2007530 (Refugee)

2007530 (Refugee) [2023] AATA 4580 (22 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mitchell Travis Simmons
CASE NUMBER: 2007530

COUNTRY OF REFERENCE: Iraq
MEMBER:Katherine Harvey
DATE:22 November 2023
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 November 2023 at 5:33pm

CATCHWORDS
REFUGEE – protection visa – Iraq – political opinion – Civil Democratic Alliance member – secular views – threats from extremist groups – destruction of business – fear of killing – fear of kidnapping – return visits to Iraq – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA,f 5H, 5J – 5LA, 18, 36, 65, 441, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 April 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of the Republic of Iraq (Iraq). The first named applicant (the applicant) is [an age]-year-old woman who arrived in Australia [in] March 2018 as the holder of a visitor visa.
She applied for a protection visa on 5 June 2019.
On 9 July 2019, the applicant requested that the second named applicant, [an age]-year-old man who arrived in Australia [in] June 2019 as the holder of a visitor visa, be added to the application. The applicants are married.
On 21 April 2020, a delegate of the Minister refused to grant the visas.
On 27 April 2020, the applicant applied for a review of that decision and provided the Tribunal with a copy of the delegate’s decision. I am satisfied that the decision is reviewable under s 411(1)(c) of the Act. I note that the decision record records the applicant as ‘Applicant two’ and the second named applicant as ‘Applicant one’. I have not followed this naming convention, instead naming them according to the order of their applications.
On 26 July 2023, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the applicant but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 15 August 2023 and to provide all documents on which they intended to rely to support their case by 8 August 2023.
On 28 July 2023, the applicant’ new representative wrote to the Tribunal seeking a different hearing date. They also provided a change of contact details form and an appointment of representative form.
On 4 August 2023, the Tribunal invited the applicants to a hearing on 22 August 2023.
On 11 August 2023, the representative emailed the Tribunal advising that:
I am instructed as follows:
1.   Pursuant to clause 16.6 of the President’s Direction ‘Conducting Migration and Refugee Review’ given under s18B of the Act, the applicants concede that they do not meet the criteria for the visa.
2.   The applicants waive their right to a hearing and consent to a decision on the papers
3.   The Applicants do not request that the Tribunal consider whether to refer the matter to the Minister under the relevant Ministerial guidelines as they understand this request can be made directly.
As the applicants have competent representation and they advised that they concede they do not meet the criteria for the visa, that they waived their right to a hearing and consented to a decision on the papers, I have determined this matter on the evidence available to the Tribunal.
For the following reasons, I have concluded that the decision under review should be affirmed.
Material before the Tribunal
The applicants provided several documents to support their application for a protection visa, including:
·   a certified copy of the biodata page of the applicant’s Iraq passport expired [in] 2022
·   a certified copy of the biodata page of the second named applicant’s Iraq passport expired [in] 2020
·   a copy and translation of the applicants’ external marriage contracts form dated [in] May 1980
·   a copy and translation of the second named applicant’s national ID card
·   photographs and copies and translations of campaign material related to the second named applicant’s [involvement with] the Civil Democratic Alliance in the Iraqi Parliamentary Election of 2018
·   photographs of the second named applicant’s business before and after a purported bombing in May 2015
·   links to three videos about the bombing, and
·   a medical report prepared by [Doctor A], Senior Clinician, [Health Service 1], dated 10 October 2019.
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.
CONSIDERATION
The issue in this case is whether any of the applicants meet the refugee criterion and, if not, whether any are entitled to complementary protection.
Background
The applicant’s personal details are set out in her application for protection. She is [age] years old and was born in Babylon, Iraq. At the time she made her application, she claimed that she was [an occupation 1] by training and had not been employed since June 1990. She claimed that her religion was Islam. She claimed that she was married with a daughter living in Australia, [another child] living in [Country 1] and [a son] and her mother living in Iraq.
