2008000 (Refugee)

[2022] AATA 5163

2008000 (Refugee) [2022] AATA 5163 (14 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sophie Manera (MARN: 5511774)

CASE NUMBER:  2008000

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Shahyar Roushan

DATE:14 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of her membership of the same family unit as the first named applicant.

The Tribunal affirms the decision not to grant the third named applicant a protection visa.

Statement made on 14 December 2022 at 10:47am

CATCHWORDS
REFUGEE – protection visa – Iraq – Federal Circuit Court remittal – religion – secularist imputed to be an atheist or apostate – imputed political opinion – supporter of Ba’ath Party due to father’s affiliation and applicant’s profession as academic – engaged in criticism of and debate about Islam on social media – attempted kidnapping – risk of retribution due to previous social media activity – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 March 2016 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) is a [age]-year-old Shi’a Muslim and a national of Iraq. The second and third named applicants are the applicant’s wife and son.

3. The applicant first arrived in Australia [in] December 2009 as a holder of a Business (UC 456) visa granted on 1 December 2009. [Later in] December 2009, he departed Australia. [In] July 2011 he returned to Australia with his wife as a holder of a Student (TU-574) visa. Between [June] 2012 and [December] 2013, he travelled outside of Australia on three separate occasions.

4. On 1 July 2015, the applicant applied for a Protection visa. His wife and son were included in the application as members of the same family unit and did not make their own separate claims for protection. The applicant and his wife have another child, who was born in Australia on [date] and is not included in the application.

5. On 7 March 2016, a delegate of the Minister refused the Protection visa application. The applicant applied for a review of the delegate’s decision and a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision on 17 October 2018.

6. On 13 November 2018, the applicant applied to the then Federal Circuit Court of Australia for a review of the first Tribunal’s decision and on 7 May 2020, the Court remitted the matter to the Tribunal by consent to be determined according to the law.

7. The matter was considered by the presently constituted Tribunal (the Tribunal) pursuant to the order of the Court.

   CLAIMS AND EVIDENCE

   Protection visa application

8. According to his Protection visa application, the applicant was born in Baghdad, Iraq. He and his parents, however, resided in Karbala. In October 1994, the applicant and his parents migrated to [Country 1], where they remained until June 2006. They subsequently moved to [Country 2] and resided in that country until July 2011. Sometime after the applicant moved to Australia, his parents returned to Iraq.

9. After completing his secondary schooling in [Country 1], the applicant obtained a Bachelor of [Discipline 1] from [University 1]. Following his graduation, he worked as a [Occupation 1] in [Country 1] for a short period before undertaking a Master of [Discipline 1] at [University 2] of [Country 2]. He subsequently completed his PhD on an Australian Government scholarship at [University 3 in Australia], where he was also employed as an academic.

10. In a statement accompanying his Protection visa application, the applicant made the following claims.

11. He is of Arab ethnicity and belongs to the Shi’a faith of Islam. However, he is ‘secular’ and has ‘liberal thoughts towards religion and faiths’. His family has a ‘political profile’ due to his father’s membership of the Ba’ath party, which had an impact on his family’s safety following the 2003 invasion in Iraq.

12. His father was an ‘Iraqi academic and [an] intellectual figure’. His family lived a peaceful life under Saddam Hussein’s rule. However, in 1991, his family fled Karbala for a rural area and subsequently to Baghdad to avoid being harmed by the ‘rebels’, who were targeting supporters of Saddam Hussein and members of the Ba'ath party. In 1994, he and his family relocated to [Country 1], where his father worked as an academic.

13. In [Country 1] the applicant was discriminated against for being an Iraqi and he felt isolated despite the formation of an Iraqi community in [Country 1]. This was due to his lack of participation in Shi'a rituals as he had lost faith in religious leaders and religious ‘instructions’. He was very outspoken about his beliefs, strongly disagreeing with the Shi’a practice of self-harm during religious ceremonies. He did not attend the mosque and did not pray every day.

14. Whilst attending university in [Country 1], the applicant joined a campaign organised by students against certain religious groups causing instability in the eastern part of the country. He took the view that ‘religion is a personal matter and political changes had to come through proper political channels and practices’. He also believed that religion is a personal matter, and Islam is ‘about values and guidelines for life’ and not ‘public exhibitions’. He grew his hair long and did not go to the mosque. For this, he was admonished by some lecturers. His attitude resulted in criticism being directed towards his parents by other members of the [Country 1] Iraqi community affecting his relationship with his parents. This tension was further fuelled by his support for the US invasion of Iraq in 2003, which prompted Iraqi professors teaching in his faculty in [Country 1] to fail him in certain subjects. Nevertheless, he continued to express his political views and eventually graduated with good results.

15. After his graduation, he worked as a [Occupation 1] and then established his own business. In 2006, he undertook a master’s in [Discipline 1] at [University 2] of [Country 2]. Following his graduation, he was offered a teaching position at [University 4] in [Country 2].

16. In 2009 he married his wife in [Country 3] as he was fearful of going to Iraq. Following his return to [Country 2], he began receiving threats from the [Country 2] Iraqi Shi’a community as he persistently refused their invitations to participate in religious ceremonies and continued to express views critical of the involvement of religious leaders and figures in politics in Iraq. He was accused being a Ba’athist and threatened that he would be taught a lesson if he returned to Iraq.

17. In 2010, the [Country 2] police raided a Shi’a place of gathering and he was later told that he was suspected by the community as the person who had informed the police. As a result, he was threatened and verbally abused.

18. In 2012, following the applicant’s move to Australia, his mother was diagnosed with breast cancer and a year later her health deteriorated. She was required to undergo surgery and he travelled to Iraq to see her. His decision to travel to Iraq was kept confidential. He travelled to Karbala [in] November 2013 and his mother had her surgery on 26 November 2012. Following the surgery, he was on his way to his parents’ house when he was approached by three men late at night. They asked for his name and when he refused to answer, they said they knew who he was and asked him to accompany them. They tried to drag him towards their car, but he struggled and resisted. He was then hit over the head by a blunt object but did not lose consciousness. He screamed for help and a neighbour near his parent’s house came out and started shooting in the air, frightening his assailants, who fled. He was left on the side of the road bleeding and bruised.

19. He reported the incident to the police on the following day. The police took a statement from him but took no other action. He was told that the police were associated with ‘radical groups’ and that they will return to harm him. He then moved to his grandparents’ house and left Iraq soon after. He was told by his family that the preliminary police investigation had shown that these people were asking neighbours about him and his address the day before the incident. He returned to Australia believing that the situation in Iraq would improve, but his family were subjected to threats and were attacked.

20. During his stay in Australia, he has discussed matters relating to Iraq’s political and religious issues whenever he has been ‘exposed to debates’. He does not fear arguing or expressing his views in Australia.

21. He fears being killed if he were to return to Iraq. The authorities are unable to protect him, and he is unable to relocate internally as it would not be possible for him to be ‘religious’ and he opposes the ‘extremists’ who are in power.

    The interview

22. The applicant attended an interview with the Department on 26 November 2015 and provided his oral evidence in English. The applicant’s former migration agent, Mr Baker Al Musawi, also attended the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.

23. Following the interview, Mr Musawi provided to the Department copy of ‘corrected’ original and English translation of a police report, dated 28 November 2013, detailing the assault on and the attempted kidnapping of the applicant in Iraq in 2013.

    The delegate’s decision

24. On 7 March 2016, a delegate of the Minister refused the application. The delegate accepted that the applicant is a Shi'a Muslim from Karbala, who sees Islam (and any other religion) as ‘guidance in life’. She further accepted that he is a private person who has occasionally read the Quran, does not attend mosque and does not participate in the Shi'a religious rituals. However, she did not accept that the applicant had formed a profile of being a non-practitioner of Shi'a faith and its rituals, that he was an outspoken critic of Shi'a clergy and the Shi'a government of Iraq and that he had been discriminated against, verbally abused, and directly threatened to be harmed as a result. The delegate was not satisfied that the applicant faces a real chance of persecution in Iraq or that there is a real risk that he will suffer significant harm if removed from Australia.

    The review application

25. On 14 March 2016, the applicant applied for a review of the delegate’s decision.

26. On 9 March 2018, the applicant appointed Dr Mohamed Al Jabiri as his new representative.

27. On 31 August 2018, Dr Al Jabiri made a submission to the Tribunal in support of the application for review, as well as a number of news articles and country information reports in support of his submissions. The Tribunal also received evidence in relation to the applicant’s online activities, comments he had posted and responses he had received on two separate [Social Media 1] accounts between 2013 and 2017.

    The first hearing

28. The applicant appeared before the first Tribunal and presented oral evidence at a hearing held on 7 September 2018 (the first hearing). He provided his oral evidence in English.

29. At the first hearing, the applicant clearly stated that he feared facing harm in Iraq due to voicing his opinions in relation to religion and ‘being secular’, which is ‘interpreted’ as atheism, as well as his father’s past affiliation with the Ba’ath party. He stated:

    When it comes to religion, there is seldom, if ever existed a grey area.  It’s either black or white to them. You’re either a follower or you’re not…

    And secularism is always misinterpreted with atheism. And those who defend these kinds of views are always considered either agents of external powers in the area or have some relations to Zionist movements and other who try to achieve agendas…

    And that’s why they don’t have subclassifications of non-observants and secular and atheist and others. Everybody is an infidel and kafir to them. You either believe in what I’m saying and preaching, or you’re not. Apostates are threat to their political power in Iraq…

30. Following the hearing, the first Tribunal wrote to the applicant under s 424A of the Act, inviting him to comment on certain information the first Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decisions under review. The letter stated in part, ‘Although you claim to be an atheist you noted in a DIAC form dated March 2011 that your religion was “Muslim”. You also described yourself as “Shi'a Muslim” in you protection visa (PV) application in July 2015.’

31. The applicant responded to this letter on 13 September 2018. In his response, he stated that in his student visa application he had recorded his religion ‘precisely as registered in [his] ID regardless of [his] personal views’. The applicant noted that in his Protection visa application, he had stated that he is ‘secular’ and has ‘liberal views towards religion and faith’. The delegate had accepted that he is a Shi'a Muslim, who sees Islam and other religions ‘essentially as guidance in life’. In a statement to the first Tribunal, he had explained that his views ‘are secular and non-religious’ and that he questions and disbelieves everything that is practised in his country in the name of Islam. He is perceived as an atheist and a ‘non-follower’ by Shi’a Muslims. He further noted that at the first hearing he had mentioned the ‘misconception of secularism as atheism’ and had referred to external sources suggesting that secularism is often branded as atheism in Iraq.

32. Together with his response, the applicant forwarded to the Tribunal a ‘summary of evidence’ extracted from media reports and other sources in relation to the ‘the threats faced by seculars/atheists, Ba’athists, and Academics.’ Some of the sources referred to by the applicant in his summary has been referred to and relied upon by the Tribunal in its analysis further below.

    First Tribunal’s decision

33. On 17 October 2018, the first Tribunal affirmed the delegate’s decision. The first Tribunal raised a number of concerns in relation to the credibility of the applicant’s evidence and did not accept his protection claims. The first Tribunal did not accept that the applicant had been publicly critical of Islam in [Country 1], in [Country 2] or on social media in Australia and rejected his claims that he had experienced adverse consequences as a result. The first Tribunal did not accept that the applicant was targeted in a kidnapping attempt in Karbala or that he was of any interest to Shi'a militias. The first Tribunal did not accept that the applicant would face a real chance of serious harm or a real risk of significant harm in Iraq.

    Judicial review

34. On 7 May 2020, the Federal Circuit Court of Australia remitted the matter to the Tribunal for reconsideration on the basis of the first Tribunal’s failure to consider documentary evidence submitted by the applicant in support of his claim that he was subjected to a kidnapping attempt in Karbala. The documents were potentially relevant to the decision, such that the Tribunal’s failure to consider those documents resulted in a constructive failure to exercise jurisdiction and therefore a jurisdictional error.

    The second hearing

35. On 1 June 2022, the applicant appointed Ms Sophie Manera as his new representative.

36. On 15 July 2022, the applicant attended an initial hearing via video. Ms Manera also attended the hearing. At that hearing, the Tribunal explained to the applicant the procedural history of his case, the determinative issues for the Tribunal and the timeline for further submissions to be provided.

    Submissions to the Tribunal

37. On 31 August 2022, Ms Manera forwarded to the Tribunal a statutory declaration deposed to on 31 August 2022, as well as two annexures consisting of screenshots of [Social Media 1] posts, replying to or addressing the applicant through his [Social Media 1] handle, and a bundle of photos of the applicant’s university graduation ceremonies.

38. In her detailed covering submission, Ms Manera submitted that the applicant’s attitude towards and criticism of Islam will be adversely perceived by Iraqis as atheism and apostasy. It was submitted the risk that secularists face in Iraq arises from the misconception of secularism as atheism and that the applicant would be imputed to be an atheist, or an apostate. In support of her submission, Ms Manera referred to and cited a number of news articles and reports, which the Tribunal has also relied upon in its analysis further below.

39. Ms Manera submitted that whilst the applicant does not identify as an atheist, and believes religious views should be private, there is a risk that he will be imputed to be an atheist. His views on Islam are likely to be discovered by members of the Iraqi community and may be brought to the attention of the authorities. The applicant has not been active on [Social Media 1] since 2017. However, he has previously engaged in criticism of and debate about Islam on [Social Media 1], and his posts can still be accessed online today by anyone and attributed to the applicant, leading to accusations that he is ‘anti-Islam’.

40. It was further submitted that the applicant would face persecution on the basis of his imputed political opinion, namely as a supporter of the Ba’ath Party due to his father’s affiliation with the Ba’ath Party, his own profession as an academic and as a failed asylum seeker from a wealthy, Western country.

    The third hearing

41. On 13 September 2022, the applicant appeared before the Tribunal in person in Perth to give evidence and present arguments. Ms Manera also attended the hearing in person. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

42. 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.

43. 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.

44. 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).

45. 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.

1. 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

2. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Analysis, reasons and findings

3. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

4. The applicant has provided detailed written and oral evidence to the Department and the Tribunal over the course of seven years. The Tribunal has carefully considered this evidence. The Tribunal was in a position to further probe and examine the applicant’s claims at the third hearing held in September 2022. The Tribunal's overall impression of the applicant throughout the process was that of a credible witness who has attempted to provide detailed, truthful and consistent evidence at every stage. The Tribunal does not share the credibility concerns raised by the delegate and the first Tribunal and considers any discrepancies in his evidence to be substantially minor and do not alter or undermine the essence of the claims he has put forward. 

5. The Tribunal accepts the applicant’s evidence that he was born into a Shi’a Muslim family, but he started questioning his faith from a young age. He stopped going to mosque and stopped praying when he was approximately 16 years old. Over the years his beliefs and feelings towards Islam have changed. Whilst he does not identify as an atheist, he sees religions as providing general guidance in life and he is opposed to the interference of religions and religious leaders in life matters. The Tribunal accepts that the applicant holds secular views and believes that politics should be separate from religion, which is a private matter. The Tribunal further accepts that the applicant has previously engaged in criticism of and debate about Islam on [Social Media 1]. The Tribunal accepts that following the refusal of his Protection visa application and after his second [Social Media 1] account was ‘compromised’ and closed in 2017, he refrained from publishing anti-Islamic comments online. The Tribunal accepts that this was due to his fears for his own safety and that of his family.  

6. The Tribunal accepts Ms Manera’s submissions that the applicant’s secularist views and attitude towards Islam will be adversely perceived by Iraqis as atheism and apostasy. The country information submitted by the applicant clearly suggests that secularism is branded as atheism in Iraq, attracting adverse treatment by both the authorities and members of the public.

7. According to an article by Al-Monitor, dated 28 March 2018:

   The situation in Iraq seems complicated when it comes to defining atheism. Many clerics who are close to Islamic political parties have misconceptions regarding the subject. For instance, secularism is often branded as atheism. Some religious figures promote the idea that liberal and communist ideologies are inherently anti-religion and teach that God doesn't exist, which is why they should be resisted, as Shiite cleric Amer al-Kufaishi stressed in August 2017.[1] (emphasis added)

   [1] Al-Monitor, Iraqi courts seeking out atheists for prosecution, 28 March 2018,

8. Another article by the same source states that the prevailing social view on atheists in Iraq is that 'they are morally corrupt, or that they are but agents and operatives of foreign entities, such as Zionists or Masons, among others.’ The article goes on to state:

   This negative perception might be expanded among some to include all those who call for liberalism or secularism, who would be looked at with suspicion and portrayed as members of global Masonic networks that have come to Iraq to destroy its values and social constructs.[2]

   [2] Al-Monitor, Iraqi atheists demand recognition, guarantee of their rights, 6 March 2014,

9. A June 2017 article also by Al-Monitor reported on a lecture against atheism by the Iraqi National Alliance Party, which held the majority in parliament. The article noted that during Ramadan of 2017, religious lectures in Shi'a cities in Iraq's centre and south attacked the spread of secular and atheistic ideas, which are viewed as threats to Iraqi society.[3] Secular movements are seen as a ‘dangerous conspiracy’ intent on taking power from Islamic parties and gaining control.[4] According to the same article:

   Atheism in Arab culture, as described by contemporary Egyptian philosopher Abdel Rahman Badawi in his book, “The History of Atheism,” covers a vast range of ideas and behaviors. To Badawi, atheism includes agnostics, emerging secular movements that reject the political role of religion, and those who criticize various aspects of religion. Secularism and atheism are thus often intertwined in the discourse of political Islam through the use of terms such as “secular atheist trends and ideas.” These ideas inspire fear in many politically-oriented Islamic movements.[5] (emphasis added)

   [3] Al-Monitor, Islamic parties intimidate, fear atheists in Iraq, 23 June 2017,

   [4] Ibid.

   [5] Ibid.

10. On the basis of the above information, the Tribunal finds that secularism in Iraq is often labelled as and is intertwined with atheism.[6] The European Asylum Support Office (EASO) has reported that atheism, in turn, is equated with blasphemy.[7] Whilst there are no articles in the Iraqi Penal Code that provide for a direct punishment for atheism, there are provisions in the Code that punish the desecration of religions.[8]

    [6] Al-Monitor, n1 above. Also cited in EASO, COI Query (Q66), 11 April 2018, Washington Times (The), Atheists in Muslim world: Silent, resentful and growing in number, 1 August 2017, cited in EASO COI Query, ibid.

    [8] Al-Monitor, n1 above. Also cited in EASO COI Query, ibid.

In 2020, in a Commentary on the Current State of International Freedom of Religion or Belief, the UK All-Party Parliamentary Group for International Freedom of Religion or Belief stated:

Humanists, atheists and secularists are the focus of particularly pernicious repression. There is a pattern of impunity or collusion in violence by state actors against the non-religious. They are considered to be ‘apostasizers and blasphemers’. The Iraqi Penal Code criminalises blasphemy with up to three years imprisonment. Members of other faiths and those identifying as agnostics, atheists, humanists are not able to record their faith identity on national ID cards.[9]

[9] UK All-Party Parliamentary Group for International Freedom of Religion or Belief, Commentary on the Current State of International Freedom of Religion or Belief (2020), February 2021, p.33

According to a May 2021 paper in Review of Nationalities, a yearbook published by the Research Unit for National and Ethnic Minorities of the Institute of Political Science and Public Administration, University of Zielona Góra, Poland: 

Nowadays, many messages also come from politicians or clergy, who see secularists and atheists as enemies of the state and traitors to God. More and more often in the media there are statements calling for the pursuit of such people and punishing them... Iraqi authorities and the Muslim clergy recognize such individuals as frustrated people who use Western ideas to destabilize the society and its culture. They are perceived as heralds of the sexual revolution and the destruction of tradition.[10]

[10] Graczyk, A, Atheism and the changing image of Islam in Iraq, Review of Nationalities No.10 (2020), 18 May 2021,

Al-Monitor reported in April 2018 that arrest warrants were issued for four Iraqis for ‘atheism’ by the judiciary in the Garraf district of Dhi Qar province. According to the Garraf chief judge speaking to Iraqi local media, the local court administration ‘has tasked intelligence agencies with cracking down on the “atheism phenomenon” and that the crackdown is in accordance with the Iraqi Penal Code’.[11]

[11] Al-Monitor, n6, above.

In relation to societal attitudes towards and treatment of atheists by militias, it has been reported that the prevailing social view in Iraq is that:

[Atheists] are morally corrupt, or that they are but agents and operatives of foreign entities, such as Zionists or Masons, among others. This negative perception might be expanded among some to include all those who call for liberalism or secularism, who would be looked at with suspicion and portrayed as members of global Masonic networks that have come to Iraq to destroy its values and social constructs.[12]

[12] Al-Monitor, n2, above.

According to Al-Monitor, there ‘are many Iraqi websites and blogs that cater to atheists, but they all keep their membership lists secret for fear of being persecuted or killed by extremist religious militias and groups, or even by ordinary citizens on the street’.[13] An article by Your Middle East refers to opinions that many atheists in Iraq could be at danger from extremists and militias linked to religious groups, if they express their views too openly and that religious militias often take matters into their own hands, even though being an atheist in Iraq is not a crime.[14] In June 2020, Humanists International reported that the organisation had received over 45 requests for assistance internationally, 7% of which came from Iraq, reporting abuse, ostracism or difficulty in finding employment for perceived atheists.[15]

[13] Ibid.

[14] Your Middle East, Without God in Baghdad, 4 February 2014,

[15] Humanists International, Humanists at Risk: Action Report 2020, 25 June 2020, p.10,

In relation to social media activities, in its most recent Country Information Report in relation to Iraq, DFAT assessed that ‘ordinary citizens who make social media posts on controversial topics are also at risk of retribution, which may include violence or the threat of violence.’[16] Significantly, on 4 October 2021, the Republic of Iraq Supreme Judicial Council posted the following statement on its website:

The Media Center of the Supreme Judicial Council clarifies that the committee formed by judicial order No. (711/Office /2021) was formed based on the request submitted by Major General Saad Maan, head of the Security Media Cell, after many socially and morally rejected cases were monitored on social media sites such as exchanging wives, urging atheism, practicing prostitution and promoting ideas that contradict the principles of Islam stipulated in the Constitution of the Republic of Iraq of 2005, which emphasized the preservation of the Islamic identity in Article (2) of it, considering Islam the official religion of the state.

As well as monitoring cases of sectarian incitement for political and electoral motives.

Therefore, the judicial order was issued to form the aforementioned committee to monitor everything that constitutes a crime in accordance with the Penal Code and the Iraqi Constitution, which emphasized the preservation of the family and its religious, moral and national values, which are the basis of society in Article (29) of it.

It was taken into account that each union concerned with the readable and visual media has a representative in the committee to ensure the participation of the technically competent union in the violation in addition to representatives from the competent security authorities.[17] (emphasis added)

[16] DFAT, DFAT Country Information Report – Iraq, 17 August 2020.

[17] Republic of Iraq Supreme Judicial Council/ High Judicial Court, Clarification, 4 October 2021, >

In his statutory declaration of 31 August 2022, the applicant stated:

30.      If I were returned to Iraq, I would have no choice but to refrain from posting anti-Islamic views online. That would be tantamount to suicide. I would surely be caught and my family and I would be harmed. I would be forced to hide my views. I would effectively be living in secrecy. I would not be able to freely express my thoughts and beliefs.

31.      I previously enjoyed being active on [Social Media 1]. In the future I may wish to weigh in on some issue or debate. I would like to have the freedom to be able to express my thoughts online as I have in the past, even if they are anti-Islam.

32.      If I returned to Iraq, I would resent the fact that I would be required to change my behaviour and restrain myself from expressing my opinions to members of the Muslim-majority community or online.

The Tribunal accepts this evidence. The Tribunal finds that the applicant will continue to express his views if he were to return to Iraq and that the only reason he would seek to limit or restrict the expression of his views is his fear of harm. The Tribunal further finds that there is a real chance that members of the public or the authorities will be able to access his previous [Social Media 1] posts and become aware of his social media activities if he were to return to Iraq. The Tribunal is satisfied that the applicant has refrained from expressing his views publicly online and elsewhere in Australia since the refusal of his Protection visa application due to his fear of facing retribution should he be removed to Iraq.

Having carefully considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Iraq, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Iraqi authorities, militias or members of the public. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his real or political opinion and his imputed religion. The Tribunal finds that effective state protection against the harm the applicant fears is not available to him in Iraq. The Tribunal is satisfied that the real chance of persecution relates to all areas of Iraq. The Tribunal finds that the applicant has a well-founded fear of persecution in Iraq. The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. Section 36(3) therefore does not apply.

For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a). As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided, the Tribunal does not consider it necessary to assess other protection claims arising from his evidence.

The applicant wife did make any claims for protection and the Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that she is a member of the same family unit as the applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the applicant’s application. It follows that the applicant wife will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

In written submissions to the Tribunal and the applicant’s oral evidence at the third hearing, it was stated that the third named applicant (the applicant son) is now an Australian citizen. Departmental records conform that he was granted Australian citizenship 1 October 2021.

Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen.

The Tribunal is satisfied on the evidence before it that the applicant son is now an Australian citizen. It follows that he does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.

DECISION

The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of her membership of the same family unit as the first named applicant.

The Tribunal affirms the decision not to grant the third named applicant a protection visa.

Shahyar Roushan
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.

…