Iraqi Constitution based in Erbil. The KRG is responsible for the administration of Erbil, Sulaymaniyah and Dahuk provinces.
Several factors influence the security situation in Iraq, including actions of remaining ISIL fighters (or other extremist fighters that have emerged since ISIL’s defeat) and other armed groups (including the state-sanctioned Popular Mobilisation Forces; see Popular Mobilisation Forces (PMF or Al-Hashd Al-Sha'abi)), and historical intra-Shi’a and intra-Sunni tensions. In the Kurdistan region, the security situation is influenced by tensions between the federal government and KRG, tensions between different Kurdish political blocs, and actions by Turkey and Iran.
ISIL will likely continue to indiscriminately target Iraqi civilians and commit human rights abuses as a small-scale insurgency. The numerous Shi’a armed groups in Iraq include Saraya Al-Salam (SAS, also known as the ‘Peace Brigades’, and partly made up of former Mahdi Army fighters), Asaib Ahl al-Haq (AAH), Kataib Hizbullah (KH), and the Badr Corps. SAS and the Badr Corps are the military arms of the Sadrist and Badr political movements respectively. Some Shi’a groups have sponsored the formation of local factional Christian and Sunni militias to divide and weaken these communities. Local and international observers have accused some PMF groups of committing abuses against civilians (see Popular Mobilisation Forces (PMF or Al-Hashd Al-Sha'abi)) and engaging in criminal activities. Violence between different Shi’a armed groups is also frequent, but usually low-level.
The Kurdistan region has experienced lower levels of insecurity than other areas of Iraq. This may reflect the greater capacity of the Kurdish security forces and the lower levels of ethnic and religious diversity in the region. Recent increases in numbers of IDPs entering the region have strained the Kurdish authorities’ ability to guarantee the safety of people fleeing there. Turkey has shelled suspected militants in villages along the border between Turkey and the Kurdistan region, and Turkish forces have crossed the border in pursuit of militants. Turkey also maintains a military training and artillery base at Bashiqa, near Mosul, without the approval of the federal government. The KRG retains control of some disputed areas from which it successfully expelled ISIL. Some violent incidents have occurred between KRG-affiliated forces and Shi’a militia groups.[18]
[18] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
The European Asylum Support Office (EASO) Report for 2019 states that indiscriminate violence takes place to a different degree in varying parts of the country. The area around Erbil is regarded as being of such a low level that there is no real risk of serious harm. EASO states that at the end of 2017, the Iraqi security forces succeeded in taking back control of the territories which had been seized by the Islamic State in Iraq. After three years of military campaigns against Islamic State, the Prime Minister al-Abadi declared that it was militarily defeated. Since then the level of violence has decreased significantly, and the country is rebuilding its institutions and all forms of civil life. However Islamic State remains active in parts of the country although it does not hold territory since the military defeat and operates as an insurgent group. Its operational capabilities have been reduced.[19] A number of groups are identified in the EASO report as possibly being at risk, however the applicant does not fall within these groups.[20]
[19] European Asylum Support Office, Country Guidance Iraq, June 2019, European Asylum Support Office, Country Guidance Iraq, June 2019, >
According to the Danish Immigration report, Islamic State does not control any geographic areas but there are control zones north of Baiji and sleeper cells in Kirkuk, Mosul and supporting villages. Primary targets are the Iraqi Security Forces (ISF), armed militias and the Popular Mobilisation Units (PMUs) and to some extent government officials.[21]
[21]Danish Immigration Service, Country Report Northern Iraq, November 2018. >
Asked to comment on this country information, the applicant agreed that northern Iraq is the safest part of Iraq. However, he was concerned that at some point violence could ‘kick off’. The information indicates that Iraq’s history has been characterised by volatility and conflict. However, Islamic State was defeated in 2017 and there are now only small-scale attacks mainly at government checkpoints and the organisation has limited operational capacity. In regard to Shi’a armed groups, sources indicate that there have been some violent clashes between Shi’a groups and KRG armed forces, and Turkey has shelled militants in some northern towns. In January 2020 Iran launched attacks on a foreign base in Erbil in retaliation for a US strike on an Iranian military general.[22] While there is indiscriminate violence around Iraq, there is little in the KRI. Besides infrequent and/or small-scale incidents the security situation in KRI is stable and it is regarded as one of the most secure regions in Iraq. The Tribunal is not satisfied on the basis of these sources that if the applicant were to return to Erbil there is a real chance of serious harm, given the low level of violence and conflict in this region.
[22] ABC News, 8 January 2020, of findings – refugee criteria

The Tribunal is not satisfied that the applicant has a real chance of serious harm in the form of execution, abduction, physical harm, inability to subsist or any other type of serious harm, if he returned to Iraq.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation were he to return to Iraq in the reasonably foreseeable future.
Does the applicant meet the complementary protection criteria?