The second named applicant is [age] years old. He claims that he is [an occupation 1] and was a director of [a] company for 25 years. He claimed his religion was Muslim. He provided detail of his parents who reside in Iraq, his late [family member], and his [family members] who live in Iraq, [and specified countries]. He also provided details of a son-in-law in Australia [and] ‘nephews’.
Country of reference
The applicants claim that they were born in Babylon, Iraq and Baghdad, Iraq respectively. The applicants provided certified copies of the biodata pages of their Iraqi passports and claimed that they are citizens of Iraq.
I am satisfied that the applicants are citizens of Iraq and that Iraq is the receiving country for the purposes of s 36(2)(aa) of the Act.
Summary of claims
The applicants’ claims are set out in the application for protection.
The applicant claimed that because of her husband’s involvement in the Civil Democratic Party (translated in the second named applicant’s material as the Civil Democratic Alliance (CDA)) and his strong views, he and his family have become targets for people inside and outside of the party.
The second named applicant claimed he had been verbally abused and threatened in public. He claimed he joined the CDA party in November 2014 and in May 2015 his shop was targeted and destroyed by militia and he was nearly killed. [After advocating for the party at the election, he] continued to receive threats from the militia as CDA members were considered ‘kafer’ (atheists). He claimed to have received threats from religious and government supporters and that written threats forced him to leave the country.
He claimed that he complained to the authorities but they did not act and they will not afford him protection as they are corrupt. He has been critical of the government and, together with the general instability and insecurity in Iraq, he cannot rely on protection from the state.
The applicant claimed that she will be kidnapped to put pressure on her husband and she will be targeted wherever she relocates.
The applicant claimed that she is suffering from depression, anxiety and stress as a result of their situation and concerns about returning to Iraq.
Evidence
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.[1]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[1] Migration Act 1958 s 5AAA.
[2] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The Tribunal advised the applicants on 26 July 2023 that it was unable to make a favourable decision on the information they had provided. They were invited to give oral evidence and present arguments at a hearing and they declined the invitation.
Having advised the applicants that the Tribunal was unable to make a favourable decision on the information before it, they were invited to provide all documents on which they intended to rely to support their case by 8 August 2023. The applicants advised on 11 August 2023 that they do not meet the criteria for the visa. They did not provide any other evidence to the Tribunal.
Country information
Religion
The DFAT Country Information Report explains that:
3.30 An estimated 97 per cent of the population is Muslim. Shi’a Muslims make up 55 to 60 per cent of the overall population, while Sunni Muslims constitute about 40 per cent. Around 60 per cent of Sunnis are Arab, 37.5 per cent Kurdish, and the remainder Turkmen.
3.31 While freedom of religion is theoretically protected by the Iraqi Constitution, laws and customs tend to favour the Muslim majority. Article 2 (1) of the constitution establishes Islam as the state religion and prohibits any law that contradicts established provisions of Islam. The 1959 Iraqi Law of Personal Status governs the settlement by religious courts of disputes involving marriage, divorce, custody of children, inheritance and so forth. All recognised religious minorities except the Yazidis have personal status courts. When one of the parties to a dispute is from an unrecognised faith, Islam takes precedence.[3]
[3] DFAT ‘DFAT Country Information Report Iraq’ (16 August 2023) 17 (‘DFAT’).
In relation to atheists, non-practising Muslims and religiously unaffiliated persons, the DFAT Country Information Report explains that:
3.68 Sources told DFAT increasing numbers of young Muslims had become disillusioned with their faith, including because of atrocities carried out by Da’esh in the name of Islamic extremism. Some choose to retain their Muslim identity but abandon practices such as attending prayers and wearing hijab. Others choose to convert to religions such as Christianity or Zoroastrianism. Some become atheists. There is no official recognition of atheism in Iraq, but since atheists are generally registered as Muslim on their identity documents they are able to access the same rights and public services as other Iraqis. Atheists can reportedly often be identified by the non-Islamic names they adopt, such as ‘William’ or ‘Adam’.
3.69 Atheism is not well-accepted by conservative Iraqis. Former Prime Minister Nouri al-Maliki called atheism a ‘dangerous conspiracy’ and in 2017 a prominent Shi’a cleric, Ammar al-Hakim, called for atheists in Iraq to be confronted with ‘an iron fist’. Some activists publicly proclaim atheist beliefs, but harassment and violence against atheists by family members, religious groups and militia groups sometimes occurs. Known atheists reportedly have difficulty securing employment. Sources told DFAT they were aware of atheists being murdered by family members because of their denial of religion, but that these crimes were generally reported as ‘honour killings’ or as due to ‘refusal to obey the family’.
3.70 DFAT assesses that atheists in Iraq generally face a low risk of societal discrimination or violence, but this varies with individual circumstances. Atheists from highly religious or conservative families or communities face higher risks.[4]
Political pluralism and participation
[4] Ibid 23.
In its ‘Freedom in the World 2023: Iraq’ report, Freedom House reports that:
The constitution guarantees the freedom to form and join political parties, with the exception of the pre-2003 dictatorship’s Baath Party, whose participation, ideas, and protest activity are banned and criminalized. Further, any groups that support racism, terrorism, sectarianism, sectarian cleansing, and other ideas contrary to democracy or the peaceful transfer of power are also banned. Individual Iraqis’ freedom to run for office is also limited by a vague “good conduct” requirement in the electoral law.
In practice, Iraqis can generally form parties and operate without government interference, and parties explicitly opposing the current sectarian apportionment political system are allowed to operate, although prominent members face intimidation from militias. Women politicians have also faced threats from conservative elements in society. Party membership and multiparty alliances shift frequently.[5]
Political opinion
[5] Freedom House ‘Iraq: Freedom in the World 2023 Country Report’ (2023).
Regarding political opinion (actual or imputed), the DFAT Country Information Report explains that:
3.71 Following the US-led military action in 2003, Iraq experienced a sharp deterioration in its security situation, along with a rapid increase in the number of political parties and armed groups operating within the country. The current political situation is highly complex, with multiple actors vying for power, territory, resources, and control of legal and illegal markets. As a result, individuals expressing contrary political views can find themselves at odds with a diverse range of groups, including central and regional governments, state security forces (including state-sponsored militia), fringe militia groups, tribal groups, conservative religious elements and Islamic militant groups. What constitutes safe political expression in one part of Iraq is sometimes dangerous in another. The degree of risk faced by an individual on the basis of their political opinion (real or perceived) therefore varies depending on their prominence, persistence and location, the group or groups they oppose, and the degree to which they enjoy the protection of other powerful groups.[6]
Security situation
[6] DFAT (n 3) 23.
Musings on Iraq, a website/blog maintained by Joel Wing, a US blogger who since 2008 has reported on security developments in Iraq, noted in August 2023 that ‘Iraq is currently experiencing the lowest level of violence since the 2003 invasion’ and that security in Iraq had remained at the same level since February 2023.[7]
Health and mental health
[7] Joel Wing, ‘Security in Iraq remains stable in August 2023’, Musings on Iraq (4 September 2023).
Regarding the health system and mental health, the DFAT Country Information Report explains that:
2.10 The overall quality and availability of healthcare in Iraq is low. There is a nationwide shortage of doctors and nurses, a situation made worse by prolonged conflict and a long-term brain-drain of medical professionals. The Ministry of Health (MoH) is the primary health care provider. Chronic underinvestment and corruption have undermined its capacity to deliver quality healthcare. Waiting lists are long and hospitals often lack essential supplies such as cancer drugs. Iraqis who can afford to use private hospitals and clinics prefer them but, because private health insurance is unavailable, this can be expensive. The quality and availability of healthcare is slightly better in the Kurdistan Region of Iraq (KRI).
2.11 Violence against medical personnel is a serious problem. A 2021 survey found 87 per cent of doctors in Iraq had experienced violence in the previous six months. There are reports of doctors and nurses being targeted for revenge attacks by the families and tribes of patients who die, even if the patient was near death on arrival at the hospital. There are also reports of tribes extorting ‘tribal penalties’ from doctors for real or fabricated malpractice, which can reach as much as AUD 140,000-290,000. Many doctors have left the country or turned to other professions as a result.
Mental health
2.12 Mental illnesses such as depression, anxiety and post-traumatic stress disorder are common in Iraq and frequently linked to experiences of conflict and displacement. Mental health services are inadequate. There are two dedicated psychiatric hospitals in the country, Al-Rashad Psychiatric Hospital and Ibn Rushd Hospital, both located in Baghdad. There are psychiatric wards in some general hospitals, as well as some out-patient clinics, often run by international non-government organisations (NGOs) such as Medicins sans Frontieres. The absence of community-based mental health care means that often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading conditions. There is significant societal stigma against people with mental illness. People with mental illness are often perceived as dangerous and unable to work, and some Iraqis blame mental illness on personal weakness or divine retribution. These attitudes result in under-reporting of mental illness and under-utilisation of the services that are available.[8]
Returnees
[8] DFAT (n 3) 8–9.

Regarding conditions for returnees, the DFAT Country Information Report explains that the practice of seeking asylum and then returning to Iraq once conditions permit is well accepted:
5.25 The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. There is considerable evidence that Iraqis who are granted protection by Western countries often return to Iraq, sometimes only months after securing residency abroad, to reunite with families, establish and manage businesses or take up or resume employment. Based on discussion with multiple sources, DFAT assesses it is highly unlikely a failed asylum seeker would face mistreatment on return to Iraq solely on the basis of his or her having sought asylum overseas.[9]
[9] Ibid 41.
Findings
In their protection visa applications, the applicant claimed that her religion was Islam and the second named applicant claimed that he was Muslim. The decision record, a copy of which the applicants provided to the Tribunal, records that the second named applicant claimed in the protection visa (PV) interview with the Department that he is a Sunni Muslim and that he believes in God and Islam. Based on the decision record and in the absence of other evidence from the second named applicant, I accept that he is a Sunni Muslim who believes in God and Islam.
The second named applicant claimed that he received threats from the militia as CDA members were considered ‘kafer’ (atheists). A Carnegie Endowment for International Peace article described the CDA as ‘Iraq’s main secularist party’,[10] and the European Asylum Support Office notes that atheism and secularism are often conflated.[11] The second named applicant provided campaign materials and I accept that he was a CDA [spokesperson] in the 2018 election. I also accept, as recorded in the decision record, that the second named applicant [advocated] for CDA for one month, […] after [the election] he ceased his involvement in CDA and any other party. Given the level of the second named applicant’s engagement with CDA and the election outcome, I do not accept that he had a high profile or would have attracted interest from other political parties or the public because of his CDA engagement. I give greater weight to the country information. Based on the country information, I do not accept that the second named applicant had the ‘prominence’ or ‘persistence’ to be at risk because of his actual or perceived political opinion or the perception of CDA as a secularist or atheist party.
[10] KH Sowell, 'Iraq’s Status Quo Election', Carnegie Endowment for International Peace (8 February 2018).
[11] European Asylum Support Office (EASO), 'EASO Country of Origin Information Report - Iraq Targeting of Individuals' (7 March 2019) 130–131.
The second named applicant claimed that, because of his involvement in CDA, he and his family members had been verbally abused and threatened many times in public and that his shop was deliberately targeted by the Militia in May 2015 and destroyed in an explosion. As recorded in the decision record, during the PV interview he claimed that his shop was targeted by Shi’a because he has a Sunni name. As also recorded in the decision record:
a number of bombing incidents in Karadah district and wider Baghdad area around the same period were all attributed to IS [Islamic State] who sought to attack Shias to avenge displaced Sunnis and for the purpose of trying to incite civil war.[12] A report from Aljazeera which [relates to an explosion in the same area] in May 2015, indicates that while no group had claimed responsibility, it had occurred in a week where IS had carried out two similar attacks and a police colonel stated that Shia pilgrims had been the target.[13]
I accept that the second named applicant’s shop premises were damaged in a bomb explosion in May 2015. However, based on the country information before me that suggests a pattern of attacks around the same time were carried out by IS, I do not accept that the second named applicant’s shop was specifically targeted by Militia or Shi’a because of his Sunni name or his involvement in CDA.
[12] British Broadcasting Corporation, ‘Iraq sees worst bombing since invasion with 250 deaths’ (5 July 2016); Loveday Morris, ‘Double hotel bombing strikes Iraqi capital’, The Washington Post (28 May 2015); Jared Malsin, ‘Latest Baghdad bombing underscores Iraq’s ongoing nightmare’ Time Magazine (3 July 2016); Aljazeera, ‘Deaths as car bomb hits Baghdad’s café district’ (9 May 2015).
[13] Aljazeera, ‘Deaths as car bomb hits Baghdad’s care district’ (9 May 2015).
In his application, the second named applicant claimed he had received threats from the Militia. At the PV interview, as recorded in the decision record, the second named applicant claimed he had received three threats via his telephone from an unknown source, that the Militia had followed him after the election on 12 May 2018, and he had never been attacked or harmed in Iraq. He also claimed that two cars had followed his son’s car twice but that his son had driven away quickly and nothing had happened. As recorded in the decision record:
in his written claims the (second named) applicant stated both he and his family had been verbally abused and threatened in public on multiple occasions, while at the interview he advised that the threats he received came anonymously via the telephone. As recorded in the decision record, based on the ‘numerous identified inconsistencies between his written claims and the verbal account he provided during his PV interview along with the evolving nature of (the second named) applicant’s claims about having received threats in Iraq raises concerns that he has fabricated claims about having received threats and about having been verbally abused.
The second named applicant did not provide any other evidence to the Tribunal. Based on the evidence before me, I do not accept that his son’s car being followed twice indicates that the applicants were at risk of harm, I do not accept that the second named applicant or his family members were verbally abused and threatened in public, I do not accept that the second named applicant was followed by the Militia and I do not accept that the second named applicant received three threats by telephone. As recorded in the decision record, the applicant undertook international travel to [Country 1] on three occasions between December 2018 and June 2019 and returned to Iraq after each trip using a genuine Iraqi passport in his own name. Based on the information before me, including that the second named applicant had never been attacked or harmed in Iraq and he returned to Iraq after travelling to [Country 1] three times between December 2018 and June 2019, I do not accept that the second named applicant feared for his personal safety in Iraq because of his actual or perceived political opinion or his actual or perceived religious beliefs.
The second named applicant claimed that he complained to the authorities but they did not act and they will not afford him protection because they are corrupt. As I do not accept that the second named applicant feared for his personal safety because of his actual or perceived political opinion or religious conviction and I do not accept that his shop was specifically targeted and I do not accept that he was threatened or followed, it follows that I do not accept that the second named applicant was critical of the authorities because he received no protection. Based on the information before me, I do not accept that the second named applicant would face a real chance of serious harm or a real risk of significant harm because of his actual or perceived political opinion or actual or perceived religious beliefs if he returned to Iraq now or in the foreseeable future.
The applicant claimed that she will be kidnapped to put pressure on the second named applicant. As I do not accept that the second named applicant is at risk because of his actual or perceived political opinion or actual or perceived religious beliefs, I do not accept that the applicant is at risk of kidnapping to put pressure on the second named applicant.
The applicant claimed that she is suffering from depression, anxiety and stress and provided a report from [Doctor A] from the [Health Service 1] in Adelaide. [Doctor A] has a PhD, [and specified qualifications]. He reported that his assessment was based on a single semi-structured clinical interview on 24 September 2019 and he claimed that the assessment indicated a psychosocial profile, however he did not advise what tests were administered. [Doctor A] reported that the applicant’s General Practitioner had diagnosed depression. [Doctor A] provided a clinical opinion that the applicant suffers a severe depressive condition and high levels of emotional stress and anxiety. He said she presented with post-traumatic stress disorder (PTSD) symptoms.
I considered [Doctor A’s] report to the extent it provides a professional counsellor’s opinion. I note that, as recorded in the decision record, [Doctor A] did not advise how he reached his conclusions in respect of the applicant’s mental health, nor did he provide details of any ongoing treatment plans that have been implemented. I note his report does not provide a diagnosis of severe depression, anxiety or PTSD and that no clinical or medical diagnosis has been provided to the Tribunal. However, the Tribunal does accept [Doctor A’s] report that the applicant’s General Practitioner had diagnosed her with depression and that she is taking medication for depression and to assist with sleep.
I do not accept that the applicant suffering psychological symptoms confirms her claims to be true and I note that psychological symptoms may have a range of causes. I note that, as recorded in the decision record, the applicant claimed that she had previously received treatment from a psychologist in Iraq and was also taking medication for mental health issues (depression and anxiety) in Iraq. I considered the country information that mental illnesses such as depression, anxiety and post-traumatic stress disorder are common in Iraq and mental health services are inadequate. I considered the country information that there is significant societal stigma against people with mental illness and they are often perceived as dangerous and unable to work, and that some Iraqis blame mental illness on personal weakness or divine retribution.
As recorded in the decision record, the applicant advised during the protection visa interview that she has previously received treatment from a psychologist in Iraq and was taking medication for mental health issues (depression and anxiety) in Iraq. There is no evidence before me to suggest that the applicant experienced significant social stigma as a result of mental illness in Iraq in the past, when she was receiving treatment and taking medication, and she has not claimed that she would experience significant social stigma in the future. There is no evidence before me that the applicant would be denied access to mental health services in Iraq and there is no information before me to suggest that she would be treated differently to any other Iraqi seeking treatment. Based on the applicant’s evidence and the country information, I do not accept that there is a real change that the applicant will experience serious harm or a real risk that she will suffer significant harm as a result of the health system, mental health treatment or societal stigma if she returned to Iraq now or in the foreseeable future.
Based on the country information, I do not accept that there is a real chance that the applicants would experience serious harm or a real risk that they will suffer significant harm as returnees if they returned to Iraq now or in the foreseeable future.
Based on the information before me, including the country information, the applicants’ evidence to the Department and the Tribunal and their evidence as recorded in the decision record, I am not satisfied that the applicants have provided sufficient evidence to establish a claim for protection.
Do the applicants meet the refuge criterion?
Having considered the claims singularly and on a cumulative basis and taking into account the country information referred to above I am not satisfied that if the applicants returned to Iraq now or in the foreseeable future they face a real chance of persecution for reasons of their political opinion, race, religion, nationality or membership of a particular social group.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[14]
[14] Chan Yee Kin v MIEA (1989) 169 CLR 379.
The applicants advised the Tribunal that they do not meet the criteria for the visa. Based on the evidence before me, I find that the applicants do not have a subjective fear of serious harm and there is no real chance that they will experience serious harm for reason of their political opinion, race, religion, nationality or membership of a particular social group.
I am not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in section 5J(1) of the Act. As the applicants do not have a well-founded fear of persecution, I find that they are not refugees within the meaning of s 5H of the Act.
Do the applicants meet the complementary protection criterion?
Having found that the applicants do not meet the refugee criterion, I considered whether on the evidence before me there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iraq.
For the reasons set out above, I consider that there is no real risk that either of the applicants will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on them, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. I am also not satisfied that there is a real risk that either applicant will suffer arbitrary deprivation of life or the death penalty. I find no grounds that suggest either applicant will be subjected to significant harm for any reason if they return to Iraq.
Having considered the applicants’ claims individually and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Iraq that there is a real risk that either applicant will suffer significant harm.
Conclusion
For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Katherine Harvey
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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.
…

[2023] AATA 4580

22 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction