2114248 (Refugee)

[2022] AATA 5027

2114248 (Refugee) [2022] AATA 5027 (7 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Mohamed Al Jabiri (MARN: 9803754)

CASE NUMBER:  2114248

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Shahyar Roushan

DATE:7 December 2022

PLACE OF DECISION:  Sydney

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

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

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

Statement made on 07 December 2022 at 2:30pm

CATCHWORDS

REFUGEE – protection visa – Iraq – Federal Circuit Court remittal – imputed political opinion – opposition to extremist groups – religion – apostasy – secular views – criticisms on social media – imputed atheist views – fear of killing – fear of Muslim fundamentalists – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 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 dependants.

STATEMENT OF DECISION AND REASONS

Background

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 February 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

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

3. The applicant arrived in Australia [in] December 2014 as a dependant on his wife’s [Student visa] granted on 28 September 2014. The applicant’s wife, [named], came to Australia to complete [studies].

4. On 10 December 2015, the applicant applied for a Protection visa. His two children were included in the application as members of the same family unit and did not make their own separate claims for protection. [The applicant’s wife] was not included in the application and has not submitted any claims for protection. [The applicant’s wife] currently holds a [temporary] visa, granted on 28 January 2022. The applicant and [his wife] have another child, who was born in Australia in [year] and is also not included in his father’s Protection visa application.

5. On 28 February 2017, a delegate of the Minister refused the application for a Protection visa. The applicant applied for a review of the delegate’s decision and a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision on 30 June 2020.

6. [In] July 2020, the applicant applied to the then Federal Circuit Court of Australia for a review of the first Tribunal’s decision and [in] September 2021, the Court remitted the matter to the Tribunal to be determined according to the law.

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

   Claims and Evidence

   Protection visa application

8. According to his Protection visa application, the applicant was born in Kufa, Najaf, Iraq and resided at a single address in [a location in] Iraq before coming to Australia. His parents and [specified family members] continue to reside in Najaf.

9. After obtaining a [degree] from [named university], the applicant was employed by [Employer 1] in 2005. In 2009, he began working as [an occupation 1] at [Employer 2]. In 2014, he was granted leave to travel to Australia with his wife.

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

11. His parents are ‘very open-minded’ and hold views different to the majority of the population in the area where they resided. His father was employed as [an occupation 2] at the [Employer 2] in Najaf and his mother was [an occupation 3]. His family were known as ‘the educated family’ and held views against the ‘new extremism’ in Iraq. As a result, they were perceived to be ‘infidels and against the Islamic system’ and received threats aimed at stopping them expressing their views.

12. [In] April 2004, his father was shot because of his ‘opposition to the radical parties and their performance’. His father survived the attack and the applicant continued to receive threatening phone calls, warning him that he would be ‘eliminated’ along with his father. The applicant was frequently threatened due to his ‘crucial criticism [of] Shi’a Muslims’.

13. At university, he always expressed his views on human rights issues and his objections to new radical groups that had appeared after the collapse of Saddam Hussein’s regime. After graduating, he expressed his views at his workplace and amongst relatives and friends. Otherwise, he maintained a low profile to protect his own safety and that of his family. He could not freely exercise his right to express his views.

14. In 2012, he travelled to [Country 1] as [part] of [a named] Committee of [Employer 2]. He stayed in [Country 1] for two weeks but did not seek protection as he had to provide ‘assurance to the government’ and the security situation in Iraq was reportedly improving.

15. After he returned to Iraq from [Country 1], he noticed that he was being monitored. He was threatened by militias and ‘representatives of religious parties’ at his workplace and was ‘provoked daily’ by ‘extremists’ to express his views to provide them with a pretext to harm him. His fear of harm affected his mental health and he had to choose between remaining silent or being killed for expressing his views. Although his father encouraged him to remain silent and not to express his views, he criticised religious parties and the Iraqi government on [social media platforms].

16. He continues to actively express his views on [social media], exposing the corruption of the government and militias. As he holds strong secular views, he has been identified by ‘extremists’ as being against Islam, putting him at risk of being killed. Despite living in Australia, an individual named [name] has made threats against him through his father.

17. His father has resigned from his job due to concerns for his safety and has moved residences to avoid being harmed by militias.