100. If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: (the complementary protection criterion).
101. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
102. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
103. The Tribunal has not accepted that the applicant was targeted for harm in 2011 by persons who wanted to harm his father. The Tribunal is also not satisfied that there is a real chance of serious harm from people who used to work with his father, or from generalised violence in the region, or because of double jeopardy. Reasons for this are set out earlier in this decision. For the same reasons, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation from people who used to work with the applicant’s father or through generalised violence or double jeopardy.
104. The Tribunal has also considered whether the applicant would face a real risk of significant harm because he is unfamiliar with Iraq, may find it difficult to find support or employment and would be discriminated against because of his criminal record or Australian background. The Tribunal has some sympathy for the applicant as he has lived in Australia since 2007 as a young man in high school. He has expressed his love and affinity for Australia and a desire to reform and live a good life, after previously going astray and committing crimes. He has said that he has completed courses in prison and has learnt from his experiences. He has claimed that he is unfamiliar with Iraq and has no affinity for the culture. Support letters for the applicant from [Mr D] MP and the [Organisation] suggest that the applicant would have support for rehabilitation if he were to remain in Australia.
105. The Tribunal accepts that the applicant may have difficulty settling into a life in Iraq as he has not lived there since 2007 and his immediate family is in Australia, such that he would have more support in Australia for reintegration after his prison sentence. He may also face some ostracism or discrimination in Iraq on the basis of his Australian background and/or criminal record. The question for this Tribunal is whether any ostracism or discrimination he may experience would amount to significant harm as it is defined in the legislation. It is not a matter for determination for this Tribunal as to whether it would be preferable for the applicant to remain in Australia for his rehabilitation, although it is very probable that it would be. The Tribunal must determine whether the applicant meets the criteria for complementary protection, and the Tribunal is not satisfied that any ostracism or discrimination he may experience would reach the level of ‘significant harm’ as envisaged in the legislation. Reasons for this are set out below.
106. It was not claimed, and the Tribunal is not satisfied that ostracism or discrimination, if any, would result in arbitrary deprivation of life or torture as they are defined in the legislation.
107. ‘Cruel or inhuman treatment or punishment’ is exhaustively defined to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted. The Department’s Complementary Protection guidelines indicate that international jurisprudence can be drawn upon and provide some examples of what may and may not constitute cruel or inhuman treatment. The Guidelines indicate for example that rape, female genital mutilation, forced abortion and forced sterilisation and, in some cases, circumstances arising from a forced marriage may comprise cruel or inhuman treatment.[23] While these are guidelines and indicative examples only, and decision-makers must look at individual circumstances, the harm must be significant. In this case, the evidence does not establish, and the Tribunal is not satisfied that ostracism or discrimination, if any, which the applicant may experience, would reach the level of ‘severe’ pain and suffering or ‘cruel or inhuman’ treatment.
[23] Department of Home Affairs, Complementary Protection Guidelines, section 27, as re-issued 21 May 2015.
108. Degrading treatment or punishment is exhaustively defined to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. The threshold for ‘extreme humiliation’ is high.[24] The evidence does not establish, and the Tribunal is not satisfied, that any ostracism or discrimination the applicant may experience would reach the level of ‘extreme’ humiliation which is unreasonable.
[24] SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013), AGH15 v MIBP [2015] FCCA 1797 (Judge Smith, 11 June 2015)
109. The Tribunal is also not satisfied that economic and social hardship the applicant would experience would reach the level of significant harm or that it would be intentionally inflicted, as it would be the result of economic and social circumstances in the country.
110. In making these findings, the Tribunal has taken into consideration the fact that the applicant has many family members in Iraq including brothers and sisters and his grandmother, who presumably could provide support even though he has not been in touch with them, or on close terms, recently. He went to primary school in Iraq and stayed with extended family in 2011. His parents have visited on a number of occasions such that they may be able to visit periodically and provide him with assistance, and it is likely they have close connections in the country that he can call upon. As set out earlier, DFAT has said that many Kurds return to the area and are able to reintegrate, which is easier if there is familial support.[25] Furthermore, although the applicant is unfamiliar with Iraqi culture generally, he did attend primary school there, spent three months in Iraq in 2011 and has some language skills, although they may not be strong. Furthermore, he has spoken of completing a number of courses in prison. Thus even if some discrimination or ostracism occurred, he would have some skills to seek employment and also could call on family for support and assistance.
[25] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
Summary of findings on complementary protection
111. The Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
112. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
113. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
114. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
115. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
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.
…

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.
…

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.
…

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.
…

[2020] AATA 1008

16 April 2020

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Immigration

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