2011724 (REFUGEE)

2011724 (REFUGEE) [2023] AATA 4879 (13 FEBRUARY 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Elizabeth Fischer
CASE NUMBER:  2011724
COUNTRY OF REFERENCE:                   Iraq
MEMBER:James Lambie
DATE:13 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 February 2024 at 9:49am
CATCHWORDS
REFUGEE – protection visa – Iraq – Shia/Sunni intersect marriage – clan connection – Ba’ath party – scholarship recipient – breach of conditions – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 423A, 499
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
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 July 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Iraq, applied for the visas on 18 July 2017. The delegate refused to grant the visas on the basis that the principal applicant [was] not a person to whom Australia has protection obligations and that the dependent applicants, as members of the same family unit as the principal applicant, therefore also did not engage Australia’s protection obligations.
The applicants appeared before the Tribunal on 4 July, 3 August and 5 September 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. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants, or any of them, meet the refugee criterion and, if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
[The principal applicant] is [an age]-year-old national of Iraq. [Applicant 2][is] [an age]-year-old national of Iraq. The other applicants are their daughters, aged [deleted], all of whom are also nationals of Iraq.
The family entered Australia [in] May 2014 tor [Applicant 2] o undertake PhD studies at [Australian University 1] under the terms of a scholarship granted by [University 2]. As noted above, the protection visa application was lodged 18 July 2017.
Claims
The applicant’s claims are summarised in his protection visa application form and the delegate’s decision. For the application to the Tribunal, [Applicant 2] made additional claims.
[The principal applicant] claims that:
(a)he is a Sunni Muslim originally from [Anbar] province;
(b)[Applicant 2] is a Shi’a Muslim from Baghdad;
(c)he and [Applicant 2] are secular and anti-sectarian;
(d)he fears persecution by reason of the intersect marriage;
(e)he belongs to the [Name 1] clan of Anbar province, which would identify him to Shi’a militias as a Sunni Muslim;
(f)he belongs to a Ba’athist family;
(g)[Applicant 2] is an academic and was awarded a scholarship by the Iraqi government to study in Australia; and
(h)he fears returning to Iraq because, by reason of his intersect marriage, his Sunni faith, his family’s Ba’athist connections, Applicant 2]’s position as an academic, and their shared secular beliefs, rival clans, hostile militias and elements within the authorities would cause him harm.
[Applicant 2]’s claims mirror those of her husband, with the additional claim that, by reason of her imputed links with the former Ba’athist regime via her career at [University 2], she has been summoned for investigation under the de-Ba’athification program, which may subject her to serious sanctions. She further claimed that the conditions of her scholarship exposed her to a financial penalty.
Evidence
The Tribunal has before it a range of material, including, relevantly:
(a)the applicants’ protection visa application forms, which was lodged on 19 July 2017;
(b)[the principal applicant]’s statement, dated 16 June 2017;
(c)The applicants’ Iraqi passports and nationality certificates;
(d)[the principal applicant]’s and [Applicant 2]’s marriage certificate;
(e)the representative’s submissions dated 27 June 2023;
(f)[Applicant 2]’s statutory declaration, undated but sent under cover of the submissions of 27 June 2023, with the following annexures:
a.her passport identification page;
b.letter from [named] Mosque, dated 5 September 2022;
c.letter from Shi’a Muslim [organisation], dated 3 September 2023;
d.[the principal applicant]’s academic transcript, 2003;
e.[the principal applicant]’s Iraqi identification documents, [January 2006];
f.her brother’s death certificate, dated [August] 2021;
g.letter from Iraqi Ministry of Higher Education and Scientific Research, dated [July] 2018;
h.letter from Iraqi Ministry of Higher Education and Scientific Research, dated [June] 2021;
i.letter from [Lawyer A], dated 15 January 2023;
j.her mother’s death certificate, dated [December] 2016;
k.her father’s death certificate, dated [August] 2018;
l.her PhD certificate, [Australian University 1], dated 22 December 2020; and
m.personal reference from [the principal applicant]’s employer, dated 28 June 2022.
(g)[Applicant 2]’s statutory declaration, dated 27 July 2023, with the following annexures;
a.translated scholarship agreement, dated [November] 2013;
b.text message exchange with [messenger] customer support, dated 6 July 2023;
c.screenshot of downloaded Ministry letter of [July] 2018;
d.screenshot of correspondence with former representative, dated 10 April 2019;
e.samples of official Iraqi correspondence;
f.copy of original version of Ministry letter of [June] 2021;
g.material relating to transmission and translation of Ministry letter of [June] 2021;
h.receipt for translation services, dated 19 July and 24 July 2023;
i.National police certificate dated [July] 2023; and
j.personal and professional reference from [name deleted], [named faculty], [Australian University 1], dated 6 July 2023;
(h)[the principal applicant]’s statutory declaration, dated 28 August 2023.
Country of reference / receiving country
The applicants claim to be citizens of Iraq. Based on evidence provided to the Department by the applicant, 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.
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.
Hearing
The applicants appeared before the Tribunal on 30 January 2023 to give evidence and present arguments at a videoconference hearing.
The applicants were represented in relation to the review. Their representative attended the hearing.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection Visa, the Tribunal discussed with the applicants that to be granted a Protection Visa they must either be recognised as refugees or be persons entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee they must have a well- founded fear of persecution in Iraq. This means the Tribunal must be satisfied that there is a real chance that they will face serious harm if he returned to Iraq. The harm must be directed at them for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk they will suffer significant harm if removed from Australia to Iraq.
The Tribunal discussed [the principal applicant]’s claims as summarised in his protection visa application, written claims and the delegate’s decision. He confirmed that they were and that he did not need to change them. The Tribunal noted that [Applicant 2] had made claims that were not considered by the delegate.
Before proceeding to hear [the principal applicant]’s evidence, the Tribunal took the representative to the letters of [July] 2018 and [June] 2021 from the Iraqi Ministry of Higher Education and Scientific Research to [Applicant 2]. It indicated that it had concerns about the authenticity of those documents. Its first concern was that the text, as translated, did not seem to make any sense. It also indicated that the purportedly interpretive letter from [Lawyer A] amounted to a general political commentary and was of no assistance as a guide to the process which [Applicant 2] claims to fear. [Applicant 2] told the Tribunal that the documents were genuine and that she had received them from a trusted friend through [messenging apps]. The Tribunal indicated that its concerns stemmed partly from the fact that the quality of the documents was very poor and that there was country information about the prevalence of fraudulent documents. She said that the reason for this was that the file on which the documents were kept was confidential but that her friend had managed to take a photograph of them. The Tribunal indicated that she had not included any evidence of the means of transmission of these documents.
The Tribunal also indicated that [Applicant 2]’s claims included the existence of a condition of her scholarship that makes her liable to repay double the value of the scholarship should she not return. The Tribunal indicated that it would require evidence of that condition. The parties requested that the hearing be adjourned to allow the collection of additional evidence.
The hearing resumed on 3 August 2023. The Tribunal heard first from [the principal applicant].
[The principal applicant] told the Tribunal that he was born on [date]. His father was [an occupation]. [The principal applicant] said that he attended university from September 1990 and studied [course]. He left university in September 1995 without taking a degree and, in December 1995, was called up for military service. He served until April 1998. He told the Tribunal that he was meant to serve for only two years but that he served an additional four months due to problems with the Army’s paperwork. He said that he served in [a] unit with [deleted]. The Tribunal asked if his responsibilities included dealing with [these] matters. He said that his work was confined to [deleted]. The Tribunal suggested that, at question 27 of his protection visa application, he had stated that he was in [another] unit in the office of [deleted], Baghdad. He said that, sometimes, other personnel requested his help for [deleted]. The Tribunal said it was going on the information he had previously provided. He did not respond.
The Tribunal noted that his protection visa application listed his occupation between 1990 and 1995 as [an Occupation 1] at [a workplace]. He said that this was his part-time job while he was studying. The Tribunal further noted that his protection visa application stated that, from April 1995 to October 1998, he was studying and being financially supported by his family. He said that, at that time, his contract with the [workplace] was finished and he was going to enter the army: he could not do this work while he was in the army. The Tribunal put to him that he earlier said that, from 1995 to 1998, he was in the army while his protection visa application had him in full-time study for this period. He said that in 1995, he was finalising his studies and preparing his papers to go into the army, which involved a long process to transfer his papers. He said that, therefore, there was a period where he was between leaving university and going into the army. The Tribunal said that there was a difference between his evidence to it and the history he had given in his protection visa application. He said that the protection visa application reflected the fact that, after leaving university and going into the army, he was supported by his family. The Tribunal suggested that his evidence to it was that he had ceased studying in 1995, while his protection visa application stated that he commenced studying in 1995. He said there must be a mistake and that his academic papers gave his commencement and finishing dates. The Tribunal said that it was questioning the detailed employment history provided with his protection visa application. It asked if it was his evidence that the history in the protection visa application was incorrect. He said he did not have that document in front of him and could not say whether it was right or wrong. He said that discrepancies in the visa application might arise from interpretation. The Tribunal noted that he had completed the application with professional assistance, and that he had certified that the details were correct. It repeated the details in the visa application and handed a copy to him. He said he did not know what had gone wrong. The Tribunal asked him about the period April 1995 to October 1998, where he had described himself as “unemployed” and “studying: financially supported by family.” He said that, at that time, he was in the army but that everyone in Iraq understood that to be in the army was to be unemployed. The Tribunal asked if he was satisfied that it was a correct description. He said that the pay and conditions were such that it was no better than being unemployed. The Tribunal asked if was not the case that the history in the protection visa application was different to the history he had given in his evidence to the Tribunal. He said it could be a misunderstanding. The Tribunal asked if it may need to treat all of his evidence with caution unless he could explain it. He said it was possible that his former representative had not provided the details accurately.
The Tribunal returned to [the principal applicant]’s employment history. He said that, after leaving the army in 1998, he worked in a [workshop]. The Tribunal asked if this was an apprenticeship or a similar arrangement. He said that he was the owner and that his family had helped him to establish the workshop: his employees were more experienced but he was the owner. The Tribunal asked about the period from October 2002 to April 2003, in which he claimed to have been studying. It asked if this was to obtain trade qualifications. He said that was correct. The Tribunal asked if these qualifications helped him obtain his next job, as [an Occupation 2] at [named workplace] in 2003. He said that was correct.
The Tribunal took [the principal applicant] to his statement accompanying his protection visa application, dated 19 June 2017. It asked if this was his most recent statement. He said that it was.
The Tribunal asked how he met [Applicant 2]. He said that he met her at university sometime between 1992 and 1994 and that they occasionally caught the same bus. They decided to get married around the end of 1998, after [the principal applicant] completed his military service. He said that, at this time (which was during the regime of Saddam Hussein), there was no social or official obstacle to a relationship between Sunni and Shi’a people, particularly in Baghdad. They were officially married [in] July 2000, with a religious ceremony in August 2000, and the wedding party took place [in] March 2001. The latter date is culturally considered the marriage date. Sunni religious rites were performed at the wedding with [Applicant 2]’s approval. Neither his nor [Applicant 2]’s family raised any objection to the marriage. Following the marriage, they lived at his father’s house.