18. He cannot return to Iraq as ‘militias associated with the authorities’ would ‘eliminate’ him for the reason of his political opinion, his ‘moderate’ Shi’a faith and for ‘disobeying the aims and performance of the radicals in my country’.

    The interview

19. The applicant attended an interview with the Department on 23 November 2016. He was assisted by an interpreter in the Arabic and English languages. The applicant’s former migration agent, Mr Baker Al Musawi, also attended the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.

20. Following the interview, Mr Musawi submitted to the Department copies of screenshots and a translation of messages received by the applicant on [social media], including a message from sender ‘[name]’ referring to being visited by members of the ‘fighting groups and the militias’, who threatened her son (the applicant) for speaking about Al-Hashd and militias; a threatening message to the applicant, and a message referring to ‘[a named person]’ and making threats against the applicant’s father, grandfather and sister.

    The delegate’s decision

21. On 28 February 2017, a delegate of the Minister refused the application on the basis that the applicant has a low profile, having expressed his views amongst his friends, family, his co-workers and on his [social media] page in the past. The delegate noted that persons who hold secular views are not targeted in Iraq and the threats he had received in the past do not indicate that he and his family would face harm in Iraq. The delegate was not satisfied that the applicant faces a real chance of persecution in Iraq or that there is a real risk that he will suffer significant harm if removed from Australia.

    The review application

22. On 27 March 2017q, the applicant applied for a review of the delegate’s decision.

23. On 6 August 2019, Mr Musawi made a submission to the Tribunal in support of the application for review, reiterating the applicant’s claims for protection. Mr Musawi submitted that the applicant fears being harmed in Iraq by Shi’a militias due to his secular views, criticism of Shi’a militias and his position as [a profession]. He has continued to express his views on [social media], which is viewable by members of the public, including co-workers and associates who have links to Shi’a militia and/or political parties. In February 2015, a religious man and two armed men went to his parents’ house threatening to harm him upon his return to Iraq if he did not cease expressing his views on [social media]. He has also received threatening messages on [social media] from unknown senders.

24. Mr Musawi submitted that the applicant’s wife did not wish to be included in his Protection visa application as she believes she is not of interest to the militia and has no fear of harm in Iraq. She is planning on returning to Iraq upon completion of her studies in order not to cause financial hardship for her [financial] guarantors. The reason the applicant’s wife travelled to Iraq in March 2016 was to see her father before he passed away from illness.

25. Mr Musawi referred to a number of news articles and reports, including from the Department of Foreign Affairs and Trade (DFAT) and the UK Home Office in support of his submissions.

    The first hearing

26. The applicant appeared before the first Tribunal and presented oral evidence at a hearing held on 13 August 2019 (the first hearing). Where relevant, the applicant’s oral evidence at that hearing is referred to below. 

27. Following the hearing, Mr Musawi submitted a document containing hyperlinks to 82 posts on the applicant’s [social media] page, including photographs, reposting of other posts and commentary by the applicant, as well as screenshots (with English translations) of threatening [social media] messages sent to the applicant.

    First Tribunal’s decision

28. On 30 June 2020, the first Tribunal affirmed the delegate’s decision. The first Tribunal accepted that the applicant had received threatening messages via [social media]. It found, however, that the applicant was not a high-profile activist who came to the attention of the militias or the Iraqi government such that he would be at risk of harm. The first Tribunal also found that the country information before it did not support the applicant's claim that someone who expressed views on their [social media] page and talked to friends and family about secular political beliefs would face a real chance of serious harm on that basis. In addition, the first Tribunal did not accept that the applicant will face a real chance of serious harm for the reason of his real or imputed political opinion as a secular Shi'a Muslim, for the reason of his father’s political opinion or because of his membership of the particular social group of ‘civilian activists’. The first Tribunal found that the applicant would not face a real chance of serious harm as a returnee or a failed asylum seeker from a Western country, or for having real or imputed secular views as a consequence of having spent time in a Western country. Accordingly, it found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act and that he is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Judicial review

29. [In] September 2021, the Federal Circuit and Family Court of Australia remitted the matter to the Tribunal for reconsideration on the basis of the first Tribunal’s failure to consider the distinct claim of apostasy raised by the applicant as a separate claim and not merely as an inferred subset of the expression of secular beliefs or political opinion.

    The second hearing

30. On 14 October 2021, the applicant appointed Dr Mohamed Al Jabiri as his new representative.

31. On 14 July 2022, the applicant attended an initial hearing via video. Dr Al Jabiri also attended the hearing. The applicant was assisted by an interpreter in the Arabic and English languages. At that hearing, the Tribunal explained to the applicant the procedural history of his case, the determinative issues and timeline for further submissions to be provided to the Tribunal.

    Submissions to the Tribunal

32. On 17 August 2022, Dr Al Jabiri made submissions to the Tribunal, referring to a number of reports in relation to the situation in Iraq. He also provided the following additional documents:

    ·Statutory declaration declared by the applicant, reiterating his claims for protection and stressing that Iraqi society considers him a ‘disbeliever, unreligious and one who does not comply with religious instructions. They insist that I repent and desert disobedience’.

    ·Statutory declaration declared by [the applicant’s wife] on 11 August 2022, stating that she and the applicant separated in 2015. Her husband has been ‘widely accused of unbelief, heresy, deserting Islam, infidel and apostate’ because of his secular principles. Due to this, he has been encountering trouble and difficulties with the Iraqi Islamist political community and Muqtada Al-Sadr’s group which puts him at risk of being killed. [The applicant’s wife] stated that she is obliged to honour her contract with [her financial guarantors] as she will be fined $[amount] if she does not comply with her contract or refused to return to Iraq. She further stated that when she previously travelled to Iraq it ‘was not that dangerous’ as she wore a ‘heavy veil’.

    ·Copy of an agreement between the applicant and his wife, dated 16 September 2015, stating that they had separated on 16 September 2015 and that their children ‘will remain in Australia or anywhere else but not be returned to Iraq if their mother decides to return back to Iraq after completing her studies’.

    ·Letter from the President of [Community Organisation 1], [Mr A], dated 17 August 2022, stating the applicant visited his office on 10 September 2015, expressing concerns in relation to the accusations levelled against him by radical Islamist groups, Muqtada Al Sadr’s group, and others in Iraq that he is an infidel and apostate. [Mr A] stated that the applicant had asked him to visit his family in Iraq in 2019, however he could not do so as his relatives told him that the area was under the control of Muqtada Al-Sadr’s militia and that he also received news from the applicant’s family that any visitor to their house will be questioned. [Mr A] stated that the applicant’s father is away from his family as he still feels that his life is in danger and that he has sent a message to the applicant stating that it is not safe for him to return to Iraq.

    The third hearing

33. On 31 August 2022, the applicant appeared before the Tribunal in person in Perth, accompanied by Dr Al Jabiri, to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B]. Where relevant, the oral evidence given to the Tribunal is referred to below.

34. In addition to his oral evidence, the applicant submitted supportive statutory declarations from [four named persons].

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

35. 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.

36. 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.

37. 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).

38. 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.

39. 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

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

    Analysis, reasons and findings

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

42. The applicant has provided detailed written and oral evidence to the Department and the Tribunal over the course of seven years. He has provided consistent evidence throughout this period and the Tribunal found the applicant to be a credible and reliable witness.

43. The delegate accepted the applicant’s protection claims as presented to the Department. The first Tribunal also accepted that the applicant has secular views and is critical of elements of the Iraqi government and the militias operating in Iraq. The first Tribunal further accepted that he has posted material that is critical of militias and some elements of the Iraqi government on [social media] and that he has expressed similar views to friends and family in Iraq. Nevertheless, based on the country information available to it at that time, the first Tribunal concluded that a person who expresses secular political views on their [social media] page or to friends and family would not face a real chance of serious harm or a real risk of significant harm on that basis in Iraq.

44. The present Tribunal, however, has reached a different conclusion on the basis of more recent country information and other evidence before it.

1. The Tribunal accepts that the applicant holds secular views and believes that politics should be strictly separate from religion and that neither the state nor any group should impose religion upon the population. The Tribunal accepts that the applicant’s beliefs and convictions are genuine and strong. The Tribunal accepts that he holds views critical of Shi’a militias, religious figures and elements of the Iraqi government. The Tribunal further accepts that the applicant has expressed these views to family, friends, co-workers and online. The Tribunal accepts that the applicant had refrained from expressing his views more widely in Iraq in order to avoid harm.

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

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

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

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

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

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

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

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

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

   [4] Ibid.

   [5] Ibid.

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

   [6] Al-Monitor, Iraqi courts seeking out atheists for prosecution, 1 April 2018, cited in EASO, COI Query (Q66), 11 April 2018, Washington Times (The), Atheists in Muslim world: Silent, resentful and growing in number, 1 August 2017, cited in cited in EASO COI Query, ibid.

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

Humanists, atheists and secularists are the focus of particularly pernicious repression. There is a pattern of impunity or collusion in violence by state actors against the non-religious. They are considered to be ‘apostasizers and blasphemers’. The Iraqi Penal Code criminalises blasphemy with up to three years imprisonment. Members of other faiths and those identifying as agnostics, atheists, humanists are not able to record their faith identity on national ID cards.[8]

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

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

Nowadays, many messages also come from politicians or clergy, who see secularists and atheists as enemies of the state and traitors to God. More and more often in the media there are statements calling for the pursuit of such people and punishing them... Iraqi authorities and the Muslim clergy recognize such individuals as frustrated people who use Western ideas to destabilize the society and its culture. They are perceived as heralds of the sexual revolution and the destruction of tradition.[9]

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

Al-Monitor reported in April 2018 that arrest warrants were issued for four Iraqis for ‘atheism’ by the judiciary in the Garraf district of Dhi Qar province. According to the Garraf chief judge speaking to Iraqi local media, the local court administration ‘has tasked intelligence agencies with cracking down on the “atheism phenomenon” and that the crackdown is in accordance with the Iraqi Penal Code’.[10]

[10] Al-Monitor, n6, above.

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

they are morally corrupt, or that they are but agents and operatives of foreign entities, such as Zionists or Masons, among others. This negative perception might be expanded among some to include all those who call for liberalism or secularism, who would be looked at with suspicion and portrayed as members of global Masonic networks that have come to Iraq to destroy its values and social constructs.[11]

[11] Al-Monitor, n2, above.

According to Al-Monitor, there ‘are many Iraqi websites and blogs that cater to atheists, but they all keep their membership lists secret for fear of being persecuted or killed by extremist religious militias and groups, or even by ordinary citizens on the street’.[12] An article by Your Middle East refers to opinions that many atheists in Iraq could be at danger from extremists and militias linked to religious groups, if they express their views too openly and that religious militias often take matters into their own hands, even though being an atheist in Iraq is not a crime.[13] In June 2020, Humanists International reported that the organisation had received over 45 requests for assistance internationally, 7% of which came from Iraq, reporting abuse, ostracism or difficulty in finding employment for perceived atheists.[14]

[12] Ibid.

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

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

In relation to social media activities, in its most recent Country Information Report in relation to Iraq, DFAT assessed that ‘ordinary citizens who make social media posts on controversial topics are also at risk of retribution, which may include violence or the threat of violence.’[15] Significantly, on 4 October 2021, the Republic of Iraq Supreme Judicial Council posted the following statement on its website:

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

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

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

It was taken into account that each union concerned with the readable and visual media has a representative in the committee to ensure the participation of the technically competent union in the violation in addition to representatives from the competent security authorities.[16] (emphasis added)

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

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

The Tribunal accepts that the applicant has continued to express perceived secularist views, as well as views critical of the militias and the Iraqi government to friends, acquaintances and at certain gatherings in Australia. The Tribunal accepts that he has also continued to express these views on his [social media] page. The Tribunal accepts that his posts have been viewed by persons other than his family and friends in Iraq and that he has received online threats as a consequence. The Tribunal finds that the applicant will continue to express his views if he were to return to Iraq and that the only reason he would seek to limit or restrict the expression of his views is his fear of harm. The Tribunal further finds that there is a real chance the authorities, including militias associated with elements of the Iraqi state will become aware of his [social media] posts and social media activities if he were to return to Iraq.

Having carefully considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Iraq, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Iraqi authorities, militias or members of the public. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his real or political opinion and his imputed religion. The Tribunal finds that effective state protection against the harm the applicant fears, is not available to him in Iraq. The Tribunal is satisfied that the real chance of persecution relates to all areas of Iraq. The Tribunal finds that the applicant has a well-founded fear of persecution in Iraq.

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

The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

decision

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

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

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

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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