2009252 (Refugee)

[2023] AATA 4432

2009252 (Refugee) [2023] AATA 4432 (6 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Hiba Albattal (MARN: 1383382)

CASE NUMBERS:  2009252 and

2009253

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Damian Creedon

DATE:6 October 2023

PLACE OF DECISION:  Perth

DECISION:

With respect to case number 2009252     The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

With respect to case number 2009253 The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act

Statement made on 06 October 2023 at 3:00pm

CATCHWORDS
REFUGEE – protection visa – Iraq – risk of tribal violence – husband’s report to the police regarding an alleged murder – credibility assessment – weight that may be attached to documentary evidence – country information – complementary protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Nagalingam v MILGEA (1992) 38 FCR 191
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. These are two applications for review of decisions made by a delegate of the Minister for Home Affairs on 2 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background:

2. The first applicant, a [age]-year-old citizen of Iraq, applied for the visa on 20 February 2018. The first applicant arrived in Australia [in] July 2017 as the holder of a Visitor visa.  The first applicant is presently onshore on a Bridging visa pending the outcome of her application for a Protection visa.

3. The second applicant, a [age]-year-old citizen of Iraq, applied for the visa on 15 February 2018. The second applicant arrived in Australia [in] January 2018 as the holder of a Visitor visa.  The second applicant is presently onshore on a Bridging visa pending the outcome of his application for a Protection visa.

4. The first applicant and the second applicant are mother and son, respectively. Unless the context otherwise requires, for the balance of this decision the Tribunal will refer to the first applicant and the second applicant collectively as the applicants.

   Protection visa applications:

5. The applicants’ claims for protection are in materially identical terms; they may be as follows:[1]

   [1] The applicants’ claims are materially identical and involve actions taken the first applicant’s husband, that is the second applicant’s father; for the sake of clarity the claims will be summarised in this paragraph from the first applicant’s perspective, supplemented by the second applicant’s particulars where necessary.

   ·The applicants are both Shia Muslims, born in Al Nasiriya, Thi Qar, Iraq.

   ·The first applicant’s husband was a [Occupation 1] for [Employer 1] [from] October 2004 [until] January 2018.

   ·The first applicant came to Australia [in] July 2017 to support her daughter who was suffering from mental health issues.

   ·The second applicant travelled to Australia [in] January 2018, just prior to when the first applicant was due to depart and return to Iraq.

   ·On [date] January 2018 her husband was a witness to a murder at a [Venue 1] where the [Venue 1] owner ([Mr A]) killed a man.

   ·The applicant’s husband gave a statement to the police regarding the incident.

   ·On 13 January 2018 her husband received a threatening phone call. The caller asked her husband to change his testimony otherwise he and his family would be killed. Her husband reported the threat to the police. Her husband did not change his testimony.

   ·On 16 January 2018 her husband received a further threat of the same nature. Her husband did not change his testimony.

   ·On 19 January 2018 her husband discovered that their house had been broken into and furniture had been scattered and destroyed. Their neighbours advised her husband that a group of armed masked men had raided their house looking for them.

   ·Her husband reported the incident to the police and her husband and children relocated to a different house. They planned to escape Iraq however they had to wait for their passports to be issued and her husband had to resign from his position as a [Occupation 1].

   ·Her husband resigned from his position as a [Occupation 1] on [date] January 2018.

   ·On the 21 March 2018 the applicant’s granddaughter was hit by a car while walking to a park. Her granddaughter was admitted to hospital and released the next day.

   ·On 22 March 2018 they relocated to Basra and hid while trying to find a way to travel to [Country 1].

   ·She fears being killed by the [A] Tribe if she returns to Iraq.

6. The delegate refused to grant the visas on on 2 June 2020 on the basis that the applicants are not refugees as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

7. The applicants each applied for a review of the delegate’s decision on 3 June 2020.

   Application for review:

   Pre-hearing submissions

8. By email received by the Tribunal on 26 September 2023 the first applicant provided the following written submissions in support of her application, in summary:

   History of the Applicant:

   1. The [applicant] is an Iraqi citizen. See does not have a right to citizenship or a right to reside in any other country.

   2. She is a Muslim belonging to the Shia sect.

   3. She was born on [date], in Kuwait. In the protection visa application and interview, it was stated that the [applicant] was born in Thi Qar, Iraq. The reason this was stated was due to the identity documents that the [applicant] held. We would like to correct this and explain the reason for this.

   The [applicant] was born in Kuwait while her family were in between Iraq and Kuwait due to business and regular holidays. Due to the Iraqi Kuwaiti conflict in 1990, Iraqi ID issuing offices would refuse to put the place of birth of any of its Iraqi citizens as being in Kuwait, and instead would put their current location of residence, which was Thi Qar in the case of the [applicant]. Individuals had no choice.

   However, upon Iraq deciding to unify its citizen’s IDs into one (previously Iraqi citizens held at least 3 IDs), they re-issued all identification cards with the true and correct place of birth.

   Citizens were able to obtain their true identity back. Thus, this is the reason why the [applicant] is now able to have her correct place of birth on her ID card. The [applicant] had no intention of deceiving the department in any way, however, it was unfortunate that she had no choice but to state her place of birth as it was shown in her legal documents.

   4. She has lived in Thi Qar all her life prior to coming to Australia.

   5. Her husband [used] to work as a [Occupation 1] for [Employer 1]. He was employed with them [between] October 2004 [until] January 2018.

   6. She is a mother to four children ([Child C], [the second applicant], [Child D] and [Child E]). [Child C], is a resident of Australia. [Child D] and [Child E] are currently residing in [Country 1], who have never been married and have always lived with the family. [The second applicant] is currently in Australia undergoing an appeal process for his protection visa.

   7. Up until she arrived to Australia she had led a happy, comfortable and safe life in Iraq with her family members.

   8. Since the 13th January 2018, the [applicant] and her family’s life has taken a very different twist which has seen the family split, living in fear and turned upside down losing everything.

   9. The [applicant] arrived to Australia on a tourist visa in order to visit her daughter - [Child C], who was suffering psychologically as a result of an incorrect [diagnosis].

   10.On [date] January 2018, the [applicant]’s husband was a witness to a brutal murder.

   11. The [applicant] made an application for a protection visa as a result of the incident that took place due to the issues the [applicant]’s husband and family endured following the tragedy.

   12.The [applicant]’s protection visa has been refused by the delegate of the Department of Home Affairs, as they have found the claims not to meet Australia’s protection obligations.

   Addressing the Refusal Issues:

   13.The [applicant] has appealed the decision made, as she feels she has been unjustly assessed based on the general information available regarding Iraq, as well as the generalisation of how things should have been handled. A comparison between Australia and Iraq will show how differently things are carried out in Iraq, and thus will not be the standard that seems to have been expected by the delegate.

   Issue #1: [applicant]'s husband’s position in [Employer 1]

   14.The first issue seems to be the [applicant]’s husband’s position with [Employer 1], and the power the delegate seems to assume he has.

   15.The [applicant] has clarified the following in regard to her husband’s duties and rank in [Employer 1]:

   -      The [applicant]s husband was called a “[specified occupation]” which is translating into [Occupation 1] in English. However, it has a very different meaning in Iraq. The exact duties of the [applicant]s husband as a “[specified occupation]” was to [undertake specified tasks]. He was in the department of “[Department 1]” which translates into [specified].

   -      The [applicant] has stated that her husband’s role within [Employer 1] is almost similar to what she has seen in Australia of [certain occupations] - only employed by the [government]. The [applicant]’s husband is not qualified to catch criminals and detain them as in line with the [government].

   -      The [applicant]’s husband does not have ownership of any weapons from [Employer 1], and is provided with a weapon called a “Bondoqiyah”, which translates into English as riffle. Kindly refer to the file “[named]” for a picture of the weapon the [applicant]’s husband held.

   -      The [applicant]’s husband was only presented with the riffle at the commencement of his shift, and had to hand it back to the office at the end of the shift. He was not allowed to keep the riffle outside of work hours.

   -      The ranking of the [applicant]’s husband was “[specified]”, meaning the [numberth] rank and is only a [low] rank. This is one of the lowest rankings a person working for [Employer 1] can have. Please refer to the file “[named]”.

   Issue #2: Details surrounding the incident witnessed

   16.The second issue the delegate had with the [applicant] is her limited knowledge surrounding the incident which her husband was a witness to. The delegate writes:

   “The applicant has limited knowledge surrounding the alleged murder that he claims her husband witnessed. She claims that the incident took place in Al Nasiriya about 30 minutes away when her husband was visiting a [Venue 1]. She claims that her husband witnessed the incident from his car.”

   …

   Regarding the details around the incident that took place with the [applicant]'s husband, the [applicant] states the following:

   -      The [applicant]'s husband goes to Alnasriyeh city every Friday [after] he has finished Friday prayers from the stores in that city.

   -      The name of the [venue] is [Venue 1].

   -      The [Venue 1] is located at [specified location].

   -      The [Venue 1] is approximately [number] km away from where the [applicant] and her family’s home was.

   -      The [applicant]'s husband parked his car approximately 5 meters away from the [Venue 1] (on the same side) where the incident took place at around [time] on [date] January 2018.

   -      The [applicant]'s husband had just got out of the car when the incident took place.

   -      As the [applicant]'s husband got out of the car, he could hear screaming as he saw and heard two people arguing and fighting with each other verbally. He does not know the reason for the conflict, why they were arguing and what it was that led to the shooting.

   -      As the [applicant]'s husband started to walk to the [Venue 1] - but was yet to arrive at it, he saw and heard a gun being fired three times.

   -      Upon hearing the shots being fired, people surrounding the area - including the [applicant]'s husband, either ducked down or started to run from fear. The [applicant]'s husband ducked to the ground, and held his head to hide it out of fear. No one dared or would dare in their sane state of mind approach a man who is weaponed and had just shot a person 3 times.

   -      Once the shooting had stopped, the [applicant]'s husband could see the shooter run away and get away in a car - whom he knew to be the owner of [Venue 1] and as [Mr A]. The [applicant]'s husband believes that the car belonged to [Mr A].

   -      Upon feeling safe and unthreatened, the [applicant]'s husband ran to the victim (later learnt that his name was [name]), and placed him in his car with the assistance of two other men in order for him to transport him to hospital. No one accompanied the [applicant]'s husband to the hospital.

   -      The [applicant]'s husband did not call an ambulance to take the victim to the hospital, but rather transported him in his own car as the concept of an ambulance is very different to that which we are used to in Australia. Individuals in Iraq do not transport people who require medical assistance in ambulances, but rather in their own cars or local taxis. This is due to a very different organised lifestyle which we have in Australia. The lack of street order, organisation and excessive traffic does not give way for an ambulance system to operate in the same manner that it does in Australia. It is a commodity that is rarely used. The time it would generally take for an ambulance to arrive at the required scene, would be the same amount of time that it would take for someone to privately transport an injured/ill person to a hospital.

   17.Upon arrival to the hospital, the [applicant]'s husband drove the victim into emergency, where his care was taken over by hospital staff. Sadly, the victim was pronounced dead approximately 30 minutes after his arrival.

   Issue #3: No further voice call threats

   18.The third issue in question is the threatening voice calls that the [applicant]'s husband received. The delegate seems to question why following the first two calls, no further calls were received.

   19.Following the call threats and the house break-in, the [applicant]’s husband and all family members no longer felt safe and changed their phone numbers in addition to leaving the family home to live in a different location.

   20.The lack of further voice call threats were no longer possible as the [applicant]’s husband changed his phone number, and those who were provided with the new number were very limited individuals as the family no longer felt safe – especially after the break in.

   21.It is not possible to provide the department with further “threats” if they never happened.

   Issue #4: Obtaining of the victim’s hospital report

   22.The fourth issue with the delegate appears to be a question in how the [applicant]'s husband was able to obtain a copy of the hospital report of the death of the victim.

   23.While the [applicant]'s husband waited in hospital, he remained there to provide his statement of the incident [at the] Police Station. This is a police station which is located within the hospital where all reports are made which come through the hospital.

   24.The victim’s family arrived in the hospital, where the [applicant]'s husband met the family. They exchanged contact details, as this would be the normal thing to do in such circumstances.

   25.The victim’s family and the [applicant]'s husband stayed in touch following the incident and prior to their departure to [Country 1]. This would be a natural human thing to do we believe in any situation with such circumstances.

   26.The [applicant]'s husband informed the victim’s family of their need to flee Iraq for their safety, and that the [applicant] and his son were in Australia and were applying for protection.

   27.The [applicant]'s husband requested a copy of the hospital report if the victim’s family had no issue with providing it to support the protection application. The victim’s family had no issues with providing a copy of the hospital report, as it did not affect them in any way. Thus, this is how a copy of the hospital report was obtained.

   Issue #5: Witness testimony lacking vital information

   28.The delegate has questioned the lack of information that was provided in the witness statement of the incident.

   29.The delegate has chosen to hold the [applicant]'s husband responsible for the information that was provided in the witness testimony.

   30.The [applicant]'s husband worked for [Employer 1]. However, at the time he was a witness to the murder, he was off duty. He was a civil citizen at this point in time and was not acting as a [Occupation 1].

   31.The police report was not written by the [applicant]'s husband and therefore the statement:

   “As the applicant’s husband was [deleted] I find his witness testimony given to the police to be lacking in detail.”

   The [applicant]'s husband holds no responsibility for the content that was provided in the witness testimony. He was not the one writing it, nor was he in a position to dictate to the officer in charge how to do his job. For the delegate to assume this is unfair. This is an assumption made, which would actually provide evidence of a genuine document. Had the [applicant]'s husband been responsible for the writing of the testimonial with the intention to strengthen a protection visa claim, he would have taken more care and provided an extremely detailed report as the delegate is suggesting. Given that another officer in charge wrote the testimony, he controlled the content - not the [applicant]'s husband. This would suggest greater evidence that the testimonial and incident is of a genuine nature and not one that was fabricated as the delegate suggests.

   Issue #6: Lack of action by the [applicant]'s husband after the crime

   32.The delegate has concerns over why the [applicant]'s husband did not catch the murderer – [Mr A].

   “As the applicant’s husband was a [Occupation 1] is is reasonable to assume that he would have been able to call in [the police] to the scene fairly quickly to apprehend the murderer. Given that the accused [Mr A] was the owner of the shop I find it difficult to understand how the police were unable to locate and arrest him after the incident.”

   33.First and foremost, the delegate continues to fail in understanding that the [applicant]'s husband was not on duty when the incident took place. The incident took place on a Friday - when the [applicant]'s husband was not on duty and unarmed.

   34.There as no way for him to call in [the police] at the time the incident took place. The [applicant]'s husband was a civil citizen at the time of the incident. He had just finished Friday prayers and was going to do [errands].

   35.Despite the fact that the murderer was known along with the location of his shop, catching a murderer on the run is not something that can be done lightly. No murderer is going to shoot and kill as a result, and will not be hiding from authorities.

   36.This paragraph by the delegate has no logical argument to it, as you cannot hold an off-duty officer responsible for the duties of an on-duty officer at a time of an incident. The [applicant]'s husband had no weapon, had no device to call on back up, and was not on duty. Furthermore, the murderer was armed and dangerous. Any attempt to have tried to stop or catch him, would more than likely have led to the [applicant]'s husband being killed as well. No one in their right mind would dare to approach an armed and danger person who had just cold blooded murdered someone - irrespective of the conflict. Furthermore, the murderer is very unlikely to have remained in his home after the incident, as he would know that the authorities would be after him.

   Issue #7: Genuine documents obtained through fraudulent means

   37.A major issue which was repeated throughout the refusal process was the delegates belief that the documents provided were obtained through fraudulent means due to it coming from Iraq.

   38.Again, the delegate is assuming that because of the general consensus of the readily available fraudulent genuine documents, that the [applicant] fabricated an incident and was able to fraudulently obtain documents.

   39.The police reports of the incident, the house break in, the threatening calls, and the hit and run were all reports provided based on the testimonials provided by the [applicant]'s husband to the authorities in charge. He had no role in the content that was written, and the information included in the reports are at the discretion of the officer in charge writing the statement. The [applicant]'s husband has no right to dictate to another officer how to do their job.

   …

   Issue #8: House break in

   41.The delegate is of the belief that a house break in did not occur following the incident at the [applicant]’s family home and that the report was fraudulently obtained. Furthermore, that the break in never happened.

   42.The fraud document issue has been addressed above at issue 7.

   43.In regard to the break in never happening as a result of the delegate’s belief that no murder incident took place, it is an assumption. Details of the murder incident as well as the arguments have all been discussed above at Issue #2 above, and we hope that they have clarified any ambiguities around the truthfulness of the murder incident, and thus a belief that a house break in did indeed happen.

   Issue # 9: Daughter’s accident

   44.The delegate states that she believes that the [applicant]’s grand-daughter may have been in a car accident that was unrelated to the murder incident.

   45.Sadly, once again, the delegate is making an assumption and refuses to accept the concept of all the follow up incidents as a result of the murder witness incident.

   46.The [applicant] and her family all believe that the incident of the [applicant]’s daughter was intentional and served as a threat message to the family as the person who ran over the [applicant]’s daughter spend up to hit her. This is not normal as the norm for a person driving a car would be to slam on the breaks, not speed in order to avoid colliding with pedestrians.

   47.The person driving the car not only sped up to collide with the child, but also left the scene without attending to her.

   48. The fraud document issue has been addressed above at issue 7.

   Hearing

1. The applicants appeared before the Tribunal on 3 October 2023 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.  The applicants were represented in relation to the review.  Where relevant, the applicants’ evidence is referred to below.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The relevant law:

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. 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.

5. 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).

6. 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.

7. 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

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Evidence:

9. The Tribunal has before it a range of material, including, relevantly:

   (a)the applicants’ protection visa application forms;

   (b)the applicants’ identity documents provided to the Tribunal, being their passports;

   (c)the protection visa decisions (delegate’s decisions);

   (d)the application for review forms, which include copies of the delegate’s decisions.

10. The Tribunal has also read and had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Iraq, 16 January 2023 (DFAT Report), and to several other sources of country information which are set out below.

    Country of reference:

11. The applicants claim to be citizens of Iraq. Based on evidence provided to the Department by the applicants, namely their passports, and in the absence of any other evidence to the contrary, the Tribunal finds that Iraq is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

12. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Assessment of evidence:

    Overview

13. 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

14. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

15. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

16. It is convenient to consider relevant country information prior to an analysis of the evidence.

    Country information – general

17. Iraq’s recent history is summarised in the DFAT Report in the following terms:

    2.1        Iraq gained independence as a kingdom in 1932. A 1968 coup installed the authoritarian Ba’ath party, a secular but predominantly Sunni party. Iraq’s economy and standing in the Arab world grew, and security chief Saddam Hussein assumed leadership in 1979. Under his rule, Iraq became a brutal authoritarian dictatorship. Iraq invaded Iran in 1980, leading to a disastrous decade-long conflict (the Iran-Iraq War) which killed an estimated 500,000 soldiers on both sides. Iraq invaded Kuwait in August 1990, before being forced out by a US-led international coalition (the Gulf War). The UN imposed economic sanctions and a no-fly zone that led to the de facto establishment of the Kurdistan Region of Iraq (KRI).

    2.2        Following the 9/11 terrorist attacks in 2001, US President George W Bush singled out Iraq as a threat to global security. With the objective of preventing Iraq from acquiring weapons of mass destruction, the US and its allies (including Australia) launched military action in Iraq in March 2003. The Coalition Provisional Authority assumed control of the country, with the stated aim of rebuilding Iraq’s security forces and restoring infrastructure and services. A fierce insurgency developed against US-led coalition forces, and sectarian violence broke out between Sunni and Shi’a Muslims. An estimated 300,000 people were killed in this conflict. A US troop surge in 2007-08 temporarily reduced the violence, enabling the majority of US troops to withdraw in 2011.

    2.3        Ongoing sectarian tensions fuelled the rise of Da’esh (also known as Islamic State), a militant Salafi jihadist group that captured large parts of Iraq in 2014-15. During its occupation, Da’esh committed numerous atrocities. Eventually Iraq’s regular forces, supported by a US-led coalition and Kurdish and other forces, succeeded in wresting back control of Da’esh-held territories. Many of the Iraqi forces were incorporated into a state-sponsored umbrella organisation known as the Popular Mobilization Forces (PMF), which has become influential in Iraq’s economy, politics and security. While the government declared victory over Da’esh in 2017, the terrorist group remains a security threat today (see Security situation).

    2.4        Iraq held a parliamentary election in 2018, but the following year large-scale protests broke out against corruption, non-delivery of essential public services and perceived interference by foreign powers, particularly Iran (see Protesters and demonstrators). These protests were violently repressed by security forces and Iran-aligned militia groups. Protests again broke out following the 2021 parliamentary election. Talks to form a new government stalled and, in July 2022, supporters of Muqtada al-Sadr, an influential cleric whose party won the most seats in the 2021 election, staged a mass sit-in of the Iraqi parliament to protest the nomination by their pro-Iran rivals of former cabinet minister Mohammed Shia al-Sudani for the position of Prime Minister. These protests again resulted in violence. Al-Sudani was confirmed as Prime Minister in October 2022.

18. The DFAT Report assesses the current security situation in Iraq as follows:

    2.24      Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire and assassinations. Targets have included security forces, government offices, diplomatic missions, US-led coalition forces, Iraqi and Turkish military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure. Violent crime is common, including kidnapping, murder and robbery. Other serious crime includes drug and people trafficking, prostitution and illegal organ harvesting. Organised criminal gangs, militias and armed tribal groups are significant threats.

    2.25      Although the KRI is generally regarded as a less dangerous security environment than other parts of Iraq, it is still affected by high levels of violent crime, including kidnappings, murders, robberies and so-called ‘honour’ killings (see Women). Gun violence is common throughout Iraq. Gun ownership is among the highest in the world, and most households own at least one firearm. The ubiquity of weapons and a strong ‘honour’ culture mean minor disputes often rapidly deteriorate into violence, including murder.

    2.26      Despite the territorial defeat of Da’esh in December 2017, Da’esh continues to launch attacks on security forces and civilians in Iraq, including suicide bombings and IED attacks. The group operates from safe havens in the Western Desert and along the disputed territories between federal Iraq and the KRI, supported by Da’esh fighters based in Syria. In 2021, Da’esh carried out more than 1,000 attacks in Iraq, killing or injuring over 2,000 people. These included a suicide bombing in Teyeran Square that killed 32 people in January 2021 and an IED attack in Madinat al-Sadr that killed 35 people in July 2021. Both attacks targeted Shi’a populations. According to the US Department of State, Da’esh also attacked electricity and water infrastructure, and abducted and killed civilians and security personnel, throughout 2021.

    2.27      Iran and Turkey carried out rocket and artillery attacks in Sinjar and the KRI in 2022, reportedly targeting members of the KDPI (Kurdish Democratic Party of Iran) and the PKK (Kurdistan Workers’ Party, a Kurdish terrorist organisation active in Turkey and Iraq). Civilians were reportedly killed in and displaced by these attacks.

    2.28      Large-scale, prolonged violent protests began in major cities in October 2019 and continued until mid-2021. These protests came to be known as the ‘Tishreen’ (October) protests, and participants as ‘Tishreenis’. Security forces, allegedly with the support of Iranian-aligned militias, used tear gas, water cannons and live ammunition against protesters, resulting in hundreds of deaths. In July 2022, in a separate period of unrest following the October 2021 elections, supporters of influential cleric Muqtada al-Sadr breached the International Zone in Baghdad (the partially-secured centre of the international and government presence in the city) and staged a sit-in at the Iraqi parliament that lasted several days. They were protesting the nomination by al-Sadr’s opponents of Mohammad al-Sudani as prime minister and attempting to inhibit government formation. In August 2022, al-Sadr’s supporters moved their protest to the Supreme Judicial Council, before forcing their way into the Presidential and Government Palaces. The protesters later clashed violently with groups believed to include Iranian-aligned militias, exchanging small arms and rocket fire continuously for 20 hours. At least 20 people were killed and more than 300 injured in this violence. See also Protesters and demonstrators.

    2.29      Iraq is one of the world’s most landmine-affected countries. There are reportedly more than 2,000 hazardous mine areas nationwide from numerous conflicts. Border areas are particularly affected, and areas previously controlled by Da’esh have also been heavily mined, including with booby-traps. Explosive hazards pose risks at farms, schools, hospitals, water treatment facilities, power plants, bridges and other infrastructure, and have prevented the safe return of displaced people.

    [Tribunal’s emphasis.]

    Country information – the tribes of Iraq

19. The applicants’ case is that they are at risk of tribal violence based upon the first applicant’s husband’s report to the police regarding the alleged murder of a person by a member of a different tribe.  It is necessary, therefore, to examine country information specific to that issue.

20. A presentation by the University of Nebraska-Lincoln[2] summarises the tribal nature of Iraqi society as follows:

    [2] See: < of Iraqi Arab Social Organization

    ·Each individual is a member of a tribe (‘ashira) and groups of tribes are part of tribal federations (qabila). There are about 150 tribes in Iraq.

    ·Some tribes are quite large. For example, the Al-Dulaim number about 100,000 with most of them in western Anbar province.

    ·Tribes are composed of related clans (fukhdh) led by a paramount sheikh or sheikh of sheikhs.

    ·Clan leaders are called sheikhs.

    ·Clans are divided into houses or sub-clans (beit) and then into extended families (khams).

    ·The clan and tribal system is segmentary.

    ·Most Iraqis identify strongly with their tribe such that they are more loyal to it than the national government.

    Clan Dispute Settlement & Solidarity

    ·The clan sheikh is expected to settle disputes between extended families and sub-clans. However, dispute settlement through revenge killing may occur between families of different sub-clans without the intervention of the sheikh.

    ·If these vendettas get out of hand the sheikh may authoritatively impose a settlement.

    ·Raids and ambushes are the accepted means of

    – settling disputes

    – enforcing authority

    – obtaining property

    ·The sheikh represents the interests of the clan within the tribe. And each tribe has a grand sheikh who is normally the head of the largest and most powerful clan.

    ·Clan members assist each other with loans, jobs, political support, bureaucratic intervention, etc.

    Politics of Revenge

    ·Each clan or tribe must avenge the death or harm (e.g., theft) done to any member by someone outside of the clan or tribe.

    ·With a strong national government tribal revenge was inhibited by the police much of the time.

    ·If American troops kill clan members all other clan members have an obligation to seek revenge.

    ·The same applies to conflict between Sunni and Shiite sects who belong to different tribes.

    [Tribunal’s emphasis.]

21. According to the European Union Agency for Asylum (EUAA):[3]

    Iraq is home to approximately 150 tribes. Between 75 % - 80 % of the total Iraqi population are members of a tribe or have kinship to one.

    Tribes are often involved in conflicts and armed with heavy weapons. Tribal transgressions can result in violence. It is also reported that tribes have enacted informal justice, revenge, assassinations and disappearances in tribal justice against ISIL suspects and continue to impede the return of persons perceived to have an affiliation to ISIL.

    Tribal dispute mechanisms can involve violations of human rights such as the practice of ‘fasliya’ (family members, including women and children, are traded to settle tribal disputes) or 'honour' killings; it may also include retributive killings or banishment.

    Persons who do not comply with the will of their tribe can also be subjected to human rights violations such as being ostracised, disowned and expelled or even being killed

    [3] See: <>

    A more comprehensive discussion is to be found in the EUAA’s April 2023 report, “Iraq: Arab tribes and customary law” (EUAA Report).[4]  The EUAA Report sets out the background and structure of Iraqi tribes and describes the role of Tribal law in enforcing cultural norms and settling disputes in an era of state security weakness.[5]  The report notes various nuanced tribal conflict resolution mechanisms and practices, including:

    [4] European Union Agency for Asylum, “Iraq: Arab tribes and customary law”, April 2023; < EUAA Report, pp17-28.

    • Notification (tanbih) and ‘Tribal summoning’ (mutalaba asha’iriyah)
    • Tribal confrontation (gouwama) and striking (degge asha’iriyah)
    • Tribal ‘blood truce’ (atwa)
    • Exile (jalwa)
    • Tribal dispute settlement (sulha, also sulh)
    • Tribal dispute compensation (fasl)
    • Expulsion from the tribe or banishment (bara’a)
    • ‘Blood spilling’ (hadr al-dam)
    • Blood feuds (thar)
    • Women as a means of tribal disputes settlement or use of women in tribal customs

22. In respect of “honour violations and honour-based violence, the EUAA Report notes (citations omitted):[6]

    …honour violence is one of the largest problems encountered in Iraqi society, enabled by the Criminal Code, Article 409. According to Landinfo, honour-based violence refers to ‘violence committed with the intention of restoring one’s honour or the collective honour of the family, clan, or tribe. Violations of honour (‘honour crimes’) that contravene tribal social norms and codes and that can spark honour based violence against a person can be due to a range of reasons…

    [6] Ibid. p.54.

1. It is further noted that (citations omitted):[7]

   In practice, killing and death sentences can happen in cases of revenge when no settlement can be found, if an atwa is broken, or when the terms of a sulh are not observed. … Furthermore, in practice, tribal remedies do prescribe death as a consequence for certain offenses such as crimes of greed, repeat offences, honour violations, or in murder cases if the diyya is not paid within a year, allowing the ‘right to kill a notable or any other member of the perpetrator’s tribe’ with retaliation being unpunished.

   [7] Ibid. p.56.

2. In a report entitled “Country Policy and Information Note Iraq: Blood feuds”, the UK Home Office notes:

   1.1 Basis of claim

   1.1.1 Fear of persecution and/or serious harm from another tribe/family because of a person’s involvement in, or connection to a tribe involved in, a blood feud.

   1.2 Points to note

   1.2.1 A blood feud is a form of tribal dispute. For the purposes of this note a blood feud is a dispute between 2 families or tribes with a cycle of retaliatory violence in which each group fights or murders members of the other group according to an ancient code of honour and behaviour. Intertribal killings may be triggered by a number of reasons, including honour-related matters and historic intertribal animosities.

   …

   2.4 Risk

   2.4.1 There is limited published information on the prevalence of blood feuds. Statistical data are not available although sources suggest that the phenomenon is widespread in the southern governorates and is known to occur in the Kurdish region. Tribal justice has gained renewed strength in areas formerly held by Daesh because tribes consider the formal justice system ineffective.

   2.4.2 A person can become involved in conflict with members of a different tribe over matters such as intended or unintended killings, infliction of injury, theft, unpaid debts, and disputes over land, property or water supplies. Disputes can go on for many years and tribe members can inherit historic disputes.

   [Tribunal’s emphasis.]

3. In respect of internal relocation, the DFAT Report notes that:

   5.21      Where a person is relocating to avoid violence or the threat of violence at the hands of family, tribe, or community as a result of harmful traditional practices, including on account of preserving family ‘honour’, there is clear evidence that such actors will pursue the person to the proposed area of relocation, including, through tribal, family or other links. The endorsement of such norms and practices by large segments of society and the limitations of the state to provide protection against such abuses all mitigate against successful relocation

   Country information – the current situation

4. In respect of the current situation in Iraq, the Tribunal notes the following media reports:

   a.In June 2021 France24 published a report on the sometimes “petty” nature of disputes which can lead to inter-clan tension and violence:[8]

   [8] France24, “Tribal Iraq: where petty squabbles turn lethal”, 27 June 2021; < Iraq, a war-scarred country awash with weapons, a row over a duck or a cockerel or even squabbling between children can degenerate into deadly tribal clashes.

   Two weeks ago, a child was killed and four people wounded when two tribes traded fire with Kalashnikov assault rifles and rockets in a dispute over a 1,000-dinar ($0.68 cents) loan.

   The incident in the south's Missan province came after a nine-year-old from the Al-Faratsa tribe refused to return money he had borrowed from a friend, also nine, from the tribe Al-Bou Ali.

   The debtor was slapped by the father of the lender -- and then all hell broke loose.

   The casualties were all passers-by, said Sattar Jabbar, who heads a non-governmental organisation that provides assistance to children.

   "None of them belonged to the tribes" involved, he told AFP.

   A week later, also in Missan, rival members of a tribe fought with swords because one side had insulted a religious figure venerated by the other.

   Three people were killed, two seriously wounded and seven people arrested.

   In the city of Kut, in Wasit province, a duck was the source of a dispute between two women from different tribes that left a young man dead, said a local official, declining to be named for security reasons.

   "They squabbled over who owned the duck and their tribes, the Al-Hassaniya and the Al-Zubeid, fired live rounds and grenades," he said, adding that the dead man belonged to one of the tribes but had not taken part in the fighting.

   Lawmaker Abbud al-Issawi blames such petty but lethal violence on the "collapse of the state in 2003" following the toppling of dictator Saddam Hussein in a US-led invasion.

   The "proliferation of weapons and arms trafficking" are also to blame, said Issawi, who heads a parliamentary committee on tribal affairs.

   - 'Terrorism' -

   Gun-toting Iraqis have become a feature of the country of 39 million people, experts say.

   In 2017, at least 7.6 million small arms were owned by around 20 million adults, according to the Small Arms Survey organisation which tracks weapons and armed violence around the globe.

   But many more guns remain unregistered in Iraq, said the group.

   Tribes are powerful actors in Iraq, particularly in its oil-rich south, where they have their own moral and judicial codes as well as huge caches of arms.

   Videos posted on social media regularly show rockets, heavy machine guns and even armoured vehicles being used in tribal clashes.

   And when fights break out, tribal elders gather to settle the dispute, with their verdict overriding the law of the land.

   Up until the ouster of Saddam, state law took precedence over tribal law.

   Under federal law in post-Saddam Iraq, armed confrontations are officially considered acts of "terrorism" that carry the death penalty.

   Iraq's respected Shiite Muslim religious leadership, based in the rural south where it has many followers, has weighed in on the side of authorities.

   Top cleric Grand Ayatollah Ali Sistani has said the pitched battles that often rock the south have "plunged the entire country into a spiral of instability and underdevelopment".

   But even the words of such a revered figure as Sistani appear to have fallen on deaf ears.

   - 'Blood money' -

   In the village of Bani Hashem in eastern Iraq, a football match between the Al-Freijat and Al-Rissetem tribes ended with a deadly score -- one fatality and five wounded -- after two players quarrelled.

   A tribal council met and ordered $13,000 in "blood money" be paid to the family of the dead man, a policeman with knowledge of the case told AFP.

   But some tribal conflicts can run for months if not years, according to Sheikh Yaarab al-Mohammedawi, a tribal elder from the southern province of Basra.

   A dispute over sewerage that has left three dead has been running for four months with no settlement in sight, he said.

   "The state must control the flow of arms and society must put aside the language of weapons and adopt the culture of dialogue," the sheikh said.

   But not just yet, as apparently petty disputes continue to kill in Iraq.

   In Diwaniya, a rural province known for its poultry, a rooster in heat trespassed onto a neighbour's land in search of hens, sparking a battle in which two people died

   b.In a news article entitled “Nine killed in Iraq tribal violence, Clan and tribal rivalries are common in Maysan province in the south of the country” published in June 2022 it is reported that:[9]

   [9] The National, “Nine killed in Iraq tribal violence, Clan and tribal rivalries are common in Maysan province in the south of the country”, 22 June 2022; < people, including a soldier, have been shot dead in Maysan, southern Iraq, after a tribal dispute over farmland escalated into violence.

   Iraqi authorities said three people were shot and killed in a separate clash in the province of Kut, about 200 kilometres to the north-west.

   Southern Iraq is often the site of heated disputes over land and water rights, the result of a weak legal system that sometimes fails to enforce property rights, and the mass movement of tribes over the decades, with some disputes emerging after tribes fled persecution under the former regime of Saddam Hussein.

   More recently, disputes have escalated because land has deteriorated as a result of severe drought. Saad Al Zaidi, a police spokesman for the area, said the recent dispute revolved around land.

   The violence in Al Uzair district, south of Amarah in the south-eastern province of Maysan, lasted several hours, Mr Al Zaidi told AFP.

   The soldier killed in Maysan was from one of the two tribes and had been "on leave when the conflict broke out because of disputes over farmland", Mr Al Zaidi said.

   Despite beefed-up security measures, Maysan province, which borders Iran, is a route for drug traffickers where tribal rivalry often degenerates into violence.

   Amarah has also been the scene of fierce rivalry between Iraqi Shiite militias, some backed by Iran and others loyal to Shiite cleric Moqtada Al Sadr.

   In May, eight people were killed in the same region when clashes between members of the same tribe broke out over farmland.

   Farther north, in Wasit province, an armed clash between members of the same tribe left three people dead and three others wounded, said Ali Hussein Al Sarai of the local police force.

   The violence, which occurred in the town of Al Dubuni, broke out over a dispute between two sides over the right to marry a young woman, Mr Al Sarai said.

   Millions of people belong to strongly patriarchal tribes in Iraq. Violence between tribes, or within the same clan, is frequent in Iraq and often occurs without involvement by law enforcement bodies.

   [Tribunal’s emphasis.]

   c.In an article entitled “Iraq War 20 years on: Doctor's dreams shattered by tribal clan” published on 13 March 2023, Nazih Osseiran reports that:[10]

   [10] Osseiran, N, Context, “Iraq War 20 years on: Doctor's dreams shattered by tribal clan”, 13 March 2023; < - As Iraq marks 20 years since the United States invaded, many young people want to build a brighter future after years of conflict and chaos.

   Among them is Amina Sabbar, 26, an emergency ward doctor who began training in a public hospital in Sadr City, a Baghdad suburb of 3 million people.

   Context is not publishing the name of the hospital to protect her.

   This is Sabbar's story as told to reporter Nazih Osseiran.

   I became a doctor to help people. I wanted to serve my country and its people, and have a positive impact on society.

   We begin our training in the emergency room. I started in September 2022. In the beginning it was nice, I enjoyed learning and saving lives.

   But I got assaulted three times in two months. The last one changed my mind about what I want from my future.

   It was 11:30 at night. A seven-month-old baby girl was rushed into the emergency ward. She was gasping, as if breathing her last breaths. I got to work. But an hour later the child's oxygen began dropping. I started doing CPR.

   As I was working on the child, her entire family started screaming at me. There were at least seven of them, and they were all members of a tribal clan.

   In Iraq, the tribes are a force that is beyond the law. The clans have their customs and laws that they enforce.

   Most disputes are resolved through the payment of "blood money". If they cannot agree or if one side does not want to pay then there will be violence and fighting until it is resolved.

   If the clan is involved in something, no one else can interfere. The police will not get involved - they would be too scared of getting caught up in the fighting.

   As I was giving CPR, the father of the child started pulling my hair, her mother shouted at me, saying I was the reason she was dying. The grandmother shoved me hard to the floor and I slammed my shoulder into an oxygen tank.

   I screamed for security. They came and stood by as I continued my work, but didn't intervene beyond that. They feared the clan members and the implications of clashing with them.

   If a guard had accosted one of the men, he would have been forced to make a hefty compensation payment - maybe 100 million Iraqi dinars ($68,500) or more. If the guard did not pay, then he would be wanted under tribal law. They would kill him.

   As I tried to resuscitate the child, she started vomiting, and it had a foul metallic smell.

   I asked the family if they had given the child anything and they said no. But I knew what had happened. It was a witch-doctor's medicine.

   Unfortunately, this is common in Iraq. People frequent alternative medicine doctors who take mud, herbs, metals, animal skin and hair, and mix it into a potion we call sagwa. It is one of the leading causes of death for children under a year old.

   The child died in my arms while I was doing CPR.

   I immediately told the clan that I would not be handing over the body of their child. When we suspect a criminal act like poisoning, we transfer the corpse to the forensic medicine division for investigation.

   The clan hit me and pushed me. They wrapped the baby's body in a blanket and ran off with her. They smashed the glass of the emergency ward on their way out. The patients were terrified.

   The staff said they would inform the hospital director that a body had been stolen. But to my surprise, the next day I found it had not been reported. The hospital staff tried to cover up the assault - they did not want problems with the clan.

   I went to the police, who informed me I could not take action because only the hospital could litigate. That was when I decided to go public. I posted all over social media.

   After they found out about all of this, the clan came to my hospital and demanded to confront me, accusing me of libel. But I was not at work at the time.

   I was afraid. I was scared for my family. I knew if they saw me, they would beat me bloody and possibly kill me.

   Eventually the clan members were arrested, after the health minister learned of my case and interceded. I believe they are in jail awaiting trial.

   But I feel like the damage has been done. I can never go back to that hospital or that area. I am worried the family is still looking for me - or their tribe.

   My case is indicative of the lawlessness and ignorance in this country. When I told my attackers I would prosecute them, they laughed in my face.

   We need stronger laws. If a simple state employee cannot do their job safely, how can they be expected to follow through with their duties?

   I left for another hospital where I now work. But now, I want to emigrate. I don't want to be an emergency doctor in Iraq any more.

   ($1 = 1,458.5000 Iraqi dinars)

   [Tribunal’s emphasis.]

   d.An article in The New Arab entitled “Two killed, six injured in violent tribal conflict in Iraq” published on 30 September 2023, less than a week ago at the date of this decision, reports on inter-clan violence in the applicants’ home province, Dhi Qar:[11]

   [11] See: < officials in the province said clashes that began on Wednesday evening between the Arab clans Al Omar and Al-Rumayd had left two people dead and six more wounded.

   At least two people were killed in Iraq as a result of a tribal conflict that saw guns and explosives used, police said on Friday.

   The dispute occurred in the town of Al-Islah in Dhi Qar province in the country's south.

   Police in the province said that the clashes between the Arab clans of Al Omar and Al-Rumayd, ongoing since Wednesday, also left six people injured.

   A former provincial council member said the conflict relates to previous disputes.

   "The new conflict is old and has not ended," said Hussein Al-Asadi.

   "The role of [the mayor], local elections, and some local positions have inflamed the situation in light of a weak judiciary and the uncontrollable presence of weapons that facilitates this."

   Several provinces in southern and central Iraq have for some time been suffering from tribal conflicts between different clans, mostly related to revenge, disputes over water and land, and various social problems.

   In many disputes, the army has been forced to step in.

   A police officer said a high-ranking security delegation travelled from Baghdad to Dhi Qar's capital city Nasiriyah to intervene and stop the clashes in nearby Al-Islah.

   There are currently tight security measures in Al-Islah amid the expansion of the bloody tribal conflict, another security official told media, saying one of the clans set up a checkpoint and killed a policeman belonging to the other.

   Iraqi media reported a letter from the leader of the Al Omar to Prime Minister Mohammed Shia Al-Sudani and Interior Minister Abdul Amir Al-Shammari, accusing factions in the state-backed Popular Mobilisation Forces militia umbrella of intervening and siding with the other clan.

   The clan leader, Jamil Yousef Al Omar, called in his letter on the government in Baghdad and the interior ministry to step in and restore law in Dhi Qar.

   [Tribunal’s emphasis.]

   Analysis

5. The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.

6. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[12]

   [12] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

7. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[13]

   [13] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

8. The Tribunal found the applicants to be credible and truthful witness who, where possible, supported their oral statements with documentary evidence.  The Tribunal found the applicants’ oral evidence to be consistent internally, and with their corroborating materials.  In giving their oral evidence he did not convey an impression of concoction or recent invention. 

9. The difficulty with the applicants’ evidence is that there was a natural limit to what they could say regarding the first applicant’s husband’s situation so far as his claim to witnessing the murder and being threatened is concerned.  The evidence is that the first applicants’ husband and two daughters, and the second applicant’s wife and children are presently resident in [Country 1] as applicants for refugee status.  The Tribunal notes several photographs submitted by the applicants’ of their family in [Country 1] in this regard.

10. The Tribunal notes the DFAT Report’s assessment that documentary evidence is easily manufactured in Iraq, and it shares the delegate’s concern as to the weight that may be attached to corroborating evidence submitted by the applicants in the form of police and medical reports.  

11. In assessing the applicants’ evidence, the Tribunal is mindful that:

    a.there are natural limitations to human memory, and a persons’ recall of dates, and the frequency and duration of events, is often reconstructed from inference, estimation, and guesswork;[14] and

    b.survivors of torture and trauma may suffer from loss of memory, disassociation, and difficulty in concentration, which compromises their ability to present a convincing narrative of their experiences.[15]

    [14] W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; Bello v Sweden [2006] ECHR 32213/04.

    [15] C Rousseau, et al, “The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the Decision-Making Process of the Canadian Immigration and Refugee Board” (2022) 15(1) Journal of Refugee Studies.

1. Ultimately, however, the applicants’ claims remain uncorroborated, and it is impossible for the Tribunal to be satisfied in respect of them on balance of probabilities.  The Tribunal therefore accepts that there may be doubt about the veracity of this aspect of the applicant’s claims.

2. The process of fact finding in circumstances where there may be doubt was discussed by the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64]:

   62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal (‘RRT’)] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

   63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".

   64 In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.

   [Emphasis in original]

3. It is not possible for the Tribunal to be satisfied as to whether the first applicant’s husband was a witness to a murder committed by a man from another clan and was threatened with lethal violence to change his police statement regarding the event.  However, in assessing the possibility that those events took place the Tribunal places weight upon three factors:

   a.firstly, the country information cited above which, collectively, suggests:

   i.the resurgence of traditional tribal identity since the fall of the Saddam Hussein regime;

   ii.the relatively trivial nature of the (perceived) infringements against tribal honour that may trigger violence;

   iii.the use of extreme, often lethal violence, to settle such perceived infringements; and

   iv.the largely ineffectual state security apparatus in contemporary Iraq,

   b.secondly, the consistency with which the applicants have maintained their evidence; and

   c.thirdly, the coherent and logical manner in which they addressed the delegate’s various concerns.

4. In light of the cumulative effect of these matters, the Tribunal accepts the possibility that the events took place as described by the applicants, and that their lives are under threat from the tribe of the accused murderer. 

5. Threats to physically harm or kill someone are easily made and not always acted upon.  In assessing these threats, the Tribunal has had regard to the country information cited above.  Considering this country information, the Tribunal cannot dismiss such threats to harm the applicants as remote or speculative.  Overall, the Tribunal considers that if they are returned to Iraq now or in the reasonably foreseeable future, there is a real risk that they will experience acts of violence or intimidation at the hands of the tribe of the accused murderer.    

6. According to country information the applicants would be unlikely to be able to obtain police protection against the threats and/or any actual attempt to seriously harm or kill them. 

7. While the Tribunal does not consider that there is a real chance that the applicants will suffer persecution for the reasons they claim,[16] for the reasons set out above the Tribunal does accept that there are substantial grounds for believing that, should the applicants be removed from Australia to Iraq, there is a real risk that they will suffer significant harm.  

   [16] The Tribunal does not accept that the violence or intimidation would result from one or more than one of the five reasons enumerated in s.5J(1)(a) of the Act namely race, religion, nationality, political opinion, or membership of a particular social group.  Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established.

   Conclusion: Refugee Criterion

8. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicants will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.

   Conclusion: Complementary Protection

9. Considering the applicants’ individual circumstances both individually and cumulatively, and the country information, the Tribunal finds 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 they will suffer significant harm.

   Overall conclusion:

10. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

11. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

    DECISION

    With respect to case number 2009252 The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

    With respect to case number 2009253 The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act

    Damian Creedon
    Member
    -  Extract from Migration Act 1958

    
    
    ATTACHMENT 

    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.

    …