He told the Tribunal that, at this time, he had opened his [workshop]. He said that, during the US invasion (March to May 2003), he simply stayed home. He was not called up for military service.
The Tribunal asked if he could clarify the period or periods during which he was obtaining his trade qualifications. It noted that, in the history he had given the Department, there were two periods after he opened the workshop in which he claimed he was studying and being financially supported by his family: October 2002 to April 2003, and June 2003 to January 2005. He said that, at these times, he was studying but was also working in the workshop. The Tribunal put it to him that the history he had provided was that, at these times, he was unemployed. He said that, at these times, he was staying at his parents’ house and they covered all of the bills and expenses. The Tribunal put to him that he was not unemployed. He accepted that he was working. The Tribunal suggested that it was very difficult to cross-reference his evidence with the history he had given to the Department.
The Tribunal asked if he was ever a member, or had any association with, the Ba’ath Party. He said he did not. He Tribunal asked if he had any involvement in politics at all. He said he did not. The Tribunal noted that, in his statement, he had said that his wider family had an extensive history with the Ba’ath Party. He said that that was correct, but that he had had no involvement.
The Tribunal asked him to explain his claims in relation to being a member of the [Name 1] family or clan. In particular, it noted that he had claimed that each of his daughters, [Daughter A], [Daughter B] and [Daughter C], have [Name 1] as a family name. He said that was correct, but their surnames were now [surname] because, after the religious problems in his province, the family had changed their surnames for their own safety. The Tribunal asked if he had produced any evidence of that. He said the evidence was in the dates of the identity documents. The Tribunal asked if he had produced any evidence to demonstrate that they formerly bore the surname [Name 1]. He said the only evidence was the new surname. The Tribunal asked if there was any evidence that bore the name [Name 1]: none of the birth or marriage certificates seemed to show that name. He said it was because they changed it. The Tribunal asked if there were any documents pertaining to him prior to 2003 showing that name. He said that the practice in Iraq was to only use the first three names and that, for that reason none of his documents would show the name [Name 1]. The Tribunal put it to him that, in his statement, he gave his daughters names as including [Name 1] without any mention that their names had been changed. He said that the previous lawyer perhaps had used these names, whereas he would have used the official names in the passports. The Tribunal said that, nevertheless, there was no explanation in the statement, there was no support in the documentation for the claim, and that there was an Arabic language statement in the original, so he must have known the content of the statement. It suggested that the [Name 1] identification was an important element of his claims. He said that he was a member of the [Name 1] clan, but he had no documents to show that he had used the name. He Tribunal said that was correct and that his daughters also had no such documents. He said that they were born after the invasion and that the family no longer used that name. The Tribunal asked if he had any evidence at all that he had ever used that name. He said he had no documents. The Tribunal suggested that there may be documents in Iraq that supported his claim but he had not produced. It noted that, in the opening paragraph of his statement, he had made positive claims concerning the names of his daughters without explaining that they had never borne those names, or that he or others had changed their names. He said he did not consider it a change of name because they had simply removed a surname. The Tribunal said that there was no evidence that that surname was ever used. He said there were no documents.
The Tribunal asked if he was aware of any person bearing the [Name 1] name who had been arrested, murdered, or otherwise mistreated by reason of identification with that name. He said that his mother’s cousins and uncles were all known as [Name 1] and were closely associated with the Saddam regime, and had all fled to different countries. The Tribunal asked if there were examples of people mistreated because of their name, rather than their holding high office in the Saddam regime. He said that he was one of those people. The Tribunal asked if there were objectively verifiable examples. He said there were many people who had to leave their homes because of they were known as [Name 1] and were therefore associated with the previous government. The Tribunal suggested that he would have siblings, cousins and more extended relatives who bore, or had borne, this name and asked if any examples of his claims could be provided. He said that his brother had been an officer in the Iraqi army and, after leaving the army, had been denied all of his financial entitlements. He said that his brother had to leave Baghdad and live in Anbar. He said his brother was adversely psychologically affected by his treatment and later died. The Tribunal put it to him that he had not previously made this claim. He said his brother died recently. The Tribunal reported to him that he had not made any reference to persecution of his brother. He said that his claims related to all the Sunna and that he had not been asked about matters specific to his family. The Tribunal put it to him that persecution by reason of identification with the [Name 1] clan was the first claim in his statement.
The Tribunal asked when it was that his father died. He said it was in around 2006. It asked if his father had changed his name. He said that his father had been sick for a long time and did not see any point in changing his name. The Tribunal took the applicant to his protection visa application and noted that, at question 42, he had not included the name [Name 1] against his father in the list of his family members. He said that, up until recently, Iraqis had not used surnames and that the name would not usually be provided. The Tribunal asked why then, in his statement, he had named himself, each of his children, and a number of claimed relatives with the surname. He said that, in the context of his claims, it made sense to include the surname. The Tribunal noted that neither he nor his father had used the name on the marriage certificate. He said that the marriage certificate also did not include the name [for] [Applicant 2]. The Tribunal noted that that was correct but that her surname was included in all of the other documents. He said that was evidence that it was only after 2003 that surnames were being used in documents. The Tribunal asked [the principal applicant] during which period he had used the [Name 1] surname. He said that it varied, according to custom. He said they were used for identification documents but not for any other official documents. He said that, for example everyone knew Saddam Hussein by that name, rather than Saddam Hussein al-Tikriti. The Tribunal suggested to [the principal applicant] that it would be helpful for it to have a document that identified him with the [Name 1] name. He said that the reason he did not have such documents was that it was not safe for him to own them.
The Tribunal asked when he had removed his surname. He said it was in about 2006 or 2007, and that the family had obtained their passports shortly thereafter. The Tribunal asked, for the avoidance of doubt, if his evidence was that there were no documents at all with the [Name 1] surname. He said he had relatives in Australia who could testify as to the name. The Tribunal suggested that the claim might be simply untrue. He said that, nevertheless, he was Sunni and subject to the same risks as applied to those bearing the [Name 1] name and for the same reasons.
The Tribunal took the applicant back to his protection visa application, in which he had stated that he had spent July 2007 to August 2008 in [Country 1]. He said that was correct. The Tribunal noted that this period was not referred to in his statement and asked if he had made any claim touching on his move to [Country 1]. He said he had moved from Baghdad to [Country 1] because of the religious problems he had mentioned. He said that, following the US invasion, all of the religious demographics in his home region had changed such that previously safe neighbourhoods were controlled by Shi’a and were unsafe for him. The Tribunal asked if he was saying that he was forced to move from Baghdad to [Country 1] in July 2007 because of sectarian violence. He said that was correct and that he had been afraid to leave his house because of the sectarian violence and that is why he moved to [Country 1]. The Tribunal asked if he had ever previously made this claim. He said he could not remember. The Tribunal put it to him that he had made a statement on 19 June 2017 and had had a subsequent interview with the Department and that it did not appear he had not made such a claim. It indicated that it may form a view that a claim of this nature made so long after his application and interview may lack credibility and adjourned the matter briefly to allow him to confer with his representative.
The Tribunal suggested to [the principal applicant] that [Applicant 2], in her statutory declaration, had referred to him going to live in [Country 1] in 2007. He said that was correct. The Tribunal asked why he had not made such a claim himself. He said that he had given the whole story, every detail, to his former representative but that his former representative had advised him to mention only certain things and leave other things out.
The Tribunal asked him to recount the events of 2007. He said that, in about April 2007, there was a car bombing near his shop, and the shops of his brother and his sister’s husband. He said that, following the explosion, the Shi’a militia entered the area and started to kill Sunna and to force people out of their homes. He said that, at night, he heard gunshots outside his house and he took this to be a message to leave the house or be killed. He said that [Applicant 2] went to live with her family who lived in a secure Shi’a area, but that he had to stay with his aunt. He stayed with her for about a month and the family then moved to [Country 1]. The Tribunal asked when this was. He said it was 1 July 2007. The Tribunal put it to him that, in her statutory declaration, [Applicant 2] had said that they had moved out of the house in Baghdad on 1 July 2007, following which she stayed with her family and he stayed with his aunt in a Sunni suburb for about two months. He said she might have been confused because he recalled that the bomb blast was in April 2007. He said that they then moved to [Country 1], where [Applicant 2] stayed for only a few months while he stayed longer, perhaps until the end of 2009 or early 2010. He said that after that the situation became more stable. The Tribunal put it to him that, in his protection visa application, he had stated that he returned in August 2008. The Tribunal asked if he had any records, such as passport stamps, that might resolve this. He said he had changed his passport three times since then. The Tribunal suggested that it had conflicting information from his testimony, his protection visa application, and [Applicant 2]’s statutory declaration as to the time he had spent in [Country 1]. Further, the incident he claimed that prompted his departure was not mentioned at all in his statement or his interview with the Department. The Tribunal took him to his visa application, in which he stated that, from August 2008 to October 2011, he was living at house [address], Baghdad. He said that he had previously conceded that he may have confused some of his dates in the application. The Tribunal noted that he had given a statutory declaration that the contents of the application were correct, complete and up to date in very detail. It further noted that the application had been made after having been in Australia for over three years and that, therefore, he had plenty of time to get his facts straight.
The Tribunal suggested that he then returned from [Country 1] to Iraq. He said that was correct. The Tribunal suggested that he then stayed in Iraq for a further four to six years, depending on which version of the evidence was accepted. He said that was correct. The Tribunal suggested that, if the version in the protection visa application was accepted, he was in back Iraq for almost six years, although [Applicant 2]’s statement said it was about four years. It asked if he wished to take the opportunity to clarify this. He said he could not remember. The Tribunal asked if he could recall how old his daughters were when he returned from [Country 1]. He said he could not.
The Tribunal asked if there were any additional events in Iraq following his return from [Country 1] that caused him to fear for his safety. He said he could not remember exactly what was happening, but the US troops along with the Iraqi government were attempting to suppress the militia and he felt that it could be safe to go back. The Tribunal again asked if there was anything that caused him to fear for his safety. He said that there were reports that people had disappeared. The Tribunal asked if there was any incident he could specifically nominate. He said he could not recall.
The Tribunal suggested that [Applicant 2] got her undergraduate degree in 1997. He said that was correct, and her master’s degree in 2000. The Tribunal suggested that she then worked as a lecturer from 2002 to 2014. He said he could not recall exactly. The Tribunal asked if it was the case that she joined him in [Country 1] for just a short period, around four months. He said that was correct.
The Tribunal asked whether [Applicant 2] was ever a member of the Ba’ath party. He said that she was. The Tribunal asked when and for how long. He said he did not know. The Tribunal asked if she was a member of the party when they first started seeing each other. He said he did not ask her back then: neither of them thought it was important and it was normal for people to be in the party at that time. The Tribunal asked why he was not a member of the party, given his claims that his family had such extensive connections with it. He said he did not like it.
The Tribunal asked for how long [Applicant 2] had been a member of the party. He said he was sure, perhaps until the invasion. He reiterated that this was not a matter that they discussed. The Tribunal asked if she had ever told him how long she was a member of the party. He said he had never asked. The Tribunal asked if he had never asked, despite it being a component claim of the application to the Tribunal. He said he did not have this information. The Tribunal asked if she had ever held a position in the party, beyond ordinary membership. He said her membership was not a matter of holding a position, it was simply that anyone who held a government job was automatically a member of the party. He said that his understanding was that there was a monthly meeting in the workplace. He said that maybe half of the population was a member of the party. The Tribunal suggested that, even if participation was limited to monthly meetings, these would still have to be organised, chaired, and minuted. He said he did not know anything about this.
The Tribunal asked [the principal applicant] if he was aware of any examples, for the purposes of its assessment of the risks, of people being harmed or mistreated in Iraq because of their being in a mixed marriage. He said that these things happened a lot after 2003, and more so after 2007, but he could not provide a specific example. The Tribunal indicated that, in the absence of specific examples to the contrary, its findings would be informed by the country information report of the Department of Foreign Affairs and Trade, which is to the effect that:
No laws prevent marriage between Sunni and Shi’a couples. Such marriages have reportedly increased in prevalence as sectarian tensions reduced over the past decade…
He said that the power-sharing agreements in government between Sunni and Shi’a had only resulted in more sectarian division.
The Tribunal asked if he knew when the Iraqi government had started the de-Ba’athification processes. He said that they started straight after the 2003 invasion. The Tribunal asked if it was reasonable to assume that those running the process had access to the party membership lists. He said that not all members would be on a list. The Tribunal asked if it would be reasonable to assume that a party branch at a university, which met regularly, would have kept a membership list. He said that he was sure that was correct. The Tribunal asked if this is what underlay the letter of [July] 2018. He said that it might. The Tribunal asked if he knew anything about the letter. He said that all he knew is that it had been sent to a friend of [Applicant 2]’s, and that it was asking her to return to Iraq to front a committee. The Tribunal asked if he knew who the friend was. He said he did not and that the identity of the source was not important to him.
The Tribunal asked [the principal applicant] why he did not lodge his protection visa application until July 2017. He said that, when they arrived in Australia, they did not have any of the relevant information as to how to do that, and that they had received conflicting advice from friends and colleagues. He said that it had been suggested that, once a protection visa application had been lodged, the Iraqi government would be notified immediately. Further, his mother-in-law had died and that caused further delay. When they finally got around to making the application, their former representative had failed to lodge it for a period of 18 months. The Tribunal asked if it was his evidence that they had instructed their former representative in 2015. He said he could not remember exactly, but that sounded correct. He said that he travelled once to Sydney to see him and that the representative told him that he would put the application in motion but that, after that, he only received the occasional telephone call from him. The Tribunal asked if he was saying that the principal reason for the delay in lodging the application was the negligence of his former representative. He said he was not sure why his former representative had taken so long. The Tribunal asked if he had any evidence that he first briefed the former representative in 2015. He said that he recalled meeting the representative in his office in Fairfield in Sydney, but not other specifics. The Tribunal asked if there were records of contact with the representative. He said that [Applicant 2] would keep such records.
The time allocated to the hearing having expired, the matter was adjourned to a later date.
The hearing resumed on 5 September 2023.
The Tribunal asked [the principal applicant] to explain why his military service had been omitted from his employment history in his visa application. He said that in Iraq and other Arab states, military conscription is not considered a job. He said that his previous representative was of Arab background and it was likely that he held the same cultural view of compulsory military service. The Tribunal indicated that, because he had given a description and the dates of his military service at question 27 in his visa application, it was prepared to take this explanation into account.
The Tribunal indicated that it remained concerned about the discrepancy concerning the duration of his claimed residence in [Country 1] and asked if there was any objective material that might help in resolving that issue. He said that he did not believe he would be able to obtain access to his old passports but that he would be happy to answer questions. The Tribunal reminded him that, at the previous hearing, his evidence was that he did not know whether he had returned in 2008 or 2010. He said he still could not resolve the dates but that his evidence as to why he left Iraq was true. The Tribunal asked if he had been in [Country 1] for one year or three years. He said that, when he left in 2007, it was towards the second half of the year; however, as to his return, he could not be sure if it was one year or two years later although he did not think it was three years. He said that it was no more than 2 ½ years. Tribunal asked if he could fix it more exactly by reference to the ages of his daughters. He said that he is unable even now to remember their birthdays or to be exact about what grades they are in at school. He said that relies upon [Applicant 2] for that information.

The Tribunal took [the principal applicant] to his statutory declaration of 28 August 2023. It noted that this was not a statutory declaration of his claims per se, but a revised version of his representative’s submission seeking to clarify some of the dates and events, and sworn by him by way of adopting its contents.
The Tribunal asked [the principal applicant] about the bomb attack he had described at the previous hearing, and the attack by Shi’a militias which had forced the family to flee their home. The Tribunal had described this as a new claim and asked if he had taken time to consider why the Tribunal should accept it as true. He said that he had included this incident in his instructions to his original representative but he does not know why it was not included in his statement and, in any event, no one had asked him about it. He said if he was asked, he would have provided the details. He said that it was a well-known event and was part of the demographic changes in that part of Baghdad. The Tribunal asked why it was not mentioned in his interview with the Department, it not being mentioned anywhere in the delegate’s decision. He said that the delegate had asked scattered questions concerning his social background and he was not sure if he had the opportunity to make this claim. He said that his former representative had provided him with a handwritten statement in Arabic and he had assumed that these were the matters he would need to address. The Tribunal asked if there was any evidence relating to the time at which he had instructed his previous representative, other than the material from 2017 accompanying the protection visa application. He said that he had bank statements and other documents showing that he had been in Sydney in 2016. The Tribunal indicated that there were no bank statements in evidence. He said that in terms of bills from the representative and other paperwork, [Applicant 2] would have handled them.
The Tribunal heard from [Applicant 2]. She confirmed that she and [the principal applicant] were married in 2001 (with official ceremonies occurring in 2000). After they were married, they lived with [the principal applicant]’s family. She said that there was no trouble arising from the fact that it was a mixed marriage, although her father had initially expressed some concern. She confirmed her academic history as listed in her protection visa application, and that she had worked as a lecturer at [University 2] from May 2002 to May 2014, other than a four-month period in late 2007 when she had been living in [Country 1]. The Tribunal asked why she had moved to [Country 1]. She said there had been conflict between Shi’a and Sunni militia, and that Shi’a militia had attacked her husband family’s house in Baghdad and told them to leave. She said that, in the circumstances, and especially bearing in mind that she and her husband were from different sects, it was too dangerous to stay in the family home and they felt the need to stay separately in respective Sunni and Shi’a places. The Tribunal asked why the claim of the 2007 attack had not been made in the visa application or later to the Department. She said that they had made this claim to their previous representative, but the statement he provided for her husband’s signature had included only part of what they had told him. She said that they had questioned him about it, but he had told them that he knew what he was doing. She said that her husband had mentioned the car bomb and the militia attack in the interview with the Department. The Tribunal indicated that there was no mention of this in the decision.
The Tribunal asked when she and her husband first consulted their former representative. She said that they had first spoken to him in Sydney in about 2016. She said that they described their situation and circumstances and that he had told them that he could help. However, she said, they had other things going on in their lives and did not ask him to proceed with the application until about April 2017. The Tribunal suggested that, therefore, it was incorrect to say that their former representative had failed to act upon their claims for years, as her husband had claimed. She said that he knew about their situation from 2016, but that he was not given formal instructions until 2017. The Tribunal asked if he had ever advised that it could be important to lodge a protection claim promptly, because a failure to lodge may be taken as an indication that claims were not genuine. She said she did not understand. The Tribunal asked if she had read the Department’s decision. She said she had, and that was why she and her husband had changed representatives.
The Tribunal asked if it was correct that she had been a member of the Ba’ath party. She said that she was. The Tribunal asked when she had joined. She said that she joined after finishing high school in 1994, in order to secure enrolment at [University 2]. Membership was a condition of enrolment. The Tribunal asked if she had ever held any form of office within the party. She said she was just a member. The Tribunal asked if it was the case that 100% of the student body were members of the party. She said that was absolutely the case.
The Tribunal asked if, after the fall of the Saddam regime in 2003, the requirement for Ba’ath party membership was rescinded. She said that was correct. The Tribunal asked what happened to the party branch to which she belonged. She said that the high profile Ba’ath figures were fired, arrested, or fled the country. The Tribunal suggested that there would have been no consequences for ordinary members because you could not expel the whole student body. She said that was correct, and that she just got on with her studies. She said that, later on the de-Ba’athification process was used to settle scores or as a means to damage those against whom people had a grudge. The Tribunal asked if this might not make the accusers vulnerable, because they had also been members. She said that [University 2] was not very big, and that those from other institutions could use the process to enhance their position and eliminate rivals.
The Tribunal suggested to [Applicant 2] that there had been no consequences for her under the de-Ba’athifcation process for some 14 years after the fall of the regime. She said that inquiries and investigations had continued during this period to ensure that university staff had not held any high position in the party or regime. She said that, when she applied for the scholarship, she had to undergo scrutiny of her political background. She said she did not know why, after coming to Australia, that she might be wanted for further investigation.
The Tribunal took [Applicant 2] to her first statutory declaration where, at paragraphs 18 and 19, she said:
I was excluded by our migration agent from preparing our protection Visa application.
I was not interviewed, although I had raised my own claims for protection.
The Tribunal asked where and when she had raised her own claims for protection. She said her claims were those she had been explaining to the Tribunal. The Tribunal asked if paragraphs 18 and 19 might be incorrect. She said it was correct that she had not been interviewed. The Tribunal asked why she would be interviewed if she had not made any claims. She said that she meant she had not been interviewed about her husband’s claims. The Tribunal asked what, in those circumstances, was the meaning of paragraphs 18 and 19. The representative sought to submit that the delegate should have interviewed [Applicant 2] because the original claims identified her as a member of a particular social group, and because [the principal applicant] was asked about the first de-Ba’athification letter. The Tribunal noted that [Applicant 2] had checked the box marked ‘no’ at question 87 of her application, which asked if she was making her own claims for protection.
The Tribunal took [Applicant 2] to the letters from the Ministry of Higher Education of [July] 2018 and 14 June 2021 and asked how she received them. She said that the 2018 letter was sent to her by her head of department at [University 2]. She asked how she could attend the process, given that she was in Australia. The Tribunal asked if she had a copy of her reply, or any response to it. She said that her head of department had sent a response, but that the communications were on her previous device and she no longer had access to them. The Tribunal asked if her head of department had sent her a copy of her response. She said she had not but had told her of the intended contents of the response. She said she heard nothing further until the letter of 2021. She said that processes are very slow in Iraq. The Tribunal suggested that it was strange that there was no evidence of any exchange of correspondence where it might be expected that evidence of that nature could be helpful to her. She said she had changed her laptop and her phone and had lost the relevant content. The Tribunal asked if she had not made any attempt to transfer this material between her devices. She said she had not.
The Tribunal asked [Applicant 2] about the 2021 letter. She said this was passed on to her by a friend via [messenger], but that she had not asked for any response to be made to it. The Tribunal asked if she had any record of the actual transmission of the photograph of the letter or of her response to her friend. She said she had changed her phone and did not have that to hand. The Tribunal asked where she had saved the downloaded images of the letters. She said she had downloaded the images and email them to, in the first instance, to her former representative and, in the second instance to her current representative.
The Tribunal took [Applicant 2] to both letters. The Tribunal noted that the letters seem to contemplate that they were to be passed on by the addressees to her. It asked if there were covering letters from the University to her. She said they did come with under very basic cover, simply saying “we have received these letters”. The Tribunal asked where those communications were. She said they had been received by [messenger] and she no longer had them. The Tribunal suggested that they had been received by her in July 2018 and July 2021, at a time when she was aware that her protection visa process was ongoing, and asked why she would not think it was relevant to keep all the evidence. She said she had produced the letters. The Tribunal suggested that she had kept the attachments but nothing as to the source of them or the circumstances in which they had been sent to her. She said that, when she received the 2018 letter, she contacted her former representative and asked what to do. She said that he told her that the letter was relevant but did not say anything about the material to which the Tribunal was referring. She said that, when she received the 2021 letter, she realised she would need to submit that as evidence as well but was unaware that she should submit the material surrounding the receipt of it.
The Tribunal asked what exactly she thought these letters meant. She said that, following 2003, when the Ba’ath party was dissolved, there was a process to detect and root out the high-ranking officials. However, ordinary members were frequently summoned to be questioned and explain their involvement. She said she was not as much in the picture as other staff members because she had taken maternity leave twice. She said that the process was simply an excuse for the pro-Iran parties and militias to target their enemies. It was principally the senior members of the party that were targeted initially, but the process had rolled on to involve any former members because the militias now had full control of the universities. She said that as a Shi’a with a Ba’ath membership and family connections (through her husband), married to a Sunni man, the militia were suspicious and hostile to her.
The Tribunal noted that the letters mention the Act of Accountability [or Investigation] and Justice of 2008. It asked if there was any means of assessing the contents of that Act. The representative said that this was the intention of the lawyers’ letters that had been provided.
The Tribunal asked [Applicant 2] how long her husband was in [Country 1]. She said it was about two years, returning in 2009. The Tribunal asked if, aside from the incident she described in 2007, she had experienced any problems in Iraq up to 2014. She said that, after her husband returned in 2009 or 2010, the situation was very unstable and dangerous. She said that they were living in a Shi’a area. Her father had helped them rent a house to one side of that area but it was still dangerous. She feared the militias might enter her house and take her husband away at any time. The Tribunal asked where this might be found in her statutory declaration. She said she was sure there was something there. The Tribunal suggested that it had perused all of the statutory declarations and statements produced to it and could find no first-hand claims for that period. She said that, at paragraph 26 of her first statutory declaration, she had referred to the grant of the scholarship as an opportunity to flee Iraq. The Tribunal put it to her that she had made no claims in respect of the period after 2008. She said they had made extensive claims. The Tribunal suggested that her husband’s statement of 2017 had made some general references to unrest at the University, but they were not specific and they were not within his personal knowledge. It noted that she had made no such claims in her own evidence.
[Applicant 2] told the Tribunal that she wished to emphasise that the sectarian conflict in Iraq is so deep that members of each sect would hold a grudge against a Sunni-Shi’a marriage for decades. She said she acknowledged that the 2017 statement and the statutory declarations were brief but their purpose was to provide a platform to elaborate upon their claims at an interview or hearing. She said that, if the expectation was to provide complete details, their statements and statutory declarations would be many pages long. For example, she said, she had not mentioned that her uncle and his son were killed and their bodies still had not been located. She said she had not mentioned that, at the time she was making the scholarship application, her friend was killed. She believed this friend was killed by the Sunni. On the other side of the ledger, many relatives and friends of her husband had been killed by the Shi’a. The Tribunal asked why, if her complaint was that she or her husband were not being asked the right questions, she would fail to make her claims in a clear and explicit way. It reminded her that section 5AAA requires applicants specify all of the particulars of their claims.
The Tribunal asked the representative about the evidence intended to be given by [Daughter A]. She said that she wished to be of assistance and that her claims were as the daughter of a mixed marriage. She said that her preference was not to subject her to the hearing process if that could be avoided. The Tribunal indicated that, if she had no first-hand evidence, there was no need for her to give evidence if this was her preference. It indicated to the representative, however, in view of the country information that intersect marriage is increasing, that if she or the parties had information to the contrary it would be important to bring this to the attention of the Tribunal. It noted that the submissions included an assessment by the Human Rights division of the US Department of State.
The Tribunal allowed two weeks for the lodgement of post-hearing submissions. Those submissions are, as relevant, referred to below.
Claims of bias
In her closing submissions, the representative raised the prospect of making a claim of bias on the part of the Tribunal. When asked to particularise that claim, she advised that she would do so in her post-hearing written submissions.
In her post-hearing submissions, the representative stated:
Further to our comments at hearing of 5 September regarding apprehension of bias, we note section 2A of the Administrative Appeals Tribunal Act 1975 (Cth):
‘in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (b) is there, just economical, informal and quick; and (d) promotes public trust and confidence in the decision-making of the Tribunal.’
We also note that the AAT is currently undergoing a vast overhaul following findings of the Senate standing committee on legal and Constitutional affairs, including:
‘… serious concerns with the lack of transparency around the appointment of members to the administrative appeals Tribunal (AAT). There were repeated claims that selection of members – particularly in recent years – has been inappropriately influenced by personal connections and political affiliations’
Any negative decision in the current matter may likely result in further litigation in various jurisdictions, contrary to the interests of all parties to these proceedings, and the Australian community at large. As such, we look forward to a positive outcome at your earliest convenience.
The Tribunal does not consider this a proper claim of actual or apprehended bias on the part of the Tribunal is presently constituted. It considers that the representative was given adequate time to adumbrate her claim and has provided nothing in which the Tribunal can discern a properly formulated complaint, a basis upon which the applicants’ interests can be said to be compromised, or a fact or matter to which the Tribunal can respond.
Assessment of claims and evidence, and findings
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, the fact 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, and Prasad v MIEA (1985) 6 FCR 155 at 169-70).
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.
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.

The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:
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.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Membership of the [Name 1] clan
In his statement of 19 June 2017, [the principal applicant] gave his name as [Given name] [Name 1], and those of his daughters as [Daughter A given name] [Name 1], [Daughter B given name] [Name 1] and [Daughter C given name] [Name 1]. He claimed:
As we are of the [Name 1] clans of Anbar Province, many of my relatives and clan assumed high-ranking jobs at the time of the Ba’ath Party and Saddam Hussein. Among them was my relative [name deleted] who occupied several [offices]. My maternal uncle the late [name deleted] was the general director of [deleted]. [Name deleted]] was a general director in [deleted]. My maternal uncle [name deleted] served as a minister [in] [deleted] for long years.
As indicated above, [the principal applicant] has presented no documentary evidence that he has ever borne the name [Name 1], and did not include the name in the list of his immediate and extended family in his protection visa application. His evidence to the Tribunal was that the practice in Iraq was to only use the first three names and that, for that reason none of his documents would show the name [Name 1]. He further stated that, in about 2006 or 2007, because of the sectarian violence in Iraq, he discontinued or formally dropped the use of the name. He could not explain why his children, should have been listed in his statement with [Name 1] as their surnames when this is inconsistent with all of the identity documents provided. On 30 August 2023, [the principal applicant] submitted a poor quality photograph of a document purporting to be his brother’s military service book in the name of [Given name] [Name 1]. The Tribunal has no way to assess whether this is a genuine document or if it refers to his brother. Nevertheless, the delegate was prepared to accept that [the principal applicant] was a member of the [Name 1] clan or tribe and the Tribunal does not propose to disturb that finding.
[The principal applicant]’s 2017 statement asserted that various members of the tribe held position of varying degrees of prominence under the Saddam regime, but there is nothing to suggest that they were unusually prominent or overrepresented relative to other tribes. There was also nothing presented to confirm what, if any, harm came to these people, or to suggest whether any such harm was by reason of their political history or their tribal affiliation. There was no country information presented to the Tribunal, nor any that the Tribunal has been able to find from its own research that would confirm that a person bearing the name [Name 1] or otherwise identified with the tribe would have a well-founded fear of persecution or that there is a real chance they would suffer serious harm for that reason in Iraq.
Religion and intersect marriage
The parties submitted evidence, which the Tribunal accepts, that [the principal applicant] is accepted by his community as a Sunni Muslim and that [Applicant 2] and the daughters are accepted by their community as Shi’a Muslims.
[The principal applicant]’s claims in relation to his marriage, according to his 2017 statement, were:
I and [Applicant 2] married in 2001. As Iraqi secular civilians, we have nothing sectarian in our intellectual background. We insisted on differentiating between religion and state. In fact, my wife is Shiite and I am Sunni. We have no political or family reservations at that time.
Regrettably, the new regime turned the patriotic criteria, supported the sectarian clans, consolidated their numbers and granted them the power to intervene in the matters of life and the state. The new regime enabled them to tighten their control on their followers and force them to act against their will. The new regime granted them the power to impose conjugal separation and decide upon all family disputes. This in effect means that they replace the law and the prosecution general in deciding upon matters related to life and death.
In such a situation, I became a resented stranger not knowing the way to reform my family. Our marriage became threatened with marginalisation. It is now viewed as a sort of blasphemy. Each sector started to ban intersect marriages. We found ourselves obliged to escape and even hide like thieves whenever we or our children face a problem or an issue that needs help or solution.
In her first statutory declaration, [Applicant 2] stated:
I am Shia but my husband is Sunni. We are considered to be of ‘mixed marriage’ …
Now, in Baghdad, Sunni and Shia Muslims are segregated to different suburbs. If we were to return, where would we live? Sunnis will not accept me; and my husband can’t live in a Shia suburb. What about our daughters? They will choose to live in a Shia suburb but the people there will say ‘You’re not Shia. You’re Sunni.’ …
Our daughters are of mixed religion. Sunni and Shia have different lifestyles. We are easily identifiable by the way we wear a hijab, names, and praying. Once, in Australia, a man asked me ‘you must be Sunni then?’ I said ‘why?’ ‘Because you cover your neck.’ In Ramadan, Shia don’t fast until very dark but Sunni immediately after sundown. People can identify you from these behaviours. They use it to pick on people. Each group believe this is the right way to do it and that is the wrong way.
Our children have to follow their father. If they do that in front of my distant relatives, they will not accept this. They will blame me …
Especially for my daughters it’s very confusing for them to go back there. It’s not safe.
The principal example given by both [the principal applicant] and [Applicant 2] of their being victimised by reason of their respective religious background and/or mixed marriage relates to the alleged car bomb attack in or about April 2007 and being subsequently menaced by Shi’a militia.
There are differences in the accounts of this incident in the evidence of [the principal applicant] and [Applicant 2]. As noted above, [the principal applicant] did not provide a fresh statutory declaration for the purposes of the Tribunal application, which created attendant difficulties for the receipt of his new claims. He repeatedly asserted that his failure to provide details to the Department and to the tribunal was because he had not been asked the correct questions. This is a misconception of the role of decision-makers for protection visa applications. He provided only sketchy details to the Tribunal (see paragraphs 43 and 57 above), describing the detonation of a car bomb near his shop, and those of his brother and brother-in-law and, later, some gunshots outside the family home which he took to be a message that he should leave. The account in [Applicant 2]’s statutory declaration is as follows:
My husband, his brother and his brother-in-law (his sister’s husband) had neighbouring shops in a Shia suburb. In 2007, a car bomb exploded in front of their shops and many people were killed, including children. My husband’s brother-in-law was seriously injured. He was [working]. He was the only one in the shop at the time who survived. I was at home, about [number] m away. I felt the house shake. I felt the roof was going to fall down on me. I ran outside and saw the ruin. It is not easy for me to think or talk about that time.
My husband also had a friend who was Shia who had recently been killed, so we were very afraid.
About one week later, Shia militia came to our home in the middle of the night and told my husband’s family to leave. Gunshots were fired but nobody was injured… My husband and I left everything and ran away. The date we left was 1^st of July 2007.
[The principal applicant] did not mention any injuries sustained by his brother-in-law, or of the death of anyone known to him, and there is a conflict in the dates the applicants provided. [The principal applicant], on questioning about the dates, maintained that the incident occurred in about April 2007 while [Applicant 2]’s evidence was that it must have been only a few days at most prior to 1 July 2007. On further questioning, [the principal applicant] disavowed any reliability as to dates generally. [Applicant 2]’s evidence was that they had been expressly instructed to leave the family home, while [the principal applicant]’s evidence was that he took the proximity of gunshots to be a message that he should leave but did not mention any express instructions. As the evidence stands, leaving aside any consideration of its late submission, the Tribunal harbours considerable doubt as to its veracity. In any event, there was no material available to the Tribunal to satisfy it that the alleged incident had the applicants, or any of them, or any members of their family, as direct or indirect targets by reason of their respective religious affiliations or marriage, or at all.
This claim, as was noted throughout the hearing, was first raised at the Tribunal application. Despite this incident, should the claims in respect of it be accepted, being by far the most immediate and relevant example of the harm the applicants claim to fear, there was no mention of it in the protection visa application or (as the applicants accept) in [the principal applicant]’s interview with the delegate[3], or in a post-interview submission. Their explanation was that they gave a full narration of the incident to their former representative who, for some reason, declined to put it forward. The applicants have not provided any documentary or other material relating to their instructions to their former representative and the Tribunal is not prepared to accept without some evidence the allegations they have made against him. Mr In these circumstances, it is not satisfied that their explanation is reasonable.
[3] At the hearing, [Applicant 2] told the Tribunal that these [the principal applicant] did make these claims at his interview with the Department. The Tribunal can find no record of this and [the principal applicant], in his evidence, accepted that he had not made this claim to the delegate.
The Tribunal. being satisfied that the applicants do not have a reasonable explanation why the claim was not made or evidence was not presented before the primary decision was made, draws an inference unfavourable to the credibility of this claim, pursuant to s 423A of the Act. It is not satisfied that the incident occurred as claimed, or at all.
In her first statutory declaration, [Applicant 2] stated that:
Before my father died, a situation occurred in 2017, but I don’t have good evidence to prove it. My father was living in our family house with one of my sisters and her husband. One day the militia attacked our house. At the time I was talking with my sister on the phone. All of a sudden she said some people were in the house and they attacked her husband. She was talking with me when she said ‘Go go go. There’s someone here.’ I said ‘Who?’ Then the call was disconnected. Then I called my other sister. I said there’s something wrong in our house. She said ‘Are you sure?’ She called our sister, her husband and my father. But the men had taken the phones from them and left them to ring out. After some time (maybe a few hours) they left. They didn’t break anything but they looked for things.
My sister said they were asking about my husband. They thought he was in that house. They said we are from police or from the government but they weren’t and they asked them some questions and stayed for a few hours in the house. I knew about this after. Later I called and asked what happened.
I told our migration lawyer about this. He said ‘do you have evidence? If you don’t we can’t mention it.’ My sister took photos of the mess they left but we can no longer locate the photos.
I told my family to report the raid to police. They went to the police station near our house. They found out that the people were not from the government. They told them what happened and said what they look like. They didn’t do a police report because they were scared. It’s not safe to tell the police anything. The militia is inside the office. There are different sects within the police. The militia bring thousands of people to the police. Sometimes you ask about something but you don’t know if there with the same militia.
Neither [the principal applicant] nor [Applicant 2] raised this incident at the hearing. No reason has been proposed as to why anyone would be seeking [the principal applicant] some three years after he left Iraq. The Tribunal finds it extremely difficult to accept that the applicants’ former representative would have dismissed a claim of a current threat against them as too difficult to prove when, on [Applicant 2]’s evidence, it occurred at or about the time the protection visa application was lodged, the incident would have been fresh in the mind of her father, sister, and brother-in-law, and the claimed photographs would have been easily retrievable. Even now, it would have been possible for the applicants to obtain evidence of the incident from her relatives but there appears to have been no attempt to do so. The Tribunal does not consider the claim to be credible and considers it, rather, an attempt to show the existence of some current threat.
As the claims in respect of the intersect marriage generally, the Tribunal has considered the relevant country information. The most recent country information report of the Department of Foreign Affairs and Trade on the subject of intersect marriages in Iraq is:
No laws prevent marriage between Sunni and Shi’a couples. Such marriages have reportedly increased in prevalence as sectarian tensions reduced over the past decade, although would-be couples sometimes face opposition from their families, which in extreme cases can extend to violence.[4]
[4] Department of Foreign Affairs and Trade, Country Information Report: Iraq (16 January 2023), p 18.
This report was put to the applicants, who disputed it although they did not tender any directly contradictory material. Their representative, in her submissions, referred to the US Department of State 2022 Country Reports on Human Rights Practices[5] and Report on International Religious Freedom[6], neither of which contain material specific to intersect marriage.
[5] Iraq - United States Department of State
[6] Iraq - United States Department of State
In view of the evidence before it, and the country information, the Tribunal cannot be satisfied that the applicants, or any of them, have a well-founded fear of persecution by reason of their marriage.

100. As to their religious affiliation generally, [the principal applicant], in his 2017 statement, claimed:
Regrettably, conditions in Iraq deteriorated and Iraq is heading towards partition and sectarian disintegration. Family started to exchange houses on the basis of sectarianism i.e. a Sunni family in a Shiite zone would exchange its house with a Shiite family in a Sunni zone and vice versa. Tragically enough, the Shiite militias maintain their control over all of Iraq and its zones including the area that became Sunni according to the new partition. The militias arrest, raid, abduct and steal at will. There is no law or any other deterrent.

101. These claims were reiterated in the submissions of the original representative, with particular reference to the activities of ISIS and opposing Shi’a militias. That information is no longer current[7].
[7] See, e.g., DFAT Report op cit, p 7.
102. The most recent DFAT Country Information Report does not contain any information specific to conflict between Sunni and Shi’a populations since 2011, or as to significant risks specific to adherents to either sect, in its assessment of religion in Iraq. However, relevantly to this claim, the Tribunal has had regard to the following:
Under an informal agreement between political parties, known as the ‘muhasasa’ system, the (mostly ceremonial) presidency is reserved for Kurds, the premiership for Shi’a, and the Speaker of Parliament for Sunnis. Iraq has a 329-seat Council of Representatives, with a minimum of 25 per cent of seats reserved for women and smaller numbers for minorities. In practice, many groups besides elected authorities also exercise power in Iraq, including militias, sectarian organisations, tribes, criminal gangs, and foreign powers.[8]
[8] Ibid, pp 9 -10
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.[9]
[9] Ibid, p 11
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.[10]

To further prove that the document is genuine, I provided the other two documents related to the second letter… These two documents are referring to the ‘second letter’… I receive them together with the second letter. The handwritten notations are instructions to inform me.
These ‘second letter’ related documents were not translated previously owing to financial concerns.

121. The additional correspondence to which she referred comprise two further letters. One is from the University’s Subcommittee of Investigation and Justice, dated 29 June 2021, requesting the Dean of [deleted] to inform [Applicant 2] that she has failed to attend the scheduled interview. The other is an internal notice from the Human Resources office of the [deleted] Faculty to [another] Department, dated 7 July 2021, attaching the letter of 29 June 2021.
122. The correspondence with [messenger] that [Applicant 2] has produced does not satisfy the Tribunal that this is the reason for the lack of any contextual material. The general experience of users of messaging [apps], is that, when changing devices, this data is automatically migrated to the new device (except when changing platforms – there is no evidence as to whether this occurred). However, it is not necessary for the Tribunal to make a finding in that regard. In considering the evidence in respect of the claimed Accountability and Justice Act investigation, it is necessary to consider the context in which the investigations are undertaken. They are directed to the holding of senior bureaucratic positions, or the return to government positions following dismissal. [Applicant 2] has not claimed that she was previously dismissed from her position as lecturer at [University 2] under the Accountability and Justice Act or the previous De-Ba’athifcation regime, so it cannot be the case that the investigation is directed towards her eligibility for reinstatement or restoration of pension entitlements apparently contemplated by the regime established by Article 6 of that Act . Further, the terms of her scholarship agreement (see below) seems to contemplate that her contract at [University 2] ends on commencement of the course of study funded by the scholarship, with an obligation on the part of each of the Iraqi government and [Applicant 2] that she will, on return to Iraq, work at such institutions as are determined by the government: Second Party’s Obligations (9) and General Decrees (1) . There is no provision in the agreement for her lectureship position to be maintained. The scholarship was expressed to be for a term of three years from November 2013 (not including a course of English study); she was not awarded her PhD until 2020. There is no material in her evidence as to whether the scholarship was extended, or some of its terms varied. The Tribunal initially considered it curious that she should receive correspondence concerning the investigation through her former employer unless the relevant connection is via her scholarship. However, the two additional letters she submitted referred to her as a current member of the faculty board, which the Tribunal considers more curious given that she had been absent from the University for some eight years.
123. The Tribunal notes that [Applicant 2], as she has claimed, appears to be in breach of the terms of her scholarship. She has not produced any correspondence in respect of this. It is quite possible that the correspondence in relation to the Accountability and Justice Act investigation, should those documents be relied upon, have some relevance to the terms of her scholarship, perhaps whether she accepted the benefit of it without intending to honour its obligations. Further, if her conduct since the grant of the scholarship is not in issue, and she was under suspicion for her Ba’ath membership, it would seem unlikely that she would be favoured with the grant of a scholarship in the first place. However, [Applicant 2] has offered no evidence to assist a conclusion in this regard. The result is that there is insufficient evidence for the Tribunal to interpret the correspondence on the investigation with any confidence.
124. [Applicant 2] has not produced any correspondence or other evidence in relation to the investigation since 2021. There is no evidence before the Tribunal as to the consequences of her failure to attend an interview. There would seem to have been no attempt to contact her through her family or the embassy. Given the assessment in the ICTJ paper that a major policy of the Accountability and Justice Act is to provide for reinstatement and rehabilitation of former Ba’ath party members, and the country information that “involvement with the party did not extend beyond mere membership of the party are unlikely to face significant official or societal discrimination on the basis of party membership alone,” the Tribunal cannot be satisfied that [Applicant 2] has a well-founded fear of persecution by reason of her former Ba’ath party membership.
Secularism
125. The most recent DFAT country information report on Iraq reports the following on atheists, non-practising Muslims and religiously unaffiliated persons:
Sources told DFAT increasing numbers of young Muslims had become disillusioned with their faith, including because of atrocities carried out by Da’esh in the name of Islamic extremism. Some choose to retain their Muslim identity but abandon practices such as attending prayers and wearing hijab. Others choose to convert to religions such as Christianity or Zoroastrianism. Some become atheists. There is no official recognition of atheism in Iraq, but since atheists are generally registered as Muslim on their identity documents they are able to access the same rights and public services as other Iraqis. Atheists can reportedly often be identified by the non-Islamic names they adopt, such as ‘William’ or ‘Adam’.
Atheism is not well-accepted by conservative Iraqis. Former Prime Minister Nouri al-Maliki called atheism a ‘dangerous conspiracy’ and in 2017 a prominent Shi’a cleric, Ammar al-Hakim, called for atheists in Iraq to be confronted with ‘an iron fist’. Some activists publicly proclaim atheist beliefs, but harassment and violence against atheists by family members, religious groups and militia groups sometimes occurs. Known atheists reportedly have difficulty securing employment. Sources told DFAT they were aware of atheists being murdered by family members because of their denial of religion, but that these crimes were generally reported as ‘honour killings’ or as due to ‘refusal to obey the family’.
DFAT assesses that atheists in Iraq generally face a low risk of societal discrimination or violence, but this varies with individual circumstances. Atheists from highly religious or conservative families or communities face higher risks.[14]
[14] DFAT report, op cit, p 23

126. [The principal applicant] and [Applicant 2] did not describe their secularism in terms of being non-practising Muslims or religiously unaffiliated. Both submitted evidence to show that they are religiously observant. Their secularism is expressed as an aversion to theocratically motivated actors in Iraq and to violent sectarianism. The Tribunal is unaware of country information to the effect that holding secular views, or being imputed with such views, would give rise to a real risk of harm or a well-founded fear of persecution.
Women
127. The most recent DFAT country information report on Iraq reports the following on women:
For much of the 20th century, women in Iraq made significant progress towards equality, achieving relatively high rates of tertiary education and employment in the professions and civil service. Many of these advances were reversed in the latter part of Saddam’s rule. Since the 2003 US-led military action, armed conflict and resurgent tribal and religious influences have led to a serious deterioration in the situation of women in Iraq. While individual circumstances vary, women across the spectrum of Iraqi society are affected by issues such as high rates of domestic and gender-based violence, low rates of economic participation, unfair laws, abusive cultural practices, exclusion from decision-making and inadequate state protection.
Article 14 of the constitution guarantees equality before the law without discrimination based on gender. Nevertheless, a variety of laws discriminate against women, including in criminal, family, religious, labour and inheritance matters. In some cases, a woman’s testimony in a court of law is worth half that of a man. Female heirs inherit less, and male heirs are required to provide them financial support. While women can initiate divorce proceedings, they are not entitled to alimony, and women seeking a divorce are sometimes required to return their dowry. Fathers are automatically awarded guardianship of their children in divorce cases, although a divorced mother may be granted custody of her children until age 10 (extendable by a court until age 15), at which time the child may choose with which parent to live. Women are required by law to have the consent of a male guardian to acquire a passport. Women enjoy relatively more legal rights in the KRI than in other parts of Iraq.
Violence and insecurity often constrain Iraqi women to traditional family roles and limit their access to employment and education. Illiteracy is twice as common among women as men. Only 14 per cent of women are working or actively seeking work compared to 73 per cent of men (see Economic Overview). Women are guaranteed 25 per cent of seats in parliament but are rarely appointed to influential roles and rarely participate in the leadership of their parties. As of 2022, there were three women ministers in the 21-person cabinet. About one in 10 Iraqi households is female-headed, including by widows, divorcees and women caring for sick or disabled spouses. These women are highly vulnerable to poverty, food insecurity, displacement, eviction and sexual harassment and abuse. Single mothers and women who live alone face stigma.
…
DFAT assesses that the majority of Iraqi women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. Iraqi women and girls face a high risk of gender-based violence, including sexual assault and domestic violence, while Iraqi girls face a high risk of being forced into early or involuntary marriage. Iraqi women working to advocate for women’s rights face a high risk of violence, including targeted killings [15]
[15] Ibid, pp 29-30

The applicants have not made express claims that [Applicant 2] or their daughters face a real risk of harm or have a well-founded fear of persecution by reason of their gender. There were no express claims of having faced gender based violence or discrimination while they were living in Iraq. Their representative submitted their gender is a cumulating factor with their other claims. The Tribunal notes that the greatest risk of harm to women in Iraq arises in a domestic setting which, on the evidence, does not give rise to well-founded fears. The other substantive risk factors arise in relation to matters that were not adverted to in the claims or evidence.
Academic/scholarship recipient
128. The Tribunal notes that attacks against academics and places of learning were prevalent in areas controlled by ISIS/Da’esh prior to 2017, although there is no material to support a view that has been a recent problem in Baghdad, or that [Applicant 2] or the family would be at risk because of her academic background, or the fact that her scholarship was granted under a US-funded program. There was no material before the Tribunal to suggest that [Applicant 2] was ever targeted by reason of her occupation.
129. The most recent DFAT country information report does not contain any material specific to the risks faced by academics or students. Its 2018 report stated that it was not aware of any specific examples of academics or students being targeted, and assessed that students or academics do not risk official or societal discrimination on the basis of their employment or education either in Iraq or abroad.[16]
[16] DFAT Country Information Report Iraq (9 October 2018), p 20
130. [Applicant 2] raised the terms of her scholarship agreement as a source of concern should the family be returned to Iraq now or in the reasonably foreseeable future. This concern arises from the following clauses in the agreement:
·Second Party’s Obligations (2): Receiving a doctorate degree in [deleted], from the Australia [Australian University 1], within a period of three years, except the period of language study, starting from the date of entering the country of study … In case of her success and not coming back, she will be obliged, together with her sponsor, to pay double amount of her expenses except those of sickness proved by medical reports from a competent authority …
·Second Party’s Obligations (4): If the Second Party contravenes her undertakings, mentioned in this contract, or if she was convicted for a crime or offence, the Minister can terminate her study and applied her to return to Iraq, and she will be requested to pay double amount of money spent on her;
·Second Party’s Obligations (8): The second party is not entitled to stay in the country of her study, even on her own cost, for a period exceeding two months after finishing her study subject of this contract … given that her [extended] stay period does not exceed one year under any circumstances.
·General Decrees (3): The sums are considered under liability of the second party, as per the contract conditions, in case she fails to execute the contract and its included obligations; and one instalment will be jointly collected from her and her sponsor, according to the Act of Collecting Government Debts No. 56 of 1977; and her movable and non-movable assets can be used to cover the debt.

131. While the recovery of a multiple of the value of the scholarship might not be enforceable under Australian law (depending on its proper characterisation), there is no reason to expect that it may not be fully enforceable under Iraqi law. A question arises, although it was not expressly raised by the applicants, whether exposure to liability of this nature can constitute an instance of serious harm.

For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

133. Although the applicants have not made the claim expressly, the Tribunal has considered whether [Applicant 2]’s exposure to indebtedness by reason of the terms of the scholarship agreement might result in significant economic hardship or denial of capacity to earn a livelihood of any kind which might threaten the capacity of the applicants, or any of them, to subsist.
134. This consideration is somewhat hampered by the lack of evidence as to the quantum of the debt, the effect of such a debt on the family, the range of repayments options, and the consequences of default. As noted in paragraph 81 above, pursuant to s 5AAA of the Act, the Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
135. The Tribunal has considered whether the inclusion of this contractual term might amount to a discriminatory practice generally or to a practice that is being applied in a discriminatory way for a Convention reason. There was no evidence presented to the Tribunal as to whether such a clause is unlawful, unusual, or specifically targeted under Iraqi law. Likewise, there was no evidence presented as to whether the enforcement of such a law was applied in a preferential or discriminatory manner.
136. In circumstances where no evidence has been presented as to whether the contractual terms might be characterised as discriminatory or applied in a discriminatory manner or whether its effect would be to threaten the capacity of the applicants to subsist, the Tribunal cannot be satisfied that its existence gives rise to a well-founded fear of persecution for a Convention reason, or that any of the applicants face serious harm as a necessary and foreseeable consequence of returning to Iraq. In coming to this conclusion, the Tribunal has considered this claim individually and cumulatively with the claims concerning Ba’ath party membership and the position of women in Iraq.
Return from a Western country/failed asylum seekers
137. The applicants’ representative submitted that they, or each of them, may be imputed with certain political opinions by reason of their having been resident in Australia for some nine years.
138. The most recent DFAT country information report states, on the subject of conditions for returnees:
The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. There is considerable evidence that Iraqis who are granted protection by Western countries often return to Iraq, sometimes only months after securing residency abroad, to reunite with families, establish and manage businesses or take up or resume employment. Based on discussion with multiple sources, DFAT assesses it is highly unlikely a failed asylum seeker would face mistreatment on return to Iraq solely on the basis of his or her having sought asylum overseas.[17]
[17] DFAT report (2023) op cit, p 41

139. On the basis of the country information, and in the absence of any material to the contrary that Tribunal considers that there is no real chance that the applicants, or any of them, will suffer persecution, or that there is a real risk they will suffer serious harm, by reason of their having been resident in Australia.
Cumulative claims
140. Having considered all of the claims of each of the applicants, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicants, or any of them, will suffer persecution as a consequence of [the principal applicant]’s tribal affiliation, their religious identification, the intersect nature of [the principal applicant]’s and [Applicant 2]’s marriage, [Applicant 2]’s Ba’ath party history or her being summoned to an investigation in respect of it, their actual or imputed secular views, [Applicant 2]’s status as an academic and/or scholarship recipient, [Applicant 2] being in breach of her scholarship agreement, the gender of the female applicants, or of their being returnees from Australia, or any other reason if they return to Iraq now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if they return to Iraq. Accordingly, the Tribunal finds they do not satisfy the criterion in s 36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm?

141. The Tribunal has considered all of the claims of each of the applicants under complementary protection. In particular, the Tribunal has noted the facts and matters reported in chapters 4 and 5 of the most recent DFAT country information report, together with the evidentiary matters and the applicants’ claims described in detail above. The applicants’ representative has claimed that the applicants would be subjected to significant harm or torture, and to degrading treatment or punishment should they return to Iraq now or in the reasonably foreseeable future. However, the Tribunal has not been given evidence, other than as separately assessed above, that indicate that there is a real risk that they, or any of them, as a necessary and foreseeable consequence of being removed from Australia to Iraq, would suffer such harm now or in the reasonably foreseeable future.
142. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicants, the Tribunal is not satisfied that the applicants will be arbitrarily deprived of life, the death penalty will be carried out on him, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to Iraq now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
143. 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 of the Act.
Conclusion: Complementary Protection
144. Considering the applicants’ individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iraq, there is a real risk that they will suffer significant harm.
Overall conclusion:
145. 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).

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 not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicants satisfy s 36(2) on the basis of being a member or members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION

148. The Tribunal affirms the decision not to grant the applicant a protection visa.
James Lambie
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

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

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4879

13 February 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies