2113923 (Refugee)

This matter concerned an application for review of a decision to cancel the applicant's Refugee (Subclass 200) visa. The applicant, who is a Sunni Muslim and identifies as a homosexual man, claimed he feared harm if returned to Iraq due to his religion, his past employment with a company servicing the US Army, and his sexual orientation. He also raised concerns about his mental health and a substantial criminal record. The Tribunal, presided over by Shahyar Roushan, was required to determine whether the applicant faced a real risk of significant harm upon return to Iraq, considering both the Refugee Convention criteria and complementary protection obligations.

The Tribunal considered the applicant's claims regarding his Sunni Muslim faith, his alleged past employment with US Army contractors, and his sexual orientation. While the delegate had accepted the applicant's fear for his religion, they did not accept a real chance of serious harm, noting he would return to a Sunni-majority suburb. The delegate also rejected claims of past employment harm and the assertion that the Iraqi government would force him to fight ISIS. The Tribunal noted that it shared previous credibility concerns regarding the applicant's employment and fear of his ex-wife's family, but found new evidence warranted a different conclusion regarding his claims of sexual orientation. The Tribunal also considered the applicant's mental health issues and criminal record in its assessment of risk.

The Tribunal concluded that the decision under review should be remitted for reconsideration. This was primarily due to new evidence presented by the applicant concerning his claims about his sexual orientation, which led the Tribunal to a different conclusion than the first Tribunal. The Tribunal acknowledged the applicant's delay in raising this claim and the nature of the supporting evidence, but ultimately found it sufficient to warrant further consideration. The Tribunal applied the principles of s 36(2)(a) and s 36(2)(aa) of the Act, considering both refugee and complementary protection criteria, and took into account relevant Ministerial Directions and guidelines. The decision was remitted for reconsideration based on the updated assessment of the applicant's claims.