2113923 (Refugee)

2113923 (Refugee) [2023] AATA 735 (6 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Cassandra Benjamin
CASE NUMBER:  2113923
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Shahyar Roushan
DATE:6 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 06 February 2023 at 8:17am
CATCHWORDS
REFUGEE – Protection Visa – Iraq –– religion – Sunni Muslim – sexual orientation –homosexual man – actual/imputed political opinion for being pro-Western – prior employment with a company that provided services to the USA Army – mental health issues – substantial criminal record – state protection is not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36(2)(a), 65, 91, 411, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old Sunni Muslim and national of Iraq. He was born in Baghdad, Iraq. His parents are separated. His father resides in [Country 1] and his mother and one of his sisters reside in Australia. His other sister resides in [Country 2]. He has an Australian citizen daughter, born in [year].
In 2004, the applicant, his mother and two sisters fled to [Country 3], where they resided for three years. In 2007, after a short stay in [Country 4], they travelled to [Country 1] to seek protection. They were subsequently assessed to be in need of protection by the UNHCR.
On 5 January 2010, the applicant’s mother was granted a Refugee (Subclass 200) visa. The applicant and his two sisters were included in the visa as their mother’s dependants. They arrived in Australia on [date] March 2010.
On [date] August 2011, the applicant was convicted and sentenced in relation to 13 offences in Western Australia (WA), including a number of driving offences, criminal damage, stealing, being an accessory after the fact to an indictable offence, and aggravated burglary.
On 30 January 2012, the Department issued a Notice of Intention to Cancel the applicant’s visa based on character grounds. On 7 May 2012, the Department made a decision not to cancel the applicant’s visa.
On [date] April 2014, the applicant travelled to Iraq, returning to Australia on [date] May 2014.
In March, April and December 2015, the applicant was convicted of further offences in WA, including impersonating a police officer, attempting to pervert justice, possession of stolen or unlawfully obtained property, unlicensed possession of dangerous goods and a number of driving offences.
On [date] June 2016, the applicant was convicted of nine additional offences, including possession of a prohibited drug with intent to sell or supply (methylamphetamine), possession of stolen or unlawfully obtained property, assault with intent to prevent arrest of a person and further driving offences.
On 9 February 2017, the applicant’s Refugee (Subclass 200) visa was cancelled by a delegate of the Minister under s 501(3A) of the Act.
On 13 February 2017, the applicant made a request to revoke the visa cancellation, and on 26 July 2017, the Department decided not to revoke the cancellation of the applicant’s visa. The applicant was subsequently detained in immigration detention.
On 9 August 2017, the applicant applied to the General Division of this Tribunal for a review of the Department’s decision not to revoke the cancellation of his visa, and on 19 October 2017, the General Division affirmed the delegate’s decision.
On [date] July 2018, the Federal Court of Australia set aside the Tribunal’s decision. On 25 July 2018, the Minister appealed to the Full Federal Court of Australia, and on [date] December 2018, the Full Court ordered that the orders of the primary judge not be disturbed.
On 12 February 2020, the General Division, differently constituted, set aside the cancellation decision made on 9 February 2017. The applicant was released from immigration detention.
On 23 May 2018, the applicant applied for a protection visa. The applicant was interviewed in connection with his application on 14 June 2018.
On 18 September 2018, a delegate of the Minister refused his protection visa application and the applicant applied for a review of that decision to the Migration and Refugee of Division of this Tribunal.
On 1 October 2019, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.
On 10 October 2019, the applicant sought judicial review of the first Tribunal’s decision, and on [date] September 2021, the Federal Circuit and Family Court of Australia remitted the matter to the Tribunal for reconsideration. The matter was subsequently constituted to the present Tribunal (the Tribunal) pursuant to the order of the court.
Between August 2020 and February 2022, the applicant was convicted of a string of offences, including stealing a motor vehicle, selling/supplying prohibited drugs, possession of prohibited drugs and drug paraphernalia, common assault in circumstances of aggravation or racial aggravation, and domestic violence offences. He was also convicted of breaching a family violence restraining order.
Since 5 July 2022, the applicant has been held in various correctional facilities in WA.
On 2 March 2022, the applicant’s Refugee (Subclass 200) visa was again cancelled under s 501(3A) of the Act. On 16 March 2022, the applicant made a request for the visa cancellation to be revoked.
CLAIMS AND EVIDENCE
Protection visa application
In his protection visa application, in response to questions in relation to why he did not wish to return to Iraq, the applicant made the following claims.
He left Iraq due to the war and because he was kidnapped, tortured and shot in the leg. He still bears the scars. He was kidnapped because he worked with the US Army. He is unable to seek help as there is no one there to help him. All his family members are in Australia.
He is Sunni Muslim, but he lived in a Shia area in Baghdad. If he were to return to Iraq, he will be killed. The government will also force him to work for the Iraqi Army and fight against ISIS. The country situation is very bad, and the government is unable to protect him.
The interview
As noted above, the applicant attended a telephone interview with the Department on 14 June 2018. The interview was conducted with the assistance of an interpreter in the Arabic and English languages. Where relevant, the applicant’s oral evidence to the delegate is referred to in the Tribunal’s analysis below.
Following the interview, the applicant submitted a handwritten letter (undated) from his mother, [Ms A]. In her letter [Ms A] stated that it is not safe for her son to return to Iraq as he has no family there. She stated that she would like her son to live with her as she is ill and alone because her daughters are married and busy with their children. Her son has been in the prison for a long time, and he has learned from his mistakes. She will help him to get married and start a new life.
The delegate’s decision
The delegate accepted that the applicant is a Sunni Muslim and that he fears being harmed for the reason of his religion. However, the delegate did not accept that there is a real chance that the applicant will be personally subjected to serious harm for the reason of his Sunni faith in Iraq as he would be returning to a predominately Sunni suburb of Baghdad. The delegate did not accept the applicant’s claims of past employment with the US Army or that he was harmed for that reason. Nor did the delegate accept the applicant’s claims that he will be forced by the Iraqi government to join the Iraqi Army to fight ISIS. The delegate did not accept that the applicant faces a real chance of serious harm or a real risk of significant harm if returned to Iraq.
THE REVIEW
On 19 September 2018, the applicant applied for a review of the delegate’s decision. The applicant was represented in relation to the review by Mr Rohan David Thwaites from the Refugee & Immigration Legal Centre.
The first Tribunal
On 15 March 2019, Mr Thwaites made a submission to the first Tribunal outlining the applicant’s history on fleeing Iraq, seeking asylum and his migration history in Australia.
Mr Thwaites reiterated the applicant’s claims to the Department in relation to his kidnapping by Sunni extremists in 2007 and submitted that the reason the applicant believed that he was kidnapped was due to his name being a Shia name and that the extremists believed that he was a Shia man. The applicant was held captive, beaten, and a ransom was demanded before he was released.
It was further submitted that the applicant is a homosexual man, and prior to being incarcerated in 2015, he was in a sexual relationship with a man named [Mr B].
In addition, Mr Thwaites submitted that the applicant has been diagnosed with post‑traumatic stress disorder, depression and anxiety. The submission noted that the applicant has committed acts of self-harm in detention, most recently in January 2019, and that he sees mental health professionals in detention. It was submitted that there is a risk that the applicant will be subjected to serious discrimination by the authorities in Iraq, as well as members of the Iraqi community, due to the state of his mental health, which will cause him significant economic hardship threatening his capacity to subsist. He will also be denied the capacity to earn a livelihood of any kind, where that denial threatens his capacity to subsist.
It was submitted that the applicant fears ‘direct targeted serious harm’ and ‘direct and indirect threats’ to his life or liberty that amount to ‘serious harm’ from the Iraqi authorities, religious extremist groups and general members of the Iraqi community on the basis of his religion as a Sunni Muslim and his actual/imputed political opinion for being pro-Western and against religious extremists due to his previous employment with contractors employed by the US Army and living in a Western country. He is also at risk for the reason of his sexual orientation, his profile as a failed asylum seeker or returnee from a Western country.
Mr Thwaites stated if the applicant were to return to Iraq he would be compelled to act discretely and modify his appearance and profile to hide his sexuality, his moderate religious views and previous employment with contractors of the US Army to avoid serious harm. Alternatively, there is ‘more than a remote risk’ that the applicant will suffer significant harm if removed to Iraq. It was submitted that state protection is not available to the applicant, and he would not be able to relocate to avoid the harm he fears.
In support of the submission, Mr Thwaites referred to a number of country information sources in relation to the treatment of homosexuals in Iraq.
On 18 March 2019, Mr Thwaites made a further submission and forwarded a detailed statutory declaration by the applicant, also dated 18 March 2019. In his statutory declaration, the applicant provided the following information:
2. I have been diagnosed with mental health conditions, including post‑traumatic stress disorder and depression. Because of the things that have happened to me in the past, I sometimes get confused about dates, and the order and detail of events.
My protection visa interview
3. I do not specifically remember having a Protection visa interview. I remember in [detention centre] one man called me and asked questions about a visa and another time a woman called me and asked me about my fears about going back to Iraq. I expected my Protection visa interview to be done in person, as that is what other detainees told me occurs, so I did not think that either of these calls were an interview.
4. I have had a lot of legal proceedings due to the cancellation of my visa. I have had many meetings with lawyers, court appearances and discussions with immigration and Serco. I get confused about who I have spoken to about what.
5. I also talk to many people on the phone. I speak people on the phone from detention regularly. I feel like there are often officers calling me and asking me questions. I don't read and write English well. I like things to be done in person, not over the phone, as it makes it easier for me to understand what is happening.
Family and Background
6. I was born and grew up in Baghdad. I lived there until about the age of [age] when I left for [Country 3] with my mother and sisters. My mother, [Ms A], was a [occupation] and my father, [name], worked with [Employer 1], I don't know exactly what his role was.
7. I grew up with my two elder sisters, [Ms C] and [Ms D]. My mother and [Ms C] are Australia citizens. [Ms D] is an [Country 5] citizen and Australian Permanent Resident. She is a [occupation] and lives in Perth with her husband and son. [Ms C] lives in [Country 2] with her husband and their son. My mother lives in Perth. My father is living in [Country 1] with his second wife and their family, but I do not speak to him often.
8. Growing up in Baghdad we had a good life. My sisters and I went to school and we had many uncles, cousins and grandparents, who we would visit regularly. My grandparents are all dead now.
9. My parents separated when I was young. My dad was abusive to my mum and to me. My mum took me to live in [Country 4] with her brother for a little while.
Decision to leave Iraq
10. At some point, around the time Saddam Hussein's regime fell, we moved back in with my dad in Baghdad. He continued to abuse my mum, so she left him again.
11. My family also began to receive threats at this time. Our neighbours, who had been living next to us for years and were our friends, were Shia and they told us about these threats. I do not remember or know in detail what happened because I was so young at the time. I do remember one time my father spoke to our neighbours and came back looking worried.
12. Because of the generally unsafe security situation in Iraq and the threats my family was receiving, in 2004 my mother decided to take me and my sisters to [Country 3].
Life in [Country 3] and kidnapping
13. In [Country 3], my younger sister [Ms C] and I went to school and [Ms D] studied elsewhere.
14. We only ever received visas to stay in [Country 3] for three months at a time. As a result, every three months we would need to cross back over the border into Iraq and then return back in to [Country 3]. Sometimes on these occasions I would go to Baghdad and stay at the house where my uncle and grandmother lived.
15. Their house was in the [Neighbourhood 1] neighbourhood, which was a dangerous place at that time. In early 2007 I was staying there and I decided to go out to buy a cake. The cake shop was also located in [Neighbourhood 1]. When I was in the street a car parked next to me and men came out of it. I was wearing expensive clothes from [Country 3], so I think that is why they would have noticed me. They abducted me. I showed them my ID and they saw my name is [name] and thought that I was a Shia. I tried to tell them that I am Sunni, but they did not believe me.
16. They took me to a house in Baghdad and started hitting me in the face with a gun. The kidnappers called my uncle and he told them that I am Sunni. My uncle named the Sheikhs and people in the neighbourhood who were prominent Sunni's and told the kidnappers that they could confirm that we are Sunni people. The kidnappers believed I was Sunni but still wanted money from my family. They demanded $10,000 US. My uncle and grandmother managed to get the money and the kidnappers released me. Very soon after this, I flew from Baghdad back to [Country 3].
Move to [Country 1]
17. Soon after this incident occurred, in June 2007, we moved to [Country 1]. It was becoming too hard to go back and forth to Iraq, and it was not safe to keep going back. My mother called me and my sister from Baghdad and told us to meet her and [Ms D] in [Country 1]. My mother and [Ms D] flew from Iraq to [Country 1] and [Ms C] and I flew from [Country 3] to [Country 1].
18. We [were] registered as refugees. After some time, we were relocated to live in a small [town]. My family waited there for three years, until we were granted refugee status in 2010.
Travel back to Iraq from [Country 1]
19. I only stayed in [Country 1] for a short time after we first arrived, maybe a month or two. I made contact with someone who told me that he was working in the Green Zone in Iraq for a company called [Company 1] and was making good money. He told me he could get me a job, so I moved back to Iraq to work for them.
20. The Green Zone was a United States Army base, which was connected to the international airport in Baghdad. My role included [details deleted]. As part of this I would sometimes [do specified work]. It was a varied job and we would sometimes work through other companies as well. [Details deleted].
21. We weren't supposed to leave the Green Zone unless it was part of a mission for work, but sometimes I would sneak out. The US soldiers would sometimes ask me to get them food or alcohol or souvenirs from elsewhere in Baghdad, so they would let me leave to do that.
22. While I was outside of the Green Zone in my own time, I would sometimes visit my uncle [and] grandma in [Neighbourhood 1]. His neighbours would see me visiting him and they would ask him what I did. I think his children, my young cousins, might have told them that I was working for the US Army.
23. I also helped out with interpreting sometimes for the US Army while I was living in the Green Zone. A company [officially] did the interpreting. But when they weren't available, for example at times when an Iraqi would approach us on the street when I was with a US soldier, I would help with interpreting because I spoke English.
24. One day I was driving a motorbike through [Neighbourhood 1]. There was a protest, and a tree blocking the road so I couldn't drive further. There were Iraqi and US soldiers and police. I went up to the soldiers and told them I needed to get through. They were arresting a man. A woman came up to us and she pulled a gun and shot me in the leg. I think she saw thought that I was working with the soldiers. The soldiers took me back to the Green Zone and I was treated in hospital.
25. After some time I had largely recovered from my injury and tried to go back to work. I experienced a lot of mental health issues after this incident. I had dreams about the woman and did not feel well. That was a very dangerous time in Iraq and I saw a lot of horrible things while I was on the streets of Baghdad.
26. I have attached two photos from my time working in Iraq for [Company 1]. One of these photos shows me standing next to one of the armoured cars [we] would use. The other shows me wearing my identity badge at the house of a senior military person who invited us for lunch. I am carrying a gun because all employees carried a gun for self-defence.
27. After I had been in Iraq for about a year, my mother contacted me and told me that the Australian embassy might interview us for a visa soon and I should come back to [Country 1].
28. Soon after I got back to [Country 1] I went to the Australian embassy for an interview with [Ms C] and my mother. In 2010, we received visas for Australia. Sometime before this, [Ms D] had been accepted as a refugee in [Country 5] and moved there; she was over 18 so was able to apply to go to [Country 5] separately from the rest of our family.
My return to Iraq in 2014
29. My mother, sister [Ms C], and I arrived as refugees in Australia, arriving in Perth in March 2010.
30. In the following years, I had problems with drugs and the law and I spent some time in prison.
31. In around early 2014, I was charged with some offences, including impersonating a police officer.
32. After the charges were laid, two detectives came to my house and said they wanted to take me for lunch. They told me they would drop some of the charges arising from this incident and help me to avoid gaol if I worked with them as an informant to assist with arresting drug dealers I knew. I would meet with the detectives quite regularly during this time, sometimes more than once a week, and give them information about some of these people.
33. Later in 2014, the detectives told me that they were going to arrest the drug dealers. They told me that I needed to go away, because if I was there when the others were arrested, the police would have to arrest me as well. And if I made an excuse not to be there on the day they were arrested, that would also look suspicious. So a week the arrests were going to happen I told them I was going to Iraq to see family. The police gave me $4,600 in cash which I used to book the flights and as spending money in Iraq.
34. I only felt safe to go back to Iraq because I stayed with my mum's sister [and] her husband, [who] was a [government employee] and lived in the Green Zone. I barely left the Green Zone while I was in Baghdad, because it would not have been safe.
35. While I was in Baghdad I got married to a woman named [Ms E]. I have attached photos of this. I had not met this woman before. The wedding was organised by my mother from Australia and her sister, without my knowledge. I did not want to marry this woman. I am gay and I was in love with my partner [Mr B] at the time. I was not happy at the wedding. I tried to leave several times. I left Baghdad soon after the wedding and have not been in contact with her since.
36. When I got back from Iraq the people I had been informing on had been arrested and taken to jail. When I went to court in 2015 for the offending that had led to me being an informant, some of the charges against me were dropped and I was ultimately convicted of impersonating a public officer and perverting the course of justice and given an 18 month intensive supervision order.
My Sexuality
37. I am gay. I did not realise I was gay until after I arrived in Australia. When I was [age] or [age] years old I did start to feel confused about my sexuality. When I would watch videos with attractive women in them, I would not feel anything. I did not know that I was gay, but I felt like something was not right. So, when I was younger and lived in Iraq and [Country 3] and [Country 1] I did not feel strongly attracted to men, but I did not feel attracted to women either.
38. After I arrived in Australia I would meet up with women and go out with them, but I would not get excited about it. I dated and had sex with two or three women but I did not enjoy it, it did not feel right. I would get excited when I was around men. I felt like something was wrong with me but I wasn't sure what it was. When I would be out with other men drinking, I would feel attraction to them.
39. One night, I was out at a club in Perth and I saw a [man]. His name was [Mr B]. We started talking and drinking with each other and we exchanged numbers. I felt different around him, different to how I had felt with anyone else. We got to know each other and he invited me to his house and we had sex. This was some time in 2013, I think from what I can see on my [social media] we were together by April 2013. I was attracted to [Mr B] because he had a good heart, was funny and was attractive with nice skin and hair.
40. I would stay a lot at his house and we would go out together, including to gay clubs. When I stayed at [Mr B]'s, I would tell my mum that I was staying at my friend's house because I did not want her to know that I was with a man. He worked at a [workplace]. We would do the kinds of things couples do, we would go out for meals together and spend time with his friends.
41. Being with [Mr B] was the first time I was with a man. As I said I had been confused about my sexuality, but I did not know I was gay. It was not until I was with [Mr B] that I was sure I was gay. So in a way it was quite a sudden realization. I was worried about my family finding out, but I was excited and relieved to know who I was. I have attached photos of us out together.
42. In 2015 I went to prison. [Mr B] and I broke up because we couldn't be together while I was in prison; I did not want him visiting and people knowing I was gay and he needed to move on with his life.
43. I have not been with other men in prison or detention. I do not want other detainees, and did not want other prisoners, to know I am gay. In prison I was close friends with another gay man named [name].
My reasons for not raising my sexuality earlier
44. I have not told my family that I am gay. They are very strict Muslims and I don't want them to know. I fear that they will stop talking to me and have nothing to do with me if they know I am gay. My mother is not well and if she were to find out I am gay I am scared it would give her a heart attack.
45. I have not said that I am gay during my previous appearances in the AAT or criminals courts because my family has been present or it has not been relevant.
46. I did not mention that I am gay when I first applied for a Protection visa because I did not want anyone in detention finding out. When I received the form for a protection visa from my case manager in [detention centre], I took it to another detainee who helped people with writing things in English. This detainee helped a lot of people with forms, and had I told him about being gay everyone in the detention centre would have known. There is a lot of discrimination in detention by other detainees and guards - people will yell out things like 'fag'. So I did not mention it.
47. As I said above, I do not specifically remember having a Protection visa interview. When I have conversations on the phone with ABF and people from the Department there are usually guards in the same room as me, or otherwise nearby and able to hear me. Because I don't want them knowing about me being gay I have not previously mentioned it during any conversations.
Mental health
48. I have been diagnosed with PTSD, depression and anxiety. When I was in the community I used to attend counselling. I am still affected by these things. I still see mental health nurses almost every day in detention. I want to keep getting treatment for my mental health issues. I do not take medication; they gave me medication a while ago, but it made me drowsy so I do not take it anymore.
49. I have harmed myself several times while I have been in immigration detention. Most recently, in January 2019, I [harmed myself] and was hospitalized.
Fears on return
50. I cannot go back to Iraq. I will not be able to live as a gay man in Iraq. I will have to hide who I am and would not be able to have a relationship with a man …

The following documents were also provided by the applicant’s representative:
·A statutory declaration, declared by the applicant’s mother on 18 March 2019. In her statutory declaration, [Ms A] stated that she was born and grew up in Baghdad. She was a [occupation] and her husband worked for [Employer 1]. She had three children. Her husband was abusive. She left her husband and went to [Country 4] after the fall of Saddam Hussein to live with her brother for one year. In 2003, she returned to Baghdad to live with her husband who remained abusive. Her husband started to receive threats due to his occupation. In 2004, she took the children and moved to [Country 3]. As she could only stay three months at a time on a tourist visa, she would return to Iraq every three months to renew their visas. She recounts the kidnapping incident that her son endured in 2007 whilst in Baghdad. After the kidnapping incident she decided to go to [Country 1] in 2007 to seek asylum. Her son returned to Iraq and she knew that he did some work connected to the US Army. In 2010, together with her daughter and son, they travelled to Australia.
·A statutory declaration, declared by [a named person] on 16 March 2019, in which [she] stated that she saw the applicant at nightclubs in Perth and observed him to be always with a guy named [Mr B]. She witnessed them kiss and assumed they were in a relationship and that he was gay.
·Progress notes prepared by [a], psychiatrist, dated 22 November 2017, diagnosing the applicant with [a] disorder.
·Photographs of a scar on the applicant’s leg, purportedly from a gunshot wound, as well as photographs of the applicant at his wedding in Iraq in 2014, and photographs of the applicant with his former claimed partner, [Mr B].
In a covering submission, Mr Thwaites reiterated that the applicant’s mental health condition is relevant to the assessment of whether lesser forms of harm would meet the requisite level of harm under s 5J(4) or significant harm under s 36(2A), whether it would be reasonable in the sense of practicable for the applicant to relocate, and issues of demeanour and assessment of the material in particular inconsistences or material omissions in regard to the applicant’s evidence. Mr Thwaites contended that the applicant’s mental health should be taken into consideration when the applicant gives evidence at the hearing.
Mr Thwaites also noted that the applicant has explained his marriage in paragraph 35 of his statutory declaration and also advises that the ‘progress notes’ of psychiatrist [dated] 22 November 2017 refer to the wrong date of the wedding.
On 23 April 2019, Mr Thwaites forwarded to the Tribunal a screenshot from the website of [a venue] in WA as evidence of the club being a gay venue and a [social media] screenshot of the applicant and his previous partner, [Mr B].
On 9 August 2019, Mr Thwaites forwarded a further statutory declaration, declared by the applicant’s mother, detailing the abuse she suffered by her ex-husband and that her husband currently resides in [Country 1]. [Ms A] provided a list of family members who continue to live in Iraq and the nature of her relationship and contact with them. She stated that the applicant had stayed with one of her sisters in the Green Zone when he returned to Iraq in 2014, but her siblings never treated the applicant well and none of her siblings would let the applicant stay with them when he was working for the Americans. Due to this, the applicant had to stay at her mother’s house. She expressed concerns for the applicant’s safety should he return to Iraq.
The first hearing
The applicant appeared before the first Tribunal on 14 August 2019. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s representative was also present. Where relevant, the applicant’s oral evidence to the first Tribunal is referred to in the Tribunal’s analysis below.
Following the hearing, Mr Thwaites made submissions on 2 September 2019 addressing the concerns raised by the first Tribunal at the hearing. Mr Thwaites also forwarded two medical reports. The first, issued by [a] Hospital on 21 May 2019, stated that the applicant has a history of [self harm] in January and February 2019. The second report, authored by [a named doctor] on 10 March 2018, diagnosed the applicant with PTSD and antisocial personality traits. Mr Thwaites noted that attempts to obtain further psychiatric evaluations for the applicant for the purposes of his protection visa application have been unsuccessful largely due to the applicant’s limited financial resources. In his submission, Mr Thwaites refers to a number of academic articles and other information in relation to [the] disorder.
On 4 September 2019, Mr Thwaites forwarded to the first Tribunal a letter from Ms [F], a friend of the applicant. [Ms F] stated in her letter that she and the applicant had met on [social media], and she developed feelings for him. He revealed to her, however, that he is gay. [Ms F] stated that the applicant had an ex-partner ‘[Mr B]’ and that he was suffering from ‘trauma’ after the relationship ended. [Ms F] further stated that the applicant’s mother was unaware of his sexual orientation.
On 5 September 2019, Mr Thwaites submitted further evidence in relation to the applicant’s mental health, including letters and records of medical consultations in relation to the applicant’s mental health disorders. It was submitted that the applicant would not be able to obtain specialist or any meaningful mental health treatment in Iraq, placing him at risk of suffering harm.
The first Tribunal’s decision
On 1 October 2019, the first Tribunal affirmed the Department’s decision to refuse to grant the applicant a protection visa. The first Tribunal did not accept that the applicant had worked [for] a private company that was engaged by the US military in Iraq. The Tribunal also rejected the applicant’s claims in relation to his sexual orientation. The first Tribunal found that the applicant is not a homosexual male and that he has manufactured this evidence so that he could strengthen his claims to remain in Australia in circumstances where his protection visa application was refused by the Department. The first Tribunal did not accept that the applicant was forced into marrying his ex-wife in 2014 or that there is a real chance he will face serious harm in Iraq because he abandoned his wife and left her in Iraq. In relation to the remainder of the applicant’s claims, including having visible tattoos, his religious beliefs, his father’s employment in Saddam Hussein’s government, his mental health, being a failed asylum seeker, and sectarian violence, the first Tribunal found that there is no real chance or a real risk that the applicant will face serious or significant harm if removed to Iraq.
Judicial review
On [date] September 2021, the Federal Circuit and Family Court of Australia remitted the matter by consent to the Tribunal for reconsideration. The matter was remitted on the basis that the first Tribunal had failed to have regard to the evidence of two witnesses, being evidence which was corroborative of the applicant’s claim to be homosexual. The reasons for remittal also noted that the first Tribunal’s conclusion of ‘inconsistency’ between the applicant’s 2014 marriage and his claimed homosexuality was unreasonable as it had been an arranged marriage and it was accepted that such arranged marriages were not uncommon, making the fact of the marriage irrelevant to the question of the applicant’s sexuality.
The present Tribunal
Pre-hearing submissions
On 15 July 2022, the applicant’s new representative, Ms Cassandra Benjamin, submitted further additional circumstances of the applicant, including that he is in a committed same‑sex relationship with an Australian citizen, Mr [G], and that he now has a daughter, [name], born on [date]. [She] is an Australian citizen by birth. Ms Benjamin submitted that the child’s conception was a result of a substance‑affected one-night stand and that the applicant is not and has never been in a relationship with the mother of his child. Ms Benjamin stated that the applicant has not yet met his daughter in person, but he is pursuing his legal rights to develop a relationship with her.
Ms Benjamin forwarded to the Tribunal a statutory declaration by [Mr G], dated 14 July 2022. In his statutory declaration, [Mr G] stated that he and the applicant met in [Prison 1] and their same-sex relationship started when they were inmates. He was remanded in late June 2021 and the applicant helped him by showing social and emotional support in prison, given his ([Mr G]’s) sexual orientation and shyness about it. He and the applicant both had to keep their relationship a secret in prison. He was released on [date] February 2022, but his relationship with the applicant continued despite being apart. He has supported the applicant with his Family Court application to get visitation rights for his daughter. He makes efforts to be in contact with the applicant via [social media] and to visit him in prison. He fears for the applicant’s life if he returns to Iraq because of his sexual orientation.
The second hearing
On 22 July 2022, the applicant attended an initial hearing via telephone. Ms Benjamin also attended the hearing via video. Due to connection issues, the applicant was unable to participate for the duration of the hearing. The Tribunal nevertheless used the hearing as an opportunity to explain to Ms Benjamin the determinative issues and timeline for further submissions to be provided to the Tribunal.
On 2 September 2022, Ms Benjamin forwarded to the Tribunal a further statutory declaration by the applicant, dated 1 September 2022. The applicant provided the following additional information in his statutory declaration.
He fears returning to Iraq because of his prior employment with a company that provided services to the USA Army, his father’s work with the Ba’ath Party, his divorce, his mannerisms, and beliefs as part of his behaviour adopted while in Australia, his mental health issues, not being a strict Muslim and his sexuality.
He is in a new homosexual relationship with Mr [G]. He remains in contact with [Mr G] as he has been released from prison. He and [Mr G] talk over the phone a number of times a day. [Mr G] visits him in prison as often as possible. He worries about his relationship with [Mr G] should he be forced to return to Iraq. [Mr G] is Australian and could not live in a same-sex relationship with him in Iraq; he is also a foreigner in Iraq subject to dangers.
Initially he did not feel safe disclosing his sexuality openly in the detention centre and at the protection visa interview for fear of being discriminated against by other inmates and wanted to avoid exacerbating his suicidal tendencies at that time. He also feared being heard by the guards and being mocked.
He currently has a Family Court case to get access rights to his daughter. He slept with his daughter’s mother under the influence of drugs. He always wanted to be a father and decided to stay close to the mother to access his child. The mother has filed for a family violence restraining order. He and the mother have never been in a relationship.
He had been diagnosed with PTSD and a personality disorder. He has made arrangements to be admitted into a rehabilitation program for six months [to] treat his drug abuse. He is also in a counselling program [which] he participates in weekly. If he returns to Iraq, he will experience stress and anxiety because he would leave his partner and daughter behind in Australia and he would not be able to be himself and would be in danger.
His marriage in 2014 was arranged by his mother. He was in a relationship with his ex‑partner [Mr B] at the time and he did not want to marry ‘[Ms E]’. He provided the first Tribunal with wedding photos showing him to be unhappy at the ceremony. He did not stay with his new wife after the wedding ceremony but ran away to Australia on his wedding night. He called [Ms E] to say he was divorcing her and that he granted her permission to do the paperwork. He heard that his ex-wife remarried a few months after he left her. His ex‑wife’s family were angry and threatened him because they felt humiliated.
He considers himself a Christian now. He was never a strict Muslim. After he was released from detention in 2020, he occasionally attended a church [with] a friend, and later a [different church]. He converted to Christianity ‘mentally and privately by watching baptism videos’.
In June 2020, he was arrested and charged with drug offences. He had become an ice addict through his dealings with the mother of his daughter. On [date] January 2022, he was sentenced to two and a half years’ imprisonment in relation to the 2020 drug charges. With time served, he was eligible for parole in June 2022, but this has been denied because of his immigration status as his permanent visa was again cancelled in March 2022 following these convictions.
In February 2022, he was found guilty of seven counts of breaching a family violence restraining order and he was fined.
Ms Benjamin also submitted the following additional documents to the Tribunal:
·Copy of record of phone calls from [Prison 1], showing phone calls to [Mr G]’s number between March and July 2022.
·Copy of prison visit records from [a] Prison, showing that the applicant was visited by [Mr G] on 11 occasions between March and July 2022.
·Copy of an email from [a] Foundation to the applicant’s inbox and Ms Benjamin stating that the last counselling appointment the applicant attended was on 15 November 2021.
·Copy of psychiatric report from [a named doctor], dated 9 January 2020.
·Copy of a letter from Detective [name deleted], dated August 2022, confirming the applicant’s assistance to WA police for a period of six months between 2020 and 2021.
·Copy of a letter from Mr [G], dated 3 June 2022, reiterating his commitment to his relationship with the applicant and his support for him once he is released.
In her covering submissions, Ms Benjamin reiterated the applicant’s claims as detailed in previous submissions. Ms Benjamin stated that the applicant has now renounced Islam and has accepted Christianity and will face harm as an apostate if he is to return to Iraq. Ms Benjamin submitted that the applicant originates from a Sunni Muslim family and will be perceived as a Sunni Muslim by Shia militants who are otherwise not aware of his conversion. Additionally, the applicant is at risk of being mistaken as a Shia Muslim due to his name.
Ms Benjamin referred to Departmental policy in relation to the applicant’s delay in disclosing his sexual orientation in his earlier protection visa interview and submitted that the applicant delayed raising these claims because he did not feel comfortable disclosing his sexual orientation in a public setting, being a room in the detention centre with Serco guards present. Ms Benjamin submitted that the applicant is currently in a relationship with [Mr G].
Ms Benjamin referred to previous communication in relation to the circumstances that led to the birth of the applicant’s child and submitted that the child’s mother used the applicant’s ‘desire to have a child to manipulate and control him and reacted violently and angrily when he could not give her the relationship she wanted’. She submitted that the existence of the child does not mean the applicant is not homosexual. Ms Benjamin further stated that the applicant’s past marriage in 2014 was forced upon him and that it did not mean the applicant is not homosexual.
On 9 September 2022, Ms Benjamin wrote to the Tribunal and advised that the applicant’s mother has been diagnosed with dementia and that the applicant has indicated that he now wishes to take care of his ill mother once he is released from detention or prison.
The third and the fourth hearings
Due to the applicant’s concerns regarding his ability to give oral evidence to the Tribunal in private from the particular correctional facility where he was being held at that time, and in view of the applicant’s state of mental health and the sensitive nature of his claims, the Tribunal made special arrangements for the applicant to be brought to a courtroom at the Federal Court of Australia on 12 September 2022 to give evidence and present oral arguments. Unfortunately, due to certain security-related policies governing prisoners in WA, the applicant was unable to give oral evidence to the Tribunal without WA corrective services officers being present in the courtroom. The Tribunal did not consider it appropriate to proceed in circumstances where the applicant would have felt hampered or restricted in his ability to disclose his claims openly. Before adjourning the hearing, however, the Tribunal took oral evidence from [Mr G].
Following this hearing, the applicant provided a further statutory declaration to the Tribunal, dated 20 September 2022. In his statutory declaration, the applicant stated the following:
2. I am very frustrated and disappointed that my hearing could not proceed before the Tribunal because the prison guards would not leave the room for me to speak confidentially.
3. My partner, [Mr G], was able to give evidence to the Tribunal. I wish to clarify a few matters raised from his evidence.
4. I understand that the Member questioned [Mr G] as to why he believed that our relationship was genuine. [Mr G] confirmed that we began a physical and emotional relationship on my birthday [in] 2021. I had no reason to engage in a relationship with [Mr G] other than because of my genuine attraction and desire to be with him. I could not fake my physical attraction to him or be intimate with him unless this was genuinely how I felt. My visa status and protection claims were not a consideration in this relationship. At the time [Mr G] and I started our relationship I still held my permanent visa. I was on remand at the time and right up until I was sentenced on [date] January 2022, my lawyer and I believed that I would be given a suspended sentence. It never occurred to me that my visa would be cancelled again since the Australia government had already gone through so many processes with me and had given me my visa back. Further, the Tribunal had accepted that I was gay in my most recent decision so my sexuality was not something I thought I had to prove again. I really had no thought to my visa status at that time.
5. I did not provide details of the other man, [Mr H], who I had physical relationship within prison because he was a violent, obsessive person who stabbed me and who I no longer have any contact with. He is a bad person. It was a bad relationship and I knew I had to end it. It had ended before I started a relationship with [Mr G] but when [Mr H] saw that [Mr G] moved in my cell and he knew [Mr G] was gay this is when he threatened [Mr G] and stabbed me. He is the reason we had to move [Mr G] out of my cell in order to protect [Mr G]. The last time I saw [Mr H] was when I moved to [a] prison as he was in [Prison 1]. I don’t know where he is now. In my first experience with the Tribunal, my relationship with [Mr B] was questioned because he could not come as a witness for me and the evidence I had from that relationship was not thought to be enough. Since I no longer had anything to do with [Mr H], I didn’t think that it was worth mentioning him as he was another person who could just be dismissed as not being believed. Instead, I focused on providing the Tribunal with details of my relationship with [Mr G] which I could evidence to the Tribunal since we are currently in a relationship.
6. I understand that [Mr G] was asked about my religion and he said that I am of Muslim background and that I had a prayer mat and Quran in the cell when we shared it. I understand that [Mr G] explained however that I did not pray and that I am not a strict Muslim and do not follow the religion, primarily because I do not associate myself with many of the strict Muslim beliefs like opposing homosexuality.
7. [Mr G] knows that I do not follow Muslim beliefs. He saw me eating a ham sandwich in the prison at Christmas and I told him that I don't believe in things like that I will go to hell if I eat pork. But religion is not something that is important to [Mr G] and it is not something we ever spent time discussing. We spoke instead about topics that were important to both of us, about our future; what we would do about working, about drug rehabilitation, about his offending, my offending, about my life story, about not offending in the future, about rehab, about parole, about my daughter, about his court case, about my court case. We were writing letters, he was helping me with my family mediation, helping me write letters [for] rehabilitation. Now when he comes to visit me, we talk about how I am going in prison, the visa cancellation, my family court, how he is going settling back into life outside of prison. When I call him, it costs me almost $3 for every 10 minutes so we don't talk about things that are not important to us like religion.
8. The only reason I had a prayed mat and Quran in prison is because I am listed as a Muslim on the intake form. If you are listed as a Muslim then these items are automatically sent to you by the Chaplancy. I do not like discussing my confidential personal affairs like my sexuality and religion with people generally and I do not want to have issues with other Arab inmates if they heard that I am Christian not Muslim so I have not asked for this to be changed with the prison. Muslim inmates also get halal food, which is better in prison as it is individual serves rather than the food that is cooked for thousands.
9. Although it is not a discussion that I had with [Mr G], I do consider myself a Christian and it is something that I want to have more time and opportunity learning and practicing once I am out of prison.

The Tribunal also received the following documents:
·Copy of Family Court of Western Australia case information affidavit by the applicant, dated [date] July 2022 and filed on [date] July 2022, stating that he was in a de facto relationship with [name] (child’s mother) from August 2020 to January 2021. It also stated that the mother of the child reacted ‘very poorly to the father’s revelation that he was gay and expressed disgust at the idea of her child spending time with and being raised in any way by a gay man’ and refers to the child’s mother being ‘disgusted at his [the applicant’s] sexual orientation’.
·Copy of Department of an Individual Management Plan for the applicant, dated 6 September 2022, confirming that he receives regular visits from ‘his partner who resides in East Perth and that he utilises the Prisoner Telephone System to maintain contact with his partner …’
On 14 November 2022, the Tribunal was advised by Ms Benjamin that the applicant has been transferred back to [Prison 1] where secure and confidential videoconferencing facilities are available for use by inmates. She stated that the applicant would be able to undertake a hearing with the Tribunal in a confidential setting in one of these rooms.
On 19 December 2022, the applicant appeared before the Tribunal via video from [Prison 1]. Ms Benjamin also attended the hearing by video. The applicant was assisted by an interpreter in the Arabic and English languages, but he chose to give evidence in English and did so without difficulty. Where relevant, the oral evidence given to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
In its decision of 1 October 2019, the first Tribunal raised credibility concerns in relation to a number of key protection claims made by the applicant, namely his contracting work in Iraq, his fear of his ex-wife’s family in Iraq and his sexual orientation. Whilst the present Tribunal continues to share the credibility concerns raised by the first Tribunal in relation to the first two claims, in view of the new evidence presented by the applicant, it has come to a different conclusion in relation to the applicant’s claims regarding his sexual orientation.
The first Tribunal was particularly concerned in relation to the applicant’s delay in raising the claim that he is a homosexual man, as well as the nature of the evidence presented in support of the claim. The first Tribunal noted that the applicant did not raise this claim in his protection visa interview or when his Refugee (Subclass 200) visa was cancelled on character grounds, including when he appealed the Department’s cancellation decision to the General Division of the Tribunal.
As noted further above, the applicant’s permanent visa was cancelled by a delegate of the Minister under s 501(3A) of the Act. The visa was mandatorily cancelled on character grounds due to the applicant’s substantial criminal record and because he was serving a sentence of imprisonment. The applicant sought revocation of the decision to cancel his visa and in July 2017 a delegate of the Minister decided not to revoke the cancellation decision. That decision was affirmed by the General Division of this Tribunal in October 2017. That decision was subsequently set aside by the Federal Court of Australia and on [date] February 2020, the General Division, differently constituted, set aside the delegate’s decision and substituted a decision to revoke the cancellation decision.
In setting aside the cancellation decision, after considering new evidence, including taking oral evidence from and cross-examining witnesses who had previously only submitted written statements in support of the applicant’s application for review of the decision to refuse his protection visa application, [Member 1] accepted that the applicant is ‘a homosexual man with a western history and suffering mental health issues [and] would be placed in a very difficult and dangerous position in Iraq’. In his decision record, [Member 1] stated:
66.   A significant amount of time at this hearing was devoted to the question as to whether the applicant is a homosexual. The applicant gave oral and written evidence that he was gay and that he had a previous homosexual relationship in Perth in 2013 and 2014. Photos of the applicant with his previous male partner from [social media] were provided which tendered to support the applicant’s claim to being a homosexual. Further support was provided from the written and oral evidence of two witnesses called for the applicant who were cross-examined. One of these witnesses knew the applicant from around 2013 and 2014 when they frequented the same nightclubs and she saw the applicant with his partner and saw them kiss. The other witness has known the applicant through [social media] since August 2018 and she gave evidence that he had told her he was gay and that he had spoken to her about his ex-partner.
67.   The respondent contended that I should reject the applicant claims of homosexuality as a recent invention primarily because they were raised for the first time shortly before the hearing of the protection visa application. The respondent also said the claims were inconsistent with the applicant getting married in Iraq in 2014. I note that the Tribunal in the MRD decision rejected his claims of being a homosexual on these grounds amongst others.
68.   I heard the oral evidence from the applicant in which he detailed his feelings and relationship with respect to his homosexual partner. I am prepared to accept this evidence and the evidence from the two witnesses. I consider that there is an adequate explanation for the matters that cast doubt as to the claims of being a homosexual. For example, it was an arranged marriage participated in unwillingly and which only lasted a matter of weeks. Further, the applicant considered that his sexual preference did not need to be disclosed in order for him to succeed in the proceedings before the Tribunal, and it was only when he had a trusted lawyer that he decided to disclose it as part of the protection visa application and these proceedings. The applicant did not want his family to know about his homosexuality (they still do not know), and he did not want his sexuality disclosed to anyone for fear of reprisal from other detainees.
The Tribunal attaches significant weight to the conclusions drawn by [Member 1] in relation to the applicant’s previous homosexual relationship based on the evidence before him. Having carefully considered the applicant’s written evidence and his oral responses to the present Tribunal’s questions at the fourth hearing, the Tribunal accepts his explanations in relation to his marriage in 2014, namely that the marriage was arranged by his mother, and he had felt compelled to accede to her wishes due to forceful cultural reasons and his own circumstances at that time.
The Tribunal, nevertheless, remains troubled by the applicant’s sexual relationship, albeit short‑lived, with the mother of his child in 2020. In his written submissions, the applicant stated that he had slept with his daughter’s mother under the influence of drugs. He always wanted to be a father and decided to stay close to the mother in order to have access to his child. He also claimed that he and the mother of his child have never been in a relationship and the fact he has a daughter does not prove he is not homosexual. In her pre-hearing submissions, Ms Benjamin stated that the child’s conception was a result of ‘a substance affected one-night stand’ and that the applicant is not and has never been in a relationship with the mother of his child. At the fourth hearing, the applicant claimed that he was ‘forced’ into the relationship. He was doing drugs with the mother of his child, and she wanted to have sex. These claims appear to contradict the information provided by the applicant in an affidavit filed with Family Court of Western Australia on [date] July 2022, stating that he was in a ‘de facto relationship’ with his daughter’s mother from August 2020 to January 2021.
No persuasive explanation has been offered by the applicant’s various and contradictory accounts of the nature or duration of his relationship with [his daughter’s mother]. Nevertheless, the Tribunal is mindful of the very personal nature of matters of sexual orientation and how one’s experiences with these issues may be influenced by or vary according to a range of factors. Having carefully considered the totality of the applicant’s evidence, the Tribunal has formed the view that, on balance, the evidence in relation to his sexuality outweighs any doubts that his relationship with the mother of his child may cast on his claim to be homosexual. In reaching this view, the Tribunal has placed substantial weight on [Mr G]’s evidence regarding his relationship with the applicant. The Tribunal found [Mr G] to be a reliable witness, and his evidence, which was entirely consistent with his written statements and the applicant’s own evidence in this regard, to be credible and persuasive.
The Tribunal, therefore, finds that the applicant identifies as a gay man. The Tribunal accepts that he was previously in a same-sex relationship with [Mr B] and that he is currently in a same-sex relationship with [Mr G]. The Tribunal accepts that this relationship commenced when they were both inmates in the same prison and has continued following [Mr G]’s release from prison last year. The relationship appears to have been acknowledged by the prison authorities in WA.
The most recent DFAT Country Information Report in relation to Iraq provides the following assessment in relation to ‘sexual orientation and gender identity’:
3.121 Harassment, abuse and violence against lesbian, gay, bisexual, transgender and/or intersex (LGBTI) people, and people perceived as being LGBTI, are pervasive in Iraq. While the law does not criminalise consensual same-sex sexual conduct between adults, Article 394 of the Criminal Code prohibits sexual relations outside marriage, effectively criminalising all same-sex sexual activity. Authorities have also used public indecency or prostitution charges to prosecute LGBTI people.
…
3.123 Individuals perceived to be LGBTI often face abuse and violence from their families and communities. Sources told DFAT that most Iraqis perceived having an LGBTI son or daughter as ‘shameful’. Family responses to disclosure could range from home confinement, expulsion from home or forced marriage, to violence including assault or murder …
3.124 LGBTI people are vulnerable to harassment and violence by security forces, including state-sponsored militias, as well as non-state armed groups. A number of perceived gay men or transgender individuals were murdered during the Da’esh occupation, including by being thrown from buildings. In 2022, Human Rights Watch published a 115-page report detailing dozens of rapes, beatings, kidnappings and murders perpetrated against LGBTI people by armed groups in Iraq. State protection from such attacks is inadequate or non-existent. LGBTI people also sometimes face denial of employment and services, including health care, and bullying or exclusion from education.
3.125 Most LGBTI people in Iraq are extremely careful to hide their activities and relationships in order to avoid harassment and violence. While some use online dating apps and/or actively proclaim their sexual orientation or gender identity online, doing so is dangerous. There are numerous reports of LGBTI people being targeted on the basis of their online activity.
3.126 DFAT assesses that LGBTI individuals in Iraq face a high risk of official discrimination in the form of arrest, harassment and violence by security forces and state-sponsored militias. They face a high risk of societal discrimination, including sexual harassment and denial of employment, education and health services, and a high risk of family and community violence.[1]
[1] DFAT, DFAT Country Information Report – Iraq, 16 January 2023.
Based on the above information, the Tribunal finds that if the applicant were to return to Iraq and practise his sexuality openly, or at the same level as he has done in Australia, there is a real chance that he would face significant discrimination, harassment and violence. The Tribunal finds that the applicant would not be able to live openly as a homosexual in Iraq. Whilst it may be possible for him to practise his sexuality in Iraq by being discreet, the Tribunal cannot expect the applicant to take reasonable steps to avoid the persecutory harm he fears, or to live ‘discreetly’ to avoid such harm.[2]
[2] Appellant S395/2002 v MIMA (2003) 216 CLR 473.
Having carefully considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Iraq, there is a real chance that he would face threats to his life or liberty, significant physical harassment and/or significant physical ill-treatment. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act.
The evidence before the Tribunal indicates that homosexuals or gay men in Iraq share innate characteristics fundamental to their identity that make them distinguishable from the rest of the society. The Tribunal accepts that homosexuals or gay men form a particular social group in Iraq within the meaning of s 5L of the Act. The Tribunal finds that the applicant is a member of this group. The Tribunal is satisfied that the essential and significant reason for the persecution feared by the applicant is his membership of the particular social group of homosexuals or gay men in Iraq. The Tribunal finds that effective state protection against the harm the applicant fears is not available to him in Iraq. The Tribunal is satisfied that the real chance of persecution relates to all areas of Iraq. The Tribunal, therefore, is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. Section 36(3), therefore, does not apply.
In view of the above findings, the Tribunal does not consider it necessary to assess the other protection claims arising from the applicant’s evidence. It is relevant, however, to note that s 36A of the Act provides that, in considering valid protection applications, the Minister must consider and make a record of whether a non-citizen satisfies any of the criteria listed relating to the refugee or complementary protection criteria under the Act. Section 36A(1)(a) provides that the Minister must consider whether the non-citizen satisfies the refugee criterion (under s 36(2)(a)) and the criterion under s 36(1C) of the Act. Section 36(1C) requires the Minister to be satisfied that the non-citizen is not a person who the Minister considers, on reasonable grounds, is a security risk or a danger to the Australian community.
On the material before the Tribunal, there may be a basis for the Minister, or a delegate, to decide that the applicant does not meet the criterion in s 36(1C) because, having been convicted of a particularly serious crime, he is a danger to the Australian community. The delegate did not make any record relating to s 36(1C) because he or she was not satisfied that the applicant met the criterion in s 36(2)(a). The Migration and Refugee Division of this Tribunal does not have the jurisdiction to determine issues relating to s 36(1C).[3] Therefore, whilst the Tribunal is satisfied that the applicant meets the criterion in s 36(2)(a) of the Act, no findings have been made in relation to s 36(1C) of the Act.
[3] See ss 411(1)(c) and (d) of the Act.
DECISION
The Tribunal remits the matter for consideration with a direction that the applicant meets s 36(2)(a) of the Migration Act.
Shahyar Roushan
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
(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 735

6 February 2023

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Immigration

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