2001165 (Refugee)

This matter concerned an application for a protection visa by an Iraqi national. The applicant claimed he would face persecution in Iraq due to his criminal record and his family's association with a public figure. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had a well-founded fear of persecution or faced a real risk of significant harm if returned to Iraq.

The central legal issues before the AAT were whether the applicant's criminal record and Australian background would lead to ostracism or discrimination amounting to serious harm in Iraq, and whether the principle of double jeopardy would protect him from further prosecution. The AAT also considered the applicant's claim that his family's past association with a prominent political figure in the Kurdistan Region of Iraq (KRI) would place him in danger.

The AAT reasoned that while ostracism or discrimination due to a criminal record might be unpleasant, it did not meet the threshold of "serious harm" as required by the relevant legislation. The Tribunal noted that country information indicated double jeopardy is generally prohibited under Iraqi law, and given the applicant had already served his sentence in Australia, he was unlikely to face prosecution there for the same offences. Furthermore, the AAT found insufficient evidence to support the claim that individuals were actively seeking to harm the applicant or his family due to his father's past political associations, particularly as the family had previously returned to Iraq without incident. The Tribunal applied the principle that the onus was on the applicant to establish all statutory elements for protection obligations, and that mere allegations were insufficient without supporting evidence.

The AAT affirmed the decision under review, finding that the applicant had not satisfied the Tribunal that he met the criteria for a protection visa or complementary protection